D.C. Bar’s Rule 3.1 Violations

Rule 3.1 prohibits attorneys from asserting or controverting an issue in a proceeding “unless there is a basis in law and in fact for doing so that is not frivolous.” Despite this clear language — and in the context of fraud and other violations that already have caused over $150M in harm to others including clients — on March 19, 2015, D.C.’s ODC dismissed a Report of an attorney’s threat of retaliation if his and others’ ethics violations were reported to the Bar. Despite acknowledging that the threat violated Rule 8.4(d), the Bar dismissed the report without any legal or factual basis (let alone any non-frivolous one).

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No Legal Basis: For legal bases, ODC relied on an unsworn allegation that the threatening attorney:

  1. had been told by unnamed counsel that the threat was not a violation; and

  2. had withdrawn his threat before learning that he’d been reported despite the threat.

Neither rationale has any legal basis (let alone any non-frivolous basis). If ODC’s reasoning were valid, where would it end? Could an attorney embezzle from client accounts simply because someone told him it was ok? What if, as here, the attorney kept the money for months after being called out on his violation?

No Factual Basis: For factual bases, ODC relied solely on an unsworn statement from the threatening attorney. Worse, ODC did so despite that the attorney was challenged to swear to the truth of his statements and did not do so.

Dismissal as Redacted: Although an almost certainly void-as-unethical NDA (about which the Bar has been asked for years) deters further disclosures at this time, disclosing a redacted form of ODC’s dismissal is reasonably necessary if only to alert the public to ODC’s extraordinary application of our Rules.

ODC Knew Better: ODC’s violations cannot be written off as mere carelessness, because the lack of any legal or factual bases was expressly raised with and demonstrated to ODC before its dismissal and later shown to the Bar’s Board on Professional Responsibility in its supervising capacity.

The Bar’s knowing violations are further troubling because:

  • ODC twice inaccurately described the threatening attorney’s position as merely “initially” incorrect even though ODC knew the attorney had continued the threat for over three months and despite written objections from the Reporting Attorney and his counsel citing controlling law requiring the withdrawal.

  • ODC ignored controlling law despite its citation: ODC acknowledged case law contrary to the dismissal but mentioned only one decision, from a non-controlling jurisdiction, although ODC knew if only from the Reporting Attorney’s submissions of contrary and controlling law from D.C. E.g., In re. Martin; D.C. Bar Legal Ethics Opinion (No. 260).