D.C.’s BEAs

Significant criticism of DC’s BEAs dates back at least to a 2005 Georgetown Journal of Ethics article and a 2016 Newsweek cover story. The article was by an Georgetown ethics professor who had worked as a DC BEA for 17 years, and the Newsweek story concerned the BEAs’ pattern of retaliation against attorneys who adhere to the Rules’ disclosure obligations.  

Although DC’s highest court followed the 2005 revelations with warnings that “compliance with [Ethics] Rules … depends … upon enforcement,” its BEAs have still never enforced 8.3 and virtually never enforced 3.1 … going so far as to at least apparently violate the Rules themselves.

With DC having ignored since at least 2017 questions that RTL has posed to it regarding disclosure and enforcement, RTL is posting some of them here:

• Can an attorney draft an NDA to prevent disclosure of his own fraud and/or other violations even to the extent that disclosure is reasonably necessary to prevent, mitigate or rectify substantial financial harm to others?  This Q was deliberately phrased to track disclosure mandates even of privileged information (e.g., 1.13, 1.6) and repeated following Justice Ginsberg’s 2019 Condemnation of NDAs at least in the context of the MeToo movement. (2017 and 2020 Letters)

• Is there any good faith reason for the DC Bar’s having never enforced 8.3 (& did Bar Counsel mislead in this respect)?  Further information on this question can be found here (and a recording of Bar Counsel’s statement here).

• Is there any argument that DC’s BEAs did not themselves violate 3.1 by dismissing a Complaint on ground that the reported Attorney said (without evidence) that he’d been told his violating conduct was ethical (or that he’d stopped violating after 3 months but before learning that he’d been reported)?  Further background and a redacted copy of the Bar’s dismissal can be found here.