Significant criticism of DC’s BEAs dates to a 2005 Georgetown Journal of Ethics article and 2016 Newsweek & other stories. The article was by a Georgetown ethics professor who’d worked as a DC BEA for 17 years; the stories concern DC BEAs’ retaliation against attorneys who disclose to protect the public (such as DOJ attorney Thomas Tamm, whose disclosures stopped what DOJ later admitted was an unconstitutional surveillance program).  

Though DC’s highest court warned in 2005 that “compliance with Rules … depends … upon enforcement,” its BEAs have still never enforced 8.3 (and virtually never enforce 3.1).

With DC having ignored straightforward questions regarding enforcement and NDAs, three are publicly posed here:

  1. Is there any good faith reason why DC BEAs have never enforced 8.3?  Though 8.3 does not require reporting if it would break privilege or the lie is purely social and harmless, those exceptions don’t completely swallow the Rule (and the privilege exception itself has exceptions). Further information on this question can be found here.

  2. What good faith factual and legal bases exist for DC BEAs dismissing this report? Further information on this question can be found here.

  3. Can attorneys draft NDAs to conceal their own fraud even where disclosure is needed to prevent, mitigate or rectify substantial harm to others?  DC’s BEAs have ignored this Q since it was formally posed in 2017; even while knowing that the concealed harm exceeds $150M whose victims are first and foremost a community of color; and even after asked being again in 2020 after Justice Ginsberg had condemned NDAs.