Clark Barred
District of Columbia Hearing Committee No. Twelve has rebuffed Jeffrey Clark’s desire to relitigate the 2020 Presidential election
Mr. Clark is correct that a Rule 8.4(c) violation would require, at the very least, that Disciplinary Counsel prove that he acted recklessly, see In re Romansky, 825 A.2d 311, 317 (D.C. 2003) (remanding to the Board for a determination as to the respondent’s actual state of mind and determining that if he acted knowingly, or recklessly -, i.e., consciously disregarding the risk that his actions posed – then his conduct was dishonest in violation of Rule 8.4(c)).
But Mr. Clark has not explained how the evidence at issue – information not available to him until after the alleged misconduct had occurred – is relevant to this inquiry or to any defense that he may have to the charged Rule violations. Mr. Clark cites (at 5-6) cases finding some types of evidence concerning events after a representation was made could be relevant to some allegations concerning the representation. For example, proof that a prediction about the market turned out to be accurate might be relevant to assess whether it was reckless to make the prediction, even though other evidence of subsequent events would not be. See, e.g., Patrick v. Patrick, 2010 WL 569740 at *3 (W.D. Pa. Feb. 12, 2010). However, Disciplinary Counsel does not allege that Mr. Clark violated the Rules of Professional Conduct by making a prediction, and Mr. Clark does not show how the evidence he wishes to offer relates to the allegations Disciplinary Counsel does make or his defenses to them.
I also agree with Disciplinary Counsel that any probative value of the evidence Mr. Clark seeks to offer is substantially outweighed by undue delay and waste of time involved the dispute. Accordingly, Mr. Clark’s Motion in Limine regarding Admissibility of Evidence Regarding the 2020 Election Coming to Light After January 3, 2021 is denied.
Adverse inference from taking the Fifth
The issue here, however, is different. Disciplinary Counsel argues that we are entitled to draw an adverse inference from a decision Mr. Clark may make not to testify. This issue presents a novel issue in the discipline system. On the one hand, we are aware of no authority that would prohibit this Hearing Committee from drawing an adverse inference should Mr. Clark invoke the Fifth Amendment during the hearing. On the other hand, given counsel’s representation as to the anticipated breadth of Respondent’s invocation, we find that this Hearing Committee would be unable to draw an adverse inference regarding any particular material fact from the anticipated blanket assertion of the Fifth Amendment. Relying on counsel’s representation as to the breadth of Mr. Clark’s invocation of the Fifth Amendment, Respondent’s Motion Opposing Adverse Inference in Response to Valid Invocation of the Constitutional Right to Remain Silent is granted, without prejudice to reconsideration in the event that Mr. Clark’s actual invocation of the Fifth Amendment varies from counsel’s prediction.
The cited Romansky case is one I prosecuted and argued in December 2000. It was remanded in June 2003 after I had departed for greener pastures.
There is probably no better example of class bias in the District of Columbia bar disciplinary system than the case, which involved in a partner in a prominent law firm who engaged in false billings to clients and false statements and conduct to cover it up.
And got treated with kid gloves by the Board on Professional Responsibility in a manner reserved for the well-connected.
Professor Lisa Lerman agreed with my take in this Catholic University Law Journal article analysing the Romansky decision.
In the last thirty years, the District of Columbia disciplinary system has become less political and more professional. Even so, [Monroe] Freedman’s work to ensure even-handed enforcement of the ethics rules remains unfinished. Bar counsels still tend to bring most of their charges against solo practitioners and small firm lawyers. Disciplinary charges are seldom brought against lawyers in larger firms, and when elite lawyers do face disciplinary charges, sometimes they get off easy. I do not believe that there is any deliberate discrimination in the disciplinary system based on the respondent’s professional status. Nevertheless, the structure of the disciplinary system and decades of precedent seem to produce disparate prosecution and disparate penalties.
A footnote
See Michael S. Frisch, No Stone Left Unturned. The Failure of Attorney Self-Regulation in the District of Columbia, 18 GEO. J. LEGAL ETHICS 325, 356-59 (2005). Frisch describes two cases involving charges against associates at large law firms, one harshly sanctioned and one leniently. Frisch urges that the outcomes were unduly swayed by the respective firm’s inclination to stand by the associate, or not. He urges that these cases demonstrate “the inappropriate institutional bias of a volunteer board dominated by the interests of the District of Columbia’s most powerful law firms.” Id. at 356
Link to the most recent Clark Order may be found here. (Mike Frisch)