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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

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District of Columbia Legal Ethics

III. ADVOCATE

3.1   Rule 3.1 Meritorious Claims and Contentions

3.1:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 3.1
· Background References: ABA Model Rule 3.1, Other Jurisdictions
· Commentary: ABA/BNA § 61:704, ALI-LGL § 110, Wolfram § 11.2

3.1:101      Model Rule Comparison

DC Rule 3.1 follows Model Rule 3.1 in instructing a lawyer not to assert a claim that is frivolous, but with changes in that part of the Rule that deals with the case of the criminal defendant or other person threatened with a loss of liberty who has no non-frivolous defense.  In such a case, the Model Rule says that a lawyer "may" put the government to its proof; the DC Rule says that the lawyer "shall" do so if the client elects to go to trial or to a contested fact-finding hearing.  The Model Rule speaks of "a criminal proceeding, or...a proceeding that could result in incarceration"; the DC Rule speaks of "a criminal proceeding, or . . . a proceeding that could result in involuntary institutionalization."  In describing what it means to put the government to its proof, the DC Rule says that the lawyer shall "nevertheless so defend the proceeding as to require that the government carry its burden of proof," the italicized phrase replacing the Model Rule's "every element of the case be established."

Model Rule 3.1 was amended in 2002 per recommendation of the Ethics 2000 Commission to make clear that a position taken in a proceeding, in order not to be frivolous, must have a basis in both law and fact; and this change was also made in the DC Rule in 2006 on recommendation of the Rules Review Committee.

Comment [2] to the DC Rule omitted from its third sentence language that was in its Model Rule counterpart as it stood prior to its amendment in 2002, stating that an action taken on a client's behalf is frivolous "if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person," but kept the description of a frivolous action as one for which no good faith argument can be made. Pursuant to a recommendation of the Ethics 2000 Commission, the same deletion was made in the Model Rule's Comment in 2002.  Another change then made on recommendation of the Commission was the addition to Comment [2] to the Model Rule of a sentence stating that lawyers are required to inform themselves of the facts and the applicable law and determine that they can make good faith arguments in support of their clients' positions; and in 2006 a sentence to the same effect, though phrased slightly differently, was added, on recommendation of the Rules Review Committee, to the DC Rule's Comment [2].

The original Comment [3] to the DC Rule, for which the Model Rule had no counterpart, made clear that the language of obligation ("shall") in the DC version of the Rule was intended to impose a requirement and not just offer an option, and that the Rule covers civil commitment proceedings, which may not be encompassed by the Model Rule's "incarceration," as well as juvenile delinquency cases, which probably are.  In 2002 a new Comment [3] was added to the Model Rule, stating that a lawyer's obligation under the Rule are subordinate to federal or state law that entitles a defendant in a criminal matter to assistance of counsel in presenting a claim that would otherwise be forbidden by the Rule; and in 2006 the Rules Review Committee added identical language to the DC Rule's Comment [3].

3.1:102      Model Code Comparison

Rule 3.1 is to the same general effect as DR 7-102(A)(1), which provided that a lawyer may not "[f]ile a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another;" but with three qualifications. First, the test of improper conduct is changed from "merely to harass or maliciously injure another" to the requirement that there be a basis for the litigation measure involved that is "not frivolous." This includes the concept stated in DR 7-102(A)(2) that a lawyer may advance a claim or defense unwarranted by existing law if "it can be supported by good faith argument for an extension, modification, or reversal of existing law." Second, the test in Rule 3.1 is an objective test, whereas DR 7-102(A)(1) applied only when the lawyer "knows or when it is obvious" that the litigation is frivolous. Third, DC Rule 3.1 makes an exception for a criminal case, or a case in which the involuntary institutionalization of the client may result (for example, certain juvenile proceedings); in such a case the lawyer shall put the prosecution to its proof whenever the client elects to contest the case, even if there is no nonfrivolous defense.

3.1:200   Non-Meritorious Assertions in Litigation

· Primary DC References: DC Rule 3.1
· Background References: ABA Model Rule 3.1, Other Jurisdictions
· Commentary: ABA/BNA § 61:101, ALI-LGL § 110, Wolfram § 11.2

In re Spikes, 881 A.2d 1118 (DC 2005) was a disciplinary proceeding in which respondent was held to have violated DC Rule 3.1, and Rule 8.4(d) as well, by filing a suit in the U.S. District Court against several lawyers in the Office of Corporation Counsel (now Attorney General) of the District of Columbia, charging them with conspiring to defame him and deprive him of civil rights.  The District Court dismissed the suit for failure to state a claim, observing that the assertedly defamatory statements were privileged, and the civil rights and conspiracy claims were based on them.  That decision was upheld on appeal by the DC Circuit in an unpublished opinion holding that “[t]he merits of the parties’ positions are so clear as to warrant summary affirmance.” Id. at 1121. The disciplinary proceeding in effect re-examined the respondent’s claims in that suit under the more stringent standard of ethical permissibility. The statements by the defendants on which the respondent’s District Court suit was based all related to what had appeared to be attempts by the respondent to bribe a witness to commit perjury in a suit against the District of Columbia in which the respondent was representing the plaintiff.  One of the assertedly defamatory documents on which the respondent’s District Court suit was based was in a letter one of the defendants had sent to Bar Counsel complaining of the respondent’s conduct in that underlying case; in the subsequent disciplinary proceeding, the Board on Professional Responsibility held, and the Court agreed, that that letter was absolutely privileged by reason of DC Bar Rule XI §19(a), which provides, in relevant part, that “Complaints submitted to the Board or Bar Counsel shall be absolutely privileged, and no claim or action predicated thereon may be instituted or maintained.” Id. at 1122. A second assertedly defamatory document was a memorandum in support of a motion for a continuance in the underlying case, which made reference to the suspected misconduct by the respondent, and the third was a draft affidavit that had been submitted to the witness who was believed to be the target of the bribery; the Court of Appeals held that both of these were “cloaked with the absolute privilege that attaches to communications made within the judicial process.” Id. at 1123. The fourth document complained of was a letter that had been sent to the U.S. Attorney referring to respondent’s questionable conduct; as to this, the Court of Appeals observed that only a qualified privilege applies to reports made to law enforcement authorities for investigation, but held that the District Court’s decision had effectively determined the issue of whether the privilege applied.  The Court of Appeals accordingly concluded that all of the claims made in respondent’s suit in the District Court suit were “frivolous,” and so in violation of Rule 3.1. Id. at 1124. The Court also noted that this was the first case in which it had considered what constitutes a “frivolous” proceeding or issue warranting sanction under Rule 3.1, but concluded that its decision here was consonant with previous decisions interpreting that term for purposes of determining whether a pleading is “frivolous” and so subject to sanction under Superior Court Civil Rule 11 or an appeal, petition or motion is similarly subject to sanction under D.C. App. Rule 38.  Id. at 1125.

In Sturdza v. United Arab Emirates, 281 F.2d 1287 (DC Cir. 2002), the appellant, although represented by counsel, had made pro se filings asserting that those made on her behalf by her counsel failed to follow her directions and omitted critical information, and her counsel had responded with affidavits describing his efforts to consult with her on the appeal. The Court found that counsel had "carefully explained to [the appellant] why he thought the additional arguments she wished to make were without merit and why the material she wanted added to the Joint Appendix should not be included." Id. at 1294. The Court then observed that "This is precisely how appellate counsel should behave; indeed, we expect all lawyers practicing in this court to resist a client's desire to make 'poor legal arguments or unsubstantiated factual allegations'" [quoting a letter from counsel]; and then referred to DC Rule 3.1. Id.

In In re Morrissey, 648 A.2d 185 (DC 1994), the Court approved reciprocal discipline in a matter where the respondent had been found to have violated, inter alia, DR 7-102(A) by numerous acts of misconduct in the course of a trial that the Virginia Disciplinary Board had described as "abuses of the legal process by every means available to him" and as "dishonest and in total disregard of even the most rudimentary sense of propriety in the courts." Id. at 188.

In In re J.J.Z., 630 A.2d 186 (DC 1993), the Court upheld, on the government's motion and over challenges by the children's guardian ad litem, the dismissal of neglect petitions that the government had filed. The court observed, inter alia, that Rule 3.1 and DR 7-102(A)(2) precluded an attorney from knowingly advancing a claim unsupportable by existing law, absent a good faith argument for its extension, modification, or renewal. Id. at 192-93.

There appear to be no DC ethics opinions interpreting or applying Rule 3.1, or casting light on its Code predecessors, DR 7-102(A)(1) and (2).

3.1:300   Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)

· Primary DC References: DC Rule 3.1
· Background References: ABA Model Rule 3.1, Other Jurisdictions
· Commentary: ABA/BNA § 61:151, ALI-LGL § 110, Wolfram § 11.2

The District of Columbia courts have rules of procedure providing remedies for abusive litigation tactics that correspond closely to, and are modeled on, the pertinent federal rules. Thus, Superior Court Civil Rule 11 (Signing of Pleadings, Motions and Other Papers; Representations to Court; Sanctions) is identical to Fed R Civ P 11 (and was identically amended in 1994). Additionally, Super Ct Civ R 37 (Failure to Make or Cooperate in Discovery), while it varies somewhat from Fed R Civ P 37, contains substantially the same provisions for sanctions for failure to respond to pretrial discovery, in paragraphs (a)(4), (b), (c), (d) and (g). Similarly, DC App R 38 (Damages for Delay) is modeled on Fed R App P 38. And the District of Columbia courts have been held to have the same sorts of "inherent powers" as the federal courts to impose sanctions for trial misconduct.

The DC Court of Appeals observed, in Tupling v. Britton, 411 A.2d 349, 351 (DC 1980), that "[w]hile this court is not bound by the federal courts' interpretations of federal rules essentially identical or similar to our rules, those interpretations may be accepted as persuasive authority in interpreting our rules"; and, in fact, decisions of the District of Columbia courts frequently cite and follow decisions under the Federal Rules. In consequence there does not appear to have developed a separate body of DC jurisprudence regarding the pertinent rules of procedure, and so no effort is made here to provide a comprehensive treatment of DC decisions under those rules, but only discussion of a few representative decisions. The discussion immediately below will address, in order, cases applying Appeals Rule 38, Civil Rule 11 and Civil Rule 37. Decisions turning on inherent powers of the court are assembled under 3.1:500, below.

Appeals Rule 38

In Tupling, supra, the DC Court of Appeals addressed extensively that court's Rule 38, which was (and still is) identical in substance to Fed R App P 38 prior to the 1994 amendments. DC App R 38 provides, "If this court shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee." Fed R App P 38 prior to the 1994 amendments started with the words "If a court of appeals," but otherwise was the same as the DC Rule. The 1994 amendment added, after "it may," the phrase "after a separately filed motion or notice from the court and reasonable opportunity to respond," a proviso that has not been added to the DC Rule. Involved in the case was a dispute between a custodian under the Uniform Gifts to Minors Act and the maternal grandmother of the minors in question, arising from a petition for an accounting filed by the latter, which resulted in a finding that the custodian had failed to fulfill certain responsibilities under the Act. The custodian filed a timely appeal from the judgment entered on the basis of that finding, but his appeal was dismissed because of a continued failure to obey the rules of the Court of Appeals regarding the timely prosecution of appeals. The grandmother filed a motion seeking costs and damages under DC App R 38, and the court, having concluded that the custodian's appeal was frivolous and very likely interposed for delay, awarded costs but not the damages sought in the motion (apparently consisting of lawyers fees incurred below), which the court stated were not recoverable "because they are not attributable to the fact that the frivolous appeal was filed." Id. at 354. The court observed in this connection, however, that, "[i]f appellee had been represented by counsel, she would have been entitled to recover reasonable attorneys fees." In the course of an extensive review of decisional law interpreting both the DC Rule and its federal counterpart, the court observed, inter alia, that "[i]t is clear that the assessment of costs and damages against parties who file frivolous appeals is a well-established practice," and that "[a]warding appellees costs and damages against appellants who bring frivolous appeals has a two-fold purpose: (1) protecting appellate dockets from unmeritorious cases which delay the hearing of cases with merit, and (2) compensation for appellees for the unwarranted loss resulting from delay and added expense caused by frivolous appeals." Id. at 352; The court also stated that "damages an appellee may recover include, but are not limited to, additional interest on the judgment," id., and explained that "[a]warding appellees additional interest on their judgments would serve the dual purpose of compensating appellees for the unwarranted loss resulting from the delay caused by frivolous appeals, and deterring appellants who might consider filing such appeals to postpone the time when they have to satisfy the judgments against them." Id. at 353. The court left open "the question whether, under appropriate circumstances, counsel might be subject to disciplinary action for filing an obviously frivolous civil appeal." Id.

In Parsons v. Mains, 580 A.2d 1329 (DC 1990) (per curiam), the court affirmed the trial court's dismissal for want of personal jurisdiction of a suit against a Virginia lawyer where jurisdiction was asserted on the basis that the lawyer had been counsel of record in two or three actions brought in District of Columbia courts over the course of ten years and so was claimed to have engaged in a "persistent course of conduct" within the meaning of the D.C. longarm statute, DC Code § 13-423(a)(4). The court observed in a footnote that although it could award reasonable attorneys fees on a finding that an appeal was frivolous, per DC App. R. 38, it concluded that "such a finding is inappropriate in this case given the few cases in which we have heretofore construed § 13-423(a)(4)." Id. at 1331 n.4.

In Williams v. Ray, 563 A.2d 1077 (DC 1989), a case involving a challenge to the compensation that the trial court had awarded for services of a co-personal representative and counsel for an estate, the court denied a motion for sanctions pursuant to DC App R 38, noting that "at least one of the appellants' arguments has merit," and in consequence, "[b]ecause the appeal is not entirely frivolous, sanctions are not appropriate." Id. at 1081.

In In re Solerwitz, 575 A.2d 287 (DC 1990), the court approved reciprocal discipline of a lawyer who had been disciplined by the United States Court of Appeals for the Federal Circuit for, inter alia, filing and maintaining petitions that were clearly frivolous. The Federal Circuit had imposed sanctions on the respondent pursuant to Rule 38 of the Federal Rules of Appellate Procedure, ordering him to pay damages to the government in the amount of $78,300; and had, in addition, suspended him from the Bar of the Federal Circuit for conduct "unbecoming a member of a Bar of the Court," pursuant to Rule 46(b) of the Federal Rules of Appellate Procedure. The Board on Professional Responsibility concluded, and the DC Court of Appeals concurred, that the conduct for which the respondent had been disciplined by the Federal Circuit also violated various provisions of the Code, including, with respect to the frivolous appeals, DR 7-102(A)(2).

Civil Rule 11

In Roeder v. Islamic Republic of Iran, 195 F.Supp. 2d 140 (DDC 2002), aff'd 333 F.3d 228 (DC Cir. 2003), a class action on behalf of former hostages seeking to recover damages against the Iranian government, the District Court, after granting a motion to dismiss by the United States as intervenor, criticized class plaintiffs' counsel for violating both Civil Rule 11 and DC Rule of Professional Conduct 3.3(a)(3) for making frivolous legal arguments and failing to disclose adverse authority; although, remarkably, the Court did not impose any sanction. The Court termed "particularly problematic" the following:

Plaintiffs' total failure to bring to this Court's attention the Algiers Accords and implementing regulations despite the FSIA's requirement that plaintiffs "established [their] claim or right to relief by evidence that is satisfactory to the Court." 28 U. S.C. § 1608(e).

Plaintiffs' failure to address any of the two hundred years of cases regarding conflicts between legislation and previously-enacted treaties and international agreements until ordered to do so by the Court.

Plaintiffs' request for a default judgment on liability prior to his Court hearing any evidence to support their claims, despite the clear statutory requirement in 28 U.S.C. § 1608(e).

Plaintiffs' motion to strike the government's motion to intervene that raised a completely frivolous argument and did not contain any discussion of the requirements of Federal Rule of Civil Procedure 24.

Plaintiffs' argument that the Algiers Accords are the legally invalid result of coercion, raised very late in these proceedings, and clearly contradicted by Supreme Court precedent.

In Esteves v. Esteves, 680 A.2d 398 (DC 1996), involving a dispute between former spouses, the trial court imposed sanctions on the former wife under both Rule 11, for filing an amended complaint that was neither well grounded in fact nor warranted by existing law, and Rule 37(b)(2), for failure to give timely notice of the taking of a deposition, resulting in a two-month delay in the trial. As to the imposition of discovery sanctions, the court of appeals held that there was a sufficient basis for imposition of such sanctions, but remanded the case to the trial court for an explanation of why the sanctions had been imposed solely on the former wife, and not on her attorney or on both the client and the attorney. Id. at 407, 408. With respect to the Rule 11 sanctions, the court, applying the Rule as it stood prior to the 1994 amendments, observed that "[a] Rule 11 'decision on whether a paper is supported by law . . . is subject to de novo review because the issue is strictly one of law'; however, 'whether a violation of the factual inquiry or improper purpose prongs of Rule 11 has occurred is subject to review for abuse of discretion.'" Id. at 406 (citation omitted). In this case the trial court had "clearly focused on the outcome of the trial -- the lack of credible evidence of fraud -- rather than on the initial filing of the lawsuit. While the outcome of the trial may be relevant, in imposing Rule 11 sanctions on the ground that the amended complaint was not 'warranted by existing law,' a trial judge must inquire into the pre-filing analysis of existing law." Id. at 407 (citation omitted). Because this had not been done here, the court remanded for further findings on "all the relevant issues stated in Rule 11." Id. at 407.

In Jabbour v. Bassatne, 673 A.2d 201 (DC 1996), the court upheld a substantial award of attorneys fees ($138,000) for violation of Rule 11 (in its post-1994 form) by the plaintiff for having filed suit for specific performance of an agreement involving valuation of certain property on the basis of an appraisal that he knew violated the agreement. Acknowledging the unusual character of a Rule 11 award against a party and not his attorneys, the court found it justified in this instance because the plaintiff had misrepresented to his attorney that he had complied with his obligations under the agreement.

In Walker v. District of Columbia, 656 A.2d 722 (DC 1995), the court dealt with an appeal from the trial court's dismissal with prejudice of the plaintiff's personal injury claim against the District of Columbia and its order requiring plaintiff and her attorney to pay counsel's fees, pursuant to Rule 11. The Rule 11 counsel's fees sanction was directed to both plaintiff and her attorney for false and incomplete answers to certain interrogatories, and to the attorney alone for filing on plaintiff's behalf a claim for economic damages under a superseded provision of the DC Code. The Court of Appeals held that it could not consider claims of error affecting only the attorney because the attorney had not noted an appeal in her own name. It also held that the plaintiff had violated Rule 37 by submitting incomplete interrogatory responses; and that although these were not governed by Rule 37(b), which applies only to failures to obey an order requiring discovery, nonetheless Rule 37(d) allows any sanction provided by subparagraph (b) where a party "fails . . . to serve answers or objections to interrogatories." The court also found, however, that there was no Rule 11 violation associated with the filing of the complaint, and since the dismissal of the complaint had been based in part on the trial court's conclusion to the contrary, the court remanded for a decision whether the discovery violations alone were sufficient to warrant dismissal.

Washington Metropolitan Area Transit Authority v. O'Neill, 633 A.2d 834 (DC 1994), involved review of attorneys fees awards as sanctions under both Rule 11 and Rule 37. The Court upheld the award of such sanctions under Rule 11 for "costs associated with [plaintiff's] filing of an opposition to [defendant's] motion for summary judgment which was based on outdated information," id. at 842, and held that sanctions for gross negligence in not complying with discovery were justified by Rule 37, even though the trial court had not specifically cited that rule, id. In the latter connection, the court held that wilfulness is not required to support a sanction of attorneys fees under Rule 37; here the trial court had found gross negligence. Id. In Block v. District of Columbia, 748 F. Supp 891 (DDC 1990), the court observed in a footnote that the defendant municipal agency's citation to a string of cases was "frivolous and may well be a violation of Fed. R. Civ. P. 11 and the Code of Professional Responsibility, DR 7-102(A)," because a subsequent Supreme Court decision handed down before the paper containing the citations was filed had "rendered those cases obsolete." Id. at 898 n.9.

Civil Rule 37

In Cowen v. Youssef, 687 A.2d 594 (DC 1996), involving a landlord-tenant dispute, the court upheld the trial court's imposition of a sanction of $6,000 against the landlord's general partner for failure to comply fully with requests for production of documents during pretrial discovery, a failure that came to light only in the middle of trial. The court, after observing that trial courts have discretion to impose a variety of sanctions under Rule 37(b)(2) and (d) for noncompliance with pretrial discovery requests, added that "[w]hen reviewing the imposition of such sanctions, this court will reverse only if the trial court has abused its discretion by _imposing a penalty too strict or unnecessary under the circumstances.'" Id. at 602 (citations omitted).

[See also Esteves, Walker and O'Neill, all treated under the preceding caption because they involve Rule 11 as well as Rule 37.]

In Habib v. Thurston, 517 A.2d 1 (DC 1986), a landlord's action for possession, the court upheld the trial court's award of attorneys fees to the tenant pursuant to Super Ct Civ R 37(a)(4) on the ground that the landlord's failure to answer certain interrogatories was not substantially justified. (That rule was then, and still is, substantially identical to Fed R Civ P 37(a)(4) as it stood prior to the 1993 amendments.) The court also rejected the landlord's argument that the trial court erred in granting the tenant's motion without an evidentiary hearing, pointing out that the Rule's requirement of an opportunity for hearing "may be satisfied by allowing both parties to express their positions to the court in writing." Id. at 11.

In Burt v. First American Bank, 490 A.2d 182 (DC 1985), the trial court's order granting summary judgment also awarded $200 to the prevailing party without, however, specifying whether that sum was intended as costs or as a sanction under Rule 37(a)(4). The court of appeals remanded, stating that "[w]hile we recognize that the trial court has broad discretion in imposing costs and attorney fees . . . the court must at least state for the record on what basis it makes its findings." Id. at 188.

In Brady v. Fireman's Fund Insurance Cos., 484 A.2d 566 (DC 1984), the court held that although Super Ct Civ R 37(b)(2) and 37(d), like Rule 37(a)(4), empower a court to assess attorneys fees, the former, unlike the latter, do not explicitly provide opportunity for a hearing before the sanction can be imposed. Nonetheless, the court held, "[t]here can be no doubt that due process will generally require notice and an opportunity to be heard before a court may assess attorneys fees against counsel under Rule 37(b) or Rule 37(d)." Id. at 568.

In Floyd v. Leftwich, 456 A.2d 1241, 1244 (DC 1983), the court, after stating the general proposition that an award of expenses and attorneys fees pursuant to Super Ct Civ R 37 is committed to the sound discretion of the trial court, and will be disturbed only a showing of abuse of discretion, went on to find an abuse of discretion in the lower court's awarding expenses and fees that were unrelated to the failure to permit discovery upon which invocation of Rule 37 rested. The court also reversed the trial court's award of attorneys fees pursuant to Rule 37(b)(2) against a nonparty witness because as a nonparty he could be ordered to be sworn or to answer questions to a Rule 37(a) motion to compel discovery, or be held in contempt pursuant to Rule 37(b)(1), but was not subject to Rule 37(b)(2), which applies only to "the party failing to obey the order or the attorney advising him or both." Id. at 1245.

3.1:400   Civil Liability for Abusive Litigation Practice [see 1.1:520]

· Primary DC References: DC Rule 3.1
· Background References: ABA Model Rule 3.1, Other Jurisdictions
· Commentary: ABA/BNA § 61:101, ALI-LGL §§ 56, 110, Wolfram § 11.2

In Conservative Club of Washington v. Finkelstein, 738 F. Supp. 8 (DDC 1990), the court asserted that a violation of DR 7-102(A)(1) or (2) does not give rise to civil liability to a non-client, adding in a footnote that this did not mean that there might not be other relief available where DR 7-102 had been violated, and referring in this connection to a disciplinary complaint or a remedy under Rule 11 of the Federal Rules of Civil Procedure. Id. at 738-39 & n.2.

3.1:500   Complying with Law and Tribunal Rulings

· Primary DC References: DC Rule 3.1
· Background References: ABA Model Rule 3.1, Other Jurisdictions
· Commentary: ABA/BNA § 16:1201, ALI-LGL § 105, Wolfram §§ 12.1.3, 13.3.7

In Armenta v. Goodridge, 682 A.2d 221 (DC 1996) (per curiam), the court affirmed an order of the trial court imposing a sanction of $250 on defendants for failure of defense counsel and defendants to attend a mediation conference in violation of the Superior Court's General Mediation and Case Evaluation Order. The Court rejected the defendants' contention that the settlement of the case released them from a duty to pay the attorneys fees, holding that the point was governed by Cooter & Gell v. Hartmarx Corp., 496 US 384 (1990).

In Charles v. Charles, 505 A.2d 462 (DC 1986), the court upheld the trial court's assessment of attorneys fees against defendant's counsel personally for repeated failure to comply with court orders requiring him to respond to plaintiff's complaint. Relying on the analysis in Roadway Express, Inc. v. Piper, 447 US 752 (1980), the court concluded that District of Columbia trial courts, like federal courts, have "inherent power" to award attorneys fees as a sanction for such failures, provided there is a finding that counsel acted in bad faith.

In Robinson v. Howard University, 455 A.2d 1363 (DC 1983), the plaintiff proposed, on the eve of trial, to expand the scope of testimony of an expert witness. On the second day of trial, the court ruled that the evidence would not be admissible; the plaintiff therefore requested a mistrial, and this was granted but conditioned upon plaintiff's paying costs. An order implementing this ruling directed plaintiffs to pay "per diem" costs of $250 to each defense counsel. The plaintiff appealed that order on the ground, inter alia, that the "per diem" costs awarded to appellee's attorneys were actually attorneys fees. The Court of Appeals, while expressing doubts as to whether the costs were in fact attorneys fees, observed that "implicit in the trial court's conditioning the mistrial upon payment of costs was a finding of a level of misconduct tantamount to the bad faith required for an award of attorneys fees," and added that "the trial court has 'unquestioned power' to do equity by awarding attorneys fees and 'against a party who shows bad faith by delaying or disrupting the litigation or by hampering enforcement of a court order'" [citing Hutto v. Finney, 437 US 678 (1978)]. Id. at 1369-70.

In S. Kann's Sons Corp. v. Hayes, 320 A.2d 593 (DC 1974), the court affirmed an order of the trial court assessing a sanction of $100 against the defendant's attorney for failure completely and accurately to answer pretrial interrogatories, a failure that was determined to have resulted in a loss of two hours of trial time. The court observed that the trial court had "wide discretion in such matters under the inherent power of the court to protect the integrity of its processes." Id. at 596.

3.2   Rule 3.2 Expediting Litigation

3.2:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 3.2
· Background References: ABA Model Rule 3.2, Other Jurisdictions
· Commentary:

3.2:101      Model Rule Comparison

DC Rule 3.2(b), with its requirement of reasonable efforts to expedite litigation, is identical to the entire Model Rule 3.2. Paragraph (a) of the DC Rule, forbidding delay in a proceeding "when a lawyer knows or when it is obvious that such action would serve solely to harass or maliciously injure another," does not appear in the Model Rule. 

Both versions of the Rule are attended by a single Comment, phrased identically until 2002. In that year, pursuant to a recommendation of the Ethics 2000 Commission, the second sentence of Model Rule's Comment was amended by deleting the introductory phrase, which stated that "[d]elay should not be indulged in merely for the convenience of  the advocates," and replacing it with language softening that restraint to allow for a lawyer's properly seeking a postponement for personal reasons, but condemning a lawyer's "routinely fail[ing] to expedite litigation solely for the convenience of the advocates," and turning the remainder of the sentence into a separate sentence, with a new introductory phrase. The DC Rules Review Committee, in its review leading to the changes made in the DC Rule in 2006, saw no reason to make a change either the DC Rule or its Comment, and recommended none.

3.2:102      Model Code Comparison

Paragraph (a) of DC Rule 3.2 is substantially identical to DR 7-102(A)(1). Relatedly, DR 2-110(B)(1) required the lawyer to withdraw if the lawyer knew or it was obvious that the client was "having steps taken . . . merely for the purpose of harassing or maliciously injuring any person." Paragraph (b) of DC Rule 3.2 effectively turns into an affirmative, albeit very generally phrased, injunction the negatively phrased proposition in DR 7-101(A)(1) that a lawyer does not violate the duty to represent a client zealously "by being punctual in fulfilling all professional commitments."

3.2:200   Dilatory Tactics

· Primary DC References: DC Rule 3.2(a)
· Background References: ABA Model Rule 3.2, Other Jurisdictions
· Commentary: ABA/BNA § 61:202, ALI-LGL § 106, Wolfram § 11.2.5

There appear to be no DC ethics opinions casting light on Rule 3.2 or its Code antecedents.

3.2:300   Judicial Sanctions for Dilatory Tactics

· Primary DC References: DC Rule 3.2(a)
· Background References: ABA Model Rule 3.2, Other Jurisdictions
· Commentary: ABA/BNA § 61:202, ALI-LGL § 106, Wolfram § 11.2.5

The principal sanction for dilatory tactics applied by the DC courts is criminal contempt. See, e.g., In re Roxborough, 663 A.2d 553 (1995) (summary contempt and $150 fine for being late for two matters in Superior Court); In re Thompson, 454 A.2d 1322 (DC 1982) (choosing to attend a deposition rather than a status hearing); In re Siracusa, 455 A.2d 663 (DC 1982) (coming to court twenty minutes later than directed); In re Gatehouse, 415 A.2d 1388 (DC 1980) (failure to inform the court of schedule conflict); but cf. In re Alexander, 466 A.2d 447, 448 n.2 (DC 1982) (trial court referred lawyer to disciplinary process rather than charging him with criminal contempt, for failing twice to appear for a scheduled trial).

3.3   Rule 3.3 Candor to Tribunal

3.3:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 3.3
· Background References: ABA Model Rule 3.3, Other Jurisdictions
· Commentary:

3.3:101      Model Rule Comparison

Prior to the 2002 amendments to Model Rule 3.3 pursuant to recommendations of the Ethics 2000 Commission, that Rule and DC Rule 3.3 differed in every paragraph and subparagraph save subparagraph (a)(1), prohibiting a lawyer from knowingly making a false statement of material fact or law to a tribunal. Those 2002 amendments, together with the 2006 amendments to the DC Rule recommended by the DC Rules Review Committee, have brought the two versions of the Rule 3.3 somewhat closer together, though the differences still outnumber the similarities.

Subparagraph (a)(1) of the Model Rule was changed in 2002 to eliminate the limitation of the prohibition on making a false statement of law or fact to material ones, and to add a requirement that the lawyer correct any such statement that had previously been made. These two changes were made in the DC Rule in 2006, but with an exception to the duty to correct a false statement if correction would require disclosure of information whose disclosure is prohibited by Rule 1.6.  

Subparagraph (a)(2) of the Model Rule had required a lawyer to disclose a material fact to a tribunal when necessary to avoid assisting a criminal or fraudulent act by the client, but in 2002 this requirement was omitted, and the provision regarding disclosure of adverse authority, which had been subparagraph (a)(3), was renumbered as (a)(2). The DC Rule had never had a provision corresponding to the Model Rule's subparagraph (a)(2); but instead it had in subparagraph (a)(2) a prohibition on counseling or assisting a client to engage in criminal or fraudulent conduct, which was substantively identical to DC Rule 1.2(e) (and MR 1.2(d)).  The Jordan Committee explained, in this connection, that it "felt that the ABA's imposition of an affirmative duty to expose a client's criminal or fraudulent act to a tribunal was too intrusive upon the lawyer's duty...to maintain client confidences and secrets;" but it did not explain why repetition of a provision already included in another rule was considered appropriate.

Subparagraph (a)(3) of the DC Rule, prohibiting a failure to disclose directly adverse legal authority, differs only slightly from its Model Rule counterpart, which was originally also subparagraph (a)(3) but is now (a)(2): the difference is that the DC version requires disclosure only of adverse authority that the lawyer knows to be "dispositive of a question at issue."

The first sentence of what was formerly subparagraph (a)(4) of Model Rule 3.3 and is now subparagraph (a)(3) forbids a lawyer, without exception, to offer evidence that the lawyer knows to be false. The corresponding provision of the DC Rule, still designated subparagraph (a)(4), makes that prohibition subject to a paragraph (b) that has no counterpart in the Model Rule.  That paragraph states that a lawyer who knows that a criminal defendant client intends to give false evidence must first attempt to dissuade the client and, failing that, must seek to withdraw unless this would seriously harm the client; but if neither persuasion nor withdrawal is feasible, the lawyer may put the client on the stand to testify in a narrative fashion, without examination and without arguing the probative value of the false testimony.  (The Jordan Committee had proposed a provision that would have allowed the lawyer to "go forward with the examination of the client and closing argument in the ordinary manner," but the Court of Appeals rejected that and substituted the present provision.)

A second sentence in subparagraph (a)(3) of the Model Rule addresses the measures to be taken by a lawyer who comes to know that evidence the lawyer has offered is false; it originally spoke only of "reasonable remedial measures," but as amended in 2002 it specifically recognizes that such measures include disclosure to the tribunal "if necessary." Another sentence was also added to subparagraph (a)(3) of Model Rule 3.3 in 2002, stating that a lawyer may refuse to offer evidence, other than the defendant's testimony in a criminal matter, that the lawyer reasonably believes is false.  That sentence had previously constituted a separate paragraph (c) of the Model Rule, which had no parallel in the DC Rule.  However, an identical sentence was added to subparagraph (a)(4) of the DC Rule in 2006.

DC Rule 3.3 has in paragraph (d) a provision derived from DR 7-102(B), not included in the Model Rule, requiring a lawyer who learns that a fraud has been perpetrated upon the tribunal promptly to reveal the fraud to the tribunal — unless compliance would entail disclosure of information protected by Rule 1.6, in which case the lawyer must instead call upon the client to rectify the fraud.
Paragraph (b) of the Model Rule states that the duties set out in paragraph (a) continue to the end of the proceeding, and that they override the obligation of confidence imposed by Rule 1.6. In the DC Rule the corresponding provision is paragraph (c), which sets out only the first of these propositions; with regard to the second, the DC Rule takes the opposite position in paragraph (d): i.e., Rule 1.6 trumps any disclosure requirement.

Model Rule 3.3(d) requires a lawyer in an ex parte proceeding to inform the tribunal of all material facts, whether or not the facts are adverse. DC Rule 3.3 has no counterpart provision. The Jordan Committee read the Model Rule provision as "requiring a lawyer to divulge a client's confidential information, when making an ex parte application for a temporary restraining order," and found this without precedent or justification.

Reflecting the many differences in the black letter text of the Rule, almost all of the comments to  DC Rule 3.3 differ from those to the Model Rule.

3.3:102      Model Code Comparison

DC Rule 3.3(a)(1), prohibiting false statements of material facts or law to a tribunal, is substantially identical to DR 7-102(A)(5) of the Model Code, although DR 7-102(A)(5) was not, like Rule 3.3(a)(1), limited to false statements made to a tribunal. (Note that Rule 4.1(a), prohibiting false statements to a third person, also derives from DR 7-102(A)(5)).

Subparagraph (a)(2) of the DC Rule, on counseling or assisting a client to engage in criminal or fraudulent conduct, contains the same prohibition as did DR 7-102(A)(7) but adds the provisos that a lawyer may discuss the legal consequences of a course of conduct, and test the validity or application of a law.

Subparagraph (a)(3), requiring the disclosure of directly adverse authority, is substantially identical to DR 7-106(B)(1), except that subparagraph (a)(3) requires disclosure only of adverse authority that is dispositive of a question at issue. Subparagraph (a)(4) of the DC Rule is similar in substance to DR 7-102(A)(4), except that the latter prohibited a lawyer from knowingly using perjured testimony or false evidence without exception, while the DC Rule has an exception for circumstances described in paragraph (b), which has no counterpart in the Model Code.

Paragraph (c) of the DC Rule also has no counterpart in the Model Code.

Paragraph (d), directing a lawyer who learns that a fraud has been perpetrated on a tribunal to reveal the fraud unless the information is protected by Rule 1.6, is similar in substance to DR 7-106(B). (DR 7-102(B)(1) of the DC Code had been amended by referendum of the DC Bar in 1972 to limit the lawyer's obligation, when the client had committed the fraud, to calling upon the client to rectify it. The ABA made a somewhat similar change, limiting the lawyer's disclosure obligation to circumstances where no privileged communication is involved, in 1974.)

3.3:200   False Statements to a Tribunal

· Primary DC References: DC Rule 3.3(a)(1)
· Background References: ABA Model Rule 3.3(a)(1), Other Jurisdictions
· Commentary: ABA/BNA § 61:301, ALI-LGL § 120, Wolfram § 12.5

Comment [2] to the DC Rule emphasizes that, when a lawyer makes an assertion to a tribunal in an affidavit or in open court, the lawyer must know the assertion to be true or believe it to be true based upon reasonably diligent inquiry. See also United States v. Williams, 952 F.2d 418, 421 (DC Cir. 1991), cert. denied, 506 US 850 (1992) (administering a public reprimand of an assistant U.S. Attorney for five material misstatements of the record in a brief on appeal). Comment [2] also notes that in certain circumstances the failure to make a disclosure is the equivalent of an affirmative misrepresentation. However, awareness of some evidence contrary to an assertion does not prevent a lawyer from making the assertion. For example, in Jackson v. Scott, 667 A.2d 1365, 1370 (DC 1995), the DC Court of Appeals held that a lawyer could deny his client's negligence notwithstanding evidence from the hospital's peer review process that the client committed malpractice. In DC Ethics Opinion 213 (1990), a lawyer argued in connection with a post-trial ineffective assistance of counsel claim that a particular witness's testimony, if admitted, would have exculpated the defendant. This information later proved to be false, as the witness denied making the inculpatory statement. The Legal Ethics Committee concluded that the lawyer did not knowingly make a false statement in his argument because the "element of knowledge of any falsity at the time the statement may have been made [was] lacking."

In In re Uchendu, 812 A.2d. 933 (DC 2002), the respondent lawyer was found to have signed his clients' names to probate documents that they were required personally to sign, sometimes with his initials following the name and sometimes not; and to have notarized some of the same documents. Despite the fact that respondent had had his clients' authorization to sign on their behalf, had not falsified any contents of the documents, had no intent to defraud, and had not prejudiced either the clients or the probate court's decision-making, he was held to have violated DC Rules 3.3(a)(1), 8.4(c) and 8.4(d), for which he was subjected to a 30-day suspension. The false signatures and notarizations fell under the prohibition of Rule 3.3(a)(1) because they were "false statements," and misleading.

DR 7-102(A)(5), which (unlike its successors Rules 3.3(a) and 4.1(a)) did not specify the audience to which the making of false statements of material fact was prohibited, was often applied to false statements made to a tribunal. Thus, in In re Lenoir, 585 A.2d 771 (DC 1991), a lawyer was found to have violated DR 7-102(A)(5) (and DR 1-102(A)(4)) by placing another lawyer's name on a pleading without consent of the other lawyer. In In re Reback, 513 A.2d 226 (DC 1986), two lawyers who failed to inform their client that her complaint had been dismissed and instead prepared a second complaint, forged the client's signature thereto and had the signature notarized, were suspended for six months for violating DR 7-102(A)(5), as well as several other disciplinary rules. In re Rosen, 481 A.2d 451 (D.C. 1984), involved several false statements in documents filed with a court. The first such statement, in a motion for continuance, was to the effect that the clients were out of the jurisdiction and unable to discuss pertinent matters, when the lawyer's own testimony made clear he had had numerous conferences with them during the pertinent period. The second, also in a continuance motion, was that his clients were financially unable to bring witnesses necessary to support their claim to Washington, D.C., and that they had difficulty obtaining necessary trial documents, when in fact respondent's unpreparedness was due to his own procrastination. The third false statement, responding to opposing counsel's argument that respondent had failed to comply with discovery rules and deadlines set in the pretrial order, was to the effect that he could not comply because his clients possessed all of the discovery documents and did not return to the jurisdiction until the day before trial -- contradicted, like the first, by respondent's own testimony. The Court upheld the Board on Professional Responsibility's determination that all of the statements were baseless and constituted "knowing misrepresentations" in violation of DR 7-102(A)(5) as well as DR 1-102(A)(4) (which, like Rule 8.4(c), prohibited a lawyer from engaging in "conduct involving dishonesty, fraud, deceit, or misrepresentation"). In In re Aircrash Disaster at Washington, D.C. on January 13, 1982, 559 F. Supp. 333 (DDC 1983), the court, in a footnote, "emphasize[d] its displeasure with counsel's misrepresentaon," in the form of selective and misleading elision of a quotation from a decision by another district court, and noted that, if knowingly made (as the court suspected was the case), the misrepresentation would violate DR 7-102(A)(5). Id. at 355 n.35.

In In re Cleaver-Bascombe, 892 A.2d 396 (DC 2006), the Court approved a finding by the Board that the respondent, who had been appointed by the Superior Court under the Criminal Justice Act to represent the defendant in an extradition proceeding, had submitted a voucher claiming payment for her services which listed several items of  time purportedly spent in that representation that had not in fact been spent at all.  The Court also approved the Board’s conclusion that the respondent had thereby violated DC Rule 3.3(a), as well as Rules 1.5(a), 8.4(c) and 8.4(d).  In connection with the charged violation of Rule 3.3(a), the Hearing Committee had concluded that the vouchers had not been submitted to a “tribunal,” the key operative term in that Rule, because the approval of such vouchers by the Financial Operations Division of  the court was not a judicial function.   The Board had disagreed with the Hearing Committee on this, and the Court concurred with the Board, pointing out that respondent, as an experienced CJA practitioner, knew that her voucher would be reviewed by the Superior Court judge who was presiding over the proceeding for which she was seeking compensation; and whether or not there were departments within the court that did not have authority to act in a judicial or quasi-judicial capacity, the judge surely did. With respect to the sanction to be imposed, however, the Court remanded the matter to the Board for a determination as to whether the submission of the false voucher had been the product of deliberate falsification, on the one hand, or on the other, record-keeping so shoddy that despite a lack of wrongful intent it was “legally equivalent to dishonesty.”

In re Hermina, 907 A.2d 790 (DC 2006) applied reciprocal discipline to a lawyer who had been found by the Maryland Court of Appeals to have violated the Maryland Rule of Professional Conduct 3.3(a)(1) as well as Rules 3.4(c) and 8.4(a), (c) and (d) -- all of which Maryland Rules were either the same as or equivalent to correspondingly numbered DC Rules.  (The respondent had also been found to have violated Maryland Rule 8.2, which like its Model Rule counterpart prohibited making false statements about the integrity of a judge, but which has no corresponding provision in the DC Rules, but the DC Court of Appeals found the other violations sufficient to support the same sanction of public censure as the Maryland authorities had imposed.)  The violation of Rule 3.3(a)(1) had consisted of the respondent’s deliberately misrepresenting to a judge that he had been precluded from conducting any discovery by virtue of a protective order that another judge had issued in the case.  See also In re Robbins, 911 A.2d 1227 (DC 2006), where the respondent had been publicly censured in Arizona for violation of  that state’s Rule 3.3(a)(1) for stating to a court that settlement negotiations had begun when in fact they had not, though they did shortly thereafter.  That Arizona Rule being the same as the corresponding DC Rule, the DC Court of Appeals same sanction approved reciprocal imposition of the same sanction.

DC Ethics Opinion 336 (2006) (discussed more fully under 3.3:600, below), which involved an inquiry by lawyer appointed to serve as the guardian of an incapacitated individual, stated that Rule 3.3(a)(1) applies to bar members even when they are not appearing before a tribunal in their capacity as a lawyer.

3.3:300   Disclosure to Avoid Assisting Client Crime or Fraud

· Primary DC References: DC Rule 3.3(a)(2)
· Background References: ABA Model Rule 3.3(b), Other Jurisdictions
· Commentary: ABA/BNA § 61:301, ALI-LGL § 120

DC Rule 3.3 does not include a provision precisely parallel to MR 3.3(a)(2) 's prohibition of a lawyer's knowingly failing to disclose a material fact to a tribunal when necessary to avoid assisting a criminal or fraudulent act by a client. However, see discussion of DC Rule 3.3(d) under 3.3:600 below.

See also DC Ethics Opinion 285 (1998), discussed under 4.4:200, above (relying on Opinion 227).

3.3:310      Prohibition on Counseling or Assisting Fraud on a Tribunal [see also 1.6:350]

In In re Corrizzi, 803 A.2d 438 (DC 2002), the respondent was found to have committed a number of ethical delicts, of which the most serious involved counseling two clients, in separate cases, to commit perjury on their depositions. These two offenses, which themselves violated several different Rules, including DC Rules 3.3(a)(2), 3.4(b), 8.4(c) and 1.3(b)(2), were held sufficient to warrant disbarment. Rule 3.3(a)(2) prohibits (as do DC Rule 1.2(e) and Model Rule 1.2(d)) a lawyer from counseling or assisting a client to engage in conduct the lawyer knows is criminal or fraudulent.

In In re Sandground, 542 A.2d 1242, 1248 (DC 1988), the DC Court of Appeals explained that assisting a client to conceal funds during discovery in a divorce proceeding constituted assistance in a fraud and was a serious ethical transgression no matter what the lawyer's intentions were. DC Ethics Opinion 153 (1985), discussing the DC Code of Professional Responsibility, explained that, when a lawyer cannot reveal a fraud because of Rule 1.6 and the client refuses to rectify the fraud, then to avoid participating in an ongoing fraud the lawyer must withdraw from the representation. But see DC Ethics Opinion 9 (1975) (a lawyer discovering his client's failure to maintain a condition of his release on bond cannot reveal the fraud on the tribunal and can continue to represent the client). Under Opinion 153, the lawyer can continue to represent the client in unconnected matters. A lawyer can also represent a client who the lawyer knows has committed a past fraud, if the lawyer did not represent that client when the fraud was committed.

3.3:400   Disclosing Adverse Legal Authority

· Primary DC References: DC Rule 3.3(a)(3)
· Background References: ABA Model Rule 3.3(a)(2), Other Jurisdictions
· Commentary: ABA/BNA § 4:301, ALI-LGL § 111, Wolfram § 12.8

In Roeder v. Islamic Republic of Iran, 195 F.Supp. 2d 140 (DDC 2002), aff'd 333 F.3d 228 (DC Cir. 2003), a class action on behalf of former hostages seeking to recover damages against the Iranian government, the District Court, after granting a motion to dismiss by the United States as intervenor, criticized class plaintiffs' counsel for violating both Civil Rule 11 and DC Rule of Professional Conduct 3.3(a)(3) for making frivolous legal arguments and failing to disclose adverse authority; although, remarkably, the Court did not impose any sanction. The Court termed "particularly problematic" the following:

Plaintiffs' total failure to bring to this Court's attention the Algiers Accords and implementing regulations despite the FSIA's requirement that plaintiffs "established [their] claim or right to relief by evidence that is satisfactory to the Court." 28 U. S.C. § 1608(e).

Plaintiffs' failure to address any of the two hundred years of cases regarding conflicts between legislation and previously-enacted treaties and international agreements until ordered to do so by the Court.

Plaintiffs' request for a default judgment on liability prior to his Court hearing any evidence to support their claims, despite the clear statutory requirement in 28 U.S.C. § 1608(e).

Plaintiffs' motion to strike the government's motion to intervene that raised a completely frivolous argument and did not contain any discussion of the requirements of Federal Rule of Civil Procedure 24.

Plaintiffs' argument that the Algiers Accords are the legally invalid result of coercion, raised very late in these proceedings, and clearly contradicted by Supreme Court precedent.

3.3:500   Offering False Evidence

· Primary DC References: DC Rule 3.3(a)(4) & (b)
· Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
· Commentary: ABA/BNA § 61:301, ALI-LGL §§ 115, 117, 120, Wolfram §§ 12.3, 12.43, 12.5

DC Ethics Opinion 213 (1990) explains that a lawyer's knowledge that two witness statements conflict does not constitute "knowledge" that one such statement is false. Accordingly, use of one of the statements does not constitute knowing use of false evidence, and if a lawyer learns of the conflicting statements after the fact, the lawyer need not disclose the conflict to the tribunal. See also Butler v. United States, 414 A.2d 844, 850-51 (DC 1980) (en banc) (observing that the record did not support the inference that defense counsel knew the defendant was going to commit perjury solely because the defendant had made inconsistent statements to him about possession of a pistol).

DC Ethics Opinion 213 (1990) explains that a lawyer's knowledge that two witness statements conflict does not constitute "knowledge" that one such statement is false. See also Butler v. United States, 414 A.2d 844, 850 (DC 1980) (en banc). Accordingly, use of one of the statements does not constitute use of false evidence, and if a lawyer learns of the conflicting statements after the fact, the lawyer need not disclose the conflict to the tribunal.

3.3:510      False Evidence in Civil Proceedings

There appear to be no pertinent DC court decisions or ethics opinions on this subject.

3.3:520      False Evidence in Criminal Proceedings

DC Ethics Opinion 234 (1993) elaborates on the steps described in Rule 3.3(b) that a lawyer should take when a client who is a defendant in a criminal prosecution insists on presenting false testimony. As a preliminary matter, the lawyer must have a substantial level of knowledge that the testimony will be false, before the lawyer takes any remedial actions. Assuming such knowledge, the lawyer first must make a good-faith effort to dissuade the client from testifying falsely. If that effort fails, the client must seek leave of the tribunal to withdraw, unless withdrawal would seriously harm the client. As Opinion 234 and Comment [8] to the Rule make clear, withdrawal is clearly the preferred option; however, because of the risk of seriously prejudicing the client, a lawyer need not move to withdraw on the eve of trial. Finally, if the client takes the stand, the lawyer must allow the client only to give narrative testimony and must not examine the client in a way to elicit testimony the lawyer knows to be false. Nor may the lawyer argue the probative value of the false testimony in closing. These provisions represent a compromise, which allows the lawyer to protect the attorney-client privilege while attempting to minimize the damage to the tribunal caused by perjured testimony. The ABA expressly rejected this approach when it promulgated the Model Rules.

3.3:530      Offering a Witness an Improper Inducement

There appear to be no pertinent DC court decisions or ethics opinions on this subject.

3.3:540      Interviewing and Preparing Witnesses

DC Ethics Opinion 79 (1979) responded to a trio of questions regarding the ethical obligations of a lawyer who is asked to prepare a witness to testify: (1) to what extent may a lawyer suggest the actual language of a witness's testimony?; (2) to what extent may a lawyer suggest testimony that contains information not originally furnished by the witness?; and (3) to what extent may a lawyer prepare a witness for live examination, by questioning or otherwise? The Opinion held that a single principle, supported by DR 7-102(A)(4), (6) and (7), guided the answer to all three questions: "it is, simply, that a lawyer may not prepare, or assist in preparing, testimony that he or she knows, or ought to know, is false or misleading." The Opinion added: "So long as this prohibition is not transgressed, a lawyer may properly suggest language as well as the substance of testimony, and may -- indeed, should -- do whatever is feasible to prepare his or her witness for examination."

DC Ethics Opinion 79 (1979), discussing the DC Code of Professional Responsibility, emphasizes that a lawyer may not prepare, or assist in preparing, testimony the lawyer knows is false or misleading. However, so long as a lawyer does not violate this prohibition, a lawyer may suggest language and even the substance of a witness' testimony in preparing the witness.

3.3:600   Remedial Measures Necessary to Correct False Evidence

· Primary DC References: DC Rule 3.3(d)
· Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
· Commentary: ABA/BNA § 61:401 et seq., ALI-LGL §§ 66, 67, Wolfram §§ 12.5, 12.6, 13.3.6

3.3:610      Duty to Reveal Fraud to the Tribunal

DC Rule 3.3(d), like its predecessor DR 7-102(B)(1), requires a lawyer who learns that a fraud has been perpetrated on a tribunal promptly to so inform the tribunal unless to do so would disclose information protected by Rule 1.16 (under the Code, DR 4-101). In that case, the lawyer must "call upon the client to rectify the fraud."

DC Ethics Opinion 153 (1991), applying DR 7-102(B)(1), held that where a lawyer has advised a client to make disclosures to a tribunal and the client has refused to do so, the lawyer may not him- or herself make the disclosures. In such circumstances, however, the lawyer cannot continue to represent the client, either: see 3.3:300, above.

DC Ethics Opinion 219 (1991) explains that a lawyer may reveal such a fraud even if the disclosure is of information protected by Rule 1.6 if the law, or rules of the tribunal having the force and effect of law, require the fraud to be revealed and the client refuses to rectify the fraud. See also DC Ethics Opinion 126 (1983) (a lawyer is not obligated to disclose that his client has violated a court order unless the court orders him to do so); DC Ethics Opinion 9 (1975) (a lawyer discovering that his client has failed to maintain a condition of his release on bond cannot reveal the fraud on the tribunal but can continue to represent the client).

DC Ethics Opinion 336 (2006) addressed a lawyer’s duty to disclose information to a tribunal when the lawyer is acting as guardian, but not as counsel, to an incapacitated individual.  The Opinion responded to an inquiry from a lawyer who had been appointed to serve as the guardian of an incapacitated individual by the Probate Division of the DC Superior Court.  The guardian had obtained benefits for the individual using a name and social security number that he later determined were false.  The Opinion stated that the guardian’s conduct was governed by Rules 3.3(a)(1), 3.3(d), and 8.4(c), even though he was not functioning as the individual’s lawyer, and that those rules precluded him from continuing to use the false identity and required him to disclose the false identity.

The Opinion explained that the guardian’s conduct before an agency that determines entitlement to benefits would be governed by Rule 3.3(a)(1).  It observed that the guardian was required to provide periodic written reports on the individual’s condition and held that he had an affirmative duty to “reveal the fraud to the tribunal” under Rule 3.3(d).  It further observed that the guardian’s failure to disclose the past use of false information would likely be considered equivalent to an affirmative misrepresentation.  Finally, the Opinion explained that virtually any conduct by the guardian that relied on or used the false information would violate Rule 8.4(c).

3.3:700   Discretion to Withhold Evidence Believed to Be False

· Primary DC References: DC Rule 3.3(b)
· Background References: ABA Model Rule 3.3(c), Other Jurisdictions
· Commentary: ABA/BNA § 61:301, ALI-LGL § 120, Wolfram § 12.5

Under Witherspoon v. United States, 557 A.2d 587, 592 (DC 1989), when a conflict develops between a lawyer and a client because of the lawyer's refusal to present certain evidence, the court should conduct a hearing to determine whether the conflict precludes the lawyer's ability to provide effective representation. The concurring opinion of Judge Ferren in Witherspoon, 557 A.2d at 594 provided a thorough discussion of the interaction between a lawyer's duty to abide by his client's wishes and his ethical obligations with respect to avoiding presentation of perjurious testimony under the Model Code. When a client, a defendant in a criminal prosecution, demands that the lawyer call witnesses who the lawyer suspects will lie on the stand, the lawyer is not obliged to withdraw from representation because the authority to call witnesses rests with the lawyer, not the client. Thus rather than withdraw, the lawyer simply must ignore the client's request in accordance with DR 7-102(A). Id. at 596. The ethical balance changes, however, if the client-defendant insists on testifying falsely. Judge Ferren said that, "absent serious harm to the client, a judge should not compel a lawyer, over the lawyer's objection, to associate further in a criminal case with a client-defendant who the lawyer knows intends to commit perjury at trial." Id. at 598.

3.3:800   Duty of Disclosure in Ex Parte Proceedings

· Primary DC References:
· Background References: ABA Model Rule 3.3(d), Other Jurisdictions
· Commentary: ABA/BNA § , ALI-LGL § 172, Wolfram § 12.7

DC Rule 3.3 has no provision corresponding to paragraph (d) of the Model Rule, which addresses the subject of required disclosures in ex parte proceedings. There appear to be no pertinent DC court decisions or ethics opinions on the subject.

There appear to be no pertinent DC court decisions or ethics opinions on this subject.

3.4   Rule 3.4 Fairness to Opposing Party and Counsel

3.4:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 3.4
· Background References: ABA Model Rule 3.4, Other Jurisdictions
· Commentary:

3.4:101      Model Rule Comparison

All of the black letter provisions of DC Rule 3.4 save paragraph (a) were identical to their Model Rule counterparts until 2006, when a new paragraph (g), described below, was added to the DC Rule. (No changes in the black letter text of Model Rule had been suggested by the Ethics 2000 Commission, and accordingly none were made in 2002.) 

Although the two versions of paragraph (a) address the same general subject, they differ in several respects.  First, while the Model Rule's prohibitions against obstructing another party's access to evidence and against altering, destroying or concealing evidence are both qualified by the adverb "unlawfully," the DC Rule omits that word from both prohibitions. However, Comment [4] to the DC Rule, which has no Model Rule counterpart, states that a "lawyer should ascertain that the lawyer's handling of documents or other physical objects does not violate any other law," and adds that "federal criminal law may forbid the destruction of documents or other physical objects in circumstances not covered by...paragraph (a)."

A second difference in the two versions of paragraph (a) is that while both prohibit obstruction of another party's access to "evidence," the Model Rule's prohibition on altering, destroying or concealing applies to "any document or other material having evidentiary value," whereas the DC Rule refers, more narrowly, to "evidence" that the "lawyer reasonably should know . . . is or may be the subject of discovery or subpoena in any pending or imminent proceeding."

Another difference is that the Model Rule's paragraph (a) has a second sentence that prohibits a lawyer from counseling or assisting another person in doing what is forbidden by the first sentence, while the DC Rule covers both prohibitions in a single sentence.
Finally, paragraph (a) of the DC Rule has a second and a third sentence that address a lawyer's ethical obligations upon receipt of physical evidence from a client or any other person — a subject not covered by the text or comments of the Model Rule.  These two additional sentences  provide, respectively, that absent a legal prohibition, a lawyer may receive physical evidence of any kind from the client or a third party, and that if the evidence belongs to a person other than the client, the lawyer shall make a good faith effort to return it to that person, subject to the duty of confidentiality imposed by Rule 1.6.  These two sentences are the subject of lengthy explication in Comments [3] through [7] to the DC Rule, which have no counterparts in the Comments to the Model Rule..  The Jordan Committee also proposed a Comment [8] addressing a lawyer's conducting investigations to discover evidence; but the Court of Appeals did not adopt this proposed Comment.

The new paragraph (g) added to the DC Rule in 2006 prohibits a lawyer from peremptorily striking jurors for any reason prohibited by law -- a prohibition that had previously been in DC Rule 3.8, regarding special reponsibilitites of a prosecutor, as paragraph (h). The DC Rules Review Committee had recommended moving the prohibition to Rule 3.4 so as to make it applicable to all lawyers, not just prosecutors. In connection with this change in the prohibitions's scope, the provision's reference to striking a juror "on grounds of  race, religion, national or ehnic background, or sex," was changed to "for any reason prohibited by law," a phrase defined by a new Comment [10] to the DC Rule as grounds for peremptorily striking a juror "that have been determined in binding decisions to be discriminatory in jury selection."  The case law regarding peremptory strikes of jurors is extensively discussed under 3.8:900, below.
Special note should be taken of Comment [5] to the DC Rule, which recognizes a unique DC procedure under which a lawyer may turn over physical evidence to Bar Counsel, who then turns it over to appropriate authorities:  a procedure that, as the Comment states, "is usually the best means of delivering evidence to the proper authorities without disclosing client confidences."  This procedure is more fully discussed under 3.4:210, below.

Although paragraph (b) of DC Rule 3.4 is identical to its Model Rule counterpart, the Rule's prohibition on "offer[ing] an inducement to a witness that is prohibited by law" is elaborated by a Comment [8] that differs significantly from the corresponding Comment [3] to the Model Rule, with respect to compensation of both fact witnesses and expert witnesses. As to the fact witnesses, Comment [3] to the Model Rule states that "it is not improper to pay a witness's expenses," but that "[t]he common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying." Comment [8] to the DC Rule, on the other hand, expressly states that "it is not improper . . . to compensate a witness for loss of time in preparing to testify, in attending, or in testifying."  As to expert testimony, Comment [3] to the Model Rule states that the "common law rule in most jurisdictions is . . . that it is improper to pay an expert witness a contingent fee," but Comment [8] to the DC Rule expressly states that it is permissible to pay an expert witness a "fee . . . contingent on the outcome of the litigation," so long as the fee is not a percentage of the recovery.

With respect to paragraph (d) of the DC Rule, dealing with pretrial discovery, which as mentioned is also identical to its Model Rule counterpart, it should be noted that the Jordan Committee recommended deletion of that paragraph on the ground that "disciplinary authorities should not be responsible for interpreting such [discovery] rules and principles," but the Court of Appeals did not adopt this recommendation.

3.4:102      Model Code Comparison

Paragraph (a) of DC Rule 3.4 includes prohibitions that were contained in DR 7-109(A), DR 7-109(B), and DR 7-106(C)(7) but is more comprehensive than these prior rules.

Paragraph (b) in conjunction with Comment [8] to the DC Rule (discussed under 3.4:101 above) represents a distinct change from DR 7-109(C), which prohibited "compensation to a witness contingent upon . . . the outcome of a case," and which, while allowing compensation of a witness for loss of time spent attending or testifying, did not include time spent in preparing to testify.

Paragraph (c) is substantially similar to DR 7-106(A).

Paragraph (d) had no counterpart in the Model Code.

Paragraph (e) is substantially identical to DR 7-106(C)(1), (3) and (4).

Paragraph (f) had no counterpart in the Model Code.

3.4:103      Overview

DC Rule 3.4, like its Model Rule counterpart, is one of several rules in the "Advocate" category that impose restrictions on a litigating lawyer's zeal in representing clients before courts or other tribunals. Such rules are intended to control, by professional discipline, a lawyer's litigation excesses. However, they overlap or supplement other forms of control applicable to the same type of lawyer excesses: e.g., statutory criminal sanctions such as those for obstruction of justice or destruction of evidence; judicial sanctions through the power of courts to punish lawyers for contempt as well as to assess fines and to order payment of attorney's fees incurred by opposing parties; and judicial control by means of rulings on evidentiary or procedural matters likely to influence the outcome of the litigation in which such litigating excesses have occurred. In the District of Columbia, disciplinary proceedings to control lawyer excesses have been very sparse. Thus, as in many other jurisdictions, the most frequent form of control of litigating excesses probably consists of tribunal rulings on evidentiary or procedural matters in the course of litigation. See Wolfram, Modern Legal Ethics 619-21 (1986).

The DC Bar Board of Governors in July, 1996 adopted so-called "civility" standards entitled "Principles of General Applicability: Lawyers' Duties to Other Counsel, Parties and the Judiciary." The DC civility standards, which are wholly voluntary, are generally comparable to the voluntary civility standards adopted by the Seventh Circuit in December 1992, 143 FRD 441 (1992), but they do not have the official imprimatur of the DC Court of Appeals or any other court in the jurisdiction.

3.4:200   Unlawful Destruction and Concealment of Evidence

· Primary DC References: DC Rule 3.4(a)
· Background References: ABA Model Rule 3.4(a), Other Jurisdictions
· Commentary: ABA/BNA § 61:701, ALI-LGL §§ 118, 119, Wolfram § 12.3, 12.4

Paragraph (a) of DC Rule 3.4 sets forth a sweeping proscription of any destruction, alteration or concealment of evidence as well as any obstruction of another party's access to evidence, which, as discussed under 3.4:101 above, varies from the corresponding paragraph of the Model Rule in three significant respects. Comment [1], which is identical to its Model Rule counterpart, stresses that the purpose is to protect an advocacy system of litigation wherein evidence is to be marshalled competitively by the parties to the dispute operating on a level playing field.

As to the provisions of DC Rule 3.4(a) that are the same as those in the Model Rule, there are no court opinions setting forth a controlling interpretation of the DC Rule. Court decisions interpreting comparable provisions in the predecessor DC Code likewise provide little or no assistance. Hence, until such time as there are DC precedents, interpretations of Model Rule 3.4(a) in other jurisdictions may be significant for purposes of DC Rule 3.4(a).

Courts in other jurisdictions have interpreted Model Rule 3.4(a), as well as predecessor provisions in the Model Code, as prohibiting a lawyer from obstructing another party's access to evidence by improper means, such as inducing a potential witness to leave the geographic reach of the court's jurisdiction or otherwise to evade or ignore a subpoena or similar process. E.g., In re Geron, 486 N.E. 2d 514 (Ind 1985) (lawyer instructed clients to depart from courthouse so as not to be able to testify); Florida Bar v. Fischer, 549 So. 2d 1368 (Fla 1989) (lawyer instructed secretary to inform a witness falsely that court session had been canceled). In most jurisdictions, however, a lawyer is permitted to inform a non-client witness of the privilege against self-incrimination, even though such advice may tend to obstruct opposing counsel's access to the witness. McNeal v. Hollowell, 481 F.2d 1145 (5th Cir. 1973), cert. denied, 415 US 951 (1974); see also ABA Informal Opinion 575 (1962); State v. Fosse, 424 N.W. 2d 725 (Wis Ct. App. 1988) (contra). One court has held that a lawyer is guilty of obstruction of justice when the lawyer corruptly induces a client-witness to invoke the privilege against self-incrimination. United States v. Cintolo, 818 F.2d 980, 990-92 (1st Cir. 1987).

The only DC ethics opinion discussing DC Rule 3.4(a) is DC Ethics Opinion 242 (1993), which responded to an inquiry from a lawyer whose client had provided him with documents that might possibly be the property of the client's former employer. The Opinion concluded that if the client-employee so requested and had a plausible claim to ownership, the lawyer should return such documents to the client-employee; as to all other documents, the lawyer should return them to the client's former employer unless this would reveal confidences of the client-employee protected by DC Rule 1.6, in which event the lawyer should retain the documents and not permit them to be used inconsistently with the lawyer's fiduciary duty to the owner, i.e. the client's former employer. This Opinion also discussed the relationship between DC Rules 1.15(a) and 3.4(a).

DC Ethics Opinion 119 (1983), responding to a lawyer's inquiry about the proposed destruction of the lawyer's copies of memoranda that had been sent to the client, was concerned with the precursor provisions of the Code. The memoranda in question had been prepared in a prior case that was later settled, but the same client was the defendant in another pending case raising one of the same issues as the settled case. The Opinion concluded that the lawyer's legal obligation was found in DR 1-102(A)(5), prohibiting "conduct that is prejudicial to the administration of justice" and that therefore the lawyer should "preserve the document, while vigorously presenting the [claimed] privileges as a defense to efforts to discover the document." The Opinion also addressed the question whether the inquiring lawyer had any legal obligation by virtue of the prior court ruling in the settled cases calling for production of the documents. The Opinion concluded that the obligation of a lawyer to comply with such a court order "does not extend beyond the proceeding in which the ruling was made."

3.4:210      Physical Evidence of Client Crime

Comment [5] to DC Rule 3.4 refers to a unique procedure that has been available in the District of Columbia for several years for dealing with physical evidence of a client's crime:

In some cases, the Office of Bar Counsel will accept physical evidence from a lawyer and then turn it over to the appropriate persons; in those cases this procedure is usually the best means of delivering evidence to the proper authorities without disclosing the client's confidences.

The Comment goes on to say that Bar Counsel may refuse to accept evidence, and that lawyers should therefore keep in mind the warnings set out in Comments [6] and [7] (described below), before accepting physical evidence from the client.

Comment [6] makes clear that if such evidence remains in a lawyer's possession and is then "subpoenaed or otherwise requested through the discovery process . . ., the lawyer will be obligated to deliver the evidence directly to the appropriate persons, unless there is a basis for objecting." Comment [7] states that, if the lawyer has received physical evidence from the client for purposes of examination or testing, the lawyer can later return the property to the client provided that it has not been subpoenaed, but points out that the lawyer may not be justified in returning to the client physical evidence whose possession by the client would be illegal such as certain weapons and drugs. Lawyers holding physical evidence that is contraband may therefore have a strong reason to turn such evidence over to the Office of Bar Counsel as provided in Comment [5].

In the absence of unusual circumstances, Bar Counsel generally accepts such contraband evidence and then promptly turns it over to an appropriate law enforcement agency without identifying the source of the evidence. It is understood that DC law enforcement authorities have concluded that it is better to have the contraband delivered to them by Bar Counsel, even without any disclosure of its source, than to allow it to remain with the lawyer or to be returned to the lawyer's client or other person. It is further understood that when disclosure no longer poses a threat to the individual who was the source of the contraband, Bar Counsel has sometimes arranged for the return of the contraband to its rightful owner.

Apparently the procedure for delivering contraband to Bar Counsel does not exist in any jurisdiction other than DC. Some jurisdictions have expressly rejected the procedure. See Hitch v. Pima County Superior Ct., 708 P.2d 72, 78-79 (Ariz. 1985) (DC procedure noted and rejected); cf. Morrell v. State, 575 P.2d 1200, 1207-10 (Alaska 1978) (without expressly referring to DC procedure, court endorsed limited disclosure to police based on reasoning inconsistent with DC rule).

3.4:300   Falsifying Evidence

· Primary DC References: DC Rule 3.4(b)
· Background References: ABA Model Rule 3.4(b), Other Jurisdictions
· Commentary: ABA/BNA §§ 61:601, 61:701, ALI-LGL § 118, Wolfram § 12.3

The proscriptions in DC Rule 3.4(b) related to falsifying evidence or assisting a witness to testify falsely are straightforward and have not required extensive discussion in the cases. DC precedents have been concerned primarily with the proper severity of discipline for falsifying evidence. Although ABA disciplinary standards state that disbarment is generally an appropriate sanction for falsifying evidence, particularly if it may have a serious effect on a party or the case, ABA Standards for Imposing Lawyer Sanctions § 6.11 (1986), sanctions imposed by the DC Court of Appeals have generally been less severe. For example, in In re Reback, 513 A.2d 226 (DC 1986), the Court sitting en banc set aside a panel's order imposing suspension for a year and a day and ruled instead that suspension for six months would be appropriate. The falsification in Reback occurred when the two lawyers there disciplined, having discovered that the complaint filed to obtain a divorce for their client had been dismissed for lack of prosecution, prepared and filed a second complaint on which they forged their client's signature and then had the forged signature falsely notarized. Similarly, in In re Thornton, 421 A.2d 1 (DC 1980), the court ordered suspension for a year and a day for the lawyer's submission of a "patently false" document stating that clients had been fully informed of a conflict of interest problem but had nonetheless agreed to the lawyer's representation of them.

In In re Corrizzi, 803 A.2d 438 (DC 2002), the respondent was found to have committed a number of ethical delicts, of which the most serious involved counseling two clients, in separate cases, to commit perjury on their depositions. These two offenses, which themselves violated several different Rules, including DC Rule 3.4(b) as well as 3.3(a)(2), 8.4(c) and 1.3(b)(2), were held sufficient to warrant disbarment.

3.4:310      Prohibited Inducements

Comment [8] to DC Rule 3.4, which interprets paragraph (b) of the Rule as permitting fees to expert witnesses that are contingent on the outcome of a case, though not fees that are a percentage of the recovery, rejects the prohibition of DR 7-109(C), which, as DC Ethics Opinion 20 (1976) held, "clearly forbids" compensating an expert witness even in part on a contingent basis. Subsequent opinions provided a somewhat more permissive interpretation of DR 7-109(C): see DC Ethics Opinion 55 (1978) (permitting payment of a contingent fee to an intermediary "organization" that agreed to furnish an expert witness paid by the organization without regard to the outcome of the litigation); DC Ethics Opinion 56 (1978) (permitting client's assignment of a portion of the potential recovery in lieu of an obligation to pay an expert witness).

3.4:400   Knowing Disobedience to Rules of Tribunal

· Primary DC References: DC Rule 3.4(c)
· Background References: ABA Model Rule 3.4(c), Other Jurisdictions
· Commentary: ABA/BNA § 61:1231, ALI-LGL § 105, Wolfram § 12.1

The provision of the Code that preceded Rule 3.4(c), DR 7-106(A), stated that a lawyer must not disregard either "a standing rule . . . or a ruling of a tribunal . . . in a proceeding," whereas Rule 3.4(c) refers only to "rules of a tribunal." This difference in terminology is not likely to cause the Rule to be more narrowly construed than the prior Code provision, given the absence of any comment elucidating Rule 3.4(c).

Disobedience of a court rule of another jurisdiction may be subject to disciplinary sanction under DC Rule 3.4(c) even if the rule violated has no counterpart in DC courts. See, e.g., In re McDonald, 775 A.2d 1085 (DC 2001) (lawyer publicly censured for failing to file an affidavit certifying to completion of mandatory CLE courses in Delaware, despite lack of any comparable requirement in DC.)

In re Hermina, 907 A.2d 790 (DC 2006) applied reciprocal discipline to a lawyer who had been found by the Maryland Court of Appeals to have violated the Maryland Rule of Professional Conduct 3.4(c) as well as Rules 3.3(a)(1) and 8.4(a), (c) and (d) -- all of which Maryland Rules were either the same as or equivalent to correspondingly numbered DC Rules. The violations of Rule 3.4(c) had consisted of respondent’s failing to respond to discovery in asserted retaliation for discovery failures on the part of his opponent, and knowingly failing to participate in a pre-trial conference.

DC Ethics Opinion 119 (1983), interpreting DR 7-106(A), concluded that the "obligation imposed by the rule does not extend beyond the proceeding in which the ruling was made" and that hence a court ruling requiring production of documents in a case that was concluded by a settlement did not oblige the lawyer to preserve the documents merely because parties in future cases might be likely to seek their production.

See also DC Ethics Opinion 266 (1996) [discussed under 1.16:400 above], holding that, where the rules of a tribunal require a lawyer to seek leave of the tribunal before withdrawing from a representation, the Rules of Professional Conduct also require the lawyer to seek such leave; it is not sufficient for the lawyer merely to inform the client of upcoming proceedings and advise the client to seek new counsel.

[See also 3.1:400 and 3.1:500, above (discussing decisions applying sanctions for misconduct in litigation).]

3.4:500   Fairness in Pretrial Practice

· Primary DC References: DC Rule 3.4(d)
· Background References: ABA Model Rule 3.4(d), Other Jurisdictions
· Commentary: ABA/BNA § 61:701, ALI-LGL § 106, Wolfram § 12.4

There are no reported disciplinary cases or opinions of the DC Bar's Legal Ethics Committee involving DC Rule 3.4(d). There are also no pertinent precedents under the Code because paragraph (d) had no counterpart in the Code.

[See also 3.1:300, above (discussing decisions under Superior Court Civ. R. 37).]

3.4:600   Improper Trial Tactics

· Primary DC References: DC Rule 3.4(e)
· Background References: ABA Model Rule 3.4(e), Other Jurisdictions
· Commentary: ABA/BNA § 61:1361, ALI-LGL § 107, Wolfram § 12.1

DC Rule 3.4(e), like its identical Model Rule counterpart, proscribes two forms of "dirty tricks": alluding to matter that is irrelevant or that will not be supported by evidence and asserting personal knowledge of fact or personal opinion as to the law. DC precedents have strongly endorsed the second of these prohibitions, while recognizing that the distinction between a lawyer's permissible advocacy and prohibited testimony is not always a bright line. See Powell v. United States, 455 A.2d 405, 409 (DC 1982), holding that a "prosecutor may not publicly cast his vote" in addressing the jury on a disputed material factual issue on which there has been conflicting testimony; Dyson v. United States, 418 A.2d 127, 130 (DC 1980), where a new trial was granted because the prosecutor asserted, among other things, that the testimony of a defense witness was "a lie," and the error could not be said to be harmless.

The reported decisions applying DC Rule 3.4 do not include any disciplinary cases involving alleged violations of paragraph (e) or a predecessor, which suggests that this type of misconduct is typically controlled by the trial courts in which it occurs. A standard mode of control is the granting of a new trial because of a lawyer's misconduct at trial, such as a closing argument to the jury in which the lawyer makes statements proscribed by this Rule. E.g. Powell v. United States, supra; Dyson v. United States, supra; see also Fineman v. Armstrong World Indus., Inc., 774 F. Supp. 266 (D.N.J. 1991), aff'd, 980 F.2d 171, 106-10 (3d Cir. 1992), cert. denied, 507 US 921 (1993).

3.4:700   Advising Witness Not to Speak to Opposing Parties

· Primary DC References: DC Rule 3.4(f)
· Background References: ABA Model Rule 3.4(f), Other Jurisdictions
· Commentary: ALI-LGL § 118, Wolfram § 12.4.2

DC Rule 3.4(f), like its identical Model Rule counterpart, is a particularized application of the more general prohibition of Rule 3.4(a) against a lawyer's obstructing another party's access to evidence. It prohibits, with exceptions, a lawyer's asking a person other than a client to refrain from giving relevant information to another party. The exceptions are for a relative or employee or other agent of a client, when the lawyer reasonably believes that the interests of the persons thus affiliated with the lawyer's client will not be adversely affected. The permission given by Rule 3.4(f) is limited to asking the relative or employee not to volunteer information. It does not extend to obstruction of discovery or other legal process to obtain evidence. Thus, Comment [9] to the DC Rule and the identical Comment [4] to the Model Rule state that it is permissible under paragraph (f) for "a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client." Both Comments also make a cross-reference to Rule 4.2 which deals with communications between a lawyer and opposing parties and generally prohibits a lawyer from communicating with a party known to be represented by another lawyer in the same matter without the prior consent of opposing counsel. However, DC Rule 4.2 differs in some respects from its counterpart Model. [See 4.2:100, below.]

Outside of the exceptions, paragraph (f) specifically proscribes only a lawyer's "request" that a person refrain from voluntarily giving relevant information to another party. In the District of Columbia, however, pertinent precedent indicates that "advice" to refrain from voluntarily providing relevant information might be tantamount to "effectively denying . . . access to the witnesses" and so would likely be subject to the strictures of both paragraph (a) and paragraph (f). See Gregory v. United States, 369 F.2d 185, 188 (DC Cir. 1966), cert. denied, 369 US 865 (1969) (citing Canon 39 of the Canons of Professional Ethics).

There do not appear to be any reported decisions in disciplinary cases involving a charge of violation of DC Rule 3.4(f). Restrictions on a lawyer's right to confer with witnesses, such as the restrictions in paragraph (f), often turn on fine distinctions. It is generally recognized that a lawyer may inform a witness of the witness's own right not to cooperate voluntarily with opposing counsel as long as it is not the equivalent of instructing the witness to remain silent. See United States ex rel. Frantino v. Hatrak, 408 F. Supp. 476, 481-82 (DNJ 1976). On the other hand, as noted above, a lawyer cannot advise a potential witness to refrain from talking to opposing counsel in circumstances that effectively deny access to the witness. Gregory v. United States, 369 F.2d at 187-88.

Sequestration orders during trial may impose prohibitions beyond those in paragraph (f), such as an order prohibiting witnesses from conferring with a lawyer during recess, including a party-witness's own lawyer as upheld in Perry v. Leeke, 488 US 272 (1989). Compare Geders v. United States, 425 US 80, 89 n.2, 91 (1976) (holding that a sequestration order prohibiting a criminal defendant from consulting his counsel "about anything" during a 17-hour night recess violated the right to assistance of counsel under the Sixth Amendment, but distinguishing a limited order prohibiting a defendant from consulting his lawyer "during a brief routine recess during the trial day").

3.4:800   Standards of Civility

The DC Bar Board of Governors in July, 1996 adopted so-called "civility" standards entitled "Principles of General Applicability: Lawyers' Duties to Other Counsel, Parties and the Judiciary." The DC civility standards, which are wholly voluntary, are generally comparable to the voluntary civility standards adopted by the Seventh Circuit in December 1992, 143 FRD 441 (1992), but they do not have the official imprimatur of the DC Court of Appeals or any other court in the jurisdiction.

In Steinbuch v. Cutler, 2006 WL 979311(DDC April 14, 2006), the court stated that “as this case proceeds” it would not “countenance the tone and tenor of some of counsel’s current filings,” and added that “[s]ince counsel have shown themselves as unable to abide by the Rules of this Court or refrain from engaging in unnecessarily litigious behavior, counsel for both parties are ordered to read the Local Civil Rules of this Court and Appendix B to those Rules -- the D.C. Bar Voluntary Standards for Civility in Professional Conduct -- and to abide by them in future.”  Similarly, in Pigford v. Veneman, 225 FRD 54 (DDC 2005), the court struck as “scandalous” under Fed R. Civ. P. Rule 12(f) several filings made by one of the plaintiffs’ counsel that were personal attacks on opposing counsel, and stated that “counsel is reminded that Local Civil Rule 83.8(b)(6)(v) of the Rules of this Court requires all counsel appearing in this forum to familiarize themselves with the D.C. Bar Voluntary Standards for Civility in Professional Conduct, which are included as Appendix D to those Rules.”  Id. at 58.

In Pigford v. Veneman, 215 FRD 2 (DDC 2003), the Court granted a motion to strike a filing on the ground that it contained allegations that opposing counsel had demonstrated a "racist attitude" and asserting that his "dishonesty and [reckless] disregard for the truth [was] inspired by his contempt for 'lawyers of color'" - allegations that the Court found were without basis in fact or evidentiary support. While the Court's disposition of the motion rested on Fed. R. Civ. P Rules 11 and 12(f), its opinion also called attention to the fact that the District Court's Local Civil Rule 83.8(b)(6)(v) requires all counsel to familiarize themselves with the DC Bar's civility standards.

In Alexander v. Federal Bureau of Investigation, 1999 U.S. Dist. LEXIS 16751 (DDC May 17, 1999), a case in which discovery had been particularly contentious, the Court ordered that all counsel who expected to attend a particular deposition file with the Clerk of the Court in advance thereof a certificate that they had carefully read the D.C. Bar Voluntary Standards for Civility in Professional Conduct. The Court observed,

Although a violation of these standards is not itself sanctionable, per se, the court believes these standards provide useful and appropriate guidance to lawyers when questions are raised about professional conduct.

The DC Bar's voluntary civility standards were also cited in Blumenthal v. Drudge, 186 FRD 236 (1999) [which is discussed more fully under 1.2:310, above].

Miranda v. Contreras, 754 A2d 277 (DC 2000), involved a motion to set aside a default judgment under Super. Ct. Civ. R..60(b)(6), on the basis of allegations that plaintiff's counsel had represented to defendant's counsel that he would consent to striking the default if settlement negotiations were unsuccessful, and that defendant's counsel in reliance had refrained from filing an answer or other response to the complaint. The Court of Appeals held that the allegations, if true, would constitute an 'extraordinary circumstance" warranting relief under the rule, and remanded for a hearing on the allegations. Referring in this connection to both Rule 8.4(c) and the DC Bar Voluntary Standards of Conduct, the Court observed,

As colleagues at bar and officers of the court, and to ensure the efficient, accurate and just operation of judicial proceedings, counsel must be able reasonably to rely on representations made by fellow counsel in the context of litigation. Conversely, counsel should not be able to reap the windfall of his or her misrepresentation to fellow counsel.

Id at 280.

In In re Bernstein, 774 A.2d 309 (DC 2001) [which is more fully described under 1.5:730, above], the court disapproved a recommendation of the Board on Professional Responsibility that it be made a condition of reinstatement for a lawyer suspended as a result of a disciplinary proceeding, that the lawyer certify that he had read the D.C. Bar's "Voluntary Standards of Civility in Professional Conduct" a recommendation prompted by the lawyer's incivility in the course of the disciplinary proceedings. The court noted that the Standards of Civility are not mandatory but rather, voluntary and aspirational; and expressed doubt that familiarity with the Standards would have had any effect in this case. It also noted that in In re Shearin, 764 A.2d 774 (DC 2000), the court had approved a recommendation that if the respondent there suspended sought reinstatement, the Board might consider whether she had familiarized herself with the Standards of Civility; but observed that this was "not the same as ordering an attorney to read the Standards and effectively telling him that, if he fails to do so, he will forfeit any hope of readmission to the profession," and concluded that "the invocation of the Standards of Civility in the Shearin footnote goes as far as we should ever go in tying voluntary and aspirational standards to the right to practice law." Id. at 319

3.5   Rule 3.5 Impartiality and Decorum of the Tribunal

3.5:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 3.5
· Background References: ABA Model Rule 3.5, Other Jurisdictions
· Commentary:

3.5:101      Model Rule Comparison

DC Rule 3.5 and its Model Rule counterpart were identical until 2002, when substantial changes were made in the black letter text of the Model Rule and the Comments pursuant to the recommendations of the Ethics 2000 Commission. Specifically, a new paragraph (c) was added to the Rule, addressing communications with jurors after the discharge of the jury; and paragraph (b) was modified to limit the prohibition on ex parte contributions to those made during a proceeding, and to add an exception for those authorized by court order. In addition, three new Comments, [2], [3] and [5], were added.

The DC Rule was amended four years later pursuant to the recommendations of the Rules Review Committee to resume a close albeit not quite identical similarity to the amended Model Rule. The revised paragraph (c) of the DC Rule, unlike the Model Rule's counterpart, specifies that its prohibition on communications with jurors applies not only to ex parte communications but also extends to communications made jointly with opposing counsel, and subparagraph (c)(2), stating that the prohibition is applicable when a juror has made known a desire not to communicate, makes clear that the same applies to communications with an unwelcoming prospective juror. The amended DC Rule's Comments were enlarged by the addition of a new Comment [2] identical to the Model Rule's and a new Comment [3], explaining paragraph (c) of the black letter, that is also identical to the Model Rule's, except that it, like the DC Rule's paragraph (c), refers to communications together with opposing counsel as well as ex parte ones.  The DC Rule's Comments also diverge from the Model Rules in not having a Comment corresponding to the Model Rule's Comment [5], stating that the duty recognized by paragraph (d) of the Rule to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition. The Rules Review Committee did not offer any explanation of this omission.

3.5:102      Model Code Comparison

Paragraphs (a) and (b), although differently worded, incorporate the principles expressed in DR 7-108(A), DR 7-108(B) and DR 7-110(B). Paragraph (c) is similar to DR 7-106(C)(6), which prohibited undignified or discourteous conduct that is degrading to a tribunal.

3.5:200   Improperly Influencing a Judge, Juror, or Other Court Official

· Primary DC References: DC Rule 3.5(a)
· Background References: ABA Model Rule 3.5(a), Other Jurisdictions
· Commentary: ABA/BNA § 61:801, 101:702, ALI-LGL §§ 113, 115, Wolfram §§ 11.3, 11.4

There appear to be no DC court decisions applying either DC Rule 3.5(a) or its Code predecessor DR 7-108(A).

3.5:210      Improperly Influencing a Judge

There appear to be no DC court decisions applying either DC Rule 3.5(a) or its Code predecessor DR 7-108(A).

3.5:220      Improperly Influencing a Juror

There appear to be no DC court decisions applying either DC Rule 3.5(a) or its Code predecessor DR 7-108(A).

3.5:300   Improper Ex Parte Communication

· Primary DC References: DC Rule 3.5(b)
· Background References: ABA Model Rule 3.5(b), Other Jurisdictions
· Commentary: ABA/BNA § 61:801, 61:903, ALI-LGL §§ 112, 113, Wolfram § 11.3.3

There appear to be no DC court decisions or ethics opinions addressing DC Rule 3.5(b), but there are two ethics opinions dealing with its predecessor DR 7-110(B)(1). DC Ethics Opinion 73 (1979) responded to an inquiry whether it was permissible for a lawyer representing a party in connection with an investigation or proceeding before the DC Office of Human Rights or the federal Equal Employment Opportunity Commission to have ex parte communications with (a) an "investigator" for the agency, (b) a "conciliator" for the agency, or (c) a "hearing examiner" for the agency. The Opinion, after explaining the procedures of the two agencies, concluded that DR 7-110(B), while barring ex parte communications with a hearing examiner, did not bar such communications with a conciliator or, at least in the absence of agency regulations specifying otherwise, with investigators. DC Ethics Opinion 5 (1975) addressed an inquiry whether it would be unethical for a lawyer to write for publication in a legal journal an article discussing issues in a pending case. The Opinion found that the provision of the Code most relevant to the matter was the prohibition on ex parte communications with the court in an adversary proceeding in DR 7-110(B) (together with EC 7-35), but concluded that any possible problem under that provision would be avoided if the lawyer supplied adversary counsel with a copy of his article.

It is not clear whether DC Rule 3.5(b) would be interpreted as applying to communications with jurors after trial. Nor is it clear whether, if the Rule would be so interpreted, it would be read as requiring explicit authorization "by law" for such communications or, on the contrary, as simply making it an ethical violation to have such a communication when it is forbidden "by law." Cf. ABA, Annotated Model Rules of Conduct 342-43 (3d ed. 1996) (collecting authorities regarding post-trial contacts with jurors).

Local Rule 115 of the US District Court for DC, entitled Communication with a Juror, provides in part as follows:

(b) After trial. After a verdict is rendered or a mistrial is declared but before the jury is discharged, an attorney or party may request leave of court to speak with members of the jury after their discharge. Upon receiving such a request, the court shall inform the jury that no juror is required to speak to anyone but that a juror may do so if the juror wishes. If no request to speak with jurors is made before discharge of the jury, no party or attorney shall speak with a juror concerning the case except when permitted by the court for good cause shown in writing. The court may grant permission to speak with a juror upon such conditions as it deems appropriate, including but not limited to a requirement that the juror be examined only in the presence of the court.

The DC Superior Court has no comparable rule.

3.5:400   Intentional Disruption of a Tribunal

· Primary DC References: DC Rule 3.5(c)
· Background References: ABA Model Rule 3.5(c), Other Jurisdictions
· Commentary: ABA/BNA § 61:901, ALI-LGL § 105, Wolfram § 12.1.3

There appear to be no DC court decisions or ethics opinions addressing DC Rule 3.5(c), but there are several decisions applying its predecessor DR 7-106(C)(6). In In re Haupt, 444 A.2d 317 (DC 1992), the Court adopted the recommendation of the Board on Professional Responsibility that the respondent be disbarred for numerous ethical lapses including a violation of DR 7-106(C)(6) which rested on the respondent having been found guilty of criminal contempt for failure to appear on behalf of a client in bankruptcy court, failure to provide answers to a questionnaire issued by the bankruptcy judge, and failure to repay a fee as ordered -- all of which the Board found to constitute "discourteous conduct which is degrading to a tribunal." Id. at 326.

In In re Evans, 533 A.2d 243 (DC 1987), the Court held that an attorney's disbarment in another jurisdiction for professional misconduct in the form of a letter accusing a magistrate of religious bias in violation of, inter alia, DR 7-106(C)(6), warranted reciprocal discipline of public censure rather than disbarment or suspension.

In In re Morris, 495 A.2d 1162 (1985), the Court sustained reciprocal disbarment of a lawyer who had been found to have violated numerous provisions of the Maryland Code of Professional Responsibility, including DR 7-106(C)(6) on the basis of a misrepresentation to a court.

United States v. Meyer, 346 F. Supp. 973 (DDC 1972) involved contempt proceedings against a lawyer who had been appointed to represent defendants in the trial of the so-called "DC Nine," in which one of the charges was that the lawyer had "engaged in disrespectful and discourteous conduct which offended the dignity and decorum of [the] proceeding and which was degrading to [the] tribunal," in violation of DR 7-106(C)(6) of the Code. On remand for retrial before a different judge, see United States v. Meyer, 462 F.2d 827 (1972), this charge was vacated for lack of the specificity required by Fed. R. Crim. P. 42.

3.6   Rule 3.6 Trial Publicity

3.6:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 3.6
· Background References: ABA Model Rule 3.6, Other Jurisdictions
· Commentary:

3.6:101      Model Rule Comparison

The DC Rule on trial publicity takes a different approach from the original Model Rule, the Model Rule as amended in 1994, and the rule in many other jurisdictions. Unlike MR 3.6, which specifically enumerates matters a lawyer can and cannot publicly discuss, DC Rule 3.6 establishes a general functional standard to determine whether an extrajudicial statement is permissible. The DC drafters viewed the Model Rule's detailed approach as needlessly broad and insufficiently sensitive to First Amendment concerns. The commentary to both Rules recognize, however, that as Comment [1] to the DC Rule observes, "[n]o body of rules can simultaneously satisfy all interests of fair trial and all those of free expression."

DC Rule 3.6 accordingly consists of a single paragraph, which originally required a lawyer to refrain from making statements that the lawyer knows, or reasonably should know, would create a "serious and imminent" threat to the impartiality of a judge or jury; in 2006, this was changed to substitute "material prejudice to the proceeding" for the reference to impartiality of the judge or jury. In adopting the "serious and imminent" standard, the drafters believed that the rule would proscribe hazards that are substantial and real rather than speculative. Unlike MR 3.6, which applies to all "adjudicative" proceedings, the DC Rule applies to cases actually tried before a judge or jury. The DC Rule, moreover, applies to lawyers litigating a case, whereas the Model Rule extends to lawyers investigating as well as those litigating a case, and to lawyers associated with them in a firm or a government agency. The DC Rule applies only to "a case being tried to a judge or jury," and so does not restrict comments made before commencement of a trial, while the Model Rule is not similarly limited with respect to the time at which it applies. See, e.g., Gentile v. State Bar of Nevada, 510 U.S. 1030 (1991), where a lawyer was disciplined by the State Bar for violating a Nevada rule almost identical to Model Rule 3.6 as it then stood, by reason of his remarks at a press conference six months before the trial of the case to which the press conference related(The Jordan Committee recommended that the Rule be limited to apply only to a case before a jury, but the Court of Appeals changed it to apply to a bench trial as well.) The DC Rule does not, like the Model Rule, include a "right of reply," see MR 3.6(c).

Reflecting the relative brevity of the black letter texts, the Comments to the DC Rule were sparse in comparison to those following the Model Rule.

Neither of the two versions of Rule 3.6 was substantially modified pursuant to the respective recommendations of the Ethics 2000 Commission in 2002 or those of the DC Rules Review Committee in 2006.  Paragraph (a) of the Model Rule was amended in the earlier year to eliminate a reference to expectations of "a reasonable person," as to whether an extrajudicial statement would be disseminated by means of public communication, and make it subject to the same standard as the prospect of the statement having a prejudicial effect on the proceeding, turning on whether the lawyer knows or should know of the likelihood.  A like change was made in the later year in the single paragraph that constitutes the black letter DC Rule, along with the substitution of "material prejudice to the proceeding" for "the impartiality of the judge or jury" as the serious and imminent harm that the Rule is intended to protect against.

Related provisions are found in Rule 3.8 (Special Responsibilities of a Prosecutor): see 3.8:100, below. Specifically, DC Rule 3.8(f), which is identical to (and indeed was the model for) MR 3.8(g), states that prosecutors shall not make comments that serve to increase the condemnation of the accused, unless they are necessary to inform the public of the nature and extent of the prosecutor's action and serve a legitimate law enforcement purpose. MR 3.8(e) also requires that prosecutors exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting the prosecutor from making an extrajudicial statement prohibited under MR 3.6; the DC Rule does not contain this provision.

3.6:102      Model Code Comparison

DC Rule 3.6 substantially departs from DR 7-107 of the Model Code, the predecessor Code provision to Rule 3.6. The Model Code, unlike DC Rule 3.6, provided a detailed list of matters that a lawyer could and could not discuss. The DC version of DR 7-107 substituted the text of Canon 20 of the Canons of Professional Ethics for Model Code paragraphs (G) and (H), addressing trial publicity in civil cases and administrative proceedings. Canon 20 generally condemned extrajudicial statements with respect to civil matters, and stated that they were permissible only in extreme circumstances and, even then, should not go beyond matters of public record. Those two paragraphs aside, the remaining provisions of the DC version and the Model Code version of DR 7-107, dealing with criminal and disciplinary cases, were identical. Paragraph (A) prohibited, with specified exceptions, extrajudicial statements about criminal investigations, and paragraph (B) did the same with respect to pending criminal cases. Paragraph (C) established a list of subjects that the lawyer could discuss, about pending cases; paragraphs (D) and (E) generally provided that a lawyer should not make any extrajudicial statement that was reasonably likely to interfere with a fair trial or the imposition of sentence; paragraph (F) applied the foregoing to professional disciplinary and juvenile proceedings, and paragraph (I) stated that the preceding prohibitions did not prevent a lawyer replying to charges of misconduct publicly made against the lawyer.

3.6:200   Improper Extrajudicial Statements

· Primary DC References: DC Rule 3.6
· Background References: ABA Model Rule 3.6(a), Other Jurisdictions
· Commentary: ABA/BNA § 61:1001, ALI-LGL § 109, Wolfram § 12.2

While DR 7-107(B) and Comment [5] to Model Rule 3.6 set forth a list of matters that a lawyer should not discuss, DC Rule 3.6 provides no such list.  Comment [1] simply states that, “publicity should not be allowed to influence the fair administration of justice.”

There appears to be only one reported decision relating to DC Rule 3.6, In re Gansler, 889 A.2d 285 (DC 2005), which is discussed under 3.8:800, below.

DC Ethics Opinion 302 (2000) [which is discussed more fully under 7.1:200, below], addressing issues relating to a lawyer's use of internet web pages to solicit plaintiffs for a class action lawsuit, suggests that the lawyer should be sure that the solicitation does not present a threat to the impartiality of the judge or jury in the lawsuit referred to.

3.6:300   Permissible Statements

· Primary DC References: DC Rule 3.6
· Background References: ABA Model Rule 3.6(b), Other Jurisdictions
· Commentary: ABA/BNA § 69:1001, ALI-LGL § 109, Wolfram § 12.2

There appear to be no pertinent DC court decisions or ethics opinions interpreting Rule 3.6, though there are some ethics opinions on its Code predecessor. Unlike MR 3.6 and DR 7-107, Rule 3.6's predecessor Model Code provision, Rule 3.6's text and commentary do not list the topics that a lawyer can publicly discuss. DC Rule 3.6 settles for a general standard that is to be applied on a case-by-case basis. Comment [1] states that "litigants have a right to present their side of a dispute to the public."

DC Ethics Opinion 5 (1975) determined that DR 7-107 permitted a lawyer to publish a scholarly article that discussed issues in a client's case pending before an appellate court. The Legal Ethics Committee reasoned that restrictions on a lawyer's extrajudicial commentary about a case is directed more at attempts to sway a jury than to presentation of views on the law in a scholarly journal. DC Ethics Opinion 8 (1975) concluded that DR 7-107 did not prevent a law firm from providing a newspaper reporter with information pertaining to a client's statement of claim that was the subject of an arbitration proceeding. The Committee noted that the firm had been involved in an arbitration, rather than a trial, the newspaper reporter had sought out the law firm, and the information was a matter of public record.

3.6:400   Responding to Adverse Publicity

· Primary DC References: DC Rule 3.6
· Background References: ABA Model Rule 3.6(c), Other Jurisdictions
· Commentary: ABA/BNA § 61:100l, ALI-LGL § 109, Wolfram § 12.2

There appear to be no pertinent DC court decisions or ethics opinions on this subject. Although MR 3.6(c) permits a lawyer to make a statement that a reasonable lawyer would believe is required to protect a client from "the substantial undue prejudicial effect of recent publicity," DC Rule 3.6 contains no comparable provision.

3.7   Rule 3.7 Lawyer as Witness

3.7:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 3.7
· Background References: ABA Model Rule 3.7, Other Jurisdictions
· Commentary:

3.7:101      Model Rule Comparison

Paragraph (a) of DC Rule 3.7 is identical in substance to paragraph (a) of the Model Rule, but the wording of the introductory phrase of the latter was modified in 2002, to substitute "unless" for "except where" immediately before the three subparagraphs setting out the circumstances where paragraph (a)'s prohibition of a lawyer combining the roles of witness and advocate does not apply.

The first sentence of paragraph (b) of the DC Rule corresponds exactly in substance to paragraph (b) of the Model Rule, but it phrases the matter of attribution of the disqualification of the witness/advocate lawyer to the lawyer's associates in terms of what such an associated lawyer may not do if the witness/advocate would be disqualified under Rules 1.7 or 1.9, while the Model Rule's provision of what the associated lawyer may do unless the witness/advocate would be so disqualified.

Paragraph (b) of DC Rule 3.7 has a second sentence that has no parallel in the Model Rule, stating that the paragraph does not apply to a government lawyer acting as advocate for a government agency, thus allowing a government lawyer to act as advocate even though another government lawyer is likely to be called as a witness and will testify in a way that is counter to the government's position. This was added by the DC Court of Appeals; it was not in the DC Bar's submission.

There have always been a number of minor differences in the comments to the two versions of Rule 3.7. The recommendations of the Ethics 2000 Commission resulted in a number of changes in the comments to the Model Rule in addition to the slight change in paragraph (a) mentioned above, but the DC Rules Review Committee did not consider any of them worth emulating, so it recommended no changes, and the Court made none.

3.7:102      Model Code Comparison

Paragraph (a) of the Rule preserves the general substance of DR 5-101(B) and DR 5-102(A) and (B) as respects applicability to an individual lawyer of the prohibition of serving as both advocate and witness, albeit with a number of changes of both language and substantive detail. Thus, the Rule addresses situations where the lawyer is "likely to be a necessary witness," while DR 5-101(B) and DR 5-102(A) say "ought to be called as a witness," and DR 5-102(B) says "may be called as a witness." The latter two provisions distinguish between circumstances where the lawyer will be a witness for his client and for one not his client, respectively; the Rule drops this distinction. The Rule also omits the distinction, drawn in DR 5-101(B) and DR 5-102, between a lawyer's undertaking a representation that presents the advocate/witness problem and the possible need to withdraw when the problem arises after the representation is undertaken. Finally, paragraph (a) of the Rule collapses the four exceptions of DR 5-101(B) to three (combining (2) and (3)).

Paragraph (b) eliminates the automatic imputation of a lawyer's disqualification to the lawyer's firm imposed by DR 5-101(B) and DR 5-102(A) & (B), and limits imputation to cases in which the lawyer/witness's testimony would so conflict with the client's interests that he would be disqualified under Rule 1.7 or 1.9 from representing the client.

3.7:200   Prohibition of Advocate as Witness

· Primary DC References: DC Rule 3.7(a)
· Background References: ABA Model Rule 3.7(a), Other Jurisdictions
· Commentary: ABA/BNA § 61:501, ALI-LGL § 108, Wolfram § 7.5

In U.S. ex rel. Miller v. Bill Harbert International Construction, Inc., 2007 WL 842081 (DDC March 19, 2007), the defendant in a suit under the False Claims Act sought to disqualify not only individual lawyers representing the relator and the government who would be witnesses in an aspect of the case, but also the entire law firm of the lawyers representing the relator, invoking DR 5-102 of the Model Code. The court pointed out, however, that DR 5-102 was no longer applicable, since it had been superseded by DC Rule 3.7, and that that Rule makes an exception for circumstances where disqualification of a lawyer “would work substantial hardship on the client.”  Id. at *4. The court also noted that Comment [4] to the Rule states that “the court must conduct a balance ‘between the interests of the client and those of the opposing party,’ ” and went on to conclude that that balance in this case weighed heavily in favor of the plaintiffs. Id.  The court did not mention an additional relevant difference between the two provisions -- that while DR 5-102 imputed an individual lawyer witness’s disqualification to all of the lawyer’s colleagues, Rule 3.7 imputes such disqualification only if the disqualified lawyer’s testimony would violate Rule 1.7 or Rule 1.9.

In Canfield v. Stone, 1993 US Dist LEXIS 15491 (DDC 1993), the court held that even if DC Rule 3.7(b) would prohibit a lawyer from acting as counsel at trial (an issue the court did not need in this instance to decide), it did not bar counsel from assisting in preparation of the case up to trial.

In United States v. Ruffin, 1992 US Dist LEXIS 13152 (DDC 1992), the government had moved to disqualify criminal defense counsel on the ground that it was going to call him as a witness. The court conducted elaborate proceedings to make sure that the government could substantiate "beyond making a mere assertion" its claim that it was likely that the lawyer would be a witness at trial, id. at *6; and, finding that the government had "credible evidence to present to the jury that defendant's lawyer received cash to defend another member of the alleged conspiracy," id. at *10, the court determined that "there is a real possibility defense counsel would be a witness at trial," id.; and granted the motion to disqualify the lawyer in question.

In Garcia v. Llerena, 599 A.2d 1138 (DC 1991), the court upheld a denial of a motion by which plaintiff sought to have defendant's counsel testify (and therefore to disqualify counsel), on the ground that the facts to which the testimony sought would have related were either otherwise established or else inadmissible.

In S.S. v. D.M., 597 A.2d 870 (DC 1991), one of the issues raised by a mother appealing from a Superior Court order approving adoption of her son by the child's great aunt was that the child's guardian ad litem had acted both as counsel and as a witness in the proceeding. The court discussed the several, not always distinct, roles of guardian ad litem and concluded that in this instance the guardian ad litem had indeed performed as both witness and advocate in the proceeding. However, because the appellant had not objected below, the court's review of the decision was on the basis of whether a miscarriage of justice had occurred as a result of the violation of Rule 3.7; and in light of the fact that the decision of the court below rested on independent grounds as well as the testimony of the guardian ad litem, the court held that that standard had not been met.

In Lawson P.C. v. Nevada Power Co., 739 F. Supp. 23 (DDC 1990), the court denied a motion under DR 5-102(A) to disqualify the plaintiff, who was a lawyer practicing in the form of a PC, from representing that PC as the plaintiff in the case. The court started with the "well settled proposition that DR 5-102(A) does not bar a lawyer from appearing pro se and testifying in his or her own case," id. at 24 [citing, inter alia, O'Neil v. Bergan, discussed below], and went on to hold that the basic rule that business or commercial corporations do not have a right to appear pro se did not apply in the case of a lawyer who has chosen to practice in the form of an individual PC.

In Rosen v. NLRB, 735 F.2d 564 (DC Cir 1984), Rosen and his law firm sought, in a collateral proceeding, to challenge the finding of an NLRB administrative law judge that Rosen had suborned perjury in a proceeding before the ALJ. The Court of Appeals upheld the District Court's dismissal of the complaint, on the ground, inter alia, that Rosen could, indeed should, have withdrawn as counsel and testified before the ALJ to deny the charge that he had suborned perjury, for this would have been for the client's benefit as well as his own, and would have outweighed the prejudice to the client of losing him and his firm as trial counsel. The court also pointed out that "DR 5-102(A), unlike other rules in the Code of Professional Responsibility, see, e.g., DR 5-101(A), makes no provision for client waiver of its application." Id. at 574.

In Groper v. Taff, 717 F.2d 1415 (DC Cir 1983) (per curiam), the court, on interlocutory appeal from an order disqualifying plaintiff's lawyer on the ground that the lawyer ought to be a witness in the case, held (1) that such motions to disqualify are committed to the sound discretion of the trial court; and (2) that the hardship to the client exception in DR 5-101(B)(4) was not applicable in this case, because it was a straightforward, simple case, and local counsel was competent to handle the case in the absence of the disqualified pro hac vice counsel.

O'Neil v. Bergan, 452 A.2d 337 (DC 1982), concerned a ruling of the trial court prohibiting the plaintiff from calling defense counsel as a witness and denying her motion to disqualify him. The court stated that "trial counsel may not be called as a witness by the opposing party and thus made subject to disqualification unless the opposing party shows a genuine need for the evidence," id. at 344, and noted that here counsel had submitted an affidavit to the effect that he had no personal knowledge of the matters on which his testimony was sought. The Court then went on to hold that DR 5-101(B) did not apply because counsel was also an individual defendant in the case (along with the law firm of which he had until recently been a partner), and "DR 5-101(B) does not bar a lawyer from appearing pro se and testifying in his or her own case . . . . Nor does DR 5-101(B) bar an lawyer-witness who is entitled to self-representation from retaining another member of his or her firm as counsel." Id. [Citing DC Ethics Opinion 44 (1978), discussed under 3.7:300 below.]

In Williamsburg Wax Museum v. Historic Figures, Inc., 501 F. Supp. 326 (DDC 1980), the court asserted that "a party cannot disqualify its opponent's lawyers [pursuant to DR 5-102] simply by threatening to call them as witnesses to advice they may have given with respect to documents they prepared or reviewed." Id. at 331 n.19.

In Biddle v. Chatel, 421 A.2d 3 (DC 1980), purchasers of property had sued a realtor for misrepresentations regarding their entitlement to access to an alley adjoining the property. They now sought to recover as damages attorney fees expended in the suit, and they appealed from the trial court's refusal to let the lawyer who had represented them testify about the value of the fee on the ground that the testimony was forbidden by DR 5-101. On this point, the Court of Appeals, while affirming on a threshold issue, observed that the lower court was in error, since the testimony in question, which would have related to the nature and value of legal services rendered in the case, was covered by DR 5-101(B)(3).

DC Ethics Opinion 228 (1992) says that a lawyer who is precluded from appearing at trial because the lawyer is likely to be a necessary witness is not precluded from assisting substitute counsel in pre-trial and trial preparation. The lawyer also may continue to represent the party involved in most pre-trial proceedings. Pointing out that Rule 3.7(a) by its terms extends only to prohibit advocacy at trial, the Opinion declined to join ABA Informal Opinion 89-1529 in holding that a lawyer also may not argue a pretrial motion where the lawyer's testimony is disputed and material to a contested issue being decided before trial. The Opinion stated, however, that once it becomes apparent that a lawyer likely would be a necessary witness at trial, he must inform the client of the development and seek the client's consent to continuing the representation, and it details disclosures that should be made to the client in these circumstances.

DC Ethics Opinion 78 (1979), in the course of answering a number of questions about a government lawyer's participating in certain proceedings affecting clients he had represented while in private practice, observed in passing that affidavits of counsel exchanged and filed in litigation do not necessarily trigger the prohibition of DR 5-101(B).

3.7:300   An Affiliated Lawyer as Advocate (Imputed Disqualification)

· Primary DC References: DC Rule 3.7(b)
· Background References: ABA Model Rule 3.7(b), Other Jurisdictions
· Commentary: ABA/BNA § 61:501, ALI-LGL § 108, Wolfram § 7.5, 7.6

All the seemingly relevant decisions and opinions are under the Code, which, as noted in 3.7:102 above, provided for automatic imputation to a law firm of a lawyer's disqualification from serving as advocate and witness. That is no longer the case under the Model Rules or the DC Rules. The relevance of the decisions and opinions is therefore questionable. In Council for the Nat'l Register of Health Serv. Providers in Psychology v American Home Assurance Co., 632 F. Supp. 144 (DDC 1985), defendants had moved to disqualify plaintiff's counsel, pursuant to DR 5-102(A), on the ground that a partner of his "ought" to testify for the plaintiff. The plaintiff's executive officer had filed an affidavit saying that plaintiff preferred to forgo the testimony of that partner; but the defendant argued that plaintiff's decision was overridden by the DR's use of the verb "ought" and asserted that in any event defendant might call the partner as a witness. The court denied the motion to disqualify, holding that the plaintiff had a right to decide not to call a particular witness; it observed in addition that plaintiff had another witness on the subject that it could offer, and in any event defendant's calling the lawyer as a witness would not disqualify the firm. The court also held that disqualification would impose on the plaintiff undue hardship under DR 5-101(B)(4); and in addition asserted that because the testimony would be solely about the nature and value of legal services provided by the law firm, the exception in DR 5-101(B)(3) would also apply.

In DC Ethics Opinion 148 (1985), a government agency had two separate offices of "in house" counsel, one (office A) representing and providing legal advice to the agency regarding its daily operations and administration, and the other (office B) representing and advising the commissioners regarding the application of the agency's substantive regulations. One of the issues treated in the opinion was whether, if the lawyer in office B were asked to be a witness in a proceeding involving a complaint by an employee against the agency, and the agency was represented in the proceeding by a lawyer in office A, the imputed prohibition of DR 5-101(B) and DR 5-102(A) would apply. The opinion states that that prohibition would not apply unless the two in-house counsel offices were "institutionally so intimate as to make them indistinct for practical purposes."

DC Ethics Opinion 132 (1983) addressed the question whether the prohibition of DR 5-101(B) and DR 5-102(A) would apply where a former colleague of the lawyer acting as advocate was to appear as a witness adverse to the lawyer's client. The Opinion concluded that the prohibition did not apply but noted that the personal relationship between the two lawyers in such circumstances might be such that a lawyer acting as advocate would not be free of compromising influences and loyalties, and would therefore be barred from continuing the representation by DR 5-101(A).

DC Ethics Opinion 125 (1983) responded to an inquiry by a judge who was faced with a motion to disqualify a lawyer from representing two of the lawyer's partners in litigation relating to a construction contract. The Opinion recognized that the circumstances before it were different from those in DC Ethics Opinion 44 (discussed below), in that here it was the partners individually, and not their law firm, who were parties to the case (and, respectively, counsel and prospective witnesses). The Opinion concluded, nonetheless, that despite the literal language of DR 5-101(B), the policies underlying that rule did not apply, and therefore neither should the rule's prohibition. Although the opinion explicitly states that it should not be read to apply to circumstances other than those addressed in the Opinion (or in Opinion 44), the reasoning is such as to call into question the automatic imputation of an individual lawyer's disqualification as advocate/witness more generally -- an imputation that, of course, is no longer automatic under Rule 3.7(b).

DC Ethics Opinion 44 (1978) concluded that DR 5-101(B) and DR 5-102(A) did not apply where a law firm was represented in litigation by a lawyer affiliated with the firm, and other lawyers in the firm would be witnesses at the trial.

See also O'Neil v. Bergan [discussed under 3.7:200 above].

3.8   Rule 3.8 Special Responsibilities of a Prosecutor

3.8:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 3.8
· Background References: ABA Model Rule 3.8, Other Jurisdictions
· Commentary:

3.8:101      Model Rule Comparison

DC Rule 3.8 is significantly different from MR 3.8 , reflecting in part the fact that a special subcommittee of the Jordan Committee was appointed to consider and recommend rules specifically governing prosecutors. The end result is that none of the paragraphs of the DC Rule corresponds exactly to any paragraph of the Model Rule, and four of the paragraphs of the latter have no corresponding provision whatever in the DC Rule: paragraph (b), calling for a prosecutor to make reasonable efforts to ensure that the accused has had a reasonable opportunity to obtain counsel; paragraph (c), prohibiting a prosecutor from seeking to obtain from an unrepresented person a waiver of pretrial rights; paragraph (e), calling on prosecutors to exercise reasonable care to prevent others assisting or associated with the prosecutor from making extrajudicial statements that would violate Rule 3.6 -- although Comment [2] to the DC Rule addresses this subject; and paragraph (f), regarding subpoenas to lawyers in grand jury or other criminal proceedings (although as to this last provision, the DC Bar Board of Governors recommended a similar provision, which was rejected by the Court of Appeals).

Paragraph (a) of DC Rule 3.8, prohibiting a prosecutor from invidiously discriminating in deciding to investigate or prosecute, has no parallel in the Model Rule.

Paragraph (b) of the DC Rule, prohibiting a prosecutor from filing or maintaining a charge that he or she knows is not supported by probable cause, is close to paragraph (a) of the Model Rule, which requires a prosecutor to "refrain from prosecuting" such a charge.

Paragraph (c) of the DC Rule, forbidding a prosecutor to take to trial a charge that the prosecutor knows is not supported by prima facie evidence of guilt, essentially elaborates the prohibition of paragraph (b), and so also relates to paragraph (a) of the Model Rule.

Paragraph (d) of the DC Rule, saying that a prosecutor may not intentionally avoid pursuit of evidence or information because it may damage the prosecution's case or aid the defense, has no parallel in the Model Rule.

Paragraph (e) of the DC Rule, regarding intentional failure to disclose evidence to the defense, is fairly close to paragraph (d) of the Model Rule.  However, while the Model Rule provision requires disclosure of information "known to" the prosecutor to negate or mitigate a defendant's guilt, the DC Rule substitutes "knows or reasonably should know."  Additionally, the DC Court of Appeals modified the provision as recommended by the Jordan Committee and the DC Bar Board of Governors to make the prosecutor's obligations arise only upon request.  Such a request is not a prerequisite to the prosecutor's obligation under the Model Rule.

Paragraph (f) of the DC Rule, prohibiting prosecutors' making extrajudicial statements that serve to heighten condemnation of the accused and serve no legitimate law enforcement purpose, is very close to — and indeed, was the model for -- a similar prohibition that was added to the Model Rule as paragraph (g) in 1994 in connection with the amendments to Model Rule 3.6 that were occasioned by the Supreme Court's decision in Gentile v. State Bar of Nevada, 510 U.S. 1030 (1991). That provision was redesignated as paragraph (f) of the Model Rule in 2002. 

The DC Rule does not, however, include any provision requiring prosecutors to exercise reasonable care to prevent others from making improper extrajudicial comments, which would correspond to the Model Rule provision, originally a separate paragraph (e) but in 2002 added as a second clause to the redesignated paragraph (f).  As stated below, the DC Rule does have a Comment pointing out that prosecutors have a responsibility for the conduct of others under Rule 5.3.

Up until 2006, DC Rule 3.8 had a final paragraph (h), prohibiting prosecutors from peremptorily striking jurors on the ground of race, religion, national or ethnic background, or sex, which had no parallel in the Model Rule. The single change made in 2006 to the black letter text of the DC Rule, on the recommendation of the Rules Review Committee, was to move that prohibition, in slightly different form, to DC Rule 3.4, where it became a prohibition applicable to all lawyers, and not just prosecutors. (See 3.4:101, above.)

The DC Rule originally omitted all but Comment [1] of the five Comments to the Model Rule but added new Comments [2] and [3], both elaborating on extrajudicial statements by prosecutors and, in the case of Comment [2], pointing out that prosecutors are also subject to all of the other Rules, and notably Rule 5.3, regarding responsibility for activities of nonlawyers. In 2002, a new Comment [6] was added to the Model Rule, elaborating on a prosecutor's responsibilities, under Rule 5.1 as well as 5.3, with respect to both lawyers and nonlawyers who work for or are associated with the prosecutor's office, as reflected in paragraph (f) of the Rule.

As of December 2006, there were no DC ethics opinions applying either DC Rule 3.8 or its Code antecedents, though there was some pertinent judicial precedent as discussed below.

3.8:102      Model Code Comparison

This Rule has just two antecedents in the Model Code. DR 7-103(A) provided that a prosecutor must not file charges that are not supported by probable cause, and DR 7-103(B) provided that a prosecutor must make timely disclosure of evidence tending to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. There are no DC ethics opinions or reported court decisions applying either of these provisions.

3.8:200   The Decision to Charge

· Primary DC References: DC Rule 3.8(a)-(c)
· Background References: ABA Model Rule 3.8(a), Other Jurisdictions
· Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10

Both the DC Rule and the Model Rule prohibit a prosecutor bringing or maintaining a charge not supported by probable cause. Probable cause, by its very nature, is a murky legal concept: thus, there are numerous reported cases in which prosecutors and defendants argue about whether there was probable cause to search or to arrest. There are, however, no reported cases in DC where a court has addressed whether a criminal charge or prosecution was supported by probable cause.

If probable cause exists, a prosecutor generally has extremely broad discretion in determining what charge to file, and whether or not to prosecute at all. Bordenkircher v. Hayes, 434 US 357, 364 (1978). In other words, a prosecutor is under no ethical duty to prosecute all cases supported by probable cause. Applying this rule, the DC Court of Appeals held in In re J.J.Z., 630 A.2d 186 (DC 1993), cert. denied, 114 S. Ct. 1651 (1994), that when the government seeks to dismiss a neglect petition before trial, the court must grant the motion, even if the guardian ad litem representing the putatively neglected child opposes it. Although neglect proceedings are civil, the court noted that the government's function was prosecutorial in nature, and thus, requiring the government to proceed with a charge it no longer believed supportable would violate its ethical duties under Rule 3.8. The prosecutor has broad discretion in this area, because courts have recognized that a decision of this type is "particularly ill-suited to judicial review." Wayte v. United States, 470 US 598, 607 (1985). The discretion is not unfettered, however. A prosecutor may not base his or her decision to charge on an impermissible factor such as race or religion. Bordenkircher, 434 US at 364. Nor may a prosecutor deliberately treat someone differently in the decision to charge and/or prosecute based on the defendant's exercise of his or her constitutional rights. In Fedorov v. United States, 600 A.2d 370 (DC 1991), the court held that the US Attorney's policy of not diverting protest cases into DC's pretrial diversion program for first-time offenders established a prima facie showing of selective prosecution. In Dixon v. District of Columbia, 394 F.2d 966 (DC Cir 1968), the court held that it was impermissible to reinstate criminal traffic charges against a defendant in retaliation for the defendant's filing of police misconduct complaints. It should be noted, however, that none of these cases resulted in any reported disciplinary proceedings. (The same is true of the requirement of disclosure of information to a defendant. See 3.8:500, below.) Moreover, the defendant claiming selective prosecution must meet a heavy burden. In Washington v. United States, 434 A.2d 394 (DC 1980) (en banc), the court held that a defendant facing trial for assault, who was reindicted and charged with assault with intent to kill, had not asserted a valid claim of vindictive prosecution. The court noted that prosecutors have the power to reevaluate the seriousness of an offense after an indictment has come down. Without a showing that the prosecutor had done so for a retaliatory or discriminatory motive, the defendant had not stated a claim for vindictive prosecution. Absent motives of prejudice, political animus, or revenge, the prosecutor's office enjoys wide discretion in its decision to charge and maintain charges.

3.8:300   Efforts to Assure Accused's Right to Counsel

· Primary DC References:
· Background References: ABA Model Rule 3.8(b), Other Jurisdictions
· Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10

This provision of the Model Rule is not included in the DC Rule.

3.8:400   Seeking Waivers of Rights from Unrepresented Defendants

· Primary DC References:
· Background References: ABA Model Rule 3.8(c), Other Jurisdictions
· Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10

This provision of the Model Rule is not included in the DC Rule.

3.8:500   Disclosing Evidence Favorable to the Accused

· Primary DC References: DC Rule 3.8(e)
· Background References: ABA Model Rule 3.8(d), Other Jurisdictions
· Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10.5

Under Brady v. Maryland, 373 US 83 (1963), a prosecutor has a duty to disclose to the defense all material in his or her possession that tends to exculpate the defendant. This is a constitutional obligation, so that a jurisdiction may require more of a prosecutor, but not less. Under DC Rule 3.8(e), a prosecutor is not required to disclose this evidence until it is requested by the defense; it is not a spontaneous obligation. There is no case in point, but this qualification is probably constitutional. DC courts have defined "exculpatory" broadly. For instance, in Smith v. United States, 666 A.2d 1216 (DC 1995), the court held that failure to disclose prior inconsistent statements by a prosecution witness violated Brady. Under the Model Rule, and case authority following Brady, failure to disclose evidence is an ethical violation only if the individual prosecutor knows that the evidence tends to negate the accused's guilt. See, e.g., Giglio v. United States, 405 US 150 (1972), holding that where the prosecutor did not know that another prosecutor had promised a witness immunity in exchange for testimony, there was no ethical violation. Under the DC Rule, on the other hand, the touchstone is whether the prosecutor knows or reasonably should know. The importance of this distinction has not been tested. It should be noted that there is a distinction between whether the defendant's due process rights have been violated (which can happen innocently) and whether the prosecutor has violated the rules of ethics, which even under the DC rule require some scienter -- reason to know. There are no reported DC cases in which a prosecutor has been disciplined for such a violation. The due process issue arises often in criminal appeals, but there are no DC cases that address this situation as an ethical violation. The remedy for a Brady violation is generally overturning the defendant's conviction, but it appears that the prosecutor responsible for violating Brady seldom undergoes disciplinary action for the misconduct. See Lynn Morton, "Seeking the Elusive Remedy for Prosecutorial Misconduct: Suppression, Dismissal, or Discipline?" 7 Geo. J. of Legal Ethics 1083 (1994). Moreover, drastic remedies such as suppression of evidence or dismissal will be applied only in cases where the misconduct is so egregious that it violated the defendant's due process rights. Smith v. Phillips, 455 US 209, 218 (1982). Where there has been no constitutional violation, there is generally no judicial response to this sort of prosecutorial misconduct. One commentator has suggested that this shows a reluctance on the part of the courts to pursue complaints that may be brought by resentful defendants. See Wolfram, Modern Legal Ethics § 13.10.2, at 761 (1986). According to a 1987 law review article, as of that date, DC had no record of any formal complaints ever being filed with the Bar disciplinary authorities for Brady violations. Richard Rosen, "Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger," 65 N.C. L. Rev. 693 (1987).

3.8:600   Monitoring Extrajudicial Statements by Law Enforcement Officials

· Primary DC References: DC Rule 3.8
· Background References: ABA Model Rule 3.8(e), Other Jurisdictions
· Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10

Paragraph (e) of the Model Rule, imposing on prosecutors the obligation to exercise reasonable care to prevent nonlawyer personnel assisting them from making statements prohibited to the lawyer by Rule 3.6, is not included in the DC Rule, but the point is covered by Comment [2] to the DC Rule. See also 3.8:800 below, about the prohibition on prosecutors themselves making extrajudicial statements.

3.8:700   Issuing a Subpoena to a Lawyer

· Primary DC References:
· Background References: ABA Model Rule 3.8(f), Other Jurisdictions
· Commentary: ABA/BNA § 55:1301, ALI-LGL § 97

The DC Bar Board of Governors proposed adding a paragraph (j) to DC Rule 3.8, which would have been similar to paragraph (f) of the Model Rule, restricting prosecutors' issuance of subpoenas to defense lawyers, but the DC Court of Appeals declined to adopt it. Thus, the DC Rule has no provision regarding subpoenas to a lawyer.

3.8:800   Making Extrajudicial Statements

· Primary DC References: DC Rule 3.8(f)
· Background References: ABA Model Rule 3.8(g), Other Jurisdictions
· Commentary: ABA/BNA § 61:601, ALI-LGL § 109, Wolfram § 12.2.2

The only reported District of Columbia case involving DC Rule 3.8(f) is In re Gansler, 889 A.2d 285 (DC 2005), a reciprocal disciplinary matter involving a Maryland State’s Attorney who was also a member of the DC Bar and who had been reprimanded by the Maryland authorities for extrajudicial statements about the defendants in three criminal cases in Maryland which were found to have violated Maryland Rule 3.6(a).  In one of those cases, at a press conference at which the police announced that the defendant would be charged with the murder of a female jogger, the respondent had stated that the suspect had confessed to the murder and furnished specific information about the surrounding circumstances, including “incredible details that only the murderer would have known.”  In the second case, also at a press conference at which the police announced the arrest of a suspect, in this case for murdering a priest, the respondent declared that the police had been “able to determine definitively that it had been [the suspect] who had committed the crime,” and then expressed his opinion that “we have found the person who committed the crime,” and that the case against him “will be a strong case.”  In the third and final case, after the Maryland Court of Appeals had reversed the conviction of a defendant for murder of a boy, the boy’s mother and a nurse, the respondent had announced, in connection with a possible retrial, that he had decided to offer the defendant a plea bargain, and that the defendant would have six weeks to make a decision.  The Maryland Court had found that on each of these three occasions the respondent had violated Maryland Rule 3.6(a), which in critical part prohibits a lawyer who “is participating or has participated in the investigation or litigation of a matter,” from making an “extrajudicial statement that the lawyer knows or reasonably should know . . . will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”  The DC Court of Appeals noted that although DC Rule 3.6 has a similar prohibition on extrajudicial statements, that prohibition applies only to situations where the lawyer is “engaged in a case being tried to a judge or jury,” and all involved were agreed that because of this limitation, it did not apply here.  Id. at 289 n. 3.  However, the Board on Professional Responsibility concluded, and the Court agreed, that the respondent’s conduct had violated DC Rule 3.8(f)’s prohibition on a prosecutor in a criminal case making [except where necessary for a legitimate law enforcement purpose] “extrajudicial statements which serve to heighten condemnation of the accused.”

There are no other reported DC cases, under either DC Rule 3.8(f) or DC Rule 3.6, where prosecutors were disciplined for statements to the media. In Gentile v. State Bar of Nevada, 501 US 1030 (1991), the Supreme Court, in addressing the application of Nevada's Rule 3.6 (which was identical to Model Rule 3.6 as it then stood) to a press conference by a defense lawyer, gave no indication that its decision would have been different had it been a prosecutor commenting on a pending criminal case. Of course, a prosecutor still has every lawyer's duty of confidentiality, and this may affect what can be said publicly. Moreover, Comments [2] and [3] to DC Rule 3.8 emphasize ethical considerations in a prosecutor's making extrajudicial comments. Comment [2] clarifies that prosecutors, like all other lawyers, are subject to the strictures of Rule 5.3, which makes lawyers responsible for conduct of nonlawyers under their supervision that would violate the Rules of Professional Conduct if performed by a lawyer. Thus, it seems apparent that prosecutors may not direct nonlawyers under their supervision or control to make prejudicial extrajudicial statements. It is not clear, however, that this comment would apply to statements made by law enforcement officials not under the control of the prosecutor's office. Comment [3] makes clear that a prosecutor may announce the status of an investigation or a pending case. In addition, Comment [3] asserts that the prosecutor may respond publicly to extrajudicial allegations on the part of the defense.

3.8:900   Peremptory Strikes of Jurors

· Primary DC References: DC Rule 3.8(h)
· Background References: Other Jurisdictions
· Commentary:

3.9   Rule 3.9 Advocate in Nonadjudicative Proceedings

3.9:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 3.9
· Background References: ABA Model Rule 3.9, Other Jurisdictions
· Commentary:

3.9:101      Model Rule Comparison

The only substantive differences between DC Rule 3.9 and its Model Rule counterpart lie in the other Rules that they each incorporate by reference. Each of them incorporates by reference Rule 3.4(a) through (c) and the entirety of Rule 3.5, but as has been shown (in 3.4:101 and 3.5:101 above) the DC Rule versions thus referred to differ from the Model Rule versions.  The DC Rule also also incorporates the entirety of DC Rule 3.3 while the Model Rule incorporates only paragraphs (a) through (c) of Model Rule 3.3, and not the other paragraph of that Rule, which is paragraph (d).  But as has again been shown (in 3.3:101, above) the two versions of Rule 3.3 differ substantially, and one of those differences is that the DC version does not include any provision corresponding to paragraph (d) of Model Rule 3.3, which is the paragraph that is excluded from Model Rule 3.9's incorporation by reference.

That paragraph (d) of Model Rule 3.3 addresses a lawyer's obligations to a tribunal in an ex parte proceeding, and so is not appropriately included in in a rule that, like Rule 3.9, is concerned with non-adjudicative proceedings. Prior to the 2002 amendments pursuant to the Ethics 2000 recommendations, however, despite Model Rule 3.9's recognition that a reference to ex parte proceedings before a tribunal didn't belong in a Rule dealing with non-adjudicative proceedings, that Rule by its terms applied to "a lawyer representing a client before a legislative or administrative tribunal," while the DC Rule spoke of a lawyer representing a client before a "legislative or administrative body."  The 2002 amendments to the Model Rules eliminated the anomalous use of the term "tribunal" by changing the pertinent language of Model Rule 3.9 to refer to a "legislative body or administrative agency." This change was evidently prompted by the fact that the 2002 amendments had added tribunal as a defined term in the new Rule 1.0, Terminology. The DC Rules already included such a defined term, and in 2006 DC Rules' definition of the term was conformed to the Model Rules' definition.

3.9:102      Model Code Comparison

This Rule had no direct counterpart in the Model Code. However, DR 7-106(B)(2) provided that "[i]n presenting a matter to a tribunal, a lawyer shall disclose . . . [u]nless privileged or irrelevant, the identities of the clients he represents and of the persons who employed him." EC 7-15 stated that a lawyer "appearing before an administrative agency . . . has the continuing duty to advance the cause of his client within the bounds of the law." EC 7-16 stated that "[w]hen a lawyer appears in connection with proposed legislation, he . . . should comply with applicable laws and legislative rules." And EC 8-5 stated that "[f]raudulent, deceptive, or otherwise illegal conduct by a participant in a proceeding before a . . . legislative body . . . should never be participated in . . . by lawyers." The Model Code, like the DC Rules, defined the term "tribunal," albeit somewhat differently. The Model Code's Definition (6) reads: "'Tribunal' includes all courts and all other adjudicatory bodies."

3.9:200   Advocate in Non-adjudicative Proceedings

· Primary DC References: DC Rule 3.9
· Background References: ABA Model Rule 3.9, Other Jurisdictions
· Commentary: ALI-LGL § 104, Wolfram § 13.8

There appear to be no pertinent DC court decisions or ethics opinions on this subject.