How Notions of Professional Independence Constrain Lawyers

• Author: Mikki Weinstein
• Position: J.D., Georgetown University Law Center (expected May 2023); B.S., Queens College (2018)
• Pages: 1183-1194

How Notions of Professional Independence

Constrain Lawyers

MIKKI WEINSTEIN*

INTRODUCTION

In November 2020, the D.C. Bar Rules of Professional Conduct Review

Committee (“the D.C. Bar Committee”) issued a set of proposed changes to the

D.C. Rules of Professional Conduct (“D.C. Rules”). These changes were meant to

address client-generated engagement letters and outside counsel guidelines dictating

the terms of relationships with counsel.

1

Committee Invites Comment on Proposed Rules Changes Relating to Client-Generated Engagement

Letters and Outside Counsel Guidelines, D.C. B. (November 13, 2020), https://www.dcbar.org/news-events/

news/committee-invites-comment-on-proposed-rules-change [https://perma.cc/RBS5-8WUA].

These changes included five general

amendments meant to ensure greater lawyer independence. As laid out in the Bar

Committee’s draft report, the proposed amendments would:

�Amend Rules 1.7 and 5.6 to remove the . . . open-ended permission for a

lawyer and client to expand the scope of what constitutes a conflict of inter-

est under the D.C. Rules, except where broader coverage is required by

other law;

�Amend Rule 1.8 to prohibit a lawyer from proposing or accepting condi-

tions that impose liability on a lawyer that is broader than the liability

imposed by statute or common law;

�Amend Rule 1.16 to make clear that a lawyer may retain copies of client

files, including the lawyer’s work product, but may not use that work prod-

uct in other matters if the Rules’ confidentiality provisions prohibit such

use;

�Amend Rule 1.6 to make clear that a lawyer is not only permitted, but obli-

gated, to use general (i.e., not client-specific) knowledge gained in the

course of a representation for the benefit of subsequent clients; and

�Amend Rule 1.16 to provide that where a lawyer has agreed that her client

may make unilateral changes in the terms of a representation, the lawyer

may withdraw if the client makes a material change to which the lawyer is

unwilling to assent.

2

D.C. B. RULES OF PROF’L CONDUCT REV. COMM., D.C. B., DRAFT REPORT PROPOSING CHANGES TO THE

D.C. RULES OF PROFESSIONAL CONDUCT RELATING TO CLIENT-GENERATED ENGAGEMENT LETTERS AND

OUTSIDE COUNSEL GUIDELINES (NOV. 2020), https://www.dcbar.org/getmedia/47f95789-27ca-4369-bbf4-

3cab2097c32e/Draft-Report-on-OCGs-for-comment-11-12-2020-FN [https://perma.cc/6AY9-DZHA].

* J.D., Georgetown University Law Center (expected May 2023); B.S., Queens College (2018) © 2022,

Mikki Weinstein.

1.

2.

1183