Two Sets Of Rules

The District of Columbia Board on Professional Responsibility recently adopted a hearing committee report proposing a one-year suspension with fitness for an attorney’s mishandling of a series of petitions filed on behalf of a married couple in United States Tax Court.

The attorney defaulted on the bar’s charges and the matter proceeded by affidavit rather than live witnesses.

One interesting aspect of the case involves that fact that the Tax Court has adopted the ABA Model Rules rather than D.C.’s rather idiosyncratic version.

Thus the hearing committee found

D.C. Rule 8.5(b)(1) governs choice of law and provides that a lawyer’s conduct is subject to only one set of rules, and [f]or conduct in connection with a matter pending before a tribunal, the rules to be applied shall be the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise, . . . .

In its prehearing brief, Disciplinary Counsel cited to U.S. Tax Court Rule of Practice and Procedure 201(a) and commented that “the disciplinary system may find that as to the violations that directly and primarily involved the U.S. Tax Court, only the Model Rules apply.” Preh. Br. at 5 (emphasis added). U.S. Tax Court Rule 201(a) provides that an attorney’s conduct is governed by the American Bar Association’s Model Rules of Professional Conduct. It follows that for misconduct related to Respondent’s representation in the U.S. Tax Court, the Model Rules would apply.

For the alleged misconduct not in connection with the petitions pending before the U.S. Tax Court, the D.C. Rules would apply.

Accordingly, the Committee has determined that the Model Rules apply to the allegations related to Respondent’s lack of competence (Model Rule 1.1), lack of diligence (Model Rule 1.3), knowing disobedience of an obligation before a tribunal (Model Rule 3.4(c)), and prejudice to the U.S. Tax Court’s administration of justice (Model Rule 8.4(d)). See Specification of Charges, ¶¶ 13(a), (b), (f), and (i). The D.C. Rules apply to the allegations related to Respondent’s lack of communication (D.C. Rules 1.4(a) and (b)), failure to provide the basis or rate of his fee (D.C. Rule 1.5(b)), failure to protect his client’s interests upon termination (D.C. Rule 1.16(d)), knowing failure to respond to Disciplinary Counsel’s request for information (D.C. Rule 8.1(b)), dishonesty (D.C. Rule 8.4(c)), and serious interference with the administration of justice related to Respondent’s non-response to the disciplinary investigation (D.C. Rule 8.4(d)).

Is this correct?

Can two different sets of rules apply to the same course of conduct?

Comment [3] to D.C. Rule 8.5 provides

Paragraph (b) seeks to resolve such potential conflicts. Its premise is that minimizing conflicts between rules, as well as uncertainty about which rules are applicable, is in the best interest of both clients and the profession (as well as the bodies having authority to regulate the profession). Accordingly, it takes the approach of (i) providing that any particular conduct of an attorney shall be subject to only one set of rules of professional conduct, and (ii) making the determination of which set of rules applies to particular conduct as straightforward as possible, consistent with recognition of appropriate regulatory interests of relevant jurisdictions. 

The case is In re Warner Anthony Jr. and can be accessed here. (Mike Frisch)