Limits Of Bar Complaint Immunity Explored

In a case of first impression, the District of Columbia Court of Appeals rejected the contention that an attorney who had filed a bar complaint alleging misconduct by an attorney who had filed a complaint against him was absolutely immune from discipline 

After respondent Dana A. Paul disclosed client confidences in a disciplinary complaint that he filed against his former client, N.E., the District of Columbia Office of Disciplinary Counsel investigated him for violating multiple District of Columbia Rules of Professional Conduct. The Board on Professional Responsibility concluded that he had violated D.C. R. Prof. Conduct 1.6(a) and recommended that we impose a 90-day suspension. Before this court, Mr. Paul argues that D.C. Bar R. XI, § 19(a) immunizes him from disciplinary action stemming from his complaint, that his disclosures do not fall under Rule 1.6’s protections and were necessary to defend himself against an earlier disciplinary action that N.E. had filed against him, and that the Board’s recommended 90-day suspension was unwarranted. We disagree that he is immune from discipline, conclude that he violated Rule 1.6(a), and order a 30-day suspension.

Immunity under the bar rules

Mr. Paul argues that Section 19(a)’s proviso that disciplinary complaints are “absolutely privileged, and [that] no claim or action predicated thereon may be instituted or maintained” means that an attorney who submits a disciplinary complaint is immune from both litigation and disciplinary action related to the complaint. In contrast, the Board concluded, and the Office of Disciplinary Counsel argues, that this language immunizes attorneys who file complaints only from suit but not from disciplinary action. This is so, they reason, because the next sentence of Section 19(a) provides immunity from both civil suit and disciplinary action, but only to a select group of people: “[m]embers of the Board, its employees,” and other similarly situated individuals. Thus, in their view, an attorney who commits misconduct in pursuing a disciplinary complaint against another attorney may not be sued, but he could face disciplinary action for his misdeeds.

We conclude that the Board has the better argument.

The court sustained the violations but reduced the proposed sanction

We agree with that differentiation. Mr. Paul’s disciplinary complaint against N.E. and his reply to N.E.’s response to his complaint were part of an offensive action against N.E. and not necessary to defending against the complaint she had filed against him. Indeed, by the time Mr. Paul submitted these materials, he had already responded to the allegations in N.E.’s complaint. In his disciplinary complaint, however, he went on to argue that N.E. “[wa]s not mentally competent to be a member” of the D.C. Bar and “should [not] be allowed to practice law.” Mr. Paul attached to his complaint documents that N.E. had sent him when he represented her, which he alleged proved her criminal conduct and provided a civil cause of action against her. He also stated that he “filed the grievance against her,” because she “is dishonest.” His complaint is plainly read as one that is offensive in nature and not necessary to or connected with his own defense. Accordingly, his disclosures related to his disciplinary complaint against N.E. are not protected by Rule 1.6(e)(3).

The court noted that there were prior confidentiality violations where suspension was not imposed

We do agree, however, with the Board’s determination that the retaliatory nature of Mr. Paul’s complaint is particularly problematic and therefore warrants a suspension of some length.

The opinion was authored by Judge Alikhan and was issued less than three months the case was submitted. (Mike Frisch)