Jeffrey Clark Bar Case Back On Track
The United States District Court for the District of Columbia has (finally) rejected Jeffrey Clark’s attempt to remove his bar prosecution to federal court’
On July 19, 2022, the Office of Disciplinary Counsel (“ODC”) for the D.C. Board on Professional Responsibility (the “Board”), the entity that regulates the conduct of attorneys admitted to the D.C. Bar, commenced a disciplinary proceeding against Jeffrey B. Clark, an attorney admitted to the D.C. Bar and a former Assistant Attorney General of the United States. See 1d Notice of Removal, Ex. A-2 (“Petition and Specification”), ECF No. 1-2. Mr. Clark removed the disciplinary proceeding to this Court, see 1d Notice of Removal, Case No. 22-mc0096, ECF No. 1, and subsequently filed separate notices of removal as to ODC’s motion to enforce a subpoena, see 2d Notice of Removal, Case No. 22-mc-0117, ECF No. 1, and as to a separate subpoena later issued by ODC, see 3d Notice of Removal, Case No. 23-mc-0007, ECF No. 1. Before the Court are ODC’s motions to remand. See 1d Mot. Remand, ECF No. 5; 2d Mot. Remand, ECF No. 4; 3d Mot. Remand, ECF No. 4.1 As set forth in detail below, because the Court lacks subject-matter jurisdiction over the Board’s disciplinary proceeding, ODC’s motions to remand are granted.
The exclusive authority of the District of Columbia Court of Appeals
[The creating legislation] provided that the DCCA “shall make such rules as it deems proper respecting the examination, qualification, and admission of persons to membership in its bar, and their censure, suspension and expulsion,” specifying that the DCCA “may censure, suspend from practice, or expel a member of its bar for crime, misdemeanor, fraud, deceit, malpractice, professional misconduct, or conduct prejudicial to the administration of justice.” Id., 84 Stat. at 521. The legislation required that “written charges, under oath” be filed with the DCCA before a member of “its bar” could be censured, suspended, or expelled, but also permitted “other courts”—the “Federal courts in the District of Columbia and the Superior Court”—to “censure, suspend, or expel an attorney from the practice at their respective bars.” Id. All of this language remains unchanged in the D.C. Code today. See D.C. Code §§ 11-2501–04. No provision for removal of disciplinary actions to the U.S. District Court was included in the original legislation, nor has one been added since. See D.C. Code tit. 11, ch. 25.
Judge Contreras rejected his various claims
There is no merit to these arguments. As to the first, the Court has found that section 530B applies to D.C. See infra Section IV.A.3. As to the second, Mr. Clark, only citing two out-of-date and largely irrelevant OLC opinions for support, misstates the history of state regulation of attorneys. See Leis, 439 U.S. at 442 (“Since the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States and the District of Columbia within their respective jurisdictions.”). As to the third, the Court struggles to see anything in a statute that explicitly subjects federal government attorneys to regulation by states that preempts their regulation by states. This case does not arise under federal law.
This Fordham Law Review article by Hopi Costello provides a useful background on state bar regulation of federal attorneys.
Unfortunately, this effort at removal has significantly delayed this singularly significant prosecution.
Update: The docket reflects that Clark has noted an appeal of this ruling to the District of Columbia Circuit. One hopes that this appeal will not delay the already too long derailed proceeding on the merits. (Mike Frisch)