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District of Columbia Legal Ethics
[The cutoff date for this edition is June 1, 2007. Consequently, the narrative
does not reflect decisions, amendments or other legal developments after that
Covington & Burling
0.1:100 Sources of Law and Guidance
The ethical code governing members of the DC Bar consists of the District of Columbia Rules of Professional Conduct, adopted by the DC Court of Appeals effective January 1, 1991, and revised by the Court effective February 6, 2007. The DC Rules, though based on the Model Rules, were the product of an extensive process of study described in 0.1:103 below, which resulted in a number of variances from the Model Rules: these are explained under the caption Model Rule Comparison in the discussion of each pertinent Rule, below.
Prior to adoption of the DC Rules, the applicable ethical code was the District of Columbia Code of Professional Responsibility, which had been adopted by the Court in 1972 (the year in which disciplinary authority over lawyers practicing in the District of Columbia was officially transferred to the Court from the United States District Court for the District of Columbia). As initially adopted, the DC Code was almost identical to the Model Code, though it contained a few variances that had been approved by a vote of the membership of the DC Bar. On several subsequent occasions the Court adopted further changes in the DC Code, generally at the instance of the DC Bar. Where relevant, these variances of the DC Code from the Model Code are identified under the caption Model Code Comparison in the discussion of each pertinent Rule, below.
The Model Code of Professional Responsibility was adopted in the District of Columbia in slightly modified form; after adoption it was further modified on several occasions. It was therefore to be expected that after the ABA House of Delegates adopted the Model Rules in place of the Model Code, in August 1983, the DC Court of Appeals, rather than automatically adopt the Model Rules, approved the appointment by the DC Bar of a committee to study and make recommendations about them for the Court's consideration. The process of study, recommendation exposure for comment and adoption took almost seven years in all.
The District of Columbia Bar Model Rules of Professional Conduct Committee, chaired by Robert E. Jordan, III, Esq. (herein referred to as the "Jordan Committee"), was promptly appointed, and after two years of study, submitted its report to the Bar Board of Governors in September 1985. The Committee's report was published for comment and was intensively reviewed by the Board of Governors, in a series of meetings from September 1985 through June 1986. In November 1986, the Board of Governors filed with the Court of Appeals a petition seeking adoption of a modified set of Rules of Professional Conduct largely reflecting the Jordan Committee's recommendations but with some changes made by the Board of Governors. The recommendations submitted to the Court are contained in a volume titled "Proposed Rules of Professional Conduct and Related Comments, Showing the Language Proposed by the American Bar Association, Changes Recommended by the District of Columbia Bar Model Rules of Professional Conduct Committee, and Changes Recommended by the Board of Governors of the District of Columbia Bar," which shows in legislative format, and explains, the changes from the Model Rules proposed by the Jordan Committee and the modifications made by the Board of Governors.
The Bar's original petition was followed by three supplemental petitions, in March 1987 (proposing amendments to Rules 1.6 and 1.10), September 1987 (relating to Rule 5.4) and June 1988 (relating to Rules 1.7 and 1.6). The Bar's proposals were then published again for comment, at the Court's instance, in October 1988.
Meanwhile, the Board of Governors had also appointed a special committee called the Special Committee on Government Lawyers and the Model Rules of Professional Conduct, chaired by Joe Sims, Esq. (the "Sims Committee"). The Sims Committee's report, suggesting changes relating to government lawyers in certain rules, was submitted to the Board of Governors in December 1988 and was promptly forwarded by the Board to the Court.
After extended consideration of the DC Bar's proposal and the numerous comments elicited by publication of the proposals, the Court of Appeals adopted a final version on March 1, 1990, to be effective January 1, 1991. The Rules then adopted were published in a special February/March 1990 Supplement of the Bar's official newspaper, Bar Report in a legislative format showing changes that the Court had made in the version that had been published for comment.
A number of changes have been made in the DC Rules since their adoption by the Court in 1990. A new Rule 1.17, on trust accounts, was adopted in June 1992 [and is discussed together with Rule 1.15 at 1.15:300, below). Amendments to Rules 1.10 and 1.11 to allow law firms to lend lawyers to certain governmental agencies were adopted in November 1991 and further amended in 1995: these are discussed in 1.10:100 below.
In late 1991 the Bar Board of Governors appointed a Rules of Professional Conduct Review Committee, chaired by F. Whitten Peters, Esq. (the "Peters Committee"), to review the Rules that had become effective at the beginning of that year. The Peters Committee filed a report with proposed amendments in December 1993, which was forwarded to the Court of Appeals by the Board of Governors without significant change. After lengthy consideration, the Court of Appeals on October 15, 1996 adopted almost all of the proposals of the Peters Committee, to be effective November 1, 1996.
A standing committee of the DC Bar titled Rules of Professional Conduct Review Committee (for convenience, referred to hereafter as the Rules Review Committee) completed a thorough review of the DC Rules in June 2005, when it issued a report making a number of recommendations for changes in those Rules. The Committee had followed closely the deliberations of the ABA's Commission on the Evaluation of the Rules of Professional Conduct (commonly known as the "ABA Ethics 2000 Commission"), and considered for possible adoption in the DC Rules the changes to the Model Rules resulting in 2001 and 2002 from that Commission's recommendations, as well as the changes resulting in 2003 from the recommendations of the ABA's Corporate Task Force, and suggestions from the DC Bar's Legal Ethics Committee. The committee's report and recommendations were submitted to the DC Court of Appeals, which on August 1, 2006 issued an order approving the changes to the DC Rules recommended by the committee, to be effective as of February 1, 2007. The changes thus made to the DC Rules, together with the related changes in the Model Rules, are described in the "Model Rule Comparison" sections of the treatment of the individual rules, below.
Introductory Sections of the Rules of Professional Conduct
The DC Rules, like the Model Rules, have three introductory sections, designated "Preface" (in the case of the Model Rules, "Preamble"), "Scope," and "Terminology," respectively.
The DC Rules "Preface" sets out the history of the Rules' consideration and adoption. The Model Rules, on the other hand, begin with a "Preamble," subtitled "A Lawyer's Responsibilities," comprising twelve numbered paragraphs. The Jordan Committee characterized the Preamble as an "apparent attempt to provide a brief overview of the lawyer's responsibilities and the role of the lawyer in society." The Committee rejected inclusion of this Preamble in the DC Rules, saying it included a significant amount of substantive comment on the responsibilities of lawyers that the Committee viewed as more appropriately placed within the appropriate Rule or Comment "in order to avoid confusion." The Committee also expressed concern that the Preamble might be relied upon in interpreting the Rules thus entrapping a lawyer who would reasonably seek guidance to the interpretation of a rule only in the Comments accompanying that rule. The Committee moved some of the Model Rules Preamble material to Comments but also deleted much because it was already adequately covered in Comments. The Jordan Committee termed the remainder of the Model Rules Preamble "commentary on the role of self-regulation in the profession" which was "inappropriate to a Code being promulgated by the Court."
As to the Scope section, the Jordan Committee worked from the Model Rules Scope section, but made considerable changes, retaining only four of the Model Rules' nine numbered paragraphs, and modifying all but one of those. The Jordan Committee proposed changes in paragraph  of the Scope section to clarify its view that "the comments are inseparable from the Rules, and vice-versa," so that although they do not add obligations to the Rules, they also provide authoritative guidance about the scope of obligation imposed by the Rules, and should be given significant weight in interpreting the Rules. In accordance with the Jordan Committee's recommendations, paragraphs  and  of the Model Rules' Scope, referring respectively to the larger legal context shaping the lawyer's role and the disciplinary process, were retained, but paragraphs , , ,  and  were omitted. Paragraph , describing the special responsibilities and authority of government lawyers, was deleted as a partial and incomplete reference to a subject that was to be addressed by the Sims Committee. The other deleted paragraphs were viewed as needlessly and ineffectually seeking to "prescribe the effects of the Rules in decisions by courts outside the disciplinary process." The Court of Appeals did not wholly agree with the Jordan Committee, however, for it inserted a paragraph  that addresses fairly broadly the relationship of the Rules to civil liability and other non-disciplinary matters. (Paragraph  is referred to in the Finkelstein case, discussed under 7.1:220, below.) Paragraph  of the Model Rules Scope section, describing the role of the Comments to the Rules, was retained (as what is now paragraph  of the DC Scope section), in somewhat modified form.
The Peters Committee proposed, and the Court of Appeals in October 1996 approved, two significant changes in the Scope section. First, paragraph  was amended to eliminate the proposition (also found in paragraph  in the Model Rules Scope) that violation of a Rule does not necessarily give rise to a cause of action or create a presumption that a legal duty has been violated; and to substitute the proposition that
Nothing in these Rules, the Comments associated with them, or this Scope section is intended to enlarge or restrict existing law regarding the liability of lawyers to others or the requirements that the testimony of expert witnesses or other modes of proof must be employed in determining the scope of a lawyer's duty to others.
Second, a new paragraph  was added, to provide a rule of construction for circumstances where more than one rule might be applicable, one general and the other particular. The core proposition of this paragraph is that in such circumstances the general rule "does not supplant, amend, enlarge, or extend the specific rule."
The end product of the process leading to adoption of the DC Rules of Professional Conduct, discussed in 0.1:103 above, is a set of ethics rules that vary in a large number of respects from the Model Rules. (Part of the reason for the variances also is that the Model Rules have been amended numerous times since their adoption in 1983, and not all of those amendments have been reflected in the DC Rules.) Most of the differences are matters of language rather than substance, but there are quite a few variances in substance as well. Each of these is discussed in the "Model Rules Comparison" portion of the treatment of each rule below, but the more important of the points of substantive difference are listed here. As a result of both the recommendations of the Sims Committee and the fact that the Jordan Committee had itself given particular attention to possible differences in the application of the ethics rules to lawyers in government and in private practice (and had had a special subcommittee for this purpose), a number of the differences relate to lawyers in government. The major differences between the DC Rules and the Model Rules, other than those concerning government lawyers, are listed immediately below; then the differences that concern government lawyers are listed separately below.
Major Differences Between the DC Rules and the Model Rules
• DC Rule 1.3, on diligence, is considerably more elaborate than the Model Rule, requiring not only the Model Rule’s diligence and promptness but also zeal, and prohibiting a lawyer from prejudicing or damaging a client in the course of the professional relationship. [See 1.3:101.]
• DC Rule 1.5, on fees, unlike the Model Rule, requires that fee agreements be in writing in certain circumstances and does not flatly prohibit contingent fees in domestic relations cases. [See 1.5:101.]
• DC Rule 1.6, on confidentiality of information, varies considerably from the Model Rule, using the defined terms “confidence” and “secret” rather than “information relating to representation of a client” to describe the information a lawyer must protect; spelling out the fact that a lawyer may be obliged to protect confidential information acquired before becoming a lawyer; and providing for confidentiality in lawyer counseling programs. DC Rule 1.6 also includes a prohibition on a lawyer’s using a client’s information that is protected from disclosure to the disadvantage of that client or for the advantage of the lawyer or a third person; this prohibition is found in a separate provision of the Model Rules, Rule 1.8(b). [See 1.6:101.]
• DC Rule 1.7, on conflicts of interest, is very different in structure from the Model Rule — among other things, spelling out a category of conflict that is not consentable and allowing an attorney to become adverse to an existing client without consent where representation of another client unforeseeably leads to such adverseness and the lawyer’s effectiveness on behalf of both clients is not impaired. However, the two versions of the Rule are probably not very different in application. Although the structure of the Model Rule was considerably modified (and improved) in 2002 as a result of the recommendations of the Ethics 2000 Commission, the DC Bar’s Rules Review Committee did not think the DC Rule required any such restructuring. [See 1.7:101.]
• DC Rule 1.8, on prohibited transactions, differs from the Model Rule in allowing a lawyer more latitude in providing financial assistance to a client, in more tightly prohibiting agreements limiting a lawyer’s malpractice liability, and in strictly limiting a lawyer’s right to retain client files in order to collect a fee. Unlike the Model Rule, the DC Rule does not contain a specific prohibition on a lawyer’s having sexual relations with a client (added to the Model Rule in 2002), but it does have two Comments addressing the possible conflict implications of such a relationship. [See 1.8:101.]
• DC Rule 1.10, on imputed disqualification, exempts from imputation a lawyer whose disqualification results from involvement in a matter before becoming a lawyer. And it has a special provision allowing firms to lend their lawyers to certain government agencies. Neither of these provisions has a parallel in the Model Rule. [See 1.10:101.]
• DC Rule 1.11, on successive government and private employment, differs substantially from the Model Rule. It disqualifies former government lawyers from taking employment not only in the same matter as they participated in while in government but also in a substantially related matter. It prescribes a significantly different procedure for avoiding imputation. Unlike the Model Rule, moreover, it contains no provision for waiver by the government agency of an individual lawyer’s disqualification. It also lacks three provisions found in the Model Rule: one addressing “confidential government information” (MR 1.11(c); another providing for disqualification of government lawyers on the basis of representations undertaken before entering government service (MR 1.11(d)(2)(i)); and one prohibiting negotiating for private employment in a matter in which the lawyer is involved in a governmental capacity (MR 1.11(d)(2)(ii)). Finally, DC Rule 1.11, unlike the Model Rule, applies to former judges and their law clerks, whereas these are covered in the Model Rules by Rule 1.12. The DC Rules Review Committee recommended that the provisions dealing with former judges and their clerks be moved to DC Rule 1.12, but this was the one recommendation by the Committee that was not adopted by the Court of Appeals. [See 1.11:101.]
• DC Rule 1.12, applying to former third party neutrals some of restrictions parallel to those imposed by DC Rule 1.11 on former government lawyers, differs from its Model Rule counterpart mainly in its limited scope, since Model Rule 1.12 applies to judges as well as third-party neutrals. As noted in the preceding paragraph, the DC Rules Review Committee’s recommendation that Rules 1.11 and 1.12 be revised to conform to the corresponding Model Rules in this respect was rejected by the Court of Appeals, though it did accept the Committee’s proposed broadening of the latter to include other third party neutrals well as arbitrators. [See 1.12:101.]
• DC Rule 1.13, on organizational clients, differs from the Model Rule in omitting, provisions in the latter, adopted in 2003, that provide for a Lawyer’s “reporting out” on corporate misconduct (i.e., disclosing such misconduct outside the corporation, under paragraph (c)); exempting from such disclosures information learned by the lawyer in the course of an internal investigation of the client (paragraph (d)); and providing that a lawyer who believes he or she has been discharged by reason of his internal reports on misconduct may do what is necessary to see that the organization’s highest authority is so informed (paragraph (e)). [See 1.13:101.]
• DC Rule 1.15, on safekeeping property, differs from the Model Rule in making specific provision for Interest on Lawyers Trust Accounts (IOLTA). The DC Rule is also supplemented by a separate rule on trust accounts, originally designated as Rule 1.17, but redesignated as Rule 1.19 in 2006, when a new Rule 1.17 on Sale of a Law Practice was added to the DC Rules. [See 1.15:101.]
• DC Rule 1.19, (originally designated 1.17, as state above), titled Trust Account Overdraft Notification, requires that trust funds in a lawyer’s possession be deposited in accounts as to which the financial institution holding the account agrees to notify Bar Counsel in the event of an overdraft on the account. It has no parallel in the Model Rules. [See 1.19:101.]
• DC Rule 3.3 allows a lawyer to put on the stand, without examination, a criminal defendant who insists on offering false testimony; the Model Rule prohibits a lawyer in all circumstances from offering testimony known to be false. The Model Rule requires the lawyer to reveal false evidence even if Rule 1.6 would otherwise prohibit the revelation; the DC Rule does not similarly trump Rule 1.6. [See 3.3:101.]
• The principal substantive difference between DC Rule 3.4 and the corresponding Model Rule is in its paragraph (g), which was added on the recommendation of the DC Rules Review Committee in 2006. That paragraph, which has no counterpart in Model Rule 3.4, prohibits a lawyer from peremptorily striking a juror on grounds of race, religion, national or ethnic background, or sex. A similar provision had previously been in paragraph (h) of DC Rule 3.8, regarding special responsibilities of a prosecutor; the Rules Review Committee recommended moving it to Rule 3.4 in order to extend it to other lawyers as well as prosecutors. There is no corresponding provision in either MR 3.4 or MR 3.8. There are also some minor differences in paragraph (a) of the two versions of Rule 3.4. [See 3.4:101.]
• DC Rule 3.6, on trial publicity, is limited to “a case being tried before a judge or jury,” and so does not restrict comments made before commencement of a trial, while the Model Rule is not similarly limited as to the time at which it may apply. The DC Rule also applies only to lawyers involved in trying a case, whereas the Model Rule extends to lawyers investigating as well as those litigating, and to lawyers associated with them in a firm or government agency. The DC Rule also sets a higher standard of risk of material prejudice to a proceeding -- a “serious and imminent threat” rather than a “substantial likelihood” as in the Model Rule. [See 3.6:101.]
• DC Rule 3.8, on special responsibilities of prosecutors, differs from the Model Rule in a number of significant ways: it includes several provisions that have no counterpart in the corresponding Model Rule, and it lacks several provisions that are in the Model Rule. The most significant provisions of the DC Rule that have no parallel in the Model Rule paragraph (a) of the DC Rule, prohibiting a prosecutor from improperly favoring or invidiously discriminating in deciding whether investigate or prosecute; and paragraph (d), which says that a prosecutor may not intentionally avoid pursuit of evidence or information because it may damage the prosecution’s case or aid the defense. On the other hand, there are four significant provisions of the Model Rule for which there is no counterpart in the DC Rule. One of those provisions calls for a prosecutor to make reasonable efforts to ensure that the accused has had a reasonable opportunity to obtain counsel (paragraph (b) of the Model Rule); another prohibits a prosecutor from seeking to obtain from an unrepresented person a waiver of pretrial rights (paragraph (c); the third limits the issuance of subpoenas to lawyers in grand jury or other criminal proceedings (paragraph (e)); and the fourth is a requirement that prosecutors exercise reasonable care to prevent persons assisting or associated with the prosecutor from making extrajudicial statements that would violate Rule 3.6 (paragraph (f)). [See 3.8:101.]
• DC Rule 4.2, on communications with represented parties, allows significantly greater latitude than the Model Rule for communications with employees of an organizational party. It also has a provision (paragraph (d)) stating that the Rule does not prohibit a lawyer communicating with governmental officials who have the authority to redress the client’s grievances -- a subject dealt with somewhat differently in Comment  to the Model Rule. The potentially most significant difference, however, is that in the DC Rule but not the Model Rule, the phrase “ a lawyer shall not communicate” is followed by the “or cause another to communicate.” [See 4.2:101.]
• DC Rule 4.4, on respect for rights of third persons, differs somewhat from its Model Rule counterpart in its guidance as to the responsibility of a lawyer who receives documents that have been inadvertently sent by an opposing party or lawyer. [See 4.4:101.]
• DC Rule 5.4, on professional independence, allows lawyers, under strictly defined conditions, to have nonlawyer partners — something that neither the Model Rule nor. until very recently, the rules of any other jurisdiction permitted. The ABA’s Commission on Multidisciplinary Practice recommended the adoption of changes to Rule 5.4 that would have provided substantially greater latitude for lawyers to practice in partnerships with members of other professions, but although those recommendations have been implemented by a few jurisdictions, they were rejected by the ABA House of Delegates, and the DC Court of Appeals similarly rejected the parallel recommendations of a DC Bar committee that had been charged with consideration of the recommendations of the ABA Committee. [See 5.4:101.]
• DC Rule 7.1, on communications about a lawyer’s services, covers, in a substantially less elaborate and restrictive way, the subjects covered by four Model Rules: Rule 7.1, on the general standard of truthfulness; Rule 7.2 on advertising; Rule 7.3 on direct contact; and Rule 7.4 on communication of fields of practice.
• The DC Rules have no counterpart to MR 8.2, regarding judges and legal officials.
• DC Rule 8.4 preserves a prohibition from the Model Code that was not carried forward in the Model Rules: namely, the prohibition against seeking or threatening criminal or disciplinary charges solely to obtain advantage in a civil matter. [See 8.4:101.]
• DC Rule 9.1, prohibiting discrimination in employment, has no counterpart in the Model Rules.
DC Rules Differentially Affecting Government Lawyers
• DC Rule 1.2, on scope of representation, has a paragraph (d) that addresses the allocation of decision-making authority between a government lawyer and a governmental client, and recognizes that the lawyer’s authority over decisions concerning the representation may be expanded by statute or regulation beyond the limits stated in paragraphs (a) and (c). This provision has no Model Rule counterpart. [See 1.2:101.]
• DC Rule 1.6, on confidentiality of information, what are now paragraphs (e)(2)(B) and (k), together with Comments - thereto, address some of the special circumstances presented by attorney-client relationships within the government. They have no Model Rule counterpart.
• Rule 1.11, on successive government and private employment, is, like its Model Rule counterpart, entirely concerned with government lawyers, or former ones. There are a number of differences between the two versions of the Rule, as described above, under the caption Major Differences Between the DC Rules and the Model Rules.
• DC Rule 3.7, on lawyer as witness, includes language in paragraph (b) that excepts government lawyers from the prohibition of that paragraph. No such exception is provided in the Model Rule. [See 3.7:101.]
• DC Rule 3.8, on special responsibilities of prosecutors, is, as noted above, significantly different from the Model Rule.
0.2:200 Forms of Lawyer Regulation in DC
The several forms of lawyer regulation in the District of Columbia are generally comparable to those in many states. The most pervasive form is judicial regulation in rules promulgated by the District of Columbia Court of Appeals. These rules establish a mandatory DC Bar and an overall disciplinary system authorizing sanctions against lawyers for unethical conduct in violation of professional standards promulgated by the Court. Other forms of lawyer regulation include the DC courts' power to punish lawyers for contempt, Congressional legislation mandating disbarment for certain types of criminal conduct, and regulation through civil tort claims for malpractice based on alleged violations of competence standards established by DC courts in the exercise of their common law authority.
Unlike individual states with sovereign power, the District of Columbia is a federal enclave provided for in Article I of the U.S. Constitution and controlled in large part by the United States Congress. Article I gives the Congress "exclusive Legislation in all Cases whatsoever" over the seat of government. Congress has invoked its Article I powers in legislation creating a limited home-rule DC government with legislative and executive branches. District of Columbia Self Government and Governmental Reorganization Act, Pub. L. 93-198, 87 Stat. 774 (1973). Cognate legislation provides for the local DC courts, both Article I courts: the Superior Court at the trial court level and the District of Columbia Court of Appeals at the appellate level. It further provides that all judges of the local courts are appointed by the President, subject to Senate confirmation, for 15-year terms, District of Columbia Court Reform and Criminal Procedure Act of 1970, DC Code §§ 11-101 et seq. (1995). The Court of Appeals is empowered by the statute (1) to "make such rules as it deems proper respecting the examination, qualification, and admission of persons to membership in its bar," and (2) to "censure, suspend from practice, or expel a member of its bar for crime, misdemeanor, fraud, deceit, malpractice, professional misconduct or conduct prejudicial to the administration of justice." DC Code §§ 11-2501-02 (1995).
The Court of Appeals has relied on these statutory provisions as well as its "inherent powers" in promulgating "Rules Governing The District of Columbia Bar" (Court of Appeals Rules I-XV), which include in Rules X and XI, respectively, "Rules of Professional Conduct" and provisions on "Disciplinary Proceedings" conducted under the aegis of the Court-created Board on Professional Responsibility. See In re Wade, 526 A.2d 936, 938 (DC 1987), cert. denied, 484 U.S. 1010 (1988). The US District Court for the District of Columbia, a federal court comparable to other US district courts throughout the country, has no jurisdiction to review orders of the Court of Appeals relating to admission, discipline and disbarment of members of the DC Bar. Such orders can be reviewed only in the US Supreme Court by writ of certiorari, although lower federal courts do have jurisdiction over claims challenging on federal grounds the validity of a Court of Appeals general admission rule. See District of Columbia Court of Appeals v. Feldman, 460 US 462, 482-88 (1983).
In some states the highest state court has relied on the state's constitution, the separation of powers doctrine, the court's "inherent powers" or some combination thereof in ruling that the state's highest court has exclusive jurisdiction over the regulation of lawyers practicing law in state courts, thereby prohibiting by constitutional doctrine any regulation of lawyers by the state's legislative or executive branches. None of the DC courts has asserted such a broad concept of exclusive jurisdiction, and from the beginning of the federal government, Congress has exercised legislative authority to regulate the practice of law in federal tribunals. Judiciary Act of 1789, now 28 USC § 1654; cf. In re Kerr, 424 A.2d 94, 98-99 (DC 1980) (rejecting a contention that the statute requiring disbarment of a lawyer convicted of an offense involving moral turpitude, DC Code § 11-2503(a), unconstitutionally infringed on the authority of the Court over attorney discretion).
In its "Rules Governing the District of Columbia Bar," the Court of Appeals created a mandatory bar organization in which membership is required of "all persons admitted to practice law in the District of Columbia." Rule I includes a list of multiple purposes of the Bar, all "to the end that the public responsibility of the legal profession may be more effectively discharged." Rule VII provides a referendum procedure whereby active members of the Bar, by a majority of the votes cast, may determine "any question of Bar policy," which thereafter "shall control the action of the Bar, the Board of Governors, the officers and committees." Rule X provides that "the standards governing the practice of law" shall be those prescribed in Appendix A, which are entitled "District of Columbia Rules of Professional Conduct" and are patterned after the ABA's Model Rules. Rule XI establishes a comprehensive disciplinary system, described in 0.2:230 and 0.2:240 below. Rule XII authorizes the Board of Governors of the Bar to use mandatory dues to create a "Clients' Security Trust Fund" administered by five trustees appointed by the court. This fund is used in "reimbursing . . . losses caused by dishonest conduct of members of the District of Columbia Bar, acting either as attorneys or as fiduciaries except to the extent they are bonded." [See 1.15:120, below.]
Appendix B to the Rules Governing the District of Columbia Bar makes provision for Interest on Lawyers Trust Accounts (known by the acronym IOLTA). Every lawyer save those who have opted out by submitting an appropriate "notice of declination" to the Court of Appeals clerk, is required to deposit "client funds which are nominal in amount or expected to be held for a short period of time" in an interest-bearing account at a depository institution and "to remit interest or dividends . . . to the District of Columbia Bar Foundation," which in turn disburses the funds to "legal assistance programs providing legal and related assistance to poor persons in the District of Columbia who would otherwise be unable to obtain legal assistance." [See 1.15:110, below.]
Although the Court of Appeals Rules establish a mandatory bar and a comprehensive disciplinary system, Rule XI expressly recognizes that voluntary bar associations may discipline their members. Thus, Rule XI, § 1(b) provides that "nothing in this rule shall . . . prohibit a voluntary bar association from censuring, suspending or expelling its members." However, there appear to be no published reports of any independent disciplinary action by voluntary bar associations in DC, although there are a number of such organizations.
The DC disciplinary agency is the Board on Professional Responsibility, which is an arm of the Court of Appeals created by Rule XI of the Rules Governing the District of Columbia Bar. The Board consists of seven members of the bar appointed by the court "from a list submitted by the [Bar's] Board of Governors" plus two non-lawyers appointed by the court. The powers and duties of the Board are analogous to those of an administrative agency with authority to perform judicial-type functions as well as prosecutorial duties and limited legislative-type functions. Thus, the Board is empowered to "investigate any alleged ground for discipline or alleged incapacity of any [DC] attorney" and to "appoint Bar Counsel . . . and such Assistant Bar Counsel and staff as may be required to perform the [investigative/prosecutorial] duties and functions of that office." Rule XI, § 4. The Board is also authorized to appoint hearing committees (each composed of two lawyers and one non-lawyer) to "conduct evidentiary hearings on [Bar Counsel's] formal charges of misconduct". Id. The Board is empowered "to review the findings and recommendations of hearing committees" on the basis of the record in a hearing committee's evidentiary hearing and to submit to the Court of Appeals the Board's "own findings and recommendations." Id. The Board also has authority to issue a "reprimand" as a sanction for an attorney's misconduct, subject only to appellate review by the Court. Id. Any more serious sanction may be imposed only by the Court itself, either on a recommendation of the Board or at its own initiative. The Board is also empowered to adopt rules, procedures and policies not inconsistent with Rule XI or other rules of the Court; and it has adopted rules governing its procedures (herein "Board Rules").
Although Bar Counsel is appointed by the Board and serves "at the pleasure" of the Board, Rule XI empowers Bar Counsel to exercise significant independent authority. For example, in disciplinary cases on appeal before the Court of Appeals, Bar Counsel has authority to "argue for a disposition other than that contained in the report . . . of the Board." Rule XI, § 6./p>
The disciplinary process in the District of Columbia comprises up to seven distinct stages. The first stage consists of Bar Counsel's preliminary screening of complaints against members of the bar to determine whether or not a particular complaint should be "docketed." Disgruntled clients are the source of most of the complaints, but Bar Counsel has authority to initiate an investigation based on allegations from any source, including newspaper reports. Board Rule 2.1. Any complaint submitted to Bar Counsel must be reduced to writing and must include a brief statement of the alleged underlying facts. Board Rule 2.2. The complaint need not be sworn to, and Bar Counsel is authorized to assist a complainant in reducing the complaint to writing. Id.
Bar Counsel may decline to docket a complaint if a preliminary screening shows that the complaint on its face is unfounded, or that the alleged facts do not amount to misconduct warranting discipline, or that the alleged misconduct is not within the jurisdiction of the Court. Board Rule 2.3. If Bar Counsel makes a negative decision on docketing, Bar Counsel is required to notify the complainant (if any) of the reasons therefor, but Bar Counsel's negative decision is not subject to further review. Board Rule 2.4. If a lawyer's client in a criminal case is the source of a complaint, Bar Counsel is required to conduct a "preliminary inquiry" and to "docket the matter" if such inquiry "indicates a reasonable basis for opening an investigation." Board Rule 5.1.
If Bar Counsel makes an affirmative decision on docketing, this triggers the second stage of the disciplinary process, consisting of a formal investigation of the alleged charges. Complainants must be promptly informed of the docketing decision. Board Rule 2.4. Bar Counsel is then required to notify the accused lawyer in writing of the formal investigation and to provide to the lawyer a copy of the written complaint (or other documents forming the basis for the investigation) together with a request for a written response from the lawyer. Board Rule 2.7.
During an investigation and also after a petition (if any) is filed, the accused lawyer "shall have access to all [pertinent] material in the files of Bar Counsel" other than "privileged" or "work product" material. Board Rule 3.1. With certain limitations, Rule XI, § 18 also authorizes both Bar Counsel and the lawyer under investigation to "compel by subpoena the attendance of witnesses and the production of pertinent books, papers, and documents," but Board Rule 3.2 requires an accused lawyer to show a "compelling need" for such a subpoena addressed to a "non-party."
The third stage of the disciplinary process involves Bar Counsel's proposed disposition of a docketed complaint upon completion of the formal investigation. With the prior approval of a member of one of the hearing committees who is designated the Contact Member, Bar Counsel "may dismiss the complaint, informally admonish the attorney, or institute formal charges" before a Hearing Committee. Rule XI, § 8. In addition, Bar Counsel may enter into a "diversion agreement" with the accused lawyer. Id. Although the diversion program may be offered "in Bar Counsel's sole discretion," it is "subject to review by a member of the Board," who may disapprove it. Id. No standard of review is specified.
If Bar Counsel and the Contact Member disagree as to the appropriate disposition of a complaint, the matter is submitted to the chair of a hearing committee (other than the committee of the Contact Member), whose decision is final. Board Rules 2.12 and 2.13. The accused lawyer has no right to participate directly in the decision-making process or to appeal from a Contact Member's decision approving Bar Counsel's proposed disposition of a complaint. Neither a Contact Member nor any reviewing chair of a hearing committee can participate in any subsequent formal disciplinary proceeding arising out of Bar Counsel's proposed disposition of a complaint that either of them has reviewed.
The fourth stage of the disciplinary process consists of a formal evidentiary proceeding before a hearing committee framed by the allegations in a "petition" filed by Bar Counsel and the allegations in the accused lawyer's answer. A disciplinary proceeding moves to this stage whenever an investigation is not terminated by a mutually acceptable disposition requiring no evidentiary hearing. Board Rules 7.1-7.21. In a proceeding before a hearing committee, Bar Counsel has the "burden of proving violations of disciplinary rules by clear and convincing evidence." Board Rule 11.4. After hearing all pertinent evidence relating to such allegations, the Hearing Committee submits to the Board a written report containing the Committee's findings and recommendation, together with the complete evidentiary record and any briefs of the parties. Rule XI, § 9; Board Rule 12.1.
The fifth stage of the disciplinary process is a proceeding before the Board. If either Bar Counsel or the accused lawyer files a notice of "exceptions" to the hearing committee's report, the matter is scheduled for the submission of briefs to and oral argument before the Board. Board Rules 13.2 and 13.3. If no such notice of exceptions is filed, the Board is required to decide the matter on the record made before the Hearing Committee. Board Rule 13.4. In either instance, the Board may dismiss Bar Counsel's petition, remand the matter to the Hearing Committee for further proceedings, adopt (with or without modification) the findings and recommendation in the Committee's report, direct Bar Counsel to issue an informal admonition, issue the Board's own sanction consisting of a "reprimand" of the accused lawyer, or submit to the Court of Appeals the Board's report with findings and recommendations for the Court's disposition of the matter. Rule XI, § 9.
If the Board decides to dismiss the petition, to remand the case to the Hearing Committee, or to order Bar Counsel to issue an informal admonition, the Board is not required to submit a written report to the Court of Appeals. Id. Any other proposed disposition by the Board must be submitted to the Court in a written report containing the Board's Findings and Recommendation, together with the entire record. Id.
The sixth stage of the disciplinary process consists of proceedings before the Court of Appeals, which may be triggered by the Court acting sua sponte or by the filing of "exceptions" to the Board's report either by Bar Counsel or by the respondent lawyer. Rule XI, § 9(e)-(g).
Bar Counsel is entitled to appear as a party in all proceedings before the Court. Rule XI, § 9(h). If Bar Counsel disagrees with the findings or recommendation of the Board, the position of the Board may be presented to the Court by the Board's Executive Attorney or other counsel, and the Court has discretion to "appoint an attorney to present the views of a minority of the Board." Id. Upon completion of the appellate hearings, "the Court shall enter an appropriate order." Rule XI, § 9(g). The Court is bound to accept the findings of fact made by the Board if they are supported by substantial evidence of record, and it is directed to adopt the Board's recommended disposition "unless to do so would foster a tendency toward inconsistent dispositions of comparable conduct or would otherwise be unwarranted." Id. The Court's final order in a disciplinary case is subject to further review only by the US Supreme Court on a writ of certiorari.
A possible seventh stage of the disciplinary process is a reinstatement proceeding, which may occur in cases wherein a disbarment order has been in effect for five years or more (since a disbarred lawyer may apply for reinstatement no earlier than five years after the effective date of disbarment, Rule XI, § 16(a)) or in cases in which a lawyer is suspended for less than five years by an order of the Court requiring proof of rehabilitation prior to reinstatement. Reinstatement proceedings follow much the same course as regular disciplinary proceedings, except that the lawyer seeking reinstatement is the moving party and is required to establish by clear and convincing evidence that he or she has the "moral qualifications, competency and learning in law required for readmission, and that the resumption of the practice of law . . . will not be detrimental to the integrity and standing of the bar, or to the administration of justice, or subversive to the public interest." Rule XI, § 16(d).
Federal legislation enacted in 1970 provides mandatory disbarment as the sanction for a member of the DC Bar who is convicted of a crime involving "moral turpitude." In the language of the statute, "the name of the member of the bar so convicted shall be struck from the roll of the members of the bar and [such person] . . . shall thereafter cease to be a member." DC Code § 11-2503(a) (1995). This statutorily imposed sanction has been troublesome with respect to both the definition of "moral turpitude" and the duration of disbarment necessary to satisfy the statutory mandate that the convicted lawyer "shall thereafter cease to be a member."
In In re Colson, 412 A.2d 1160 (DC 1979) (en banc), the Court of Appeals held that the statute requires a two-step procedure: first to determine whether a per se rule applies on the ground that the criminal offense, on the face of its essential elements, inherently involves moral turpitude, and second (assuming a negative determination in the first step) to determine whether the crime involved moral turpitude on the particular facts underlying the conviction. The Court in Colson court ruled that in the case of a crime that the Court had determined to involve moral turpitude per se, no hearing in the disciplinary proceeding would be required or even permitted, whereas in the case of conviction of a crime not involving moral turpitude per se, there must be an evidentiary hearing in the disciplinary proceeding to determine whether the convicted attorney's crime involved moral turpitude on the particular facts. Id. at 1164-65. The Colson court also defined "moral turpitude" as "an act of baseness, vileness or depravity . . . contrary to the accepted and customary rule of right and duty between man and man." Id. at 1168. The definition could be satisfied whether the crime is classified as a felony or misdemeanor.
In another precedent-setting decision, the Court of Appeals held that all crimes requiring proof of an "intent to defraud" are per se crimes of moral turpitude, automatically requiring disbarment without any inquiry into the particular facts of the crime. In re Willcher, 447 A.2d 1198, 1200 (DC 1982). In still another landmark early decision, the Court interpreted the statutory word "thereafter" to mean "forever," which caused the phrase "shall thereafter cease to be a member" to require permanent disbarment for the lifetime of any attorney convicted of a crime involving moral turpitude. In re Kerr, 424 A.2d 94, 97-98 (DC 1980).
Recently, the Court of Appeals re-examined its prior statutory interpretations in Colson, Willcher and Kerr, and partially reaffirmed and partially overruled them. In In re McBride, 602 A.2d 626 (DC 1992) (en banc), the Court reaffirmed the main holdings of Colson, i.e., the general definition of moral turpitude, the two-step procedure for determining whether a crime involves moral turpitude, and the rule that once the court itself has determined that the elements of a particular crime involve moral turpitude per se, such determination thereafter shall be applicable to all future cases involving a conviction for the same crime. 602 A.2d at 634-35. The Court also partially reaffirmed its holding in Willcher to the extent that it interpreted the statute as mandating automatic disbarment for conviction of a felony involving an "intent to defraud." 602 A.2d at 634. But McBride partially overruled Willcher with respect to misdemeanor convictions, holding instead that a lawyer convicted of any misdemeanor (including a misdemeanor one of whose elements is an intent to defraud) is entitled to a hearing on whether the attorney's crime, on its particular facts, involved moral turpitude. 602 A.2d at 635. The Court, most significantly, overruled in its entirety the prior statutory interpretation in Kerr that disbarment upon conviction of a crime involving moral turpitude is forever. Instead the Court ruled that a lawyer disbarred under the "crime involving moral turpitude" statute is eligible, like any other disbarred lawyer, to file a petition for reinstatement after five years of disbarment and have it acted upon. 602 A.2d at 640-41.
n still another recent decision, a three-judge panel of the Court of Appeals, while recognizing McBride's elimination of mandatory lifetime disbarment under the statute, ruled that the Court in that case did not eliminate the gravity of the crime for which a lawyer was disbarred as a factor in deciding later whether an application for reinstatement after five years of disbarment should be granted or denied. In re Borders, 665 A.2d 1381 (DC 1995) (lawyer previously disbarred for federal convictions of conspiracy, obstruction of justice, and unlawful intent to commit bribery). The Court agreed with the Board on Professional Responsibility's interpretation of McBride as holding that the gravity of the lawyer's misconduct may require a closer examination of other factors pertinent to an application for reinstatement. 665 A.2d at 1382. The Court decided, however, that it would "expressly leave open [the question] . . . whether [in a particular case] the gravity of the original crime(s) may trump every other consideration bearing on reinstatement," as was suggested in the opinion of one member of the Board. Id. In addition, the Court disagreed with Bar Counsel's position that a lawyer disbarred for conviction of a crime involving moral turpitude can never be reinstated unless the lawyer is willing to testify under oath about all underlying details of the prior crime. Instead, the Court ruled that the lawyer's particular post-crime conduct in the Borders case ("to stonewall the post-crime investigation" relating to alleged bribery of a federal judge) was a relevant adverse factor with respect to the disbarred lawyer's "steps taken to remedy past wrongs" and was also an adverse factor concerning "his present character," and that his petition for reinstatement should consequently be denied. Id. at 1385.
In In re Spiridon, 755 A2d 463 (DC 2000), the court addressed the question whether a misdemeanor conviction for theft of $18, which had been determined to constitute a crime reflecting adversely on the respondent's "honesty, trustworthiness, or fitness as a lawyer in other respects," so as to fall under Rule 8.4(b), also involved moral turpitude, so as to require disbarment. Following McBride, the court held that even though a felony conviction for theft would entail moral turpitude per se, and the elements of the misdemeanor offense were identical to those of the felony, yet a hearing was required to determine whether the particular circumstances supported a finding of oral turpitude. Such a hearing had here been held; the Board on Professional Responsibility had concluded, on the basis of mitigating facts, that moral turpitude was not involved; and the court sustained that determination.
The DC Court of Appeals has held that conspiring to engage in a monetary transaction in property believed to be derived from illegal drug trafficking was a crime involving moral turpitude, In re Lee, 755 A.2d 1034 (DC 2000), as were involvement in a fraudulent investment scheme, In re Mason, 736 A.2d 1019 (DC 1999), and attempted bribery involving intentional dishonesty for personal gain, In re Tucker, 766 A.2d 510 (DC 2000).
In In re Corrizzi, 803 A.2d 438 (DC 2002), the respondent was found to have committed a number of ethical delicts, of which the most serious involved counseling two clients, in separate cases, to commit perjury on their depositions. These two offenses, which themselves violated several different Rules, including DC Rule 3.4(b) as well as 3.3(a)(2), 8.4(c) and 1.3(b)(2), were held sufficient to warrant disbarment. The Court cited several precious decisions holding that "perjury and perjury-related offenses involve moral turpitude per se and therefore convictions of such crimes mandate disbarment under DC Code § 11-2503(a)(2001)." Id. at 442. It also cited In re Gormley, 793 A.2d 469 (DC 2002) (per curiam) for the proposition that a lawyer need not actually be convicted of a crime of moral turpitude in order to be disbarred on the basis of the underlying conduct.
Other decisions involving the issue of moral turpitude are discussed under 8.4:300, below.
Both the US Court of Appeals for the DC Circuit and the US District Court for the District of Columbia have adopted, as the ethics rules applicable to lawyers in those courts, the Rules of Professional Conduct adopted by the DC Court of Appeals, as amended from time to time. Circuit Rules of Disciplinary Enforcement, Rule 1.B; District Court Rule 706(a).
The District of Columbia Rules of Professional Conduct and the District of Columbia Code of Professional Responsibility are sometimes referred to in this narrative as the "DC Rules" and the "DC Code," respectively.
There are occasional references to the "Jordan Committee," the "Sims Committee," the "Peters Committee," and the "Schaller Committee": all of them committees of the DC Bar commonly and conveniently referred to by the names of their chairmen. The first three of the Committees, as explained in 0.1:103 above, issued reports that shaped the DC Rules in their present form: the Jordan Committee having made the recommendations that largely accounted for the form of the DC Rules as originally adopted; the Sims Committee having contributed certain modified provisions relating specifically to government lawyers; and the Peters Committee having recommended a number of modifications that were put into effect as of November 1, 1996.
The Schaller Committee was the source of recommended changes to DC Court of Appeals Rule 49, which governs the unauthorized practice of law in the District of Columbia. Its recommendations, which were adopted by the Court and became effective on February 1, 1998, are discussed under 5.5:210, below.
The DC Bar's Rules of Professional Conduct Review Committee, whose recommendations resulted in the numerous changes in the District of Columbia Rules of Professional Conduct effective February 1, 2007, as explained under 01.1:103 above, will be referred to for brevity as the DC Rules Review Committee.
Many of the changes made in the DC Rules as a result of the recommendations of the DC Rules Review Committee reflected changes that the ABA had made in the Model Rules in 2002 and 2003 as a result of recommendations made by the ABA's Commission on the Evaluation of the Rules of Professional Conduct, which was generally known as the ABA Ethics 2000 Commission, and will be so referred to herein.