No Bar Counsel Privity: NOBC Is Not Enough

The District of Columbia Court of Appeals imposed a sixty-day suspension of an attorney, rejecting his contention that he had no attorney-client relationship with a putative client and thus had not engaged in a multiple client conflict of interest.

Notably a Virginia three-judge panel had reviewed the cold record of the D.C. proceeding and declared (“barely so”) that no misconduct had occurred.

The attorney then sought to use collateral estoppel to terminate the D.C. proceeding but failed to persuade

Missing here is privity between Disciplinary Counsel and its Virginia counterpart. Privies are sometimes described as “those who control an action although not parties to it; those whose interests are represented by a party to an action; and successors in interest.” Carr v. Rose, 701 A.2d 1065, 1075 (D.C. 1997) (quoting Smith v. Jenkins, 562 A.2d 610, 615 (D.C. 1989)). Mr. Robbins argues that Disciplinary Counsel was effectively in privity with Virginia’s Bar Counsel because the two are members of the National Organization of Bar Counsel and share a common goal of disciplining attorneys who violate rules central to the conduct of the profession. But as highlighted by Disciplinary Counsel, there is no evidence that Disciplinary Counsel participated in the Virginia proceedings or coordinated with Virginia’s Bar Counsel to present consistent arguments. This is especially significant where no live witnesses testified in the Virginia proceedings; the Virginia court merely considered the cold record of the proceedings before the Hearing Committee in D.C.

…In reaching its final decision, the Virginia court concluded simply that local Bar Counsel had not proven by clear and convincing evidence that an attorney-client relationship existed, but offered no analysis to support its conclusion. Rather, the court stated only that it found “that the evidence falls short, but barely so.”

For these reasons—Disciplinary Counsel’s lack of participation in the Virginia proceeding, the Virginia Court’s reliance on an inferior record, and the Hearing Committee’s full hearing on the violations before Virginia’s decision—the Virginia decision is not entitled to preclusive effect.

A finding of an attorney-client relationship in the case was a necessary predicate to the conflict of interest violation. (Mike Frisch)