The D.C. Bar

Significant criticism of the D.C. Bar dates back at least to a 2005 Georgetown Journal of Ethics Law Review article and includes as well as a 2016 Newsweek cover story.

Significantly, the 2005 article was by an Ethics professor who had worked as one of D.C.’s BEAs for 17 years, and the 2016 Newsweek story concerned the Bar’s retaliation against attorneys who adhered to the Rules’ disclosure obligations.  Although D.C.’s Court of Appeals followed the 2005 revelations with warnings that “compliance with [Ethics] Rules … depends … upon enforcement,” its BEAs have still never (not once) enforced Rule 8.3 and have virtually never enforced other disclosure mandates.

With DC’s BEAs having simply ignored 2017 and 2020 questions related to disclosure and enforcement, RTL publicly posts some here:

  • Can Attorneys Draft or Use NDAs To Conceal Their Own Fraud or Other Ethics Violations?  

    • DC’s BEAs have twice been squarely asked this question (and twice ducked it): Do our ethics rules permit an attorney to draft or use an NDA to restrict disclosure of attorney fraud or other ethics violations to the extent reasonably necessary to prevent, mitigate or rectify substantial financial harm to others?

      2017 and 2020 Ltrs.  The question was deliberately phrased to inquire whether an NDA can trump even privilege-based disclosure requirements that were, post-Enron, written into D.C.’s Ethics Rules 1.6, 1.13 and 8.3.  DC’s BEAs have remained silent without any explanation or even acknowledgement of the two linked letters posing the questions.

      Justice Ginsburg’s Condemnation of NDAs: Justice Ruth Bader Ginsburg condemned NDAs at least as used in the context of the MeToo movement: J. Rosen, Conversations with RBG, at 190 (2019) (“I hope those agreements will not be enforced by the courts”).

  • Why Has the DC Bar Never (Not once) Enforced Rule 8.3(a)?  Given the volume of relevant background, further discussion on this far-ranging problem can be accessed here. During a January 22, 2018 CLE webinar on ethics, DC Bar Counsel misrepresented the reasons for the failure (thus violating Rule 8.4.c). Further information on this violation can be found here and a recording of the misrepresentation here.

  • Did DC’s BEAs violate Rule 3.1 by its March 14, 2015 Dismissal of a Complaint on the ground that the Violating Attorney alleged (without evidence) that he was unaware of the Rules?  Further background and a copy of the Bar’s Rules-violating dismissal can be found here.