The Delaware Rules of Professional Conduct Explained
The Delaware Rules of Professional Conduct function as the cornerstone of ethical legal practice in the state. This set of guidelines offers a comprehensive framework for the behavior of Delaware lawyers, ensuring accountability and professionalism. Understanding this rule set is essential for any attorney practicing law in Delaware, as it not only shapes your professional obligations but also the standard of care your clients can reasonably expect.
The Rules provide guidance on a wide range of issues that come up in the practice of law , from billing and client communication to conflict of interest and the handling of client funds. Compliance with the Delaware Rules of Professional Conduct is mandatory, and violations can result in disciplinary action. The Delaware Supreme Court hears and prescribes the rules of professional conduct for attorneys and has the final say on all matters related to legal and ethical rules. The Court appoints the Board on Professional Responsibility to investigate and discipline ethical problems that arise in the profession.
This article seeks to give you a brief introduction to these rules and why they are so important to your practice.
Historical Context of the Rules in DE
Over the years, with the evolution of legal practice, the rules governing the conduct of Delaware lawyers and their ethical obligations have evolved as well. When the ABA adopted the first set of Model Code of Professional Responsibility in 1969, Delaware’s lawyers were subject to those rules. In 1974, Delaware adopted its first set of rules governing professional conduct along the lines of the Model Code. Amendments changed the rules through the fall of 1985 when the ABA revised the Model Rules of Professional Conduct.
In 1986, Delaware adopted the Model Rules of Professional Conduct in their entirety without change. The Court adopted further changes in 1988 mainly due to the enactment of the Delaware Limited Liability Partnership Act. Revision to the rules occurred again in 1989, 1994, and 1995. Subsequent changes followed every year until the last rule changes in 2010 that codified a Delaware Supreme Court Order to update the rules to reflect the adoption of new Delaware statutes and court decisions. Over the years, the Delaware rules of professional conduct have increased from 162 to 179 rules.
Essence of the Rules and Principles
The Delaware Rules of Professional Conduct are guided by a set of core principles and objectives. First and foremost, these rules seek to maintain and promote the core values and principles of our society and of professional conduct. These principles include fairness, justice, honesty, loyalty, and reliability. Lawyers exist to advance these and other noble goals expressed in the Rules of Professional Conduct.
Section (a) of the Delaware Rules of Professional Conduct makes clear that the Rules exist to: "(1) provide for the orderly and efficient administration of justice; (2) protect the interests of clients; (3) protect the integrity of the legal profession; (4) protect the public; and (5) recommend compliance within the profession with the law and these Delaware Lawyers’ Rules of Professional Conduct and other standards governing attorney conduct."
Section (b) of the Delaware Rules of Professional Conduct further explains that the Rules are intended to either "(1) establish standards of conduct for lawyers, [or] (2) be interpreted in conjunction with the Delaware Lawyers’ Oaths (including the oaths of Delaware Chief Justice, Vice Chancellor, and Chancellor) and the Delaware Judicial Code of Conduct."
The Delaware Rules of Professional Conduct describes the prime motivation for it implementation in their introduction to the Rules (Comment 1 to Rule 1.1). Specifically, Comment 1 to Rule 1.1 states that "The Delaware Rules of Professional Conduct are rules of reason that, when properly applied, define proper conduct of lawyers as officers of this Court." Proper application of the Delaware Rules of Professional Conduct will lead to fair and just results.
Ethical Challenges and Adherence
As with many states, the Delaware Rules of Professional Conduct provide only a broad outline concerning what an attorney can and cannot do with respect to conflicts of interest (the terms "should" and "may" are used interchangeably for "must"). "A conflict of interest exists if there is the presence of current clients whose interests are directly adverse." For example, it is okay to represent joint clients where there are no conflicts. However, if the clients do anticipate that they will have diverging interests, then the agreement must include an arbitration agreement and informed consent for arbitration and waiver of future conflicts. Additionally, the attorney(s) cannot represent both clients in the event that the interests become adverse; this would constitute a conflict of interest. Sometimes, an attorney will act as a mediator in a matter. When this occurs, the attorney cannot represent either party at any time in the future. This also applies to initial consultations. If a potential client meets with an attorney to discuss a case, and the client decides not to proceed, the attorney cannot represent the potential client in the future. If the client chooses to proceed , and the process continues, the attorney cannot represent the client against a former client without an appropriate waiver from the former client.
There are additional ethical dilemmas one might face when practicing law in Delaware. For example, many times clients will "shop" around for the best possible representation. If the attorney discovers that the client has been working with or plans to work with opposing counsel on a matter, if the attorney has not entered an agreement with the client and has not spent any money on the case, the attorney has not established an attorney-client relationship and can walk away from the matter. The attorney does not have to give the client confidentiality nor does the client have to provide a reason for shopping elsewhere. However, if the attorney has spent money on a case or has entered into an agreement with the client regarding the case, then the client has made reasonable and foreseeable reliance on the attorney’s services. This is, one might say, almost a form of equitable estoppel. But in practice, this means that the former client had developed a substantial expectation of prevailing in the matter.
Enforcement Mechanism and Proceedings
Enforcement of the Delaware Rules of Professional Conduct is primarily handled by the Office of Disciplinary Counsel ("ODC"), which assists the Supreme Court in the adoption and enforcement of the rules. The ODC applies the Delaware Lawyers’ Rules of Professional Conduct and Delaware Lawyers’ Rules for Disciplinary Enforcement to professional conduct by Delaware lawyers. Both rules sets provide a procedure for the investigation and prosecution of disciplinary proceedings against Delaware lawyers by the ODC and a full disciplinary proceeding before the Board on Professional Responsibility, or a three-judge panel, or the Supreme Court of Delaware.
If disciplinary charges are filed against a lawyer, the lawyer has the right to appear at subsequent hearings and to present oral and written statements for or against the charges. A lawyer may also be represented by an attorney-of-record or any other individual in appointed or designated capacities before the hearing board, the panel of the Court on the Judiciary and the Supreme Court of Delaware.
The lawyers’ rules are enforced via the following two mechanisms: Any disposition of the charges may be made by: (a) consent order, approval; (b) upon a stipulation of undisputed facts; (c) by recommended decision of the Board of Professional Responsibility; (d) or by decision of the Supreme Court with or without opinion. A recommendation for reprimand, censure or suspension from the practice of law is not final unless and until approved by the Supreme Court of Delaware.
Any discipline imposed by the Supreme Court cannot be enforced until the Court has reviewed the findings of fact and recommended disposition and has issued its order and opinion. The Supreme Court has final authority and jurisdiction over all rules relating to the admission to the practice of law in this State and the discipline of lawyers admitted to the practice of law in this State.
In addition to the aforementioned enforcement, the Delaware State Bar Association also promulgates practices and procedures to strengthen the State’s ability to address financial abuses in a manner that reflects the continuing evolution and demands of the legal profession, including random, unannounced audits for compliance purposes. In Delaware, only the Office of Disciplinary Counsel, the Board on Professional Responsibility, and the Supreme Court of Delaware have authority to discipline the lawyers and other individuals subject to the rules. Local Bar associations do not have authority to administer discipline under the Delaware Lawyers’ Rules of Professional Conduct or the Delaware Lawyers’ Rules for Disciplinary Enforcement.
Recent Changes and Updates
In May 2019, the Delaware Supreme Court enacted significant changes to the Delaware Lawyers’ Rules of Professional Conduct (the "Rules"). Notably, these amendments updated the Rules to reflect changes instituted by the American Bar Association’s Model Rules of Professional Conduct ("Model Rules") as well as various other jurisprudential developments.
In regards to the Rule 4.4, Clarification of the Discovery Process, with amendments having become effective on January 1, 2020, comments have now been added to provide guidance regarding how an attorney may properly address the inadvertent production of privileged communications or trial preparation materials. Subsection (b) of Rule 4.4, now provides that, "a lawyer who receives a document or electronically stored information relating to the representation of a client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender." The comments further explain that an attorney does not violate this rule by reviewing a document in order to identify whether it is subject to the Rule or redaction, but also that doing so might waive a claim of privilege. Furthermore, it warns that in the event the prejudice from the inadvertent disclosure outweighs the detriment to the producing party, it may be permissible to overcome the upstream waiver of privilege, but it will be left to the discretion of the court as to whether privilege has been waived, who bears the burden of proof, and whether any remedy is given to the producing party .
Subsection (c) was also added, which discusses the release of an electronic copy of client documents to a successor counsel or to a current unretained client who uses the threat of disciplinary action or criminal prosecution in order to obtain client files.
The clarification of Rule 4.4 likely comes as welcome news for those attorneys bogged down in litigation and working on limited time-frames, as it provides clarity to the previously murky area of what attorneys may be compelled to do, and what the ethical duties are in investigating the inadvertent production of privileged materials. It also appears to provide helpful recourse to the producing party that fears losing a potential favorable legal position due alter privilege waiver or the belief of the receiving party that they have an absolute right to obtain that information.
The changing face of attorney advertising and solicitation is also now addressed in the amendment of Rule 7.1. Attorneys are prohibited from making, or facilitating another person’s making, of a false or misleading communication about the lawyer’s services. The change moves away from the requirement that the communication be "misleading" to including the term "false" limiting circumstances when advertising and solicitation can be utilized. It also includes discussion of what types of facts that may materially require omission, and the element of context that may indicate falsity or give rise to misleading, no matter if true or not. While the rule changes have not gone into effect, they appear to provide at least some thinking or guidance to attorneys who are considering what methods they can lawfully use to advertise their services.