Court Clarifies Application Of Rule 8.4(d)

The District of Columbia Court of Appeals overruled its Board on Professional Responsibility and reinstated a Hearing Committee’s finding that the attorney’s conduct “seriously interfered” with the administration of justice

We agree with the Board that the evidence established that Bailey violated Rules 1.4(a), 1.4(b), 1.5(a), 1.5(e), and 8.4(c), but did not sufficiently establish that he violated Rules 1.1(a) and 1.1(b). As for Rule 8.4(d), we disagree with the Board and agree with the Hearing Committee that the evidence established that Bailey violated that rule, leading us to depart from the Board’s recommended sanction and impose a fitness requirement upon any application for reinstatement. We suspend Bailey for one year, with reinstatement conditioned on proof of his fitness to resume legal practice.

As to Rule 8.4(d)

The Board concluded that Bailey did not violate Rule 8.4(d), which prohibits attorneys from “[e]ngag[ing] in conduct that seriously interferes with the administration of justice.” An attorney can violate Rule 8.4(d) by failing to respond to Disciplinary Counsel’s inquiries. Rule 8.4, cmt. [2]. Disciplinary Counsel must demonstrate that Bailey’s conduct: (i) was improper; (ii) bore directly upon the judicial process; and (iii) tainted the judicial process in more than a de minimis way.

Respondent has failed to respond to demands for information from Disciplinary Counsel

After reviewing the submission, Disciplinary Counsel sent a follow-up letter two years later highlighting particular omissions from the materials and asking that Bailey either provide them or point Disciplinary Counsel to records that it may have overlooked. Neither he nor his counsel provided the additional documents until he filed his pre-hearing exhibit submissions years later, in February 2019, and he again filed more previously undisclosed exhibits on the last day of the hearing. At the hearing, Bailey offered conflicting testimony on whether he was aware that he had been subpoenaed regarding his representation of Laster, and maintained he had never seen the subpoena, nor was he aware of its scope. He acknowledged, however, seeing Disciplinary Counsel’s follow-up letter indicating that it was still seeking documents that were not provided in his counsel’s initial disclosures.

The court

As a result of the “aggravated nature” of Bailey’s failure to respond, the Hearing Committee concluded “that the improper conduct tainted the disciplinary process in more than a de minimis way.” The Board, however, felt that the Hearing Committee inappropriately assigned the blame for Bailey’s counsel’s failings to Bailey, when “Disciplinary Counsel did not establish that Respondent was responsible for or aware of the failure to completely respond to Disciplinary Counsel’s inquiries or subpoenas.” The Board analogized to its holding in In re Krame, Board Docket No. 16-BD-014 (BPR July 31, 2019), review pending, D.C. App. No. 19-BG-0674, that a disciplinary respondent is not responsible for false statements included in a brief by his counsel. The Board opined that, like in In re Krame, Disciplinary Counsel would need to prove that Bailey somehow endorsed or was aware of the misconduct before it would conclude that he violated Rule 8.4(d).

We disagree with the Board’s reasoning and conclude that the record establishes that Bailey violated Rule 8.4(d). The Board’s analogy to In re Krame is unconvincing. It is generally fair to say, as the Board reasoned in In re Krame, that a client is not responsible for false statements included in a brief filed by counsel on his behalf—at least absent some evidence that the client is aware of the statement’s inclusion in the brief—even if that client is also an attorney. Drafting an appellate brief is clearly within the purview of counsel, and in In re Krame the Board noted that there was no indication that respondent was aware of the false statement’s inclusion in the brief. This case is quite different. Not only was the initial subpoena directed at Bailey personally, but Bailey was then informed by a follow-up letter that
he had failed to comply with it. At that point, the analogy to In re Krame falls apart, because Bailey was made aware of his failures to comply with the initial subpoena and took no meaningful steps to personally remediate that failure or to ensure that his attorney did so. This is more akin to a client who is aware of a false statement in a brief drafted by his attorney and who nonetheless takes no steps to correct it, a failure that could likewise be fairly attributed to the client. Bailey was on notice of his failure to comply with the subpoena and, at that point, any blanket reliance on his counsel to fix the issue was misplaced. As an attorney, he had a duty to take reasonable steps to ensure that the initial omissions were corrected. He failed to do that, and so we conclude that he violated Rule 8.4(d).

Associate Judge Deahl authored the unanimous opinion.

I will say that the Board’s institutional hostility to enforcing this Rule extends back to my day, which extends back to the last century. 

I’m gratified that the court gives some teeth to this important ethical obligation, which is (in my view) the key allegation in the Jeffrey Clark prosecution. (Mike Frisch)