HWG Ethics & Malpractice Group Client Alert
By: Hilary P. Gerzhoy, Thomas B. Mason, Courtney Miller, and Amy E. Richardson
On September 15, 2025, amendments to several D.C. Rules of Professional Conduct that relate to client demands contained in engagement letters and outside counsel guidelines will take effect. The amendments are to portions of Rules 1.16 (declining or terminating representation), 1.6 (confidentiality), 1.7 (conflicts of interest), and 5.6 (restrictions on the right to practice).
Taken together, these amendments provide lawyers with increased protection against terms in engagement letters or outside counsel guidelines that seek to restrict a lawyer’s ability to retain a copy of the client file, preclude the use of nonconfidential information, prevent future representations, or otherwise restrict a lawyer’s right to practice.
First, the amendments to Rule 1.16 affirm a lawyer’s right to retain a copy of a client’s file, including the lawyer’s work product. Rule 1.16(d) and new Comment [12] state that lawyers can ethically retain copies of client documents as long as the lawyers maintain confidentiality with respect to those documents.
Second, the amendments to Rule 1.6 affirm a lawyer’s right to make use of general, nonconfidential information acquired in the course of a representation. Comment [41] makes clear that agreements restricting a lawyer’s use of information obtained during a representation could raise concerns about the ability of clients to obtain lawyers as well as the ability of lawyers to represent other clients competently and zealously. Consistent with that notion, Rule 1.6(b) clarifies that a “secret”—which triggers Rule 1.6 confidentiality protection—generally does not refer “to legal knowledge or legal research, to knowledge the lawyer has obtained about the regulatory environment in which a client operates, or to information that is generally known in the local community or in the trade, field, or profession to which the information relates.” Rule 1.6(b).
Third, revised Comment [25] to Rule 1.7 states that “agreements precluding representation of other clients in circumstances that do not preclude representation under the Rules do not expand the scope of the Rules.” This sentence is not a model of clarity, and the commentary is not particularly helpful. This new Comment [25] replaces the previous Comment [25] that permitted lawyers and clients to agree on whether the representation of one member of a corporate family means that the lawyer also represents parents, affiliates, or the like of that particular client. This change seems to say that such agreements can no longer change how the Rules otherwise analyze such corporate family conflicts. See Comments [21] to [24] to Rule 1.7. It does not address whether lawyers and clients can agree as a matter of contract to expand the members of a corporate family that a lawyer would represent using the analysis in Comments [21] to [24].
Finally, a new comment to Rule 5.6 introduces a new concept to the Rules: “that a lawyer may agree to work exclusively on behalf of a single client for a given period of time.” New Comment [4] to Rule 5.6. Rule 5.6(a) is generally directed at partnership or other agreements between a lawyer and their law firm that restrict the right of a lawyer to practice after termination of the relationship. Rule 5.6(b) prohibits lawyers from agreeing to restrictions on their right to practice as part of a settlement agreement. The above new language seems somewhat in tension with Rule 5.6(b). The remainder of new Comment [4] recites the policy of “providing a free choice of counsel” and states that “outside of . . . exclusive relationship[s], a lawyer should not agree to restrictions a client seeks to place on the lawyer’s ability to represent other individuals or entities whose representation is not otherwise precluded by these rules if those restrictions would unduly interfere with the general ability of clients to obtain lawyers or lawyers’ ability to engage in public service or would undermine the integrity of the profession.” As a practical matter, it is infrequent that a lawyer in the private practice of law agrees to an “exclusive relationship” with a single client. But the Court seems to have opened a door for such relationships and in so doing weakened the values of “free choice of counsel.” As the use of restrictive provisions in engagement letters and outside counsel guidelines increase—from mandating the destruction of the client file to preventing future representations—D.C. lawyers should be mindful of the changes and perhaps unforeseen impacts from at least some of these amendments.
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For more information on the HWG Ethics & Malpractice Group please visit: https://hwglaw.com/practices/legal-ethics-and-malpractice/