DC BEAs & 8.3

DC’s BEAs have not only never enforced 8.3, they have also misrepresented their reasons for doing so, thus violating 8.4) (prohibiting misrepresentations even outside of the context of legal proceedings).

When asked about DC’s lack of 8.3 enforcement during a January 22, 2018 webinar on ethics, the head of D.C.’s Office of Disciplinary Counsel (“ODC”) responded, “The problem is, you don’t know what you don’t know.” But that’s plainly not the problem, as Bar Counsel knows of but has ignored hundreds of 8.3 and other violations.

As examples, the ABA and others have in 2010 and 2014, respectively, have publicly identified failures by the Department of Justice for failing to report even egregious violations to the DC Bar.  Of 400 “reckless or intentional” violations that DOJ itself found its attorneys to have committed, DOJ identified less than 5% as having been reported to the D.C. Bar. This despite that the 400 were the most egregious of a still-larger pool of 650 violations. After years of inaction, in 1999 Congress made clear through the McDade Act that all DOJ attorneys who work in D.C. must comply with D.C.’s Rules. Because D.C.’s Rules include 8.3, the BEA’s 2018 statement is a misrepresentation at best.

In just one case, DC’s BEAs also ignored dozens of 8.3 and other violations by attorneys in just the still-concealed matter that has already caused over $150M in harm not just to the attorney’s clients but to third-parties unaware of the violations. The violations include fraud, directions to destroy evidence revealing the fraud, and threats to sue if the fraud and other violations are reported. They are dispositively shown in a Dec. 23, 2015 report to DC’s Board on Professional Responsibility (BPR). Despite receiving several updates over the years documenting continued and increased harm from the violations, DC’s BEAs (while not denying any of the violations) have done nothing. Further information of these violations could likely be provided if DC’s BEAs would respond to NDA-related inquiries posed to them in 2015, 2017 and 2020.