The Association of Corporate Counsel filed a recommendation to the District of Columbia Bar not to change the rules of professional conduct to address perceived problems pertaining to outside counsel guidelines (OCGs). ACC considers modifications to the rules unnecessary to address concerns cited by the Rules Committee.
In May, the D.C. Bar’ Rules Committee opened a public consultation on the subject of OCGs. The Committee is weighing the question of whether to regulate the extent to which clients may contractually require lawyers to engage or refrain from certain conduct or practices. These practices may include expanding the scope of conflicts of interests or indemnification clauses. The consultation notes that such OCG terms might overreach and unduly restrict the public’s access to counsel and impair lawyer independence.
ACC, joined by its National Capital Region chapter, advised against any changes to the rules to address these concerns. ACC holds that best way to address OCG concerns is through direct dialogue between outside counsel and their clients. Moreover, outside counsel already have the right to refuse terms that they feel are overly restrictive or potentially violate rules of professional conduct. Further regulation on this question is unnecessary.
“We appreciate that the Committee opened a consultation before proposing any changes to the rules, as many of our members rely on outside counsel guidelines to help effectively manage their relationship with outside counsel,” said Mary Blatch, associate general counsel and director of advocacy at ACC. “But Occam’s Razor may be the best precedent here. Changes to the rules are not necessary to address the problems noted by the Committee. They would complicate, rather than clarify, the delicate relationships of outside counsel with their clients.”
ACC’s complete statement is available here.