Clark Should Be Barred

District of Columbia Disciplinary Counsel is (understandably) losing patience with Jeffrey Clark as reflected by a pleading filed on February 6

Disciplinary Counsel moves to compel Respondent Jeffrey B. Clark to comply with the Chair’s January 19, 2024, Order or else be prohibited from calling witnesses or offering evidence at the March 26, 2024, hearing.

From the outset of these proceedings, Mr. Clark has sought to delay. Delay is a common tactic, but it is not acceptable for Mr. Clark to simply refuse to comply with an order of the Chair, issued in an attempt to make the ensuing evidentiary hearing manageable. By Order dated January 11, 2024, the Chair denied Mr. Clark’s motion in limine seeking to admit evidence coming to light after January 3, 2021, and set a hearing for January 16 to discuss the effect of this ruling on the scheduling, evidence, and preparation of the evidentiary hearing. At that January 16 hearing, Mr. Clark, through counsel, conceded that the ruling on the motion in limine “will have an effect on the number of exhibits and the length of our presentation.” Tr. at 286. Counsel asked for “a little more time to give you a more specific estimate. . .” and also asked permission “to make a proffer as to the evidence that you are excluding so that it could be reviewed on appeal.” Id. at 286-87. The Chair clarified that this would be a written proffer from counsel. Id. at 288. The Chair also asked Mr. Clark’s lawyers to meet and confer with Disciplinary Counsel before January 30, which was the deadline set for Mr. Clark’s submission. Id. at 289-90. Mr. Clark’s  lawyer also promised to submit “an updated supplemental report” from “a couple of my experts” by January 30, noting that if the experts could not finish their supplements by that date, “I will ask for more time for them . . . .” Id. at 290-91. These promises and representations were accompanied by the standard appeal for delay. Id. 309-16. Thereafter, by an Order dated January 19, the Chair asked the parties to file amended exhibit lists or witness lists and any change in the anticipated length of the hearing by January 30. If Mr. Clark wished to make any proffer concerning excluded exhibits, he was also to do so by January 30. Disciplinary Counsel complied with this order. Mr. Clark did not.

Non-compliance

Instead, Mr. Clark did nothing. His lawyers never contacted Disciplinary Counsel to discuss compliance with the Chair’s Order. He filed nothing on January 30. In fact, after that deadline passed, Disciplinary Counsel emailed Mr. Clark’s lawyers to find out what was going on and received no response.

Relief sought

If Mr. Clark refuses to comply with the Chair’s January 19 Order, then the Hearing Committee should not permit him to present the testimony of others or present non-testimonial evidence, just as the Board Rules provide when a respondent fails to answer but appears at a hearing. See Board Rule 7.7. If the Committee is unwilling to do so, it must find some other way to impose order on these proceedings. For example, the Committee might limit the number of witnesses Mr. Clark can call to some reasonable number, such as fifteen, and require him to designate those fifteen witnesses, and the Committee could limit the total number of exhibits to 100 and require him to designate them. (Fifteen and 100 are more than the amounts Mr. Clark designated in December 2022.)

(Mike Frisch)