“Look over there,” shouted the DC Office of Disciplinary Counsel last year, as they fled the building, only stopping to toss the ethics complaint against former Attorney General Bill Barr in the dumpster behind the building.
Well, more or less.
Last July, 27 lawyers, including four past presidents of the DC Bar, accused then Attorney General Bill of betraying his ethical duty to the American people and violating the organization’s code of professional conduct. In August, ODC staff attorney Andrea Walker informed the complainants that the Bar would not take up their concerns.
As reported by the National Law Journal, Walker cited the lack of “personal knowledge of the facts or allegations” and the ODC board’s general policy of non-intervention “in matters that are currently and publicly being discussed in the national political arena.”
According to this logic, the “evidence of agency bad faith” described by US District Judge Amy Berman Jackson in re the release of the Mueller Report by Barr and his DOJ associates would not fall under the ODC’s remit because it pertains to a political issue. Indeed, it’s not clear if this “rule” would protect the multiple Watergate figures who were licensed attorneys, since after all they were engaged in political activity.
This brush off did not sit well with the original complainants, including Andrea Ferster, past president of the DC Bar, who lamented the double standard between lawyers in private practice and those who are ostensible public servants.
“It’s ironic and disheartening that the same standards are not applied to the chief law enforcement officer for our nation who has engaged in a similar lack of candor, indeed making misleading and inaccurate statements to his client, the United States of America,” she told the National Law Journal.
Writing to Matthew Kaiser, the chair of the Board on Professional Responsibility, the original complainants requested last week that he overrule the ODC and force it to investigate the complaint.
But the week before, semi-retired DC lawyer Alan Roth, fired off a letter protesting the ODC’s apparent dodge, under the same logic the original signatories would later use. Noting that he was paying his bar dues “under protest,” Roth pointed out that Rule XI, Section 6 of the organization’s bylaws regarding disciplinary proceedings require the body “To investigate all matters involving alleged misconduct by an attorney subject to the disciplinary jurisdiction of this Court which may come to the attention of Disciplinary Counsel or the Board from any source whatsoever, where the apparent facts, if true, may warrant discipline.” There does not appear to be an exception for “political issues we’d rather eat a vat of cicadas than deal with.”
In response, Hamilton P. Fox, III, the Disciplinary Counsel, responded in a truly bizarre missive, hinting that some complaints are docketed secretly to avoid creating a public spectacle.
Therefore, in order to avoid letting our docketing decisions, which are supposed to be secret, have political ramifications, we do not “docket” complaints where the complainant has no personal knowledge of the matter complained about. The complainant is advised that the complaint has not been docketed, but it is important to understand that not docketing a complaint is not the same as not investigating a matter. We are not dependent upon a complaint to initiate an investigation. We can and do investigate matters that come to our attention from any source, including the press. We do not inform anyone, other than the lawyer under investigation, of those investigations that we initiate on our own. We “docket” these cases showing this office as the initiator of the matter. So, it is entirely possible that even though we have not docketed a complaint against a public figure, we are none-the-less investigating that person. I hasten to add, it is also entirely possible that we have looked into the matter based on the public record and have concluded that there is no violation of the Rules that could be sustained in a prosecution, and therefore have decided not to investigate.
Not to put too fine a point on it, but WTF does that even mean? The Bar has a double-super-secret investigative procedure for political figures to save them from the embarrassment of appearing on the public docket of investigations? How is that appropriate?
Perhaps sensing that none of this is what one would call a “good look,” Fox concedes that “all this is complicated and not too easy to explain.”
“In fact, we have revised our ‘non-docketing’ letter to complainants several times to try to be clear about our policy. I hope this explains it,” he concludes.
Oh, yeah. Clear as mud. Surely, that will put the entire unpleasant matter to rest.
An Ethics Complaint Against Bill Barr Was Rejected, and It Has Lawyers Worried [National Law Journal]
‘No Exception’: Lawyers Ask DC Ethics Board to Force Review of Barr Complaint [National Law Journal]
Elizabeth Dye lives in Baltimore where she writes about law and politics.