Washington Lawyer - July/August 2021 - 53

SPEAKING OF ETHICS
briefing, after which the Hearing Committee
writes a detailed Report and Recommendation
with extensive findings of fact. Proceedings
before the BPR and the Court of Appeals each
involve another round of briefing and an oral
argument. The BPR then writes its own Report
and Recommendation, and the court issues an
opinion, which is published in the Atlantic
Reporter. This process, adjudicated by volunteers
at the first two levels, can take at least
three years - frequently longer - to
complete. At each level of review, Disciplinary
Counsel bears the burden of proving an attorney's
misconduct by clear and convincing
evidence.
A FINAL NOTE
The Legal Ethics Program is a service of the D.C.
Bar. It is not a function of the disciplinary
system and is separate and apart from ODC,
which, significantly, does not provide ethics
advice. Through its confidential Legal Ethics
Helpline and its published Legal Ethics
Committee opinions, the Legal Ethics Program
provides prospective guidance to lawyers on
questions that arise under the D.C. Rules of
Professional Conduct. Lawyers must exercise
independent professional judgment with
respect to their future conduct as such
guidance does not create a safe harbor and is
not binding upon ODC or the court.
D.C. Bar legal ethics counsel are available for
confidential inquiries on the Legal Ethics Helpline
at 202-737-4700, ext. 1010, or at ethics@dcbar.org.
NOTES
1 See Rule I of the District of Columbia Court of
Appeals Rules Governing the Bar, dcbar.org/
about/who-we-are/rules-and-bylaws/rulesgoverning-the-district-of-columbia-bar.
2
In 2010 the Office of Bar Counsel was renamed
the Office of Disciplinary Counsel to emphasize
its independence from the D.C. Bar.
3 Rule XI, § (1)(a), generally provides that all
members of the D.C. Bar, those making limited
appearances pro hac vice, others admitted
to practice in the District as special legal
consultants under Rule 46(c)(4), and all new and
visiting clinical professors providing services
pursuant to Rule 48(c)(4) are subject to the
jurisdiction of the District's disciplinary system.
4 Hearing Committees preside over disciplinary
hearings and are appointed by the BPR. Rule XI,
§ 4. The Court of Appeals retains authority to
admit, suspend, or disbar District lawyers.
5 Report to the Board of Governors of the District
of Columbia Bar on Changes in the Disciplinary
System, Disciplinary System Review Committee,
48-49 (February 1993).
6 Id. at 50. The one minor exception relates
to the disciplinary system budget, which is
prepared by the Bar's Board of Governors on
recommendation of the BPR. The court retains
the right to set the budget for the disciplinary
system if the Board of Governors and the BPR
disagree. See Rule XI, § 4(f).
7 See Rule I, § 2, of the Rules Governing the Bar.
The D.C. Bar carries out these responsibilities
through its many services and programs,
which include its non-disciplinary regulatory
programs such as the Legal Ethics Program,
the Lawyer Assistance Program, the Practice
Management Advisory Service, and the
Attorney-Client Relations Program.
8 Pursuant to Rule XI, § 4(e)(10), the BPR
promulgated rules of procedure governing
the administration of the disciplinary system
and disciplinary adjudications, dcbar.org/
attorney-discipline/board-on-professionalresponsibility/rules-of-the-board-onprofessional-responsibility.
9
See BPR Rule 2.1.
10 Rule XI, § 2(b).
11 D.C. Bar members are reminded that there are
circumstances in which a lawyer may have an
affirmative obligation to file a bar complaint.
See D.C. Rule 8.3. Conversely, D.C. Rule 8.4(g)
provides that it is professional misconduct for
a lawyer to seek or threaten to seek criminal
charges or disciplinary charges solely to
obtain an advantage in a civil matter. See also
D.C. Legal Ethics Opinion 220 (1991).
12 BPR Rule 2.2.
13 dcbar.org/attorney-discipline/office-ofdisciplinary-counsel/filing-a-complaint/how-tofile-a-complaint.
14
If the complainant is the attorney's client in a
criminal proceeding, or someone representing
such client, Disciplinary Counsel must conduct
a preliminary inquiry into the allegations of
disciplinary violations. Extra attention is given
to ongoing criminal proceedings because
docketing a complaint is likely to create a
conflict of interest for defense counsel that will
require him or her to withdraw. A defendant
who makes serial complaints against defense
counsel could interfere with the resolution of the
case if each complaint were docketed and each
defense counsel were required to withdraw.
If a preliminary inquiry indicates a reasonable
basis for opening an investigation based on
misconduct by the attorney, Disciplinary Counsel
dockets the matter for investigation. BPR Rule 5.
15 See Rule XI, § 6(a)(2), and BPR Rule 2.3; see also
Rule XI, § 1(a).
16 BPR Rule 2.4.
17 Rule XI, § 17(a).
18 Id.
19 Rule XI, § 8(b); see also Rule XI, § 8.1.
20 The BPR Rules include procedures governing
circumstances in which a respondent may
consent to disbarment, or in which ODC and a
respondent may agree to a negotiated discipline.
See BPR Rules 16 and 17, respectively.
TUNE IN
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