Problems and Questions Hiding In Plain Sight 

This page identifies plain-sight problems with, or at least questions about, Ethics Rules as written and/or applied. In light of the problems, TTERN requests that D.C. Bar regulators provide guidance with respect to them.

  • Attorney General Barr: ****

  • Rule 1.6(a) and Attorney Giuliani. As reported 2019-03-07, D.C.-licensed Attorney Rudolph Giuliani stated that he could not answer whether he had discussed with Michael Cohen’s attorneys the possibility of a pardon because such discussions were “privileged.”

    If he made such a statement, Mr. Giuliani would plainly have been mistaken, as discussions with a counter-party fall outside any definition of privilege. He would be correct, however, in stating that such communication would fall within Rule 1.6(a)’s superficial reach as it extends not just to privileged communications but also to “secrets” (in D.C.) or, indeed, to any information relating to the representation (under the Model Rules). That said, he might still be incorrect, because Rule 1.6(a) is by its own terms limited by Rules 1.6(c), (d) and (e) (in D.C.) and Model Rule 1.6(b). Particularly because, as noted, these exceptions were greatly expanded in 2003, it is important that the Bar provide clearer guidance on those limitations, and even that it promptly and prominently such grossly inaccurate statements as Mr. Giuliani is reported to have made.

    In the absence of such clarifications and corrections, the public is misled and even attorneys (particularly in D.C., where ethics CLE is not required) may fail to report much of what they are required to report.

    Attorneys’ and clients understanding if not invocation of Rule 1.6(a) unlimited by the same Rule’s exceptions is common. Literally every day attorneys fail to disclose information that they are required to report or otherwise act because of the Bar’s failure to enforce.

    TTERN respectfully requests that — at least in the wake of these and other high-profile mischaracterizations of the Rule — the Bar provide guidance to attorneys and the public as to the scope of Rule 1.6’s protections, including the limitations to that scope.

  • Rule 8.4(a) and Attorney Kavanaugh. TTERN also respectfully requests that the Bar provide guidance as to whether Judge (now Justice) Kavanaugh was subject to attorney Ethics Rules. TTERN does not dispute that, as a Supreme Court Justice, Justice Kavanaugh is immune from the Code of Judicial Conduct. TTERN also does not dispute that, to serve on the Supreme Court, Justice Kavanaugh need not be an attorney.

    But TTERN is unaware of any reason why Attorney Kavanaugh should be entitled to keep his law license — enabling him to practice law should he choose to do so — in the wake of his having lied under oath during his confirmation hearings.

    Persons might reasonably dispute whether Judge (now Justice) Kavanaugh lied when he denied assaulting Dr. Ford or even in his descriptions of his Yearbook terms (e.g., Booff, Devil’s Triangle). But one could not in good faith dispute that he lied when — in the context of describing his high school character in the face of inquiries focused on his alleged high school abuse of alcohol — he said his high school drinking did not violate legal age limits as they existed at the time. As even a brief Google search would reveal, at no time during Kavanaugh’s high school years could he have drunk legally in Maryland (and, indeed, at no time during his 1st or 2nd years of college could he have drunk legally in Connecticut).

    In short, it is indisputable that he lied, and did so under oath, about a matter that was not inconsequential or otherwise irrelevant to the inquiries. Following a determination that then-President Clinton had lied under oath about a matter no more consequential or relevant, he was suspended for 5 years from the Bar of his licensing State (Arkansas) and from the U.S. Supreme Court.

    Why should Attorney Kavanaugh be treated differently? It cannot be because he does not plan on practicing law or need a license to do his job (Attorney Clinton did neither). And it cannot be because the lie was less consequential. There may be a reason. In these circumstances, if only to determine whether there may be real differences between Arkansas Bar Regulators in 2000 and D.C. Bar Regulators in 2018, it is fair to ask the D.C. Bar to provide that reason.

  • Rule 8.4(d) and Obstructing Senators: