District of Columbia Legal Ethics
VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION
8.1 Rule 8.1 Bar Admission and Disciplinary Matters
8.1:100 Comparative Analysis of DC Rule
· Primary DC References: DC Rule 8.1
· Background References: ABA Model Rule 8.1, Other Jurisdictions
· Commentary:
DC Rule 8.1, like MR 8.1, is one small tile in a broad regulatory mosaic governing the practice of law in a particular jurisdiction. In the District of Columbia, as in most other jurisdictions, the broader framework includes (a) formal procedures governing how applicants become licensed lawyers through admission to the bar of a particular jurisdiction; (b) rules of professional conduct establishing minimum ethical standards for licensed lawyers; (c) a disciplinary system designed to protect the public by imposing sanctions on lawyers for unethical conduct in violation of the rules of professional conduct; (d) procedures to ferret out and prohibit non-members of the bar from engaging in unauthorized practice of law; and (e) legal standards governing reinstatement of lawyers as licensed members of the Bar after they have been disbarred or suspended for prior ethical violations. Rule 8.1's contribution to this mosaic consists of a prohibition of certain conduct on the part of an applicant or lawyer, in connection with any bar admission application or disciplinary proceeding: knowingly making a false statement of a material fact, failing to correct a known misapprehension by the authorities, or failing to respond to a lawful demand for information from the admissions or disciplinary authorities. Although both DC Rule 8.1 and its antecedent Code provisions apply to both bar admissions and disciplinary proceedings, as a practical matter they are principally invoked in the latter context. In the District of Columbia, as in most other jurisdictions, the bar admission process is administered by a separate Admissions Committee and is rarely the subject of disciplinary proceedings.
8.1:101 Model Rule Comparison
DC Rule 8.1 is virtually identical to MR 8.1. Both apply to persons seeking admission to the Bar as well as to those already admitted. Both make it a professional offense for any lawyer, in connection with a bar admission application or any disciplinary proceeding, knowingly to make a misrepresentation of a material fact or fail to make a disclosure necessary to correct a known misapprehension of a material fact, or fail to respond properly to an information demand of any admissions or disciplinary authority. Comment [2] to both Rules makes clear in identical terms, that while the requirements of the Rule are subject to the Fifth Amendment privilege against compulsory self-incrimination, a person relying on this constitutional privilege in responding to a question "should do so openly."
Although the black letter text of DC Rule 8.1 is almost identical to that of its Model Rule counterpart, there are two small substantive differences and one difference in choice of words that has no substantive significance. One of the substantive differences reflects a change that was suggested by the DC Rules Review Committee without explanation and put into effect by the Court of Appeals in 2006: paragraph (a) of DC Rule 8.1, which until 2006 had, like the corresponding provision of the Model Rule, prohibited a lawyer from knowingly making a false statement material fact, was changed by deletion of the word "material." Correspondingly, Comment [1] to the DC Rule was amended by omission of the word material but the addition of the word "knowingly" in the second sentence of the Comment and the insertion of new third sentence stating that lack of materiality doesn't excuse a knowing false statement of fact. The second substantive difference between the DC Rule and the Model Rule, which has existed since the DC Rule was first adopted, is in paragraph (b) of the DC Rule, which, in addressing a response to a lawful demand for information from an admissions or disciplinary authority, requires only that the lawyer respond "reasonably," a limitation not found in the Model Rule. This variance was recommended by the Jordan Committee because the Committee was "concerned that this [Model Rule 8.1's] formulation might suggest that the lawyer had no proper basis for resisting a request from such [admissions or disciplinary] authority."
The difference in language that does not entail a substantive difference is that while paragraph (b) of the Model Rule refers to a "person," the DC Rule refers, more explicitly, to a "lawyer or applicant."
Comment [1] to Model Rule 8.1 was amended in 2002 to make clear that paragraph (b) requires correction of any prior factual misstatement that the lawyer or applicant may have made, and this change was also adopted in the DC Rule in 2006. At those respective times Comment [3] to both Rules was also amended to give additional emphasis to the brief recognition in paragraph (b) of the fact that Rule 8.1 does not require disclosure of information protected by Rule 1.6.
8.1:102 Model Code Comparison
Under DR 1-101(A) of the Model Code, and its identical DC counterpart, applicants for admission to the Bar, after being admitted, were subject to discipline under DR 1-101(A) for any false statement of a material fact or deliberate failure to disclose a material fact in their Bar admission applications. Both DC Rule 8.1 and MR 8.1 include a somewhat broader requirement inasmuch as DR 1-101(A) was limited to failures to disclose material facts that were "requested," whereas Rule 8.1(b) requires disclosure of any fact "necessary to correct a misapprehension known by the lawyer or applicant to have arisen in the matter," irrespective of whether particular information has been requested.
DR 1-101(B) of the Model Code (again identical in the DC Code) provided that a lawyer "shall not further the application for admission to the bar of another person known to be unqualified with respect to character or other relevant attribute" -- a somewhat broader but less precise prohibition than that imposed by Rule 8.1. Also of some pertinence was DR 2-102(A)(5), of both the Model Code and the DC Code, providing (again identically) that a lawyer shall not engage in conduct that is prejudicial to the administration of justice -- a prohibition frequently applied to failure to respond to inquiries from Bar Counsel.
8.1:200 Bar Admission
· Primary DC References: DC Rule 8.1
· Background References: ABA Model Rule 8.1, Other Jurisdictions
· Commentary: ABA/BNA §§ 21:101, 10l:1, ALI-LGL § 2, Wolfram §§ 15.2, 15.3
[The discussion of these topics has not yet been written.]
8.1:210 Bar Admission Agency
In the District of Columbia, the ultimate authority on admissions to the Bar is the DC Court of Appeals. DC Code § 11-2501 (1981). However, much of the Court's authority has been delegated in Court Rule 46(a), which creates a Committee on Admissions consisting of seven members of the Bar who are appointed for three-year terms and are permitted to serve two consecutive such terms. Members of the Admissions Committee, who receive such compensation and reimbursement of expenses as the Court may approve, are concerned primarily with administering the provisions of Rule 46(b) applicable to admission by examination.
Part of the Court's authority on admissions has also been delegated by Court Rule 49, which creates a Committee on Unauthorized Practice of Law and prohibits any person from engaging in the practice of law in the District of Columbia unless such person is enrolled as an active member of the DC Bar. Violations of Rule 49 are "punishable as contempt" and are also "subject to injunctive relief." Enforcement proceedings are commenced by the Committee on Unauthorized Practice and are conducted before a presiding judge from the DC Court of Appeals.
8.1:220 Bar Admission Requirements
The Court's Rule 46 provides two separate paths for admission to the DC Bar: admission by examination pursuant to Rule 46(b), and admission without examination of members of the Bar of other jurisdictions pursuant to Rule 46(c).
Admission by Examination
The principal requirements for admission by examination include: (a) a written application on a form approved by the Committee on Admissions, accompanied by a $100 fee; (b) proof of graduation from a law school approved by the American Bar Association, or from a law school not approved by the American Bar Association after the applicant has successfully completed at least 26 hours of study in subjects tested by the Bar examination in a law school approved by the American Bar Association; (c) attaining a minimum grade established by the Committee on Admissions in an examination on the Code of Professional Responsibility administered by the Multistate Bar Examination Committee; (d) completion of both a DC essay examination and the Multistate Bar Examination with a score not less than 133 on each of the two examinations; and (e) certification by the Committee on Admissions that the applicant has demonstrated "good moral character and general fitness to practice law."
Admission Without Examination
The principal requirements for admission without examination of members of the Bar of other jurisdictions include: (a) a written application on a form approved by the Committee on Admissions, accompanied by a fee of $400 plus an additional fee payable to the National Conference of Bar Examiners in an amount specified on the application form; (b) proof that the applicant has "good moral character as it relates to the practice of law"; (c) proof that the applicant has been a member in good standing of a Bar of a court of general jurisdiction in any State or Territory of the United States for a period of five years immediately preceding the filing of the application; or (d) alternatively in lieu of the requirements in (c) above, submission of an application within 25 months from the date of passing the Multistate Bar Examination as required below, together with proof that the applicant has graduated from a law school approved by the American Bar Association, has been admitted to the practice of law in any State or Territory of the United States based on successful completion of a written bar examination together with a score of at least 133 on the Multistate Bar Examination, and has passed the Multistate Professional Responsibility Examination required for admission to the DC Bar by examination.
On February 23, 1998, the Court exposed for comment a proposal to amend Rule 46(c) to delete the 25-month limitation on alternative (d). The effect would be to eliminate what has long been a "dead" period of almost three years (between 25 months and five years after admission to another bar), when a member in good standing of another bar could not secure admission on motion to the DC Bar.
8.1:230 Admission on Motion
In the District of Columbia, admission on motion is permitted in accordance with the requirements described above for "admission without examination of members of the Bar of other jurisdictions."
The provisions for admission on motion to the DC Bar, especially the alternative provisions for admitting lawyers licensed elsewhere having no experience in the practice of law in the other jurisdiction, are among the most liberal of any jurisdiction in the United States. This has been a matter of concern that has produced from the DC Bar two committee reports popularly known by the names of the respective committee chairpersons, i.e., the Isbell Report of February 29, 1988 and the Hitchcock Report submitted to the DC Court of Appeals on July 28, 1992.
As noted in the Hitchcock Report, statistics on admissions to the DC Bar in 1983 showed that out of every five lawyers admitted to the Bar, four were on examination and only one on motion. By 1991, in contrast, 20 lawyers were being admitted on motion for every one lawyer successfully completing the DC Bar Examination. As noted in the Isbell Report, in 30 other jurisdictions permitting admission on motion, the number of applicants admitted on motion has never been greater than, or indeed even close to being equal to, the number admitted on examination.
The Isbell Committee concluded that one of the practical effects of the large number of DC admissions on motion has been "an impoverishment of the pool of applicants who take the examination here," resulting in an ever-increasing proportion of failures to pass the examination and an ever-increasing proportion of repeaters.
The Hitchcock Committee concluded that the disproportionate number of admissions on motion have involved applicants who "shopped" for a jurisdiction with a bar examination perceived as being easier to pass than the DC examination, particularly those other jurisdictions (such as Pennsylvania) in which Bar Examiners do not even read an applicant's essay examination if the applicant has scored 135 on multiple-choice questions in the Multistate Bar Examination. The Hitchcock Committee pointedly observed that "few clients (and even fewer courts) ask lawyers to answer multiple choice legal questions as part of their daily practice."
Both the Isbell and the Hitchcock Committees made recommendations intended to redress the imbalance between admissions on examination and on motion, but as of March 1997, the Court of Appeals had neither accepted nor rejected any of the various recommendations in either of the committees' Reports.
8.1:240 Admission Pro Hac Vice [see also 5.5:230]
In the District of Columbia, admission pro hac vice is governed by the provisions of the DC Court of Appeals Rule 49(c) and DC Superior Court Rule of Civil Procedure 101(a)(3).
As more fully described in 5.5:210, above (under the subtopic The Prohibition of Unauthorized Practice -- Rule 49), Rule 49 deals generally with the unauthorized practice of law (and was substantially amended effective February 1, 1998). Paragraph (c) of the Rule provides for a number of exceptions to the general prohibition on unauthorized practice, one of which, Rule 49(c)(7), explicitly addresses admissions pro hac vice. It allows the provision of legal services in the courts of the District of Columbia following pro hac vice admission but limits applications for such admission to five per year and to persons who do not maintain an office for the practice of law in District of Columbia or otherwise engage in the practice in District of Columbia. A fee of $100 and a sworn statement must accompany each application. The pro hac vice admission process is fully described in DC Unauthorized Practice of Law Committee Opinion 2-98 (March 2, 1998). (There is a separate exception, in Rule 49(c)(3), for practice before a United States court, as well as other exceptions described in 5.5:210, above.)
DC Superior Court Rule of Civil Procedure 101(a)(3) mandates compliance with the restrictions prescribed by DC Court of Appeals Rule 49(c) for appearance in that court on a pro hac vice basis. Rule 101(a)(3) also requires that a lawyer appearing pro hac vice in the Superior Court join of record a member in good standing of the DC Bar "who will at all times be prepared to go forward with the case, and who shall sign all papers subsequently filed and shall attend all subsequent proceedings in the action" unless this requirement is waived by the judge.
Rule 49(c) also includes a series of special provisions authorizing the practice of law by government attorneys employed by the United States and permitting attorneys to appear and participate in a particular action or proceeding before any court, department, commission or agency of the United States. Additional special provisions in Rule 49(c) permit any attorney who is "a member in good standing of the highest court of any State" during the pendency of an application for admission to the DC Bar and while "employed by or affiliated with a non-profit [DC] organization [providing] . . . legal services for indigent clients without fee . . . to appear and participate in particular actions or proceedings of any court of the District of Columbia."
The language of both DC Rule 8.1 and MR 8.1 is sufficiently broad to encompass admissions on motions pro hac vice. However, through 1996 there were no reported disciplinary proceedings pursuant to Rule 8.1 arising from a motion pro hac vice. Nonetheless, there is no basis for concluding that conduct otherwise proscribed by DC Rule 8.1 is outside the scope of the rule merely because such conduct occurred in connection with admission on a motion pro hac vice. Further, the DC Court of Appeals has held an attorney in contempt and issued an injunction against him for violating that court's Rule 49(c) on pro hac vice admissions in Brookens v. Committee on Unauthorized Practice of Law, 538 A.2d 1120 (DC 1988). ]See 5.5:230, above, for a more detailed discussion of this case.]
8.1:300 False Statements of Material Fact in Connection with Admission or Discipline
· Primary DC References: DC Rule 8.1(a)
· Background References: ABA Model Rule 8.1(a), Other Jurisdictions
· Commentary: ABA/BNA §§ 21:301, 101:201, Wolfram § 15.3.1
Both DC Rule 8.1(a) and MR 8.1(a) make it a professional offense for a lawyer to make a false statement of a material fact in any Bar admission application or disciplinary proceeding. The duty imposed by the Rule applies to all admission and disciplinary proceedings, including proceedings in which a lawyer's own conduct is directly challenged as well as proceedings in which the alleged misconduct involves a lawyer's representation of others.
In more general terms, Rule 8.1 creates a broad duty of candor in both bar admission and disciplinary matters. With regard to admission proceedings, this duty existed in the District of Columbia long before adoption of either the Code or the Rules of Professional Conduct. See Carver v. Clephane, 137 F.2d 685, 686 (DC Cir. 1943) (an applicant's "lack of candor in his repeated applications for admission to the Bar is reason enough for his exclusion"). However, problems of lack of candor in applications for admission are more frequently dealt with in the admission process itself than in disciplinary proceedings. In consequence, there have been few reported disciplinary cases involving bar admission under either Rule 8.1 or its Code predecessor, DR 1-101(A), and those few have involved applications by DC Bar members for admission to the bar of other jurisdictions. Thus, for example, in In re Regent, 741 A.2d 40 (DC 1999), a member of the DC Bar was disbarred for submitting false and misleading statements on her applications to the bars of Arizona, Nevada and Hawaii. In In re Rosen, 570 A.2d 728 (DC 1989), the Court of Appeals ordered a nine-month suspension of a member of the DC Bar who, at the time of filing an application for admission to the Maryland Bar, correctly reported "none" in answering a broad question as to whether he had ever been charged with professional misconduct; the suspension was imposed because several months after filing the Maryland application, the lawyer signed an oath stating that all facts in the Maryland application were still true and correct, whereas in the interim period the lawyer had been charged with professional misconduct in the DC disciplinary system. In In re Gilbert, 538 A.2d 742 (DC 1988), a DC lawyer was disbarred for failing to disclose, in response to a question on his application to the Maryland bar asking for identification of litigation in which he had been a party, a suit in which he had been denied recovery of life insurance on his deceased wife on the ground that he had caused her death in order to harvest the proceeds of the policies.
As a practical matter, then, Rule 8.1 is principally of significance in connection with disciplinary proceedings. Indeed, in that context it is reinforced by the Court's Rule XI creating the DC disciplinary system, which expressly provides that, in addition to any offense under the Rules of Professional Conduct, it "shall also be grounds for discipline" for any attorney to fail "to comply with any order of the Court or the Board issued pursuant to this Rule" and for any failure "to respond to a written inquiry from the Court or the Board in the course of a disciplinary proceeding without asserting, in writing, the grounds for refusing to do so." Rule XI § 2(b)(3)(4).
Violations of Rule 8.1 in disciplinary proceedings are seldom challenged alone in separate disciplinary proceedings, although this has occurred in at least one instance, see In re Aldridge, 664 A.2d 354 (DC 1995) (reciprocal suspension of three years for attempting, in a previous, separate disciplinary investigation and hearing, to conceal conduct that in that disciplinary proceeding had led to only a two-month suspension). More usually, if a lawyer violates Rule 8.1 by knowingly making a material false statement or failing to respond to requests for information during a disciplinary investigation or hearing in which the original charges involve a different rule, the Rule 8.1 violation is added as a supplementary charge in the same proceeding and effectively treated as an aggravating factor justifying a more severe sanction than would be called for by the originally charged offense alone. Thus, in In re Starnes, 829 A.2d 488 (DC 2003), a recently admitted member of the Bar was suspended for six months for making a false statement on his application for admission, in violation of Rule 8.1(a), and for mishandling three separate cases, in violation of several other Rules. The false statement was a representation by the respondent that he had been practicing in DC under the supervision of a lawyer admitted in DC, whereas in fact he had undertaken the solo representation of three clients under his own firm name.
In In re Powell, 898 A.2d 365 (DC 2006), the respondent, while under suspension from the DC Bar, filed a sworn application for admission to the Bar of the United States District Court for the District of Colorado in which he failed to disclose his admission to practice in the District of Columbia or his then pending suspension therefrom. He was held thereby to have violated not only DC Rule 8.1(a), but also Rules 8.4(c) and (d), and was suspended for a year, with reinstatement conditioned on demonstration of fitness to practice law.
There are no DC ethics opinions interpreting Rule 8.1, or discussing its predecessor Code provisions in circumstances where Rule 8.1 would apply.
8.1:400 Duty to Volunteer Information to Correct a Misapprehension
· Primary DC References: DC
Rule 8.1(b)(1)
· Background References: ABA
Model Rule 8.1(b)(1), Other Jurisdictions
· Commentary:
Rule 8.1(b)(1) requires applicants for admission and lawyers in disciplinary matters to "disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter." In disciplinary matters, this Rule is sometimes characterized as a duty to "cooperate" with the disciplinary authority. As explained in the identical Comment [1] to both DC Rule 8.1 and MR 8.1, this requires "affirmative clarification of any misunderstanding on the part of the admissions or disciplinary authority of which the person involved becomes aware." However, there is no broader requirement obligating a lawyer to volunteer information in the absence of the lawyer's knowledge of a misunderstanding by the authorities.
In In re Small, 760 A.2d 612 (DC 2000), a member of the DC Bar was suspended for three years by reason of a conviction for vehicular negligent homicide, a felony, in New York, which was held to be a criminal act reflecting adversely on a lawyer's fitness to practise law, under Rule 8.4(b); and by reason of his failure to disclose the pendency of the charges at the time of his admission to the bar, in violation of Rule 8.1(b).
8.1:410 Protecting Client Confidential Information
As the final clause of Rule 8.1(b)(2) makes clear, all of the obligations imposed on a lawyer by the several provisions of the Rule are trumped by the lawyer's obligation under DC Rule 1.6 to preserve the confidences and secrets of the client.
8.1:500 Duty to Respond to Admission and Disciplinary Authorities
· Primary DC References: DC
Rule 8.1(b)(2)
· Background References: ABA
Model Rule 8.1(b)(1), Other Jurisdictions
· Commentary: ABABNA §§ 21.301, Wolfram § 15.3.1
The final obligation imposed by Rule 8.1 is to respond reasonably to lawful demands for information from an admissions or disciplinary authority, per Rule 8.1(b)(2). As with the other provisions of Rule 8.1, this provision is generally enforced, in a disciplinary context, in connection with other, more substantive rule violations. See, e.g., In re Steele, 630 A.2d 196 (DC App. 1993) (lawyer's failure to respond to Bar Counsel inquiries during pre-hearing investigation was an aggravating factor justifying a sanction requiring proof of fitness prior to reinstatement, in addition to the normal sanction of 60 days suspension for neglect of client's legal matter). See also In re Dietz, 675 A.2d 33 (1996) (reciprocal discipline of 60-day suspension imposed on a lawyer disciplined in Maryland for three instances of misconduct involving three different clients, and in addition, as to each instance, for failure to respond to Maryland Bar Counsel); In re Goldsborough, 654 A.2d 1285 (DC 1995) (reciprocal discipline of two-year suspension for conduct prejudicial to the administration of justice in violation of DR 1-102 and, later, Rule 8.4(d); and in addition, violation of Rule 8.1 for knowingly making a false statement of fact and failing to correct a misapprehension in the disciplinary proceeding); In re Manning, 593 A.2d 643 (DC 1991) (reciprocal disbarment for multiple violations involving four different clients, and in addition violation of Maryland Rule 8.1 by reason of failure to respond to requests for information from Maryland Bar Counsel).
In In re Cater, 887 A.2d 1 (DC 2005), there were four consolidated proceedings against the same lawyer, in one of which the respondent was charged with violating DC Rules 5.3(b) and 1.1(b) by failing to act competently and failing adequately to supervise a nonlawyer assistant, in connection with her former secretary’s embezzlement of $47,000 from the estates of two incapacitated adults for whom she had been the court-appointed guardian and conservator. (The court’s decision with respect to these two rules is discussed under 5.3:300 and 1.1:220, above.) In the three other proceedings, the respondent had been charged with violating DC Rules 8.1(b) and 8.4(d) by reason of her repeated failures to respond to inquiries from Bar Counsel. The first of the three proceedings leading to the charges relating to Rules 8.1(b) and 8.4(d) was an investigation instituted by Bar Counsel as a result of a referral by the Superior Court judge presiding over the guardianships as to which the respondent had breached her fiduciary duties: in connection with that investigation, the respondent had failed to respond to requests for her response to the judge’s complaint of her conduct and then an order from the Board on Professional Responsibility requiring her to respond. The other two proceedings involved two separate ethical complaints from other lawyers against the respondent, as to which she was similarly uncooperative. The Court observed that the “[r]espondent’s repeated failures to respond to letters from Bar Counsel and orders of the Board, which she received in three separate matters, unquestionably violated” Rule 8.1(b), and that this conduct also “hindered the expeditious resolution of the allegations against her,” and so seriously interfered with the administration of justice in violation of Rule 8.4. Id. at 17.
In In re Godette, 919 A.2d 1157 (DC 2007), a prison inmate whom the respondent had represented complained to the DC Bar disciplinary authorities that respondent had abandoned his case. The Office of Bar Counsel, attempting to investigate the complaint, sent seven separate letters to respondent, who failed to respond to any of them. Respondent similarly ignored a motion to compel a response. The Board on Professional Responsibility then issued an order requiring a response, to which the respondent replied with a telephone message saying he would respond by a specified date, but failed to do so. Thereafter, a process server tried seven different times, without success, to serve respondent with a specification of charges. Finally, after intervention by the Court, respondent acknowledged receipt of the charges, but he did not thereafter participate in the resulting disciplinary proceedings, before the Hearing Committee, the Board or the Court. He was found to have both failed to respond reasonably to a lawful demand for information from a disciplinary authority, in violation Rules 8.1(b), and to have seriously interfered with the administration of justice in violation of Rule 8.4(d). Similar findings of violation of Rules 8.1(b) and 8.4(d) as a result of a the respondent’s failure to cooperate in Bar Counsel’s investigation of the complaint of a former client were made in In re Mabry, 851 A.2d 1276 (DC 2004), and of another respondent’s failure to respond to Bar Counsel’s requests and the Board’s orders to respond to four separate ethics complaints against him, in In re Follette, 862 A.2d 394 (DC 2004).
In In re Beller, 802 A.2d 340 (DC 2002), the respondent was suspended for thirty days for failure to respond to repeated inquiries from Bar Counsel and the Board on Professional Responsibility regarding three ethical complaints. Her failure was held to have violated Rules 8.1(b) and 8.4(d), as well as DC Bar Rule XI, § 2(b)(3) (making failure to comply with orders of the Court or the Board grounds of discipline), and reinstatement was conditioned on full cooperation with Bar Counsel. This evidently had no effect, however, for two years later the same respondent was suspended for 120 days for failure to respond to three further investigations by Bar Counsel, in violation of the same provisions. In re Beller, 841 A.2d 768 (DC 2004).
There are also numerous earlier decisions to similar effect applying DR 1-102(A)(5) of the DC Code, although that DR, the predecessor of Rule 8.4(d), addressed in very general terms conduct prejudicial to the administration of justice, and so covered a good deal more than the admission and disciplinary processes. See, e.g., In re Greenspan, 578 A.2d 1156 (DC 1990) (180-day suspension and requirement of proof of fitness for reinstatement, for violation of DR 1-102(A)(5) consisting of failures to respond both to the Superior Court Auditor-Master in a case the respondent was handling and to Bar Counsel's inquiries about that failure). See also In re Hill, 619 A.2d 936 (DC 1993) (public censure for neglect of a matter consisting of failure to file a brief in a court-appointed case and for failing to respond to Bar Counsel's inquiries in violation of DR 1-102(A)(5)); In re Lenoir, 604 A.2d 14 (DC 1992) (disbarment for "pervasive neglect, dishonesty, disregard of ethical obligations, and misappropriation of client funds," and in addition for failure to respond to Bar Counsel in violation of DR 1-102(A)(5)); In re Washington, 541 A.2d 1276 (DC 1988) (four-year suspension for misconduct in six matters exhibiting "a pattern of unethical conduct, evidencing a cavalier attitude toward [the respondent's] obligations to clients," and in addition for failure to respond to Bar Counsel in violation of DR 1-102(A)(5)).
8.1:600 Application of Rule 8.1 to Reinstatement Proceedings
· Primary DC References: DC
Rule 8.1, Court Rule XI, § 16(a)
· Background References: ABA
Model Rule 8.1, Other Jurisdictions
· Commentary:
In the District of Columbia any disbarred attorney, and any attorney subject to a suspension order requiring proof of rehabilitation, "shall not resume the practice of law until reinstated by order of the Court." Court Rule XI, § 16(a). A disbarred attorney is not eligible for reinstatement "until the expiration of at least five years from the effective date of the disbarment," and a suspended attorney is not eligible for reinstatement until expiration of a period equal to the period of suspension set forth in the Court's order. If a reinstatement petition is denied, the attorney cannot submit a further petition "until the expiration of at least one year following the denial." Rule XI, § 16(g). Unlike initial admissions to the DC Bar, which are administered by the Court along with the Committee on Admissions, admission by way of reinstatement is administered under the aegis of the disciplinary system, which includes the Board on Professional Responsibility and its Hearing Committees. (See discussion of the DC Disciplinary Process under 0.2:230 and 0.2:240, above.)
A petition for reinstatement by a disbarred or suspended attorney is a particularized type of application for admission to the Bar, and in DC such petitions are processed as disciplinary matters. Accordingly, petitions for reinstatement appear to fall within the purview of DC Rule 8.1 as involving an "admission application or . . . a disciplinary matter," although no DC precedent expressly so holds. However, leading DC precedents in reinstatement proceedings make clear that conduct of the type proscribed by Rule 8.1 can provide the basis for denying a reinstatement petition.
The Court has established "five factors to be considered in each reinstatement case: (1) the nature and circumstances of the misconduct for which the attorney was [previously] disciplined; (2) whether the attorney recognizes the seriousness of the misconduct; (3) the attorney's conduct since discipline was imposed, including the steps taken to remedy past wrongs and prevent future ones; (4) the attorney's present character; and (5) the attorney's present qualification and competence to practice law." In re Roundtree, 503 A.2d 1215, 1217 (DC 1985). The Court stressed that in a reinstatement proceeding, "primary emphasis must be placed on the factors most relevant to the grounds upon which the attorney was disbarred [or suspended]." Id.
The Court's opinion in In re Brown, 617 A.2d 194 (DC 1992), is instructive. There, the respondent lawyer consented to disbarment in the District of Columbia after Bar Counsel had charged him with serious disciplinary violations involving alleged misconduct in three separate probate cases. However, the lawyer's affidavit consenting to disbarment included admissions of misconduct with respect to only one of the probate cases, thereby allowing Bar Counsel's charges related to the other two cases to remain unresolved but undisputed. Thereafter, in a Virginia proceeding to consider reciprocal discipline, the lawyer denied that there were "any other charges" in the DC case beyond the single matter covered by his affidavit, and the Virginia Board found this denial to be a deliberate misrepresentation. In the DC reinstatement proceeding occurring after reciprocal discipline in Virginia, the Court held that the attorney's failure "to admit that he had deliberately deceived the Virginia State Board" was "duplicitous" and that his efforts during the [DC reinstatement] . . . hearing . . . to downplay that [duplicitous] conduct plainly demonstrate a lack of rehabilitation" as required for DC reinstatement. Id. at 198. Accord, In re Borders, 665 A.2d 1381, 1384 (DC 1995) (in a reinstatement proceeding, a disbarred lawyer refused to answer questions concerning the criminal conduct underlying the initial disciplinary offense; the Court described this refusal as an "election to stonewall the post-crime investigations," which supported the Court's conclusion that the attorney "has not established by clear and convincing evidence his fitness to resume the practice of law").
8.2 Rule 8.2 Judicial and Legal Officials
8.2:100 Comparative Analysis of DC Rule
· Primary DC References:
· Background References: ABA
Model Rule 8.2, Other Jurisdictions
· Commentary:
8.2:101 Model Rule Comparison
DC has no Rule 8.2, nor any rule differently numbered but corresponding to it in substance. The Jordan Committee report explained: “It is unnecessary in the District of Columbia [since judges there are appointed, not elected], and in any event overbroad in subjecting lawyers’ comments regarding potential appointees to public office to requirements not applicable to nonlawyers.” The report also noted that Rule 8.4(c) prohibited conduct by a lawyer involving dishonesty, fraud, deceit or misrepresentation, and expressed concern that a “reckless disregard” standard, such as applies to statements about judges and other public officers under Model Rule 8.2(a), punishing conduct other than knowing falsehoods, which are already caught by Rule 8.4(c)’s prohibition on misrepresentations, would have an undue chilling effect on candid comments regarding potential appointees.
The ABA Ethics 2000 Commission recommended no change in Model Rule 8.2, and the DC Rules Review Committee recommended and the DC Court of Appeals agreed that the DC Rules should continue to omit any provision similar to this Model Rule.
8.2:102 Model Code Comparison
Not applicable.
8.2:200 False Statements About Judges or Other Legal Officials
· Primary DC References: DC
Rule 8.4(c)
· Background References: ABA
Model Rule 8.2(a), Other Jurisdictions
· Commentary: ABA/BNA § 101:601, ALI-LGL § 114, Wolfram
§ 11.3.2
In re De Maio, 893 A.2d 583 (DC 2006), involved reciprocal discipline in a matter which the respondent had been disbarred in Maryland by reason of “false, spurious and inflammatory repressentations and allegations” against the Chief Judge of the Maryland Court of Special Appeals and the clerk of that court. This conduct had been found by the Maryland disciplinary authorities to violate Maryland Rules of Professional Conduct 1.1, 3.1, 3.3 and 8.4, all of which had counterparts in the DC Rules, but in addition Maryland Rule 8.2(a), which, like its Model Rule counterpart, prohibited making false statements about the integrity of a judge, but for which there is no counterpart in the DC Rules. The Board on Professional Responsibility concluded that, because the DC Rules did not include a provision corresponding to that Maryland Rule, prohibiting false statements made with “reckless disregard as to truth or falsity,” but only a prohibition of knowing misrepresentations under Rule 8.4(c), a less stringent reciprocal discipline than disbarment was called for, and the Court agreed.
In re Hermina, 907 A.2d 790 (DC 2006) also involved reciprocal discipline of a lawyer who had been found by the Maryland Court of Appeals to have violated various Maryland Rules of Professional Conduct -- namely, Rules 3.3(a)(1), 3.4(c) and 8.4(a), (c) and (d) -- all of which 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(a) which has no corresponding provision in the DC Rules. However, the DC Court of Appeals found the other violations with which the respondent was charged sufficient to support the same sanction of public censure that the Maryland authorities had imposed.
There appear to be no other DC court decisions or ethics opinions addressing this subject.
8.2:300 Lawyer Candidates for Judicial Office
· Primary DC References:
· Background References: ABA
Model Rule 8.2(b), Other Jurisdictions
· Commentary: ABA/BNA § 101:601, ALI-LGL § 114, Wolfram
§ 17.2
There appear to be no pertinent DC court decisions or ethics opinions on this subject.
8.3 Rule 8.3 Reporting Professional Misconduct
8.3:100 Comparative Analysis of DC Rule
· Primary DC References: DC
Rule 8.3, DC Rule 1.6(h)
· Background References: ABA
Model Rule 8.3, Other Jurisdictions
· Commentary:
8.3:101 Model Rule Comparison
Aside from a comma added in paragraph (a), the DC Rule as originally adopted followed Model Rule 8.3 in its original form. The Model Rule was amended in 1991 by the addition to paragraph (c) of a clause providing that if information learned by a lawyer working with a lawyer assistance program reveals lawyer misconduct, it is to be treated as if learned in a lawyer-client relationship and therefore need not be reported under Rule 8.3(a). The DC Rule as originally adopted by the DC Court of Appeals, in 1990, already provided a somewhat broader protection of information communicated in such circumstances because DC Rule 8.3(c) (like its Model Rule counterpart) stated that the Rule's disclosure obligation did not apply to information protected by Rule 1.6, and paragraph (h) of DC Rule 1.6, which has no counterpart in Model Rule 1.6, provided that information imparted in lawyer counseling programs should be treated as confidences or secrets. [See 1.6:250, above.]
Pursuant to recommendations of the Ethics 2000 Committee, relatively modest changes were made in 2002 to the language of Model Rule 8.3: in paragraphs (a) and (b) of the Rule, the phrase "having knowledge" was changed to the more active phrase "who knows," and the language of paragraph (c) was simplified and made clearer. The DC Rules Review Committee recommended identical changes to paragraphs (a) and (b) of the DC Rule. The Committee also recommended adding, to paragraph (c)'s exemption from disclosure of information protected by Rule 1.6, information protected by "other law;" and elaborated on the treatment of Rule 1.6"s exemptions of information otherwise required by Rule 8.3 to be disclosed, in Comments [2], [4] and [5] to the DC Rule. All of these recommended changes were approved by the DC Court of Appeals in 2006.
8.3:102 Model Code Comparison
Rule 8.3 both expands and narrows the provisions of its predecessor DR 1-103. The DC version of DR 1-103 contained a single paragraph, which was identical to DR 1-103(B) of the Model Code (requiring a lawyer to disclose violations only "upon proper request" of appropriate authority). It did not contain the mandate to report all violations of DR 1-102 (the predecessor of Rule 8.4) that appeared as DR 1-103(A) of the Model Code. Rule 8.3, like that provision of the Model Code, establishes an affirmative duty to report violations to the appropriate authority, and it extends the violations subject to reporting to all the Rules (not just Rule 8.4); but it also limits the violations that must be reported to those indicating unfitness to practice law.
8.3:200 Mandatory Duty to Report Serious Misconduct
· Primary DC References: DC
Rule 8.3(a) DC Ethics Opinion 270 (1997),
discussed more fully under 1.16:500 above,
held that a subordinate lawyer who learns that an employing lawyer has sent
a client what purport to be copies of correspondence written on the client's
behalf, but where the letters were in fact never sent, has a duty under DC
Rule 8.3 to report the employing lawyer to the disciplinary authorities,
a duty that continues after the subordinate lawyer resigns upon learning of
the deception. DC Ethics Opinion 260 (1995)
(discussed under 8.4:400 below) ruled that
a lawyer consulted by a client about the possible settlement of another lawyer's
claim against that client for fees, on terms that involve waiver of any malpractice
claim, has an absolute duty to report any unprivileged knowledge of a violation
by the other lawyer if the misconduct meets the standards established in Rule
8.3(a). DC Ethics Opinion 246 (1994)
sets forth a four-part analysis, which tracks and somewhat elaborates the terms
of the rule, to be used in determining when a lawyer must report the misconduct
of another lawyer. First, a lawyer must have actual knowledge of facts that
create the lawyer's clear belief that misconduct has occurred. Second, the lawyer
must report misconduct only if the report can be made without violating Rule
1.6's requirement of confidentiality: not only is a lawyer excused from
reporting information protected by Rule 1.6, but a lawyer may
not report information protected by Rule 1.6. On this branch of the analysis,
the opinion further advised that even public information may be protected as
a "secret" under Rule 1.6 if either the client requests that the information
not be reported or the reporting would be detrimental to the client. Disclosure
in one forum -- in this instance through the filing of a malpractice lawsuit
-- does not validate disclosure in another forum, namely, reporting the malpractice
defendant's misconduct pursuant to Rule
8.3, if such reporting would "lessen the client's ultimate chances of recovery"
and had not been consented to by the client. The opinion also suggested that,
in addition to Rule 1.6, Rule 1.3(b)(2)
may preclude the reporting of misconduct under Rule 8.3 if the information is
prejudicial or damaging to the client. [See 1.3:101]
The third prong of the analysis limits the obligation to report misconduct to
violations of the disciplinary rules; negligent conduct alone, without a violation
of one of the DC Rules, does not invoke the mandatory duty to report misconduct,
even if the conduct gives rise to a malpractice claim. Finally, a lawyer has
a duty to report a violation only if the conduct raises a substantial question
as to the opposing lawyer's honesty, trustworthiness or fitness to practice
law "in other respects." Thus, "not all violations of the disciplinary rules
must be reported, only the most serious ones." The Opinion,
which revised and reaffirmed an earlier draft opinion after it had been challenged
by Bar Counsel, pointed out that Rule 8.3, in making some reporting mandatory,
does not forbid voluntary reporting of another lawyer's misconduct in other
circumstances. DC Ethics Opinion 239 (1993)
also addressed the issue of when reporting is mandatory and concluded that mere
suspicions of misconduct should not be reported. DC Ethics
Opinion 220 (1991) noted (in n. 6) that although neither the black letter
text nor the Comments explain precisely what is meant by "informing" the appropriate
professional authority, filing a disciplinary charge clearly "falls within its
plain meaning." · Primary DC References: DC
Rule 8.3(b) In In re Borders, 665 A.2d 1381 (DC
1995), the Court of Appeals refused Borders' petition for reinstatement
to the DC Bar in part because he failed to fulfill his obligation to report
the misconduct of a judge under Rule
8.3(b) and the former DR 1-103.
Despite the grant of use immunity, Borders had refused to testify against a
judge being investigated for involvement in the same bribery scheme for which
Borders had been convicted. · Primary DC References: DC
Rule 1.3(b)(2), DC Rule 1.6 Under Rule 8.3(c),
a lawyer is not required to disclose the misconduct of another lawyer or judge
to the appropriate authority if reporting the misconduct would violate the rules
of confidentiality enunciated in Rule
1.6. [See 1.6:250, above] As mentioned above, DC Ethics Opinion
246 (1994) held that not only is a lawyer excused from reporting information
protected by Rule 1.6, a lawyer may not report
information protected by Rule 1.6.
Opinion 246 also suggested that Rule
1.3(b)(2) may preclude reporting of misconduct under Rule
8.3 if the information is prejudicial or damaging to the client. [See 1.3:101,
above] In DC Ethics Opinion 130 (1983),
the Legal Ethics Committee determined that DR 1-103(A) of the DC Code neither
required nor prohibited the disclosure of an unethical settlement offer made
during negotiations that the parties had agreed would remain confidential. The
lawyer was instructed to assess the confidentiality agreement using principles
of contract law before deciding whether to report the misconduct. The settlement
offer in question violated DR 2-108(B),
now Rule 5.6, by conditioning the
settlement of the parties on the inquiring lawyer's agreement not to represent
other clients against the opposition. · Primary DC References: DC
Rule 8.4, DC Rule 9.1 DC Rule 8.4 preserves the general substance and tenor of Model Rule 8.4, but it also has some significant differences. Paragraphs (a), (b), (c) and (f) of the DC Rule are identical to their Model Rule counterparts, and paragraph (e) was identical until 2002, when the Model Rule's provision was modified as described below. On the other hand, paragraph (d) of the DC Rule differs from its Model Rule counterpart as described below, and its paragraph (g) has no counterpart in the Model Rule, and there are substantial variances in the Comments. DC Rule 8.4 also differs from the Model Rule in that it has no Comments corresponding to what are now the Model Rule's Comment [4], making the point that a lawyer may refuse to comply with an obligation imposed by law if the lawyer believes the law to be invalid, and Comment [5], suggesting that a lawyer's abuse of public office or a position of private trust may thereby show "an inability to fulfill the professional role of lawyers." Indeed, the only Comment the two versions of Rule 8.4 share is what used to be an identical Comment [1] in both (but is now [2] in the Model Rule), expatiating on what sorts of criminal acts reflect adversely on a lawyer's fitness as a lawyer, so as to come within paragraph (b) of the Rule. DC Rule 8.4
preserves the substance of DR 1-102(A)
of the DC Code, yet differs somewhat in language and content. The DC Code was itself a substantial departure from the
Model Code. The DC Court of Appeals altered the content of DR 1-102(A) on April
1, 1972 by amending two of the Model Code provisions. First, the Court added
to DR 1-102(A)(3), which provided that a lawyer shall not "engage in illegal
conduct involving moral turpitude," the phrase "that adversely reflects on his
fitness to practice law." In addition, the Court deleted subparagraph (6) of
DR 1-102(A), which provided that a lawyer should not "engage in conduct that
adversely reflects on his fitness to practice law." In turn, DC Rule
8.4 incorporates a number of substantive changes from the antecedent Code
provisions. DR 1-102(A)(1) provided that a lawyer should not violate a disciplinary
rule; DR 102(A)(2) that a lawyer should not circumvent a disciplinary rule through
the actions of another. These two provisions collapse into Rule
8.4(a), which provides that it is professional misconduct for a lawyer to
"violate or attempt to violate the Rules of Professional Conduct, knowingly
assist or induce another to do so, or do so through the acts of another." The
DC Rule is thus substantially broader than the antecedent Code provisions, covering
conduct that would not have been covered previously, such as an attempted violation
of the Rule, and the knowing inducement of another to commit a violation. Rule 8.4(b)
also differs from its Code counterpart. Whereas DR 1-102(A)(3) provided that
a lawyer shall not "engage in illegal conduct involving moral turpitude that
adversely reflects on his fitness to practice law," Rule 8.4(b) states that
it is professional misconduct for a lawyer to "commit a criminal act that reflects
adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in
other respects." Comment [1]
to the Rule elucidates the type of conduct that will be considered misconduct
under this provision. Rule 8.4(c)
is identical to DR 1-102(A)(4). Rule 8.4(d)
preserves the tenor of DR 1-102(A)(5)
while altering its language. As discussed under the Model Rule comparison above,
the Model Code proscribed conduct that was "prejudicial" to the administration
of justice. Rule 8.4(d) forbids a lawyer to "seriously interfere" with the administration
of justice. As previously noted, Comment
[2] to Rule 8.4 specifies that the prohibition of paragraph (d) includes
conduct previously proscribed under the Model Code, and that it should be interpreted
with respect to the extensive case law on DR 1-102(A)(5). Paragraph (e)
of DC Rule 8.4 is taken from DR 9-101(A) of the DC Code, which corresponded
to DR 9-101(C) of the Model Code.
The DC Code expanded upon the Model Code by replacing the phrase "upon irrelevant
grounds" with the phrase "or upon grounds irrelevant to a proper determination
on the merits." Further, the DC Code added the word "legislator" to the list
of bodies and persons that a lawyer should not unduly seek to influence. In
turn, DC Rule 8.4(e) omits this addition and provides more generally that a
lawyer shall not "imply an ability to influence improperly a government agency
or official." Paragraph (f)
of DC Rule 8.4 does not have a direct counterpart in the Code. However, EC
7-34 provided that "[a] lawyer . . . is never justified in making a gift
or loan to a [judicial officer] except as permitted by . . . the Code of Judicial
Conduct." In addition, EC 9-1 stated
that a lawyer "should promote public confidence in our [legal] system and in
the legal profession." As discussed under the Model Rule comparison above, paragraph
(g) of DC Rule 8.4 is taken from DR
7-105, which was identical in the DC and the Model Code. Neither the DC Code nor the Model Code contained a provision
comparable to Rule 9.1. · Primary DC References: DC
Rule 8.4(a) 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 Rules of Professional Conduct 3.3(a)(1) and 3.4(c), and in consequence to have violated Rules 8.4(a), (c) and (d) as well -- all of which Maryland Rules were either the same as or equivalent to correspondingly numbered DC Rules. 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, and 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. In In re Goldsborough, 654 A.2d 1285
(DC 1995), the Court of Appeals imposed the discipline proposed by the
Board on Professional Responsibility in a case involving numerous ethical violations
under the Maryland rules. The Maryland court found that respondent was "deliberately
untruthful" in his testimony and had provided misleading information to Maryland
Bar Counsel. With respect to these violations, the Board "'had no trouble concluding
that the misconduct regarding misrepresentations and false testimony established
in Maryland as violating Maryland Rules 8.1 and 8.4(a) constitutes misconduct
in the District of Columbia.'" The Court accepted the Board's conclusions with
respect to these violations, and ordered a two-year suspension, with a requirement
of proof of fitness for reinstatement. In United States v. Ferrara, 847 F.
Supp. 964 (DDC 1993), aff'd, 54 F.2d 825 (DC Cir 1995), the District
Court entertained a suit brought by the United States to enjoin an inquiry by
the Disciplinary Board of the Supreme Court of New Mexico into the conduct of
an assistant United States Attorney. The allegations by defendant in its specification
of charges before the Disciplinary Board included the claim that the AUSA had
violated, inter alia, DR 1-102(A)(2) of the DC
Code (still in effect at the time of the incident) by communicating with an
adverse party known to be represented by counsel without the consent of that
counsel. The Court did not rule on the merits of this allegation, but granted
defendant's motion to dismiss for lack of personal jurisdiction over defendant.
[The background of the Ferrara case is discussed in
4.2:220, above.] In In re Pearson, 628 A.2d 94 (DC 1993),
the Court of Appeals reviewed the Board's recommendation that a lawyer disbarred
from practice in Maryland, who was also a member of the District of Columbia
bar, be disbarred in the District of Columbia under DC Bar Rule XI, §11, which
governs "Reciprocal Discipline." The respondent had been charged with violating
Rule 8.4 of the Maryland Rules by forging his wife's signature on certain legal
documents. The Court found the Maryland record, prepared by an inquiry panel
called the "Attorney Grievance Commission," to be misleading because the panel
failed to take into account respondent's version of key facts. Moreover, the
Court held that, because the Maryland Court of Appeals did not find as a fact
that respondent was guilty of the charge alleged, reciprocal discipline was
inappropriate. Accordingly, the Court declined to enter an order of disbarment.
However, the Court noted that, had respondent indeed been found guilty of the
charge, the identical discipline would have been appropriate since the District
of Columbia rules contain the counterpart of Maryland Rule 8.4. In In re Lieberman, 592 A.2d 1060 (DC
1991), the Court of Appeals ordered the reciprocal disbarment of a lawyer
who had consented to disbarment from the practice of law by the Court of Appeals
of Maryland based on numerous ethical violations, including misappropriation
of client funds. In the Maryland proceeding, respondent conceded, inter
alia, that misappropriation would constitute a violation of Maryland
Rule 8.4(a), which defines professional misconduct as the direct or indirect
violation of the Rules of Professional Conduct. In In re Hunter, 734 A.2d 654 (DC 1999),
the Court approved the imposition of reciprocal discipline upon a lawyer who
had been suspended by the US District Court for ethical violations arising out
of her representation of a criminal defendant in a case in which an officer
with whom the lawyer was romantically involved had participated in the arrest
of a co-defendant and was to be a government witness at trial. The District
Court had found the lawyer's conduct violative of, inter
alia, Rules 1.3(a),1.4(b),
1.7(b)(4), 8.4(a)
and 8.4(d). In In re Reid, 540 A.2d 754 (DC 1988),
the Court of Appeals reviewed the disciplinary recommendation of the Board on
Professional Responsibility in a case involving disciplinary violations under,
inter alia, the Maryland Code of Professional Responsibility
Rules DR 1-102(A)(1). The Maryland court noted that ordinarily respondent's
misconduct would warrant disbarment but that his alcoholism was a factor in
mitigation, and ordered an indefinite suspension instead. The D.C. Court of
Appeals concluded that the Board was empowered to recommend discipline substantially
different from that imposed in the foreign jurisdiction without proceeding de
novo if the proceeding elsewhere comports with due process. The Court held that
the record in the case at hand, which included acts constituting numerous ethical
violations, such as misappropriation of client funds, commingling, conversion
of client funds, and dishonesty, warranted disbarment in the District of Columbia.
In In re Gilbert, 538 A.2d 742 (DC),
cert. denied, 488 US 828 (1988), the Court of Appeals entertained another
reciprocal disbarment case involving violations in Maryland of DR 1-101(A) and
DR 1-101(A)(1) and (4). The Maryland Court of Appeals ordered that respondent
be disbarred for his failure to disclose his involvement in a previous lawsuit
in his application for admission to the Maryland Bar. Applying DC Bar Rule XI,
§18(5), which governs reciprocal disbarment, the Court found no infirmity in
the Maryland court's determination of misconduct, and ordered that defendant
be disbarred from the practice of law in the District of Columbia. In In re Velasquez, 507 A.2d 145 (DC
1986), the Court entertained a reciprocal disbarment proceeding involving
previous disbarment from Maryland for violations of, inter
alia, Maryland DR 1-102(A)(1). The Court accepted the conclusions of
the Maryland Court of Appeals that the hearing judge's findings of fact relating
to commingling and failure to keep accurate and safe records of clients' property
were supported by clear and convincing evidence. Also, the Court agreed with
the Maryland court that the activities of respondent, who had used client funds
deposited in an escrow account for general law firm administrative purposes,
constituted illegal, dishonest conduct and misrepresentation. Noting that the
violations found in the Maryland proceeding would be violations of the DC Code,
and that disbarment is the usual sanction in DC for misappropriation, the Court
ordered respondent disbarred. In In re Morris, 495 A.2d 1162 (DC 1985),
cert. denied, 475 US 1047 (1986), the Court of Appeals held that a lawyer
admitted in both Maryland and the District of Columbia, who was disbarred in
Maryland for violations of, inter alia, DR 1-102(A)(1),
(3)-(6) of the Maryland Code of Professional Responsibility, violated the corresponding
provisions of the DC Code. The Maryland proceedings adduced proof that respondent
had misappropriated client funds and engaged in misconduct in an estate matter.
The Court accepted the Board's conclusion that misappropriation of client funds
and commingling merited disbarment in DC as they had in Maryland and ordered
the lawyer disbarred in DC. DC Ethics Opinion 321 (2003)
[which is discussed more fully under 4.3:200,
above] addressed the ethical obligations of a lawyer with respect to the conduct
of an investigator sent by the lawyer to interview a person not represented
by counsel, in a context where the person to be interviewed was seeking a contempt
order against the lawyer's client, for violation of a Civil Protection Order
(CPO). The Opinion recognized that although the applicable ethical restrictions
governing the interview were to be found in Rule
4.3, the lawyer's official responsibility for the investigator's conduct
rested on Rules 5.3 and 8.4(a). DC Ethics Opinion 81 (1979),
interpreting DC DR 2-102(A), which prohibits misleading and deceptive advertising,
emphasized that lawyers are responsible for knowing the content of any advertising
they may sponsor. The Legal Ethics Committee stated that a lawyer cannot avoid
liability under DR 2-102(A) by leaving the development of advertising claims
in the hands of a service, and cited DR 1-102(A) as providing that a lawyer
may not "circumvent a Disciplinary Rule through the actions of another." · Primary DC References: DC
Rule 8.4(b) Rule 8.4(b)'s
predecessor in the Code, DR 1-102(A)(3),
prohibited illegal conduct involving moral turpitude, whereas Rule 8.4(b) forbids
illegal conduct reflecting adversely on a lawyer's fitness as a lawyer. Comment
[1], which is identical in the DC and the Model Rule, explains the reasons
for this change in focus: namely, that moral turpitude may be involved in some
matters of personal morality, such as "adultery and comparable offenses," that
do not relate to fitness to practice law. In the case of the DC Rule, however,
there was not so marked a change from Code to Rule, for the DC version of DR
1-102(A)(3) was amended in April 1972 to say that a lawyer shall not "[e]ngage
in illegal conduct involving moral turpitude that adversely reflects on . .
. fitness to practice law." It should be noted, too, that in the District of
Columbia, moral turpitude continues to be a pertinent aspect of criminal conduct
by lawyers, for DC Code § 11-2503(a) (1995) calls
for disbarment of a lawyer who has been convicted of a crime of moral turpitude.
See In re Fox, 627 A.2d 511, 512 (DC 1993); In re Carroni,
683 A.2d 150 (DC 1996). For these two reasons, the jurisprudence under
the DC version of DR 1-102(A)(3), although phrased in terms of moral turpitude,
as DC Rule 8.4(b) is not, remains
pertinent under DC Rule 8.4(b). The DC Court of Appeals has defined moral turpitude as
conduct "contrary to justice, honesty, modesty, or good morals." In
re Colson, 412 A.2d 1160, 1168 (DC 1979) (en banc) (quoting BLACK'S LAW
DICTIONARY 1160 (4th ed. 1951)). More specifically, the crime must be "an act
of baseness, vileness, or depravity in the . . . social duties which a man owes
to his fellow men or society in general." Id. Acts involving fraud and intentional dishonesty for personal
gain are acts of moral turpitude. In In re Appler, 669 A.2d
731 (DC 1995), the Court of Appeals found, contrary to the decision of
the Board on Professional Responsibility, that a lawyer who asked several clients
to pay him for legal services directly rather than pay the firm in which he
was an associate committed an act of moral turpitude. On the other hand, in
In re Weiss, 839 A.2d 670 (DC 2003), a lawyer who
had confessed to surreptitiously diverting $676,466 of his law firm's funds
into a personal account was found to deserve only a three-year suspension, for
violation of DC Rules 8.4(b) and (c),
and there was no discussion in the Court's opinion as to whether moral turpitude
had been involved. In In re Powell, 836 A.2d 579 (DC 2003)
(per curiam), where the respondent had pled guilty in Virginia to a misdemeanor
charge of drawing a check on insufficient funds, and been reprimanded therefore,
the Board on Professional Responsibility determined, and the Court agreed, that
although the respondent had violated DC Rule 8.4(b), there was no moral turpitude
involved, so no reciprocal discipline was needed. In In re
Cerroni, 683 A.2d 150 (DC 1996), a lawyer who had submitted false information
to the U.S. Department of Housing and Urban Development and the Federal Housing
Administration and had pled guilty to violations of 18 USC §§ 1010 & 1012 in
connection therewith was found to have violated Rule
8.4(b) and Rule 8.4(c) [treated
under 8.4:400, below]. Because the offense
was determined not to constitute moral turpitude per se and the Hearing Committee
determined that the surrounding circumstances did not constitute moral turpitude,
the penalty was a year's suspension with reinstatement contingent on completion
of certain continuing legal education courses, rather than disbarment. See also
In re Dorsey, 469 A.2d 1246 (DC 1983) (finding lawyer
who obtained money fraudulently and dishonestly acted with moral turpitude under
DR 1-102(A)(3)); In
re Willcher, 447 A.2d 1198 (DC 1982) (reversing Board's decision and
finding that lawyer's solicitation of money from an indigent defendant whom
he had been appointed to represent under the District of Columbia Criminal Justice
Act constituted an act of moral turpitude). Illegal drug possession or use standing alone was not illegal
conduct involving moral turpitude under DR
1-102(A)(3). See In re Reynolds, 649 A.2d 818 (DC 1994),
where the Court of Appeals, evaluating the lawyer's pre-1991 conduct, stated
that illegal drug use standing alone did not constitute illegal conduct involving
moral turpitude under DR 1-102(A)(3). However, the court noted that repeated
use of illegal drugs affecting a lawyer's fitness to practice law may result
in discipline under DC Rule 8.4(b).
See also In re Gardner, 650 A.2d 693 (DC 1994) (holding
that possession of cocaine does not constitute conduct involving moral turpitude).
But in In re Campbell, 572 A.2d 1059 (DC 1990), the
court held that unlawful possession of a controlled substance coupled with the
intent to distribute the controlled substance is a crime of moral turpitude.
In In re Bewig, 791 A.2d 908 (DC 2002)
(per curiam), the respondent had pled guilty to misdemeanor sexual conduct
with a minor, and when this conviction was reported to the DC Court of Appeals,
it issued an order determining that the crime involved was not a "serious crime"
as defined by DC Bar Rule XI, § 10(b) (which would have automatically entailed
some discipline), but referring the matter to the Board on Professional Responsibility
for investigation. The Board determined that, on the facts of the case, the
crime had involved moral turpitude "because the evidence demonstrated that respondent
sufficiently understood the wrongfulness of his behavior and was aware that
the minor victim was legally incapable of consent, and thus respondent was not
sufficiently [mentally] impaired" to warrant a lesser penalty than disbarment.
The Board also found, and the Court affirmed, that the respondent had violated
Rule 8.4(b). In contrast, in In re Childress, 811 A.2d 805
(DC 2002), the Court determined that a finding by a Maryland court that
the respondent had committed criminal conduct by proposing over the internet
to engage in sexual conduct with a child under 14 years of age was sufficient
to support a determination that the respondent had violated DC
Rule 8.4(b), but the Court also determined, without addressing the question
whether moral turpitude was involved, that a one-year suspension and a requirement
that the respondent demonstrate his fitness to practice law as a condition of
reinstatement sufficed as a sanction. The DC Court of Appeals' jurisprudence on the issue of
moral turpitude is more fully discussed under 0.2:245,
above. In In re Small, 760 A.2d 612 (DC 2000),
a member of the DC Bar was suspended for three
years by reason of a conviction for vehicular negligent homicide, a felony,
in New York, which was held to be a criminal act reflecting adversely on a lawyer's
fitness to practice law, under Rule
8.4(b); and by reason of his failure to disclose the pendency of the charges
at the time of his admission to the bar, in violation of Rule
8.1(b). In re Sims, 844 A.2d 353 (DC 2004) was
a disciplinary case in which the respondent had been convicted, on stipulated
facts, of violating 18 U.S.C. § 208 when he abused his practice as a hearing
examiner in the Bureau of Traffic Adjudication in the DC government by fixing
some 20 traffic tickets on cars belonging to himself or members of his family,
in effect eliminating some $1,280 in fines and penalties. The Court remanded
the case to the Board on Professional Responsibility for a determination as
to whether the offense, which had been found to violate Rules 8.4(b),(c) and
(d), had also involved moral turpitude, so as to require disbarment. The Court
canvassed its decisional authority regarding the determination as to moral turpitude
where the offense had been a misdemeanor rather than a "serious crime" as defined
by DC Bar Rule XI § 10(b), and then summarized the applicable standards as follows:
Bar Counsel has the burden of showing by clear and convincing
evidence that an attorney's conduct involves moral turpitude on the facts. See
[In re Tucker, 766 A.2d 510 (DC 2000)], at 512; BPR
Rule 11.5 ("Bar Counsel shall have the burden of proving violations of disciplinary
rules by clear and convincing evidence"). To rise to the level of moral turpitude,
an attorney's conduct must be an act of "baseness, vileness or depravity," [In
re Tidwell, 831 A.2d 953 (DC 2003)], at 957, or be the type that manifests
"a revulsion of society toward conduct deeply offending the general moral sense
of right and wrong. [In re McBride, 602 A.2d 626 (DC 1992)],
at 632-33. Clear and convincing evidence relating to conduct underlying
a criminal conviction may include an FBI or other law enforcement affidavit,
[In re Shillaire, 549 A.2d 336 (DC 1988)], at 353;
a statement given to the FBI or other law enforcement agency and signed by the
attorney, [Tucker, supra], 766 A.2d at 513; audio
or videotapes made by an FBI agent or other law enforcement official showing
the attorney in an act of wrongdoing, [In re Tucker, 689
A.2d 1214 (DC 1997)], at 1215; testimony by an FBI agent or other law
enforcement official before the hearing committee, id.; and admissions of the
attorney who is subject to discipline, id. at 1217.
In a subsequent decision in the same case, In re Sims, 861 A.2d 1 (DC 2004), the court, in a divided decision, held that the respondent’s conduct had indeed involved moral trupitude, warranting disbarment as a sanction. In In re Tidwell, 831 A.2d 953 (DC 2003), it was determined that a conviction for leaving the scene of a fatal automobile accident without reporting it involved, in the circumstances presented, not only a violation of Rule 8.4(b) but also moral turpitude, calling for disbarment. The critical circumstance leading to this finding of moral turpitude was the respondent’s awareness of the time of the accident that he had hit someone (here, a man on a bicycle). In re Slattery, 767 A.2d 203 (DC 2001) held that a lawyer’s appropriation of $10,262.30 from the bank account of a fraternal organization was a criminal act coming within Rule 8.4(b) despite the fact that the respondent had not been convicted of any criminal offense in connection with it; and that respondent’s efforts to conceal the act were a violation of Rule 8.4(c). In In re Gil, 656 A.2d 303, 304 (DC 1995), a reciprocal discipline case, the Court of Appeals held that conduct amounting to larceny or theft under District of Columbia law is a “criminal act” in violation of DC Rule 8.4(b). In construing the phrase criminal act, the court noted that it could look to the law of any jurisdiction that could have prosecuted the lawyer for his or her misconduct. In re Reynolds, 763 A.2d 713 (DC 2000) was a disciplinary proceeding with respect to conduct resulting in misdemeanor convictions for driving while intoxicated, hit and run and eluding a police officer. Although the Board on Professional Responsibility found, and the Court agreed, that these criminal convictions did not involve moral turpitude, so as to implicate DC Code § 11-2503(a) and require disbarment, they did, given the respondent’s history, reflect adversely on his “fitness as a lawyer,” and so constituted a violation of DC Rule 8.4(b). That history included four prior convictions for DUI and “an extended pattern of alcohol abuse over more than a decade,” and the respondent’s acknowledgment of the “potentially harmful effects his addition [to alcohol] could have on his ability to provide . . . legal advice to the best of his ability.” Id at 713. The respondent was suspended for six months, with a requirement of a showing of fitness to practice law as a condition of reinstatement. (The respondent subsequently applied for reinstatement but was held to have failed to demonstrate by clear and convincing evidence that he was fit to resume practicing law, In re Reynolds, 867 A.2d 977 (DC 2005).) In In re Abrahamson, 852 A.2d 949 (DC 2004), the respondent had pled guilty to a misdemeanor count of unlawful receipt of compensation with intent to defeat the purposes of the United States Department of Housing and Urban Development in violation of 18 USC §1012. The Board on Professional Responsibility determined that the crime did not involve moral turpitude per se, but referred the matter to a Hearing Committee for a determination as to whether it involved moral turpitude on the particular facts and for a recommendation as to the appropriate penalty. The Hearing Committee determined that the conduct had not involved moral turpitude but recommended a six month suspension for conviction of a serious crime as defined by DC Bar Rule XI, §10(b). The Board accepted these two conclusions of the Hearing Committee, but also held, contrary to the Hearing Committee’s decision, that the respondent had violated Rule 8.4(b), as well as Rules 3.4(a) and 8.4(d). In In re Harkins, 899 A.2d 755 (DC 2006), the respondent had been convicted of misdemeanor sexual abuse by reason of his having touched a fellow Metro passenger inappropriately several times and followed her when she changed seats in order to avoid him. The Board on Professional Responsibility had concluded that this conduct did not amount to a violation of Rule 8.4(b), but recommended that if the Court disagreed, the penalty should be no more than a censure. The Court, however, disagreed with the Board on both points, holding, as to the ethics violation, that, “[d]espite not directly implicating honesty or trustworthiness, sexually abusive contact, because of its inherently violent nature, calls into question one’s fitness as a lawyer and thus falls within the ambit of Rule 8.4(b).” Id. at 760. As regards the appropriate penalty, the Court noted that “[t]he discipline for violation of Rule 8.4(b) has never been as lenient as public censure,” id. at 761, and imposed instead a thirty-day suspension. See also In re Hermina, 907 A.2d 790 (DC 1006) (summarized under 8.2:200, above). In In re Tidwell, 831 A.2d 953 (DC 2003),
it was determined that a conviction for leaving the scene of a fatal automobile
accident without reporting it involved, in the circumstances presented, not
only a violation of Rule 8.4(b)
but also moral turpitude, calling for disbarment. The critical circumstance
leading to this finding of moral turpitude was the respondent's awareness of
the time of the accident that he had hit someone (here, a man on a bicycle).
In re Slattery, 767 A.2d 203 (DC 2001)
held that a lawyer's appropriation of $10,262.30 from the bank account
of a fraternal organization was a criminal act coming within Rule
8.4(b) despite the fact that the respondent had not been convicted of any
criminal offense in connection with it; and that respondent's efforts to conceal
the act were a violation of Rule 8.4(c). In In re Gil, 656 A.2d at 304,
a reciprocal discipline case, the Court of Appeals held that conduct amounting
to larceny or theft under District of Columbia law is a "criminal act" in violation
of DC Rule 8.4(b). In construing
the phrase criminal act, the court noted that it could look to the law of any
jurisdiction that could have prosecuted the lawyer for his or her misconduct. DC Ethics Opinion 200 (1989)
concluded that a lawyer's acceptance of a fee in good faith reliance on the
client's statement as to its non-tainted source did not violate DR
1-102(A)(3) because there was no specific criminal prohibition against the
lawyer's acceptance of the fee. · Primary DC References: DC
Rule 8.4(c) DC Rule 8.4(c),
like its Model Rule counterpart and its predecessor DR
1-102(A)(4), prohibits acts of dishonesty, fraud, deceit and misrepresentation.
In In re Shorter, 570 A.2d 760 (DC 1990), the Court
of Appeals emphasized that the four categories of conduct proscribed in DR 1-102(A)(4)
should be understood as separate categories; thus, "each term should be read
narrowly, so as not to engulf any of the remaining three." Id.
at 767. And when more than one of the terms could apply to a given set of facts,
the court held that the more general term should be used. Id.
("[W]e will find only one violation of the disciplinary rule upon a single set
of facts."). Noting that the term "dishonesty" encompasses fraudulent, deceitful,
and misrepresentational behavior, the court found it to be the most general
term used in DR 1-102(A)(4). Indeed, the court recognized that dishonesty can
also mean a "lack of fairness and straightforwardness. . . . Thus, what may
not legally be characterized as an act of fraud, deceit or misrepresentation
may still evince dishonesty." Id. at 768. In re Abrams, 689 A.2d 6 (DC 1997) (en
banc), cert. denied, 521 U.S. 1121 (1997), presented the issue
of whether a presidential pardon following a criminal conviction requires dismissal
of a disciplinary proceeding based upon the conviction. The respondent in the
case was a former Assistant Secretary of State for Inter-American Affairs, who
had been convicted, upon a plea of guilty, of violations of 2 USC § 192, by
reason of testifying falsely to a congressional committee. On the basis of these
convictions he was charged by Bar Counsel with violations of DR
1-102(A)(4). Those charges were sustained by the Hearing Committee and the
Board on Professional Responsibility, which recommended a one-year suspension
as penalty. While the disciplinary proceeding was pending, however, President
Bush issued a full and unconditional pardon, and Abrams took an appeal to the
DC Court of Appeals on the ground that the pardon "blotted out not only his
convictions but also the underlying conduct." Id.
at 7. A panel of the Court of Appeals agreed, In re Abrams,
674 A.2d 867 (DC 1995), but the court granted Bar Counsel's petition
for rehearing en banc, In re Abrams, 674 A.2d 499 (DC 1996)
(en banc), and the en banc court reversed the panel, 5 to 4. Although
four members of the majority would have imposed a six-month suspension, there
was not a fifth vote for so severe a penalty, so that the penalty imposed was
a public censure. In In Re Morrell, 684 A.2d 361 (DC 1996),
the Court upheld the recommended disbarment of a lawyer who had misappropriated
hundreds of thousands of dollars from a client, received compensation from his
law firm for representing the client and received compensation directly from
the client for the same work, and taken a kickback, in violation of DR
1-102(A)(3) and (4), the
predecessors of Rule 8.4(b) and
(c), and DC DR 9-103(A) and (B),
the predecessors of Rule 1.15. In In re Bernstein, 774 A.2d 309 (DC
2001) the lawyer respondent had represented a client in a workers' compensation
proceeding before the Industrial Commission of Virginia (the "Commission"),
negotiated a settlement under which the employer was to pay the client $30,000,
and then entered into an agreement with the client under which he would receive
$9,000 out of the settlement as a fee. The Commission, whose approval was required,
approved only a fee of $6,000, but the lawyer, without informing the client
of the Commission's action, retained the full $9,000 his client had agreed to.
The lawyer was found to have engaged in dishonesty in violation of Rule
8.4(c), by reason of taking a fee in excess of that awarded, and failing
to tell the client what the Commission had awarded; and in addition, to have
violated Rule 1.5(a) because the
fee he took, being in excess of what the Commission awarded, was illegal and
therefore unreasonable. In re Slattery, 767 A.2d 203 (DC 2001)
held that a lawyer's appropriation of $10,262.30 from the bank account
of a fraternal organization was a criminal act coming within Rule
8.4(b) despite the fact that the respondent had not been convicted of any
criminal offense in connection with it; and that respondent's efforts to conceal
the act was a violation of Rule 8.4(c). 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. One of the numerous ethical transgressions found in In
re Hager, 812 A.2d 904 (DC 2002) [which is more fully discussed under
1.7:500, above] was a violation of Rule
8.4(c)'s designating as professional misconduct a lawyer's engaging in conduct
involving dishonesty, fraud, deceit or misrepresentation. In the underlying
case the lawyers representing the plaintiffs in a potential class action had
made a side deal with the defendant, unknown to their clients, under which the
defendant paid them $225,000 as attorneys fees and expenses, the lawyers agreed
never to represent anyone with related claims against the defendant and to keep
totally confidential and not to disclose to anyone all information learned during
their investigation relating to the case, and all the parties agreed not to
disclose most of the terms of the settlement, even to the lawyers' clients.
The Rule 8.4(c) violation found by the Board on Professional Responsibility
in this case and affirmed by the Court was dishonesty both in the lawyers' failure
to disclose to the clients the secret fee agreement, and falsely telling one
of the clients that she was not represented at the time that agreement was negotiated.
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 8.4(c) because they were "dishonest"
and misleading even though the substance of the documents to which they were
affixed was accurate. In re Arneja, 790 A.2d 552 (DC 2002)
also involved, inter alia, a finding of dishonest conduct in violation of Rule
8.4(c), on the ground of the respondent's having filed a suit purportedly
on behalf of a client who had fired him five months earlier, falsely representing
himself as counsel for that client; and for misrepresenting to both the former
client and that client's new counsel that he had turned over the entirety of
the client's file when he had not in fact done so. In In re Ayeni, 822 A.2d 420 (DC 2003),
the Court approved disbarment of a lawyer for a number of violations, including
a violation of Rule 8.4(c) by
filing a brief on his client's behalf that was virtually identical to one that
had been filed earlier on behalf of a co-defendant, and seeking payment for
what he asserted was more than nineteen hours researching and writing the brief.
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 Rule
8.4(c) as well as DC Rules
3.3(a)(2), 3.4(b) and 1.3(b)(2),
were held sufficient to warrant disbarment. In In re Romansky, 825 A.2d 311 (DC
2003), the Board on Professional Responsibility had determined, inter
alia, that the respondent had violated Rule
8.4(c)'s prohibition or dishonesty by inflating bills he sent certain clients
so as to charge premium billing rates rather than the rates called for by the
firm's standard engagement letter. The firm was at the time in the process of
changing its engagement letter to contemplate premium billing, and the respondent
contended on appeal that his improper billing was negligent rather than intentional.
The Court held that although some actions are obviously wrongful and intentionally
done, so that no separate proof is necessary to show bad intention and in consequence
dishonesty, this was not necessarily the case with a mistake in billing, and
so remanded the case to the Board for a determination as to whether the respondent
had acted knowingly or recklessly in the erroneous billing, so as to fall under
Rule 8.4(c)'s prohibition on dishonesty. The Court also offered a fairly comprehensive
summary of its jurisprudence under that Rule. In In re Austin, 858 A,2d 959 (DC 2004), the respondent was found to have violated both DC Rule 1.8(a) and Rule 8.4(c) by reason of having, over a period of eighteen months, taken advantage of a vulnerable, uneducated elderly client of very limited means by borrowing money from her in a series of ten instances, totaling almost $27,000, and not repaying any more than trifling amounts. He was found to have violated Rule 1.8(a) by failing to advise the client to consult other counsel before agreeing to lend money to the respondent, and Rule 8.4(c) by acts that amounted to theft and fraud, and which the Court also termed “fraudulent acts of dishonesty.” Id. at 977. Although the Board had recommended a sanction of eighteen months’ suspension, with reinstatement conditional upon full reimbursement of the loans he had extracted from his client, the Court imposed the sanction of disbarment, with reinstatement also conditioned on full restitution. In In re Cleaver-Bascombe, 892 A.2d 396 (DC 2006), the Court approved a finding by the Board on Professional Responsibility 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 8.4(c) as well as Rules 1.5(a), 3.3(a) and 8.4(d). With respect to the violation of Rule 8.4(c), the Court observed that “dishonesty,” as used in that Rule, while encompassing fraud, deceit and misrepresentation, also includes “conduct evincing a lack of honesty, probity or integrity of principle; a lack of straightforwardness” (quoting In re Shorter, 570 A.2d 769, 767-68 (DC 1990)(per curiam)), and went on to say that “when an attorney . . . deliberately and knowingly makes a false representation in her CJA voucher, she violates Rule 8.4(c) [citation omitted]. Moreover, an attorney who recklessly maintains inadequate time records, and consciously disregards the risk that she may overcharge a client (or, here, the CJA fund) also engages in dishonesty within the meaning of Rule 8.4(c).” 892 A.2d at 204. 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 Rules of Professional Conduct 3.3(a)(1) and 3.4(c), and in consequence to have violated Rules 8.4(a), (c) and (d) as well -- all of which Maryland Rules were either the same as or equivalent to correspondingly numbered DC Rules. 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, and 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. In In re Powell, 898 A.2d 365 (DC 2006), the respondent, while under suspension from the DC Bar, filed a sworn application for admission to the Bar of the United States District Court for the District of Colorado in which he failed to disclose his admission to practice in the District of Columbia or his then pending suspension therefrom. He was held thereby to have violated not only DC Rule 8.1(a), but also Rules 8.4(c) and (d), and was suspended for a year, with reinstatement conditioned on demonstration of fitness to practice law. In In re Outlaw, 917 A.2d 684 (DC 2007), the respondent lawyer had negligently allowed the statute of limitations on the client’s tort claim to run before initiating meaningful negotiations with the defendant’s insurer, and had thereby violated DC Rules 1.1(a) and (b) and 1.3(a). The respondent had also failed to advise her client of her professional lapses, and thus violated Rule 1.4(a). In the latter connection, the respondent was also found to have deliberately avoided disclosing to the client the true posture of the case, and so to have violated Rule 8.4(c) as well. In In re Hawn, 917 A.2d 693 (2007)(per curiam), respondent was found to have violated DC Rule 8.4(c) by falsifying his law school transcripts in an attempt to obtain legal employment in another jurisdiction; he reported this to the DC disciplinary authorities, albeit only after the prospective employer and his law school had raised questions about it. As discipline for this violation, he was suspended for 30 days. In In re Scanio, 919 A.2d 1137 (DC 2007) the respondent lawyer was found to have violated Rule 8.4(c) by multiple misrepresentations that did not relate to the representation of a client, but rather to the respondent’s efforts to procure a more substantial recovery from an insurance company with respect to an automobile accident in which he was rear-ended by the insurance company’s insured. Those efforts included a number of misrepresentations to the insurer’s claims adjuster, among them false assertions that he was a partner in his law firm (where he was in fact a salaried employee), and that his loss of income because of the accident was the value of the billable hours that he would have billed during the lost time (although in fact as a salaried employee he had not been docked for any lost time). When the adjuster checked respondent’s story with his law firm, which denied the truth of the claims he had made, he made a number of additional misrepresentations seeking unsuccessfully to deny that he had made the previous ones. At the firm’s request, the claims adjuster submitted to the firm the respondent’s correspondence with her; and the firm then presented respondent with a memorandum detailing his misrepresentations, and telling him that his conduct was “inconsistent with the ethics and values of this firm,” and terminating his employment. The firm also forwarded the relevant correspondence between the adjuster, the respondent and the firm to the Office of Bar Counsel, in compliance with its reporting obligation under Rule of Professional Conduct 8.3(a). As to the appropriate sanction, all concerned recognized that there was no decisional precedent for penalizing a violation of Rule 8.4(c) that, as was the case here, did not involve the representation of a client. The Hearing Committee and the Board on Professional Responsibility recommended that respondent’s penalty be a public censure, but the Court concluded that the more severe sanction was called for by respondent’s “blatant lies,” and imposed a thirty-day suspension instead. DC Ethics Opinion 336 (2006) [which is discussed more fully under 3.3:600, above] observed that Rule 8.4(c) is one of several rules that govern a lawyer’s conduct even when the lawyer is not acting in a representation capacity. The Opinion involved an inquiry by a lawyer who was appointed to serve as the guardian of an incapacitated individual and later learned that the individual had obtained benefits under a false name and social security number. DC Ethics Opinion 323 (2004)
addressed the question whether government lawyers who, in the conduct of non-representational
official duties, act deceitfully, thereby violate Rule
8.4(c). The inquirer specifically asked about misrepresentations made by
intelligence officers acting in their official capacity. The Opinion's
answer was that deceit in an official capacity is not prohibited by the Rule
so long as the lawyer in question reasonably believes the deceit is authorized
by law -- which, it noted, could be the case with clandestine intelligence work,
which may require falsification of "identity, employment status or fidelity
to the United States.". The Opinion's analysis started
with recognition that the prohibition of Rule 8.4(c) applies to lawyers in whatever
capacity they are acting, whether or not in a representation capacity or in
an official one. It also pointed out that the prohibition applies only to conduct
that calls into question a lawyer's "suitability to practice law," pointing
in this connection to cmt [1]
to DC Rule 8.4 (which is identical to Model Rule 8.4's cmt [2]). The Opinion
found its conclusion buttressed by reference to DC
Rule 4.2(a)'s exception for communications "authorized by law" and the exegesis
of that provision offered by its cmt
[8], which explains the exception as being intended to exempt from the Rule's
prohibition law enforcement activities "authorized and permissible under the
Constitution and the laws of the Constitution and law of the United States and
the District of Columbia." The Opinion found the "authorized
by law" exception in Rule 4.2 and cmt [8]'s gloss thereon not only to cast light
on Rule 8.4, but also to apply to intelligence, as distinguished from law enforcement,
activities. The Opinion also found reassurance for
its conclusions in cmt [1] to Scope in the DC Rules, which states that the Rules
"are rules of reason," and "should be interpreted with reference to the purposes
of legal representation and of the law itself." Although the Opinion
did not say so, presumably this reference was viewed as validating the Opinion's
addition to the "authorized by law" concept borrowed from Rule 4.2 of the modifying
concept of reasonable belief. DC Ethics Opinion 319 [which
is more fully discussed under 1.8:220, above],
addressing the purchase by a lawyer of a legal claim from a non-lawyer, pointed
out in passing that Rule 8.4(c)
puts limits on the negotiation and execution of any transaction, including one
with a non-client. DC Ethics Opinion 287 (1999) [which is discussed more fully under 4.2:210, above], while holding that Rule 4.2 does not prevent a lawyer's communicating with a former employee of an opposing party, warned that the lawyer must not in such circumstances solicit information that is or should be known to be "protected by an established evidentiary privilege." Soliciting such information, the Opinion held, would violate Rule 4.4, and knowing use of such information might violate Rule 8.4(c). Opinion 287, note 3. DC Ethics Opinion 276 (1997)
[which is discussed more fully under 1.7:210,
above] stated that a lawyer asked to act as a neutral mediator would be misrepresenting
her neutrality, in violation of Rule
8.4(c), if she failed to disclose a representation by herself or her firm
that prresented a conflict with a party to the mediation. DC Ethics Opinion 267 (1996)
concluded that any bill sent to a client must reflect fees for time "actually
expended on legal work." An attempt to include fees not calculated on the basis
agreed to with the client, such as "unidentified processing or administrative
fees," constitutes conduct involving dishonesty, fraud, deceit or misrepresentation
in violation of Rule 8.4(c). DC Ethics Opinion 260 (1996)
discussed the possible DC Rule 8.4(c)
violations when a lawyer, having sued a former client for non-payment of fees,
agrees in settlement discussions to accept a portion of the claimed fees in
exchange for a release of all claims against the lawyer. Concluding that a violation
would occur if (1) the former client was not represented by counsel at the time
the release was executed; (2) the former client executed the release in consideration
of the lawyer's release of the former client from any liability arising out
of the lawyer's claim for unpaid fees; and (3) the lawyer was aware of facts
and circumstances that the lawyer reasonably believed might rise to a claim
of malpractice by the former client, the Opinion noted
that a lawyer may agree to forgo full payment of fees in exchange for a release
from or waiver of liability to a client in a malpractice action if the lawyer
timely notifies the client that independent counsel should be retained before
negotiating such a release. But the Opinion held that
a lawyer may never require a release that would bar a client from filing a complaint
with Bar Counsel. DC Ethics Opinion 318 (2002)(which
is more fully discussed under 1.15:220,
above) addressed the obligations of a lawyer in an adversary proceeding who
receives a privileged document of an opposing party, not from that party or
its authorized agent but from some other person or entity, where the document
may have been stolen or taken without authorization from the opposing party.
The Opinion's analysis rested largely on the Legal
Ethics Committee's earlier Opinion 256 (described
immediately below), where the circumstances were similar except that there the
documents were provided, inadvertently, by the opposing party or its agents,
whereas in Opinion 318 they came through a third person,
and may have been stolen. In re Kagan, 351 F.3d 1157 (DC
Cid. 2003) [which is discussed more fully under 1.15:200,
above] approved a report by the Court's Committee on Admissions and Grievance
that relied on DC Ethics Opinions 318 and 256. DC Ethics Opinion 256 (1995)
stated that a lawyer who realizes that he or she has inadvertently received
another party's confidential information is under an obligation to seek guidance
from the sending lawyer. If that lawyer confirms the inadvertence of the disclosure
and requests that the documents be returned unread, the receiving lawyer must
abide by those directives. Failing to do so constitutes a dishonest act in violation
of Rule 8.4(c). DC Ethics Opinion 229 (1992)
concluded that a per se rule with respect to surreptitious tape recording by
a lawyer is not appropriate. Rather, the Opinion emphasized
that each factual situation must be evaluated separately to determine whether
the particular conduct at issue constitutes dishonesty, fraud, deceit or misrepresentation
in violation of DC Rule 8.4(c)
or its predecessor DR 1-102(A)(4).
In this instance, the Opinion held that in the absence
of an affirmative misrepresentation, the lawyer's conduct was not unethical. DC Ethics Opinion 200 (1989)
concluded that a lawyer who accepted a fee that was ultimately found to be directly
traceable to tainted funds would not violate DR
1-102(A)(4) if (1) the lawyer had made clear to her client at the outset
that she would not accept the representation if her fee was to be paid from
tainted funds and (2) the lawyer conducted the representation in good faith
belief that her fee had not been so paid. DC Ethics Opinion 185 (1987)
emphasized that under DR 1-102(A)(4)
charges billed to clients for services performed by third parties described
as "disbursements" must be in amounts no greater than the sums actually "disbursed." DC Ethics Opinion 178 (1987)
concluded that a lawyer asking to interview a witness represented by counsel
is obligated to inform the witness's lawyer if the interview is going to be
recorded, suggesting that otherwise DR
1-102(A)(4) would be violated. DC Ethics Opinion 160 (1985)
concluded that a lawyer would violate DR
1-102(A)(4) by associating himself with a firm whose partners had been suspended
from practice. "By associating himself with the firm, the lawyer at least tacitly
would be misrepresenting to clients that the firm is authorized to practice
law in the District of Columbia." Id., at n.2. DC Ethics Opinion 153 (1985)
concluded that a lawyer who learns in the course of a proceeding that information
provided a tribunal was false or misleading must withdraw from further representation
if the client refuses to rectify the fraud. The lawyer may continue to represent
a client in a matter unconnected with the proceeding in which the false or misleading
information was given. DC Ethics Opinion 152 (1985),
interpreting, inter alia, DR
1-102(A)(4), concluded that a lawyer in an agency's general counsel's office
could serve as the hearing examiner in a hearing concerning an employee's grievance
against the agency. If the lawyer is serving as the fact-finding representative
of the agency's chairman in the hearing and as legal adviser to the chairman
as to the same matter, however, the lawyer must be careful to avoid the possibility
of fraud or deception. This may include the need to advise the employee that
the lawyer in the role of hearing examiner is gathering the facts as a representative
for the chairman. DC Ethics Opinion 148 (1985)
emphasized that a lawyer employed by a government agency represents the agency,
not its employees as individuals; thus, there is no attorney-client privilege
between the lawyer and the individual employees when the lawyer is serving as
counsel for the agency. The Legal Ethics Committee emphasized that if, at any
time, the lawyer believes that an employee is making disclosures to the lawyer
with an expectation of attorney-client confidentiality, the lawyer, to avoid
a violation of DR 1-102(A)(4),
must advise the employee that there would be no confidentiality as against the
agency. DC Ethics Opinion 119 (1983)
recognized that the term "fraud" almost always concerns acts of affirmative
representation rather than a failure to disclose material facts. DC
Ethics Opinion 79 (1979) interpreted the term "fraud" as including a
false or misleading statement. Rule 8.4(c),
like Rule 8.4(b) and its predecessor
DR 1-102(A)(4), applies to acts
of a lawyer not in the course of practicing law. See In re
Gil, 656 A.2d at 304 (accepting recommendation of Board to disbar lawyer
who mishandled fiduciary funds of a non-client); In re Kennedy,
542 A.2d 1225 (DC 1988) (applying DR
1-102(A)(4) to misconduct not connected with the lawyer's practice of law);
In re Hadzi-Antich, 497 A.2d 1062 (DC 1985) (adopting
Board's determination that lawyer's submission of false information in resume
sent to prospective employer violated DR 1-102(A)(4) and warranted public censure);
In re Vogel, 382 A.2d 275 (DC 1978) (imposing sanctions
on lawyer under DR 1-102(A)(4) for misusing the escrowed funds of a third party
who was not his client). The sanctions for violating DC
Rule 8.4(c) and its predecessor DR
1-102(A)(4) range from public censure to disbarment. In aggravated cases
of dishonesty, the DC Court of Appeals has disbarred the offending lawyer. See
In re Goffe, 641 A.2d 458 (DC 1994) (disbarring lawyer
for repeated misconduct in forging signatures on legal documents, falsely notarizing
legal documents, creating evidence, and testifying falsely, all to obtain economic
benefit for the lawyer; no mitigating factors); In re Garner,
636 A.2d 418 (DC 1994) (disbarring lawyer who provided false information
on an application to the Office of Comptroller of the United States Currency
and who had a significant prior record of professional misconduct). Virtually all cases of misappropriation of another person's
funds will be found to involve dishonesty, and disbarment will be the appropriate
sanction "unless it appears that the misconduct resulted from nothing more than
simple negligence." In re Addams, 579 A.2d 190, 191 (DC 1990)
(en banc) (ordering disbarment pursuant to DR 1-102(A)(4) where balance
of lawyer's escrow account went below the amount that was owed); compare In
re Harrison, 461 A.2d 1034 (DC 1983) (imposing a suspension of one year
and a day for commingling accompanied by an unintentional misappropriation)
with In re Larsen, 589 A.2d 400 (DC 1991) (disbarring
lawyer who used client's funds, which had been earmarked to pay client's physician,
for his own personal use). [See also 1.15:300,
above.] In other cases of dishonest conduct in violation of Rule
8.4(c), the Court of Appeals has imposed suspensions of up to three years.
See In re Aldridge, 664 A.2d 354 (DC 1995) (suspending
lawyer for three years for lawyer's attempts to conceal negligent behavior during
investigation and hearings concerning charges filed against lawyer); In
re Perrin, 663 A.2d 517 (DC 1995) (three-year suspension of lawyer who
participated in scheme to obtain money by making false representations); In
re Martin Fogel, 422 A.2d 966 (DC 1980) (suspending lawyer for one year
and a day for lawyer's multiple instances of dishonesty to client, disciplinary
committee, and court relating to excuses for failure to make court appearances);
In re Sheehy, 454 A.2d 1360 (DC 1983) (imposing two-year
suspension on lawyer who negligently permitted statute of limitations to expire
and misled Bar Counsel in its investigations). Where the dishonest conduct is of an isolated nature, and
other mitigating factors are present, the Court of Appeals has imposed sanctions
of one year or less. See In re Thompson, 538 A.2d 247 (DC
1987) (suspending lawyer for one year for making false statements to
immigration authorities in violation of DR
1-102(A)(4)); In re Hutchinson, 534 A.2d 919 (DC 1987)
(en banc) (imposing one-year suspension for conduct involving isolated
lies to the SEC, along with two other violations, where mitigating factors were
present). In simple misrepresentation cases, the sanctions range
from public censure to one-year suspensions. In re Brown,
672 A.2d 577 (DC 1996) (upholding a 60-day suspension of lawyer who engaged
in several acts of misrepresentation on certificates of service in violation
of Rule 8.4(c)); In
re Robertson, 618 A.2d 720 (DC 1993) (suspending lawyer for six months
for misrepresenting that a Washington Post reporter was a lawyer or an assistant
to gain admittance to restricted cellblock); In re Ontell,
593 A.2d 1038 (DC 1991) (imposing 30-day suspension for neglect and misrepresentation
to client); In re Rosen, 481 A.2d 451 (DC 1984) (affirming
30-day suspension for three separate written misrepresentations to a court). Factors the District of Columbia Court of Appeals will
take into account when deciding the appropriate sanction include the lawyer's
attempt to advance his or her own interest opposed to that of the client. See
In re Miller, 553 A.2d 201 (DC 1989) (noting that
lawyer's conduct in going through confidential files of her employer to find
her personal records, although a violation of DR
1-102(A)(4), was not motivated by a desire for personal economic gain and
did not involve subversion of the judicial process); In re
Austern, 524 A.2d 680 (DC 1987) (emphasizing that lawyer's conduct at
issue was not motivated by the desire for personal gain and caused no pecuniary
harm to anyone involved); cf. In
re Sandground, 542 A.2d at 1249 (taking into account fact that lawyer's
actions threatened to advance interests of a personal friend at the expense
of the friend's wife). The court will also analyze (1) whether the lawyer's
misconduct is part of a premeditated plan, see, e.g.,
In re Goffe, 641 A.2d at 464-65 (stressing that lawyer's
conduct was part of a plan to commit fraud), (2) whether the lawyer cooperated
in the disciplinary process, see, e.g., In
re Reback, 513 A.2d 229 (en banc) (emphasizing that lawyer admitted wrongdoing
and cooperated throughout disciplinary proceedings), and (3) whether the lawyer
has any prior disciplinary record, see, e.g., In
re Waller, 573 A.2d 780 (DC 1990) (citing lawyer's prior record of misconduct). Other mitigating circumstances include alcohol and prescription
drug addictions, if the lawyer demonstrates that such circumstances substantially
affected the lawyer's professional conduct. See In re Woodard,
636 A.2d 969 (DC 1994) (reducing sanction due to lawyer's addiction to
prescription drugs); In re Reid, 540 A.2d at 755 (finding
alcoholic condition was the cause of lawyer's misconduct and therefore should
be treated as a mitigating factor); In re Kersey, 520 A.2d
321 (DC 1987) (treating alcoholism as a mitigating factor); see also
In re Larsen, 589 A.2d at 400 (ordering disbarment
but imposing probation due to lawyer's manic-depressive mental illness); In
re Peek, 565 A.2d 627 (DC 1989) (finding chronic depression to be a mitigating
circumstance). · Primary DC References: DC
Rule 8.4(d) As noted under 8.4:101
above, paragraph (d) of the DC
Rule says that, to amount to professional misconduct affecting the administration
of justice, a lawyer's actions must "seriously interfere with" the administration
of justice, while its predecessor DR
1-102(A)(5) prohibited conduct "prejudicial to the administration of justice."
Comment [2] makes clear,
however, that paragraph (d) is not intended to convey a different meaning and
includes any conduct that would have been covered by the language "prejudicial
to" in DR 1-102(A)(5). Additionally, Comment [2] emphasizes that the case law
interpreting DR 1-102(A)(5) is incorporated into DC
Rule 8.4(d). As also noted under 8.4:101,
DC Rule 8.4 does not have a Comment
comparable to the Comment [2] (now renumbered as Comment [3]) which was added to the Model Rule in 1998,
asserting that discriminatory conduct by a lawyer in the course of representing
a client violates Rule 8.4(d). In In re Hopkins, 677 A.2d 55 (DC 1996), the Court of Appeals set out a three-prong test defining “conduct prejudicial to the administration of justice” in DR 1-102(A)(5), the identically phrased predecessor of ule 8.4(d), as (1) an improper act or failure to act, (2) that bears directly upon the judicial process with respect to an “identifiable case or tribunal,” and (3) does so in more than a de minimis way; that is, the conduct must at least potentially impact upon the process adversely and to a serious degree. Id. at 60-61. There, the Court, reversing a decision of the Board on Professional Responsibility, concluded that a lawyer’s failure to protect the assets of an estate seriously prejudiced the Probate Division’s ability to administer the estate assets and thus constituted a violation of DR 1-102(A)(5). In In re Godette, 919 A.2d 1157 (DC 2007), a prison inmate whom the respondent had represented complained to the DC Bar disciplinary authorities that respondent had abandoned his case. The Office of Bar Counsel, attempting to investigate the complaint, sent seven separate letters to respondent, who failed to respond to any of them. Respondent similarly ignored a motion to compel a response. The Board on Professional Responsibility then issued an order requiring a response, to which the respondent replied with a telephone message saying he would respond by a specified date, but failed to do so. Thereafter, a process server tried seven different times, without success, to serve respondent with a specification of charges. Finally, after intervention by the Court, respondent acknowledged receipt of the charges, but he did not thereafter participate in the resulting disciplinary proceedings, before the Hearing Committee, the Board or the Court. He was found to have both failed to respond reasonably to a lawful demand for information from a disciplinary authority, in violation Rule 8.1(b), and to have seriously interfered with the administration of justice in violation of Rule 8.4(d). Similar findings of violation of Rules 8.1(b) and 8.4(d) as a result of a respondent’s failure to cooperate in Bar Counsel’s investigation of the complaint of a former client were made in In re Mabry, 851 A.2d 1276 (DC 2004), and of another respondent’s failure to respond to Bar Counsel’s requests and the Board’s orders to respond to four separate ethics complaints against him, in In re Follette, 862 A.2d 394 (DC 2004). Similarly, in In re Cater, 887 A.2d 1 (DC 2005), which is more fully discussed under 8.1:500 and 5.3:300, above, there were four consolidated disciplinary proceedings against the same respondent, in three of which the respondent was charged with failing to respond to letters and orders relating to complaints that had been made about her, in violation of DC Rule 8.1(b), and in consequence in violation of DC Rule 8.4(d) as well. With regard to the latter charge, the Court observed that the “[r]espondent’s repeated failures to respond to letters from Bar Counsel and orders of the Board, which she received in three separate matters, unquestionably violated” Rule 8.1(b), and that this conduct also “hindered the expeditious resolution of the allegations against her,” and so seriously interfered with the administration of justice in violation of Rule 8.4(d). Id. at 17. However, In re Owusu, 886 A.2d 536 (DC 2005) held that a respondent’s failure to respond to multiple notices of a disciplinary proceeding against him did not, absent proof that he had been aware of the efforts to give him notice, constitute a violation of Rule 8.4(d). In that case, a disciplinary proceeding was instituted in response to a client’s complaint against the respondent, but repeated efforts to give the respondent notice of the proceeding were unsuccessful: a letter sent to the respondent’s most recent address in the DC Bar’s records was returned with the notation “Moved, left no forwarding address;” repeated attempts by a process server to contact the respondent were unsuccessful; and all subsequent motions, letters and pleadings mailed to him at all known addresses were returned as undeliverable. The proceeding went forward without respondent’s participation, and resulted in findings that the respondent had violated Rules 1.1(a), 1.3(a), 1.3(b)(1) and (b)(2) and 1.4(a) in connection with his representation of the complainant client. Bar Counsel also sought a determination that respondent had violated Rule 8.4(d) by failing to appear and participate in the proceeding, but the Board on Professional Responsibility declined to so rule, and the Court concurred, because there was no evidence showing that the respondent had purposely avoided being served. Bar Counsel argued that the respondent’s failure to keep the Bar apprised of his current address violated not only the separate Bar Rule II §2(1) and (4), which impose such a requirement, but DC Rule of Professional Conduct 8.4(d) as well. As to this, the Court observed that “[i]mputing knowledge of Bar Counsel’s inquiry in these circumstances would effectively transform a violation of an administrative Bar rule into the more serious violation of failure to respond to Bar Counsel under Rule 8.4(d), without any evidence of purpose linking the failure to register and failure to respond. Our cases defining a Rule 8.4(d) violation prohibit that course” Id. at 540-41. In In re Powell, 898 A.2d 365 (DC 2006), the respondent, while under suspension from the DC Bar, filed a sworn application for admission to the Bar of the United States District Court for the District of Colorado in which he failed to disclose his admission to practice in the District of Columbia or his then pending suspension therefrom. He was held thereby to have violated not only DC Rule 8.1(a), but also Rules 8.4(c) and (d), and was suspended for a year, with reinstatement conditioned on demonstration of fitness to practice law. 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 Rules of Professional Conduct 3.3(a)(1) and 3.4(c), and in consequence to have violated Rules 8.4(a), (c) and (d) as well -- all of which Maryland Rules were either the same as or equivalent to correspondingly numbered DC Rules. 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, and 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. 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 8.4(d), as well as Rules 1.5(a), 3.3(a) and 8.4(c). With respect to the charged violation of Rule 8.4(d), the Court applied the three-part test that it had set out in In re Hopkins, 677 A.2d 55, 60-61 (DC 1996), above. The other three rule violations left no issue as to the impropriety of respondent’s conduct; that conduct bore directly upon the judicial process because “[t]he CJA program is an integral part of the judicial process,” Id. at 404-05; and “[w]hether Respondent acted with intent to defraud or recklessly, the consequences for the judical process of a false voucher were more than minimal.” Id at 405. In In re Evans, 902 A.2d 56 (DC 2006), a disciplinary proceeding in which the respondent’s principal ethical transgression was a conflict of interest in violation of DC Rule 1.7(b)(4) by reason of the respondent’s having represented a client in a matter that involved a business in which he had a personal financial interest [discussed more fully under 1.7:210, above], this conflict was found to have been accompanied by violations of Rule 1.1(a) and (b) [discussed under 1.1:210, above], and in addition, a violation of Rule 8.4(d). The respondent owned a title company, and also engaged in a law practice that included probate and real estate matters. His title company was contacted to close a real estate loan, but when it appeared that the property to be encumbered was not owned by the borrower but instead belonged to the unprobated estate of the borrower’s deceased mother-in-law, the respondent undertook to represent the borrower in initiating a probate proceeding to secure the borrower’s title to the property. He undertook this engagement without advising the borrower of his conflict of interest or getting her informed consent to his proceeding with the engagement despite the conflict of interest, and this was the basis of the violation of Rule 1.7(b)(4). In addressing the charged violation of Rule 8.4(d), the Board applied the three-fold test of In re Hopkins, above, and found numerous instances of improper conduct, satisfying the first prong of the test; and that they bore directly upon the judicial process by tainting the probate proceeding that the respondent had initiated, and had more than a de minimis effect upon the proceeding, and thus met the second and the third prongs as well. In re Spikes, 881 A.2d 1118 (DC 2005), which is more fully discussed under 3.1:200, above, was a disciplinary proceeding in which respondent was held to have violated DC Rule 3.1 by filing a frivolous 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 asserted claims were based on those layers having expressed in various ways a concern that the respondent was trying to bribe a witness to provide perjurious testimony in a pending case. The claims were held to be frivolous because all of the communications on which they rested were cloaked in one or another privilege, including an absolute privilege for complaints to the Office of Bar Counsel. The respondent’s persistence in maintaining the frivolous suit, and also appealing it, was also charged and found to have been conduct that seriously interfered with the administration of justice, in violation of Rule 8.4(d); and the Court of Appeals, applying the three-fold test of In re Hopkins, above, sustained that determination as well.
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. As to Rule 8.4(d), the Court
found that respondent's conduct met the three-part test of Hopkins (improper act in connections with an identifiable case, that taints the judicial
process in a more than de minimis way) even though
the false signatures and notarizations didn't actually affect the judicial process,
because they had the potential to do so. See also In re Utley, 698 A.2d 1167 (DC 1997) (discussed more fully under 1.15:300, above),
where, because a conservator's "activities hampered the administration of [an]
estate and caused the court unnecessary hearings, she clearly violated DR 1-102(A)(5)
and Rule 8.4(d)." Id. at *2. In In re Brown, 709 A.2d 724 (1998), the Respondent was found to have violated Rule
8.4(d) by tendering a check to the Superior Court in payment of a filing
fee which was returned for insufficient funds, and then failing, despite numerous
demands by court personnel, to pay the sum due the court. In In
re Travers, 764 A.2d 242 (DC 2000) the court held that a lawyer's failure
to satisfy a judgment against him for fees improperly taken by him from an estate
was a violation of Rule 8.4(d). In In re Shorter, 570 A.2d 760 (DC 1990),
the Court of Appeals, in reversing the Board on Professional Responsibility's
recommendation, found that a willful failure to file income tax returns was
not a violation of DR 1-102(A)(5).
Emphasizing that "DR 1-102(A)(5) was drafted to protect the integrity of particular
decisions and of the decision-making process, and thus was directed against
a lawyer's efforts to subvert that process respecting a particular identifiable
case or tribunal," the Court of Appeals concluded that the lawyer's actions
did not adversely affect any decision or decision-making process of a tribunal.
Id. at 768. See also In
re Reynolds, 649 A.2d at 820 (concluding that violation of a court-imposed
probation was not misconduct under DR 1-102(A)(5) because the violation did
not interfere with decision-making process of a tribunal). In addition to acts directly affecting the courts' decision-making
process, conduct that adversely affects some aspect of the judicial process
violates DC Rule 8.4(d). See In
re L.R., 640 A.2d 697 (DC 1994) (finding lawyer violated DR
1-102(A)(5) by charging indigent client for work because it was "presumptively
prejudicial to the administration of the CJA system, if for no other reason
than because of the belief it likely will instill in the defendant that the
quality of his representation may yet depend upon gathering together funds to
compensate the attorney whom he has not selected"). And the Court of Appeals
has found violations of DR 1-102(A)(5) where there was no apparent violation
of a specified court procedure. See, e.g., In
re Sablowsky, 529 A.2d at 293-94 (imposing sanctions for lawyer's attempt
to sell information to other lawyers to be used as evidence in a case). DR 1-102(A)(5),
predecessor to DC Rule 8.4(d),
prohibited conduct that taints the decision-making process or the judicial process
even if such conduct "fosters a correct decision." In re
Keiler, 380 A.2d 119 (DC 1977), overruled in part, 534 A.2d 927 (1987)
(finding lawyer violated DR 1-102(A)(5) by failing to advise a union representative
that a proposed arbitrator was respondent's law partner). Clearly, willfully
withholding information from a court violates DR 1-102(A)(5) and DC Rule 8.4(d).
See, e.g., In re Sandground,
542 A.2d at 1248 (imposing sanctions on lawyer for concealing information
about client's funds in response to discovery requests in pending divorce suit).
But the Court of Appeals has declined to adopt a scienter requirement for DC
Rule 8.4(d); rather, conduct has been found prejudicial to the administration
of justice "[where it] was reckless or somewhat less blameworthy." In
re L.R., 640 A.2d at 701. DC Ethics Opinion 287 (1999)
[which is discussed more fully under 4.2:210,
above], while holding that Rule 4.2
does not prevent a lawyer's communicating with a former
employee of an opposing party, warned that the lawyer must not in such circumstances
solicit information that is or should be known to be "protected by an established
evidentiary privilege." Soliciting such information, the Opinion
held, would violate Rule 4.4, and
knowing use of such information might violate Rule
8.4(c). Opinion 287, note 3. DC Rule 8.4(d),
like DR 1-102(A)(5), prohibits
acts wasteful of the resources and time of the court. In In
re Goldsborough, 654 A.2d 1285 (DC 1995), the Court of Appeals found
that a lawyer violated Rule 8.4(d) by supplying false testimony to a Maryland
Circuit Judge and misleading information to Bar Counsel concerning episodes
of spanking and kissing clients. See also In re Lyles, 680
A.2d 408 (DC 1996) (holding that lawyer violated Rule 8.4(d) by failing
to appear at hearing and timely file an amended bankruptcy plan); In
re Brown, 672 A.2d at 578-79 (concluding that lawyer's failure to timely
respond to various discovery requests and a motion for sanctions violated DR
1-102(A)(5)); In re Robinson, 635 A.2d 352 (DC 1993)
(imposing sanctions on lawyer under DR 1-102(A)(5) for not attending court proceedings
in two separate matters); In re Thompson, 492 A.2d 866 (DC
1985) (imposing sanctions on lawyer under DR 1-102(A)(5) for twice failing
to appear at scheduled trials). Failure to respond to inquiries from Bar Counsel amounts
to conduct prejudicial to the administration of justice in violation of DC
Rule 8.4(d). See Comment [3]
to the DC Rule; In re Lilly, 699 A.2d 1135 (DC 1997)
(Rule 8.4(d) violated by failure to respond to Bar Counsel's inquiries about
a complaint; respondent suspended for thirty days, with reinstatement conditioned
on full compliance with Bar Counsel's requests for information); In
re Smith, 655 A.2d 315 (DC 1995) (finding that lawyer's persistent failure
to cooperate with Bar Counsel and Board violated DC Rule 8.4(d)); In
re Lockie, 649 A.2d 546 (DC 1994) (finding that lawyer violated DC Rule
8.4(d), inter alia, by failing to cooperate with
the Board and Bar Counsel in the investigation of charges); In
re Siegel, 635 A.2d 345 (DC 1993) (finding that lawyer with DC Rule 8.4(d)
violation for failing to cooperate with Board and respond to Board's orders);
In re Jones, 521 A.2d 1119 (DC 1986) (finding violation
of DR 1-102(A)(5) where lawyer
did not reply to Bar Counsel's legitimate written inquiries); In
re Willis, 505 A.2d 50 (DC 1986) (finding that lawyer violated DR 1-102(A)(5)
by failing to provide Bar Counsel with proper address); In
Re Washington, 489 A.2d 452 (DC 1985) (finding that lawyer violated DR
1-102(A)(5) by failing to provide information to court's designee and to respond
to repeated requests from Bar Counsel for information about that failure). In In re Beller, 802 A.2d 340 (DC 2002),
the respondent was suspended for thirty days for failure to respond to repeated
inquiries from Bar Counsel and the Board on Professional Responsibility regarding
three ethical complaints. Her failure was held to have violated Rules
8.1(b) and 8.4(d), as well
as DC Bar Rule XI, § 2(b)(3) (making failure to comply with orders of the Court
or the Board grounds of discipline), and reinstatement was conditioned on full
cooperation with Bar Counsel. This evidently had no effect, however, for two
years later the same respondent was suspended for 120 days for failure to respond
to three further investigations by Bar Counsel, in violation of the same provisions.
In re Beller, 841 A.2d 768 (DC 2004). In In re Hallmark, 831 A.2d 366 (DC
2003), the Court upheld, over Bar Counsel's challenge, a finding by the
Board that respondent's submission of an untimely and inaccurate CJA voucher
form did not "seriously interfere" with the administration of justice so as
to come under Rule 8.4(d)'s prohibition,
even though it put a burden on the Court's administrative staff and the presiding
judge. DC Ethics Opinion 320 (2003)
addressed the ethical permissibility of jury nullification arguments by criminal
defense counsel. The Opinion pointed out that although in early periods of American
history, "the power of a jury to nullify the law was explicitly and affirmatively
approved," under contemporary substantive legal standards, "a suggestion by
a lawyer to a jury that it should ignore the law as stated by the judge may
be tantamount to an explicit invitation to the jury to ignore the judge's instructions,"
which the Opinion suggests would violate DC
Rule 8.4(d). The Opinion goes on to point out that a criminal defense lawyer
has obligations, under DC Rules 1.3,
3.1 and 3.3,
that are different from those of a lawyer in a civil case, and to conclude that
there is room for a criminal defense lawyer to make arguments that have a good
faith basis but nonetheless "have the incidental effect of appeal to a jury's
prejudice or enhancing its awareness of its ability to decide the case against
the evidence." DC Ethics Opinion 260 (1996)
concluded that, under any circumstance, a lawyer would violate DC
Rule 8.4(d) if the lawyer entered into an agreement with a former client
whereby the client agreed not to file a complaint against the lawyer with Bar
Counsel. DC Ethics Opinion 147 (1985)
held that a defense attorney could not offer a settlement conditioned on waiver
by the plaintiff and the plaintiff's lawyer of all or a part of the plaintiff's
lawyer's claim for statutory fees, because this would place the plaintiff's
lawyer in a conflict position. The Opinion stated that such an offer need not
be communicated by the plaintiff's lawyer to the plaintiff, though it may, and
in most instances should, be. Opinion 147 was subsequently
modified by DC Ethics Opinion 207 (1989): see 8.4:500,
below. DC Ethics Opinion 207 (1989),
interpreting DR 1-102(A)(5),
withdrew a portion of prior DC Ethics Opinion 147 (1985)
that found it unethical per se for a lawyer representing a defendant in a Title
VII action, or other similar action in which statutory fees are provided, to
condition an offer of settlement upon the plaintiff's waiver or reduction of
attorneys' fees. The Legal Ethics Committee emphasized, however, that a request
for fee waivers would be unethical if the defendant had no basis for the proposal
other than to deter similar future actions or avoid payment of a fee to which
the plaintiff was clearly entitled. DC Ethics Opinion 206 (1989) concluded
that, before discarding documents that the lawyer prepared or used in representing
a client, a lawyer must determine that (1) there is no legal obligation or pending
litigation for which the documents should be retained and (2) no foreseeable
prejudice to the former client will result from the destruction of the documents,
either because copies have previously been given or are otherwise readily available
to the former client, or the former client has no reasonable expectation that
this material will be preserved. DC Ethics Opinion 205 (1989)
concluded that parties to an uncontested divorce action would not violate DR
1-102(A)(5) by summarily dismissing cross-appeals of the divorce decree,
thus allowing the decree to become final without waiting for the expiration
of the appeal period. DC Ethics Opinion 130 (1983)
concluded that a settlement offer conditioned upon a lawyer's refusal to represent
future clients against the defendant government agency is unethical. A lawyer
would violate DR 1-102(A)(5)
by insisting that another lawyer adhere to an unethical settlement agreement. DC Ethics Opinion 119 (1983)
concluded that the intentional destruction of a memorandum that a lawyer knows
may be the subject of discovery or subpoena in pending or imminent litigation
was conduct prejudicial to the administration of justice in violation of DR
1-102(A)(5). Noting that DR 1-102(A)(5) was directed primarily toward pending
litigation, the Legal Ethics Committee emphasized that some circumstances may
be so close to pending litigation that DR 1-102(A)(5) would apply even though
no pleadings had yet been filed with a court. · Primary DC References: DC
Rule 8.4(e) DC Rule 8.4(e)
is substantially similar to DR 9-101(A) of the DC Code, which corresponds to
DR 9-101(C) of the Model Code.
DR 9-101(A) prohibited a lawyer from stating or implying that "he is able to
influence improperly or upon ground irrelevant to a proper determination of
the merits any tribunal, legislative body, legislator or public official." Further,
EC 9-4 provided that "any statement
or suggestion by a lawyer that he can or would attempt to circumvent [ ] procedures
is detrimental to the legal system and tends to undermine public confidence
in it." DC Rule 8.4(e) provides more generally that a lawyer shall not "imply
an ability to influence improperly a governmental agency or official." In In re Keiler, 380 A.2d at 124,
the Court of Appeals emphasized that a lawyer was not only prohibited by DR
1-102(A)(5) from claiming that he could exercise influence over a governmental
agency or official but also prohibited from actually exercising such influence. DC Ethics Opinion 177 (1986)
concluded that a lawyer can represent private clients in cases before a District
of Columbia government agency at which the lawyer was previously in charge of
an office that employed lawyers to act as hearing examiners provided that the
lawyer stresses to the client that her previous employment does not afford her
any influence with or special access to her former office or its hearing examiners. DC Ethics Opinion 137 (1984)
responded to several questions about the proper role of a lawyer practicing
before a government agency at which his or her spouse is employed. Addressing
DR 9-101, inter alia, the Opinion
concluded that: (1) a lawyer can represent a client before a government agency
in which his spouse is employed, but not on matters in which the spouse participates;
(2) the lawyer cannot seek to influence the outcome in any proceeding in which
the lawyer's firm is involved and the spouse is participating; and (3) the lawyer's
firm could seek to influence the outcome of the proceeding by representing the
client if the lawyer were screened from participation. Likewise, in a rulemaking
proceeding where the lawyer's spouse is drafting a rule, the Opinion
concluded that the lawyer may not file comments and the lawyer's firm may not
participate, unless the lawyer is screened. Finally, in a separate inquiry,
the Opinion concluded that a husband and wife cannot
represent differing interests in the same proceeding; specifically, the opinion
stated that to avoid a violation of DR 9-101(A) "one or the other, but not both,
spouses may serve professionally in a single consolidated proceeding." DC Ethics Opinion 133 (1984)
concluded that a lawyer employed by the District of Columbia Department of Transportation
did not violate DR 9-101(A) by representing clients in cases in which the District
is a party or has an interest, provided that: (1) the case does not involve
any activity of the Department of Transportation; (2) the lawyer informs his
client that his employment with the District does not afford him any special
influence or advantage in cases involving the District; (3) the lawyer is not
in violation of any statute or regulation relating to employment by the District
of Columbia; and (4) the lawyer does not use his position with the District
of Columbia to obtain access to documents or other information to which he would
not have access as an outside private practitioner. DC Ethics Opinion 114 (1982)
addressed whether a private lawyer may accept representation of government officials
in a challenge to reclassification of their civil service grade when the lawyer
regularly appears before officials of that agency who might be affected by the
reclassification proceeding, including individual officials the lawyer has been
asked to represent. Finding that acceptance of such representation was not absolutely
barred by a disciplinary rule, the Opinion nevertheless
emphasized that a representation of a "majority" of the limited number of officials
employed in the agency office might result in a violation of DR 9-101(A). Specifically,
such representation could imply that the lawyer has the ability to exercise
improper influence over the actions of the office; thus, "a conclusion by the
inquiring lawyer that it would be prudent for him to decline the contemplated
representation would certainly be justified." DC Ethics Opinion 92 (1980) concluded
that a volunteer lawyer for the District would create an appearance of impropriety
in violation of DR 9-101(A) if the lawyer represented an agency that he or she
was simultaneously suing in private practice. This Opinion
has, however, been superseded by DC Ethics Opinion 268 (1996),
which held that a lawyer could undertake the representation of an agency that
he was opposing on behalf of a private client, if both clients consented. DC Ethics Opinion 50 (1978) addressed
an inquiry from the general counsel of a federal regulatory agency who sought
to participate in adjudicatory proceedings in which his wife's law firm represented
clients. The Committee concluded that any appearance of impropriety could be
dispelled by candid disclosure of the husband-wife relationship and uncoerced
waiver of objection by all involved parties. ABA Informal Opinion 86-1516 (Propriety
of Judicial Award Program) notes that publicizing an award accepted by
a judge from an association of lawyers that has a clearly identifiable partisan
litigation viewpoint, whose members are likely to appear before the judge, may
improperly imply an ability to influence a judge. · Primary DC References: DC
Rule 8.4(f) DC Rule 8.4(f)
states that it is professional misconduct for a lawyer to assist a judge or
judicial official in "conduct that is a violation of applicable rules of judicial
conduct or other laws." The propriety of a lawyer's conduct toward a judge thus
may be determined by the applicable provisions of the Code of Judicial Conduct.
Comment [1] to DC Rule 3.5,
which prohibits a lawyer from improperly influencing a judge, cautions that
"a lawyer is to avoid contributing to a violation" of the provisions of the
Code of Judicial Conduct. Similarly, although the Disciplinary Rules of the
DC Code and the Model Code do not contain a direct counterpart to Rule 8.4(f),
DR 7-110(A) and EC
7-34 of the Model Code and DC Code expressly refer to the Code of Judicial
Conduct for the standard for determining the appropriateness of a gift by a
lawyer to a judge. · Primary DC References: DC
Rule 9.1 The DC Rules include, in Rule
9.1, a prohibition against a lawyer's discriminating against anyone in conditions
of employment on the ground of race, color, religion, national origin, sex,
age, marital status, sexual orientation, family responsibility or physical handicap.
This prohibition is here discussed under Rule 8.4, since other jurisdictions
with rules on the subject of discrimination generally place them in their counterpart
to Rule 8.4. As has been noted under 8.4:101
and 8.4:500 above, such a prohibition was
effectively incorporated in Model Rule
8.4 by the addition, in 1998, of what is now Comment [3] to that Rule.
Rule 9.1 was not part of the DC Bar's original recommendation to the Court of
Appeals; rather, it was added by the DC Court of Appeals. Comment [1]
to the Rule states that it is modeled on the DC Human Rights Act, DC Code §
1-2512 (1981), and also states that it is not intended to create professional
ethical obligations that exceed the obligations imposed by generally applicable
law. Comment [4] states
that a disciplinary proceeding for violation of the Rule may be deferred or
abated when there is a legal proceeding pending that concerns the same alleged
conduct. DC Ethics Opinion 222 (1991)
states that DC Rule 9.1 does not
apply to employment decisions made in another jurisdiction that are lawful in
that jurisdiction even if they would violate the Rule and the DC Human Rights
Act if made in the District. The Opinion recognizes
that DC Bar members remain subject to the Court of Appeals' authority for actions
taken outside the District's territorial limits but reached its conclusion on
the basis of Comment [1]'s assertion that the rule was not intended to "create
ethical obligations that exceed those imposed on a lawyer by applicable law."
Given this result, the opinion did not find it necessary to address whether
the fact that the employment decision was made in the lawyer's capacity as a
member of the board of a religious organization, rather than in his capacity
as a lawyer, would affect the outcome. · Primary DC References: DC
Rule 8.4(g) Paragraph (g)
of DC Rule 8.4 prohibits a lawyer's seeking or threatening to seek criminal
charges or disciplinary charges solely to obtain advantage in a civil matter.
It thus preserves the substance of DR
7-105 of the Model Code (but adding disciplinary charges to criminal prosecutions),
a provision the ABA decided not to carry forward. See, in this connection, ABA
Formal Opinion 94-383 (Use of Threatened Disciplinary Grievance Against Opposing
Counsel) and ABA Formal Opinion 94-384 (Withdrawal
by Lawyer Against Whom Opposing Counsel Has Filed a Disciplinary Grievance). DC Ethics Opinion 263 (1996)
concluded that a criminal contempt proceeding is not a criminal "prosecution"
within the meaning of DC Rule 8.4(g). DC Ethics Opinion 220 (1991)
concerns when threats to file disciplinary charges against a lawyer or against
a non-lawyer with a relevant professional board would be considered "for the
sole purpose of gaining advantage in a civil matter" and thus to violate Rule
8.4(g). 8.5 Rule 8.5 Disciplinary Authority;
Choice of Law · Primary DC References: DC
Rule 8.5 As first adopted, both Model Rule 8.5 and DC Rule 8.5 dealt solely, and in identical terms, with disciplinary jurisdiction, enunciating the simple principle that a lawyer admitted to practice in the jurisdiction was subject to the jurisdiction's disciplinary authority even if practicing elsewhere. The Model Rule was amended in 1993 to incorporate choice of law guidelines for determining which jurisdiction's ethical rules apply when lawyers are admitted (whether fully or pro hac vice) in more than one jurisdiction. The Peters Committee recommended that the DC Rules follow suit, and the Court of Appeals approved the change, effective November 1, 1996. There was no counterpart to this Rule in the Model Code. · Primary DC References: DC
Rule 8.5 There appear to be no pertinent DC court decisions or ethics
opinions relating to this aspect of DC
Rule 8.5. · Primary DC References: DC
Rule 8.5 DC Ethics Opinion 222 (1991)
addressed the question whether DC Rule
9.1, prohibiting discrimination in employment practices on the basis, inter
alia, of sexual orientation [see 8.4:800
above], applied to conduct of a member of the DC Bar, when the conduct took
place in jurisdictions where there was no such prohibition. Applying DC Rule
8.5 as it then stood (in the same form as the then Model Rule), the Opinion
held that it did not give extraterritorial effect to Rule 9.1. DC Ethics Opinion 311 (2002)
provided a comprehensive exegesis of the choice of law provisions of Rule
8.5(b), in particular as applied to circumstances where the lawyer's conduct
is not in connection with a proceeding before a court to which the lawyer is
admitted, so that it is not governed by the clear choice of law principle set
out in Rule 8.5(b)(1), but rather the more complicated provisions of Rule 8.5(b)(2).
Where a lawyer is admitted only in one jurisdiction the Opinion
explained, then under Rule 8.5(b)(2)(i) the lawyer is subject only to the ethical
rules of that jurisdiction, even though the conduct is in a jurisdiction where
the pertinent rule is different; and regardless of whether the lawyer is associated
in the conduct in question with a lawyer who is admitted in the other jurisdiction,
and therefore bound by a different ethical requirement for the same conduct.
Addressing the case where a lawyer is admitted in more than one jurisdiction,
the Opinion pointed out that the general choice of
law principle under Rule 8.5(b)(2)(ii) looks to the jurisdiction where the lawyer
principally practices. This refers, the Opinion emphasized, to where the particular
lawyer practices, not where her law firm's principal office is located. Rule
8.5(b)(2)(ii) also has an exception for circumstances where the conduct "clearly
has its predominant effect" in another jurisdiction where the lawyer is admitted.
Recognizing that Rule 8.5's choice of law provisions are intended to provide,
to the maximum feasible extent, "bright line" rules, and pointing to the observation
in cmt [4] that the predominant
effect exception is a "narrow one," the Opinion emphasized
that the exception should be strictly construed. In re Gonzalez, 773 A2d 1026 (DC 2001)
(discussed more fully under 1.6:220, above),
following the choice of law rule set out in Rule
8.5(b)(1), approved original (as distinct from reciprocal) discipline for
a DC lawyer's violation of a Virginia ethical rule in the conduct of a case
in a Virginia court.
· Background References: ABA
Model Rule 8.3(a), Other Jurisdictions
· Commentary: 8.3:300 Reporting the
Serious Misconduct of a Judge
· Background References: ABA
Model Rule 8.3(b), Other Jurisdictions
· Commentary: 8.3:400 Exception Protecting
Confidential Information
· Background References: ABA
Model Rule 8.3(c), Other Jurisdictions
· Commentary: ABA/BNA § 101:201, ALI-LGL §§ 113-117A,
Wolfram § 12.10
8.4:100 Comparative
Analysis of DC Rule
· Background References: ABA
Model Rule 8.4, Other Jurisdictions
· Commentary:
8.4:101 Model
Rule Comparison
Paragraph (d) of the Model Rule retains the language of the previous Model Code DR 1-102(A)(5), which prohibited conduct that is "prejudicial" to the administration of justice. In contrast, paragraph (d) of the DC Rule prohibits a lawyer engaging in conduct that "seriously interferes" with the administration of justice. The Jordan Committee recommended this change on the ground that the term "prejudicial" is too vague for a rule defining professional misconduct; it took the substituted phrase from what is now Comment [2] to the Model Rule. Comment [2] to the DC Rule explains that paragraph (d)'s prohibition includes conduct that had been proscribed under DR 1-102(A)(5). As originally adopted, that Comment to the DC Rule was followed by Comments [3]-[5], summarizing DC case law applying DR 1-102(A)(5). The only changes to DC Rule 8.4 recommended by the DC Rules Review Committee and approved by the DC Court of Appeals in 2006 (aside from elimination of initial capitals on the words "rules of judicial conduct," in paragraph (f)) were to condense Comments [2]-[5] into a single Comment [2], summarizing the circumstances in which paragraph (d) would apply, without citations to the case law.
Paragraph (e) of the Model Rule was amended in 2002 on the recommendation of the Ethics 2000 Commission, by the addition, to the prohibition on a lawyer's stating or implying an ability to influence improperly a government agency or official, of the phrase "or to achieve results by means that violate the Rules of Professional Conduct or other law." This phrase was among those that were being deleted from Model Rule 7.1 at the same time. [See 7.1:101, above.] The only other change made to Model Rule 8.4 in 2002 was the addition of a new Comment [1], explaining when a lawyer is violating or attempting to violate a Rule through the acts of another, and distinguishing such conduct from advising a client of actions that the client is entitled to take.
As stated above, paragraph (g) of DC Rule 8.4 has no counterpart in the Model Rule. It preserves the substance of DR 7-105 of the Code, providing that a lawyer shall not seek or threaten to seek criminal charges or disciplinary charges solely to obtain advantage in a civil matter. By contrast, the Model Rules do not carry forward this prohibition from the Model Code. See ABA Formal Opinion 92-363 (Use of Threats of Prosecution in Connection With a Civil Matter) and ABA Formal Opinion 94-384 (Withdrawal by Lawyer Against Whom Opposing Counsel Has Filed a Disciplinary Grievance).
A further difference between the two versions of Rule 8.4 is that the Model Rule has a Comment (originally numbered [2] but now [3]), added in 1998, which states that a lawyer who in the course of representing a client manifests bias or prejudice based on race, sex, religion, national origin, age, sexual orientation or socioeconomic status violates paragraph (d) of the Rule when such conduct is prejudicial to the administration of justice. DC Rule 8.4 has no such Comment, but there is a separate DC Rule 9.1, for which there is no counterpart in the Model Rules, that flatly prohibits a lawyer from discriminating on the same grounds, in employment. That Rule was not in the Rules as originally proposed to the DC Court of Appeals by the DC Bar, but was added by the Court. It is more fully discussed under 8.4:800, below. 8.4:102 Model
Code Comparison
8.4:200 Violation of
a Rule of Professional Conduct
· Background References: ABA
Model Rule 8.4(a), Other Jurisdictions
· Commentary: ABA/BNA § 101:101, ALI-LGL § 2, Wolfram
§ 3.3
8.4:300 Commission of
a Crime
· Background References: ABA
Model Rule 8.4(b), Other Jurisdictions
· Commentary: ABA/BNA § 101:301, ALI-LGL § 8, Wolfram
§ 3.3.2
DC Ethics Opinion 200 (1989) concluded that a lawyer’s acceptance of a fee in good faith reliance on the client’s statement as to its non-tainted source did not violate DR 1-102(A)(3) because there was no specific criminal prohibition against the lawyer’s acceptance of the fee.8.4:400 Dishonesty,
Fraud, Deceit and Misrepresentation
· Background References: ABA
Model Rule 8.4(c), Other Jurisdictions
· Commentary: ABA/BNA § 101:401, ALI-LGL § 2, Wolfram
§ 3.5.8
8.4:500 Conduct Prejudicial
to the Administration of Justice
· Background References: ABA
Model Rule 8.4(d), Other Jurisdictions
· Commentary: ABA/BNA § 101:501, ALI-LGL § 2, Wolfram
§ 3.3.2
8.4:600 Implying Ability
to Influence Public Officials
· Background References: ABA
Model Rule 8.4(e), Other Jurisdictions
· Commentary: ABA/BNA § 101:701, ALI-LGL § 113
8.4:700 Assisting Judge
or Official in Violation of Duty
· Background References: ABA
Model Rule 8.4(f), Other Jurisdictions
· Commentary: ALI-LGL § 113
8.4:800 Discrimination
in the Practice of Law
· Background References: Other
Jurisdictions
· Commentary: ABA/BNA § 91:301
8.4:900 Threatening
Prosecution
· Background References: Other
Jurisdictions
· Commentary: ABA/BNA § 1:801, 61:601
8.5:100 Comparative
Analysis of DC Rule
· Background References: ABA
Model Rule 8.5, Other Jurisdictions
· Commentary:
8.5:101 Model
Rule Comparison
The two versions of Rule 8.5 remained identical thereafter until 2002, when the Model Rule was amended, pursuant to recommendations of the Ethics 2000 Commission, both to extend the disciplinary authority set out in paragraph (a) of the Rule so as to apply to the conduct within the jurisdiction of lawyers who are not admitted to practice there, and to modify the choice of law guidelines in paragraph (b), to substitute, for the former relatively objective and easily applied choice of law provisions turning mainly on the location where the lawyer's conduct occurred and where the lawyer's principal office was located, a more subjective standard turning on where, as among several jurisdictions, the "predominant effect" of the conduct is found. The DC Rules Review Committee declined to recommend adoption of either of these substantive changes for DC Rule 8.5. It did, however, recommend, and the DC Court of Appeals accepted, changes that had been made in the phraseology of subparagraph (b)(1) of the Model Rule, to refer to a "matter pending before a tribunal" rather a "proceeding in a court;" as well as an identical revision of the terminal Comment ([6] for the DC Rule and [7] for the Model Rule), in each case dealing with choice of law in transnational practice.8.5:102 Model
Code Comparison
8.5:200 Disciplinary
Authority
· Background References: ABA
Model Rule 8.5, Other Jurisdictions
· Commentary: ABA/BNA § 101:2001, ALI-LGL § 5, Wolfram
§ 3.2
8.5:300 Choice of Law
· Background References: ABA
Model Rule 8.5, Other Jurisdictions
· Commentary: ABA/BNA § 101:2101, ALI-LGL § 2, Wolfram
§ 2.6.1