Jeffrey Clark Subject To Disciplinary Jurisdiction; 5th Amendment Assertion May Draw Adverse Inference

The opinion of the District of Columbia Court of Appeals in the Jeffrey Clark subpoena enforcement action is linked here.

The per curiam decision comes from Associate Judges Deahl and Howard and Senior Judge Glickman.

This matter involves a motion to enforce a subpoena duces tecum that the Office of Disciplinary Counsel (“ODC”) served on Mr. Clark, a member of our bar, in connection with disciplinary charges filed by ODC against him. Those charges, which are pending before a hearing committee of the District of Columbia Board on Professional Responsibility, assert that Mr. Clark violated our Rules of Professional Conduct by actions he took while serving as an Assistant Attorney General in the United States Department of Justice. In opposition to ODC’s motion to enforce the subpoena, Mr. Clark contends that a federal statute, 28 U.S.C. § 530B, deprives this court and the Board of jurisdiction to discipline him for his alleged professional misconduct as a Department of Justice official. In addition, Mr. Clark argues that the subpoena cannot be enforced against him because it infringes on his Fifth Amendment right not to be “compelled in any criminal case to be a witness against himself.”

We initially granted ODC’s motion to enforce the subpoena. Mr. Clark then petitioned for rehearing. We granted that petition and, following oral argument, issued an order on February 26, 2024, denying ODC’s motion on the ground that enforcing the subpoena would violate Mr. Clark’s Fifth Amendment privilege against self-incrimination. The order stated that an opinion explaining our decision would issue in due course. This is that opinion.

The good news

We begin by addressing Mr. Clark’s threshold objection, which is that this court and the Board on Professional Responsibility lack jurisdiction to discipline him for any misconduct he committed in his role as an Assistant Attorney General in the Department of Justice. We believe this objection is without merit.

It is undisputed that Mr. Clark chose to be, and at all relevant times has been, a member of the Bar of the District of Columbia. Congress empowered this court to exercise plenary disciplinary authority over the members of our Bar, and this court has exercised that authority. As our Bar Rules state, “[a]ll members of the District of Columbia Bar . . . are subject to the disciplinary jurisdiction of this Court and its Board on Professional Responsibility.” And as the Bar Rules also state,

The license to practice law in the District of Columbia is a continuing proclamation by this Court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and an officer of the Court. It is the duty of every recipient of that privilege at all times and in all conduct, both professional and personal, to conform to the standards imposed upon members of the Bar as conditions for the privilege to practice law.

Accordingly, acts or omissions by an attorney in violation of the Rules of Professional Conduct “shall be grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship.”

There is no exemption or immunity from bar discipline under our Rules for D.C. Bar members who violate those Rules while serving as attorneys for the federal government, in the Department of Justice or elsewhere. In fact, both Congress and the Department of Justice have made this clear. 

The other news

we conclude that Mr. Clark has asserted a valid act-of-production privilege in response to ODC’s document subpoena. The subpoena requests Mr. Clark to produce documents in his possession that relate directly to the central charges against him in the two pending indictments. Given how the requests are phrased, Mr. Clark’s compelled production of responsive documents to the questions clearly would have a potentially incriminating “testimonial aspect.”

…In sum, the act of production and the provision of the related information explicitly sought by ODC’s subpoena would be sufficiently testimonial and potentially incriminating to entitle Mr. Clark to invoke his Fifth Amendment privilege not to be compelled to be a witness against himself. And ODC has not shown with the requisite particularity that this is a case in which the existence, possession, and authenticity of any of the requested documents is a “foregone conclusion,” or that the act of production would “add little or nothing to the sum total of the Government’s information.”28 Indeed, at oral argument on Mr. Clark’s petition for rehearing, ODC acknowledged that its primary concern was to obtain relevant documents from Mr. Clark of which it has no knowledge, as part of its preparation for the disciplinary hearing. We have no reason to suppose that the prosecuting authorities already know more than ODC does.

Caveat

we express no view as to whether Mr. Clark’s successful assertion of his Fifth Amendment privilege with respect to the document subpoena could form the basis for an adverse inference against him by the Hearing Committee. The parties before us have not addressed this question in this appeal. Although, unlike in a criminal case, an adverse inference generally is permissible in a civil case, see In re D.B., 947 A.2d 443, 451 n.15 (D.C. 2008), we do not appear to have squarely decided this question in the context of a disciplinary proceeding. 

Please proceed.

The hearing is scheduled to begin on March 26 at 9:30 am and can only be accessed in real time.

If Respondent is allowed to call all of his listed witnesses, the hearing likely will continue until the end of time. (Mike Frisch)