DC and Rule 3.1

D.C.’s Rule 3.1 prohibits attorneys from making making assertions in a proceeding “unless there is a basis in law and in fact for doing so that is not frivolous.” Despite this plain language — and in the context of fraud causing >$150M in harm to others, including first-and-foremost persons of color — DC’s BEAs dismissed a report of an attorney’s threat to sue if his and others’ fraud and other violations were reported. Though the BEAs acknowledged (as they had to) that such threats violate 8.4(d), they dismissed the report with no literally no legal or factual basis (thus themselves violating 3.1).

No Legal Basis: For legal bases, DC’s BEAs relied on an unsworn allegation that the threatening attorney had been told by unnamed counsel that his threat was not a violation and had withdrawn the threat before learning that it had been reported. Neither is a legal basis. If they were, could attorneys embezzle from client accounts where someone told them it was ok and/or returned the funds before learning that it had been reported? (As the BEAs knew in this case, the attorney’s threat persisted for months after the attorney was, in writing, told of the controlling law and that he would be reported).

No Factual Basis: For facts, the BEAs relied solely on the violating attorney’s unsworn statement (unsworn even after the attorney was challenged to swear to them). Unsworn statements aren’t facts.

Dismissal as Redacted; 2015-2020 NDA Inquiries: The BEAs’ dismissal wasn’t an oversight, as it came despite that (like the Reported Attorney while the threat was pending) they were told for months of contrary and controlling law from D.C.’s highest Court. E.g., In re. Martin; D.C. Bar Legal Ethics Opinion (No. 260).

An unredacted version could be provided if DC’s BEAs would finally respond to the 2015, 2017, or 2020 NDA-related inquiries posed to them.