HWG Ethics & Malpractice Group Client Alert

By: Courtney Miller, Rachel E. Grossman, Julienne Pasichow, and Thomas B. Mason

Several proposed changes to the D.C. Rules of Professional Conduct are pending before the D.C. Court of Appeals. On April 7, 2025, the court issued an order accepting, with some minor modifications, one set of amendments proposed in February 2020 by the D.C. Bar Rules of Professional Conduct Review Committee. See Order No. M284-24 (D.C. Apr. 7, 2025) (“Order”). The changes affect Rules 1.1, 1.6, 3.8, 4.4, and 5.3. Rule 3.8 addresses special responsibilities that pertain to prosecutors, so we address those last. The amendments to the other rules address two high-level topic areas: issues implicated by the use of technology and outsourcing legal and nonlegal work. We summarize the amendments, by rule, below.

*    The embedded links below should direct you to the page of the D.C. Court of Appeals’ order with redline showing the amendment. To use that functionality, you may need to disable an extension in your browser or otherwise troubleshoot. 

D.C. Rule 1.1

Rule 1.1 addresses the duty of lawyers to provide competent representation. The amendments do not alter the text of Rule 1.1, but revise one comment and add two new comments that further clarify what it means to provide competent representation with sufficient skill and care.

The revision to Comment 5 clarifies that competent handling of a matter includes the use of “procedures” and “technology” that “meet the standards of competent practitioners.” It expresses a principle long-accepted by ethics opinions and the comments to ABA Model Rule 1.1 that lawyers must keep abreast of changes in “technology” (such as cloud computing and generative AI) and technology-driven “procedures” (such as many courts’ adoption of e-filing).

The court also approved two new comments to Rule 1.1 that relate to outsourcing legal work. The court rejected the ABA Model Rule’s requirement that lawyers ordinarily must seek informed consent before retaining or contracting with a lawyer not associated with the lawyer’s firm. Instead, Comment 6 to D.C. Rule 1.1 requires that clients be informed of the use and nature of the other lawyer’s services and the identity of the other lawyer; the client’s consent is not per se necessary, nor are the formal requirements of “informed consent” as defined in Rule 1.0(e). Also, consistent with D.C. Ethics Opinion 284, Comment 6 “generally” does not require informing the client if the retained or contracted lawyer is hired to conduct document review, digest depositions, provide translations, or perform similar services. The comment also notes that the lawyer must reasonably believe that retaining outside lawyers will contribute to competent and ethical representation and delineates some circumstances that bear on the reasonableness of that decision.

Newly added Comment 7 relates to when a client directs the lawyer to work with other lawyers outside of one’s firm—a circumstance not directly addressed by the ABA Model Rules. Lawyers are advised to seek agreement with the client about the identity of the additional lawyer(s) and the division of responsibility among counsel. The comment notes that, in matters pending before a tribunal, obligations of the tribunal might impact the allocation of responsibility. Additionally, where the client’s direction does not contribute to the competent and ethical representation of the client or materially changes an existing agreement between the lawyer and the client, the lawyer should inform the client and may withdraw under Rule 1.16.

D.C. Rule 1.6

Rule 1.6 addresses the duty of lawyers to keep client information confidential—specifically to avoid knowingly using or revealing client “confidences” (i.e., information subject to the attorney-client privilege) and “secrets” (i.e., information that the client has “requested be held inviolate” or would be embarrassing or detrimental if disclosed). The court made two important changes to Rule 1.6 and declined to make one other.

Subsection (f) requires lawyers to exercise reasonable care to prevent colleagues and “others whose services are utilized by the lawyer” from disclosing or using confidential information. The court updated that subsection to add that lawyers must exercise reasonable care to prevent “the unauthorized access to confidences or secrets of a client.” Order at 15. This expands the scope of Rule 1.6 beyond disclosure and use to include unauthorized access, and brings D.C. into closer alignment with ABA Model Rule 1.6(c).

The obligation to prevent unauthorized access speaks to the use of technology to transmit and store client information that is protected by Rule 1.6. Updates to Comment 40 flesh this out. First, that comment now clarifies that safeguarding confidential information requires lawyers to take reasonable precautions in both the transmission and storage of such information. It also adds two factors that the ABA Model Rule requires in assessing the reasonableness of such precautions: the cost of the security measures and the difficulty in implementing safeguards. Lastly, Comment 40 clarifies that, after a representation has begun, a client may not unilaterally dictate security measures more stringent than those required by Rule 1.6.

Additionally significant was the court’s decision not to update D.C. Rule 1.6 to provide an exception permitting a lawyer to reveal confidential information when checking conflicts with a prospective employer. While the newly adopted ABA Model Rule 1.6(b)(7) explicitly speaks to this circumstance, the court agreed with the Committee’s observation that D.C. Ethics Opinion 312 already sufficiently addresses lateral conflict checks1 and its recommendation that a new exception to Rule 1.6 is not advisable.

D.C. Rule 4.4

Rule 4.4(b) addresses another issue that typically arises through the use of technology—a lawyer’s ethical obligation when in receipt of inadvertently sent materials, particularly inadvertent productions, that the lawyer knows were inadvertently sent. That provision caused some confusion about whether a lawyer receiving such materials has different duties when the sender is an adversary or another lawyer or individual. The court concluded that there is no difference between the two scenarios and clarified, through minor edits to Comment 2, that the obligation is not limited to materials sent by adverse parties or opposing counsel.

In addition, Rule 4.4(b) only addresses a lawyer’s obligation when the lawyer knows material was inadvertently sent before examining it. In practice, however, a lawyer frequently will not realize that the material was inadvertently sent until after starting to read the material and sometimes not until the lawyer finishes reviewing the document. The court added subsection (c) to address this: When a lawyer realizes that material relating to the representation of a client was inadvertently sent after beginning to examine it, the lawyer must stop examining it and take the same actions required by subsection (b): notify the sending party and abide by the sending party’s instructions regarding the return or destruction of the writing. In this way, D.C. Rule 4.4 continues to place more stringent requirements on lawyers’ review of inadvertently sent information than the ABA Model Rule.

The edits to Comments 3 and 4 are largely structural. Former Comment 3 was split into two: now Comments 3 and 4. Preexisting language in Comment 3 states that a lawyer can use inadvertently sent information when the lawyer realizes it was inadvertently sent only after examining the document, presumably in its entirety. Other preexisting language was moved to Comment 4: a note that two issues—whether privilege is waived by the sender and the duties of the receiving lawyer who knows or reasonably should know that inadvertently sent materials were wrongfully obtained by the sending person—are beyond the scope of Rule 4.4. That comment adds language explaining the relevance of a previously-cited ethics opinion and cites other ethics rules that bear on the issues.

D.C. Rule 5.3

Rule 5.3 outlines lawyers’ responsibilities regarding nonlawyers “employed or retained by or associated with” the lawyer—e.g., legal assistants, interns, paraprofessionals, investigators, secretaries, and accountants.

In two new comments to the rule, the court provides guidance on lawyers’ supervisory obligations with respect to nonlawyer assistants outside of the lawyer’s firm. These new comments are similar to the ABA Model Rule. Comment 4 largely tracks newly-added Comment 7 to Rule 1.1 (addressing working with outside lawyers, as directed by the client). A lawyer should reach agreement with the client about the scope of the lawyer’s representation and the allocation of responsibility between the lawyer, nonlawyer, and client. Additional obligations might be imposed by the tribunal that the matter is pending before. And the lawyer should inform the client and may withdraw under Rule 1.16 if the lawyer does not reasonably believe that the client’s direction contributes to the competent and ethical representation of the client.

Comment 3 clarifies additional contexts that are covered by Rule 5.3—i.e., using document management companies, internet-based storage services, and printing vendors. It also clarifies that, even when the client does not direct the use of such outside services, the obligations provided in the text of the rule apply: Lawyers must make “reasonable efforts” and “communicate appropriate directions” to ensure that such services are provided “in a manner that is compatible with the lawyer’s professional obligations.” Similar to Comment 6 to Rule 1.1 (addressing outside lawyers), this comment delineates certain circumstances that inform the extent of the lawyer’s supervisory obligations with respect to nonlawyers outside the firm.

D.C. Rule 3.8

Rule 3.8 contains a list of “special responsibilities” for prosecutors due to their distinct role as ministers of justice. One provision is, in simple terms, the ethical corollary of the criminal due process standard articulated in Brady v. Maryland, 373 U.S. 83 (1963), which requires prosecutors to disclose exculpatory and impeachment evidence to criminal defendants. The ethical obligation is, in some ways, broader than the criminal due process standard and, in other ways, narrower. A related but less discussed obligation in Rule 3.8 provides that a prosecutor shall not “intentionally avoid pursuit of information because it may damage the prosecution’s case or aid the defense.” In other words, prosecutors cannot avoid their disclosure obligations—or the impact of information that is not good for their case—by failing to pursue such information.

The amendments to Rule 3.8 change both of the provisions mentioned above and add two new provisions to the Rule. The new provisions—modeled after, but different than, provisions in ABA Model Rule 3.8—impose upon prosecutors additional duties with respect to similar information that they learn post-conviction.

Changes to the Disclosure Provision: Formerly Rule 3.8(e), Now Rule 3.8(d)

As a preliminary matter, the court switched the order of subsections (d) and (e) such that the obligation to disclose “evidence or information . . . that tends to negate the guilt of the accused,” as well as information that mitigates a convicted defendant’s sentence, is now promulgated as Rule 3.8(d). The prohibition on failing to pursue information because it supports the defense or damages the prosecution is now promulgated as Rule 3.8(e).

The court made two changes to the text of the disclosure provision. First, it removed the phrase “upon request.”2 As with the due process requirement, the prosecutor’s ethical obligation to disclose exculpatory information exists absent a request for such information by the defense. Second, the court added language clarifying that prosecutors must disclose more than just directly exculpatory evidence: “[E]vidence or information . . . that tends to negate the guilt of the accused” includes “impeachment information” and “information tending to support a motion to suppress evidence.”

The court also substantially changed Comment 1 to align its language with both the text of what is now Rule 3.8(d) and the court’s holding a decade ago in In re Kline, 113 A.3d 202 (D.C. 2015). In Kline, the court rejected certain language in Comment 1, which stated that the Rule “is not intended either to restrict or to expand the obligations of prosecutors derived from the United States Constitution” or other law. Id. at 209. Explaining the differences between the ethical standard and the Brady standard, the court held that the provision, “by its very terms, cannot be read as being coextensive with Brady.” Id. at 213. In its recent amendments, the court replaced most of Comment 1 with language that expressly states that the obligations are not coextensive and explains the different purposes served by due process protections and professional conduct requirements.

Changes to the Pursuit-of-Information Provision: Former Rule 3.8(d), Now Rule 3.8(e)

As to the provision now promulgated as Rule 3.8(e), the court added language stating that a prosecutor shall not intentionally “unreasonably delay the disclosure of information or evidence that tends to negate the guilt of the accused or to mitigate the offense.” This provision now prohibits prosecutors not only from intentionally avoiding the pursuit of evidence but also from unreasonably delaying disclosure of the type of information covered by subsection (d) because it might damage the prosecution’s case or aid the defense.

New Provisions: Rule 3.8(h) and (i)

The court also adopted two new provisions that, in certain circumstances, require prosecutors to make post-conviction disclosures and seek to remedy convictions, as well as four new comments discussing these obligations. Subsection (h) imposes two obligations when a prosecutor “knows of information that the prosecutor knows or reasonably should know raises a substantial question about whether a person was convicted or an offense the person did not commit.” Upon learning such information, the prosecutor must:

  1. Promptly disclose it to four persons or entities: (i) the chief prosecutor of the jurisdiction where the conviction was obtained, (ii) the court in which the conviction was obtained; (iii) the convicted person; and (iv) the person’s lawyer, if known—though disclosure to the convicted person and their lawyer need not be prompt if the court authorizes delay.
  2. Undertake further investigation or make reasonable efforts to cause an investigation to determine whether the person was wrongfully convicted if the prosecution occurred in the prosecutor’s jurisdiction and under the authority of the prosecutor’s office.

Given D.C.’s unique status as a jurisdiction with multiple prosecutorial authorities, subsection (h) requires “the disclosure [to] be made to the prosecutorial authority responsible for the conviction at issue.” It also provides a safe harbor for failing to disclose the information to a person or court “whose identity or location remains unknown to the prosecutor after undertaking reasonable efforts.”

The newly-added comments provide additional gloss. Comment 4 discusses the meaning of “chief prosecutor” and the “prompt” disclosure requirement. It also states that notifying the convicted person does not violate D.C. Rule 4.2(a), which prohibits lawyers from contacting a person they know is represented by counsel. Comment 5 states that a prosecutor need not take the actions in subsection (h) if the prosecutor knows that another prosecutor has done so or is already doing so. It also provides guidance on the state-of-mind of the prosecutor, which we discuss below. Comment 6 notes that when a prosecutor knows of information that could raise a substantial question of innocence, the prosecutor need not determine whether it actually does so. The prosecutor can simply disclose the information pursuant to subsection (h) and, by doing so, does not concede that the information raises a substantial question of innocence.

The other new provision, subsection (i), requires that when the prosecutor knows that information above is clear and convincing evidence establishing that a person was wrongfully convicted in the prosecutor’s jurisdiction and under the authority of the prosecutor’s office, the prosecutor shall seek to remedy the conviction. Newly-added Comment 7 makes clear that, similar to the obligations in subsections (h), a prosecutor need not take remedial actions where the prosecutor knows that another prosecutor is doing so. The comment also notes that requesting the court to appoint counsel for an unrepresented defendant might be a remedial action the prosecutor is required to take.

Comparing D.C. Rule 3.8(h) with ABA Model Rule 3.8(g)

The post-conviction disclosure and investigation duties in D.C. Rule 3.8(h) differ in key ways from the similar duties in ABA Model Rule 3.8(g). (The obligation to remedy a wrongful conviction is functionally identical in D.C. Rule 3.8(i) and ABA Model Rule 3.8(h).)

First, the type of evidence or information subject to the disclosure and investigation obligations is different. Under ABA Model Rule 3.8(g), the subject is “new, credible and material evidence” that creates a “reasonable likelihood” that the convicted person was actually innocent. In D.C., the subject is information that “raises a substantial question” of innocence. D.C. Rule 3.8(h) does not specify that the information must be credible and material. However, newly-added Comment 5 explains that the reasonableness standard incorporated by the rule is objective and that “whether the information is objectively plausible or could reasonably be credited can appropriately be taken into account when determining whether information ‘raises a substantial question’ of innocence.” In this way, the information subject to the obligations may be somewhat broader in D.C. On the other hand, the “substantial question” language may make the subject information more limited in D.C. “Substantial” is defined as “a material matter of clear and weighty importance.” D.C. Rule 1.0(m); see also D.C. Rule 3.8, cmt. 5. In this way, the information that triggers the disclosure and investigation obligations in D.C. might need to be stronger than that which creates a “reasonable likelihood” of innocence.

Second, D.C. Rule 3.8(h) is explicit about the prosecutor’s state-of-mind, where the ABA Model Rule provision is ambiguous. Both rules require that the prosecutor “knows of” the subject information, but D.C. additionally states that the prosecutor must “know or reasonably should know” that the information raises a substantial question of innocence. The ABA Model Rule is silent on this point. By failing to incorporate state-of-mind language regarding how the new evidence bears on innocence, it likely does not incorporate the objective standard in D.C. In other words, if a prosecutor subject to the ABA Model Rule does not know that the new evidence creates a reasonable likelihood of innocence, but a reasonable prosecutor would, the prosecutor does not violate the rule by failing to disclose the information or undertake an investigation.3 That prosecutor’s judgment must be “made in good faith,” however. ABA Model Rule 3.8, cmt. 9.

Finally, the ABA Model Rule imposes less stringent requirements regarding who must be notified of the post-conviction evidence. The disclosure must be made to “an appropriate court or authority,” which arguably means the court or the prosecutor of the jurisdiction where the conviction was obtained. D.C. requires disclosure to both. Additionally, the ABA Model Rule only requires disclosure to the convicted person if the conviction was obtained in the prosecutor’s jurisdiction. A prosecutor in D.C., by contrast, must notify the convicted person regardless of where the conviction occurred. The ABA Model Rule also does not require disclosure to the convicted person’s lawyer. On the other hand, D.C. Rule 3.8 contains a safe harbor provision, as noted above. Nothing in the ABA Model negates a prosecutor’s violation of subsection (g) if the prosecutor makes reasonable efforts to identify or locate the court, authority, or convicted person but cannot do so.

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For more information on the HWG Ethics & Malpractice Group please visit: https://hwglaw.com/practices/legal-ethics-and-malpractice/

1     D.C. Ethics Opinion 312 concludes that “in the great majority of cases,” the general information “sufficient . . . to carry out a [lateral] conflict check” does not constitute “confidences” or “secrets” protected by Rule 1.6. It also provides some “rough guidelines or suggestions” for navigating lateral conflict checks within the strictures of lawyers’ confidentiality obligations.

2      This provision uses “upon request” twice: with respect to the primary pre-trial disclosure obligation and the sentencing-related obligation. The court’s order states “[i]n the current Rule 3.8(e), the prosecutor’s ethical duty to disclose is tied to a request from the defense. All commentators agree that this language should be deleted from the rule. The court has determined to delete that language.” Order at 3. However, the updated text of the provision, attached to the court’s order, only deletes one use of “upon request”—the one relating to the sentencing-related obligation. We assume this is an oversight, as neither the court’s notice requesting comments on this proposed amendment nor the court’s order adopting it distinguishes between the two uses of the phrase.

3      This discrepancy aligns with the pre-trial disclosure obligation in subsection (d) of each rule: D.C. Rule 3.8(d) expressly applies to information that the prosecutor “knows or reasonably should know” tends to negate the guilt of the accused; whereas ABA Model Rule 3.8(d) is silent as to the prosecutor’s knowledge regarding how the evidence pertains to guilt.