In 1977, the Legal Ethics Committee (LEC) of the D.C. Bar, interpreting the Code of Professional Responsibility (the predecessor to the Rules of Professional Conduct), opined that an attorney serving as counsel to a congressional committee was prohibited by the disciplinary rules from requiring a witness to appear at televised hearings when the committee had been notified in advance that the witness would refuse to answer questions based on the Fifth Amendment right against self-incrimination. See Michael Stern, Ethical Obligations of Congressional Lawyers, 63 N.Y.U. Annual Survey of American Law 191, 192, 207-08 (2007).
This opinion has long caused consternation among congressional committees and their lawyers. Among the objections to it: (1) there are legitimate reasons why a committee may wish to call a witness to testify notwithstanding an indication that he or she will assert the privilege against self-incrimination; (2) the D.C. Bar has no authority to regulate the proceedings of congressional committees; and (3) the decision of whether or not to subpoena a witness, or to close a hearing, belongs to the committee, not to staff lawyers.
The LEC has now issued Opinion No. 358 (Jan. 2011), which responds to a request to vacate the 1977 opinion. (Although the source of the request is not identified, I believe it was former House Counsel Irv Nathan). The LEC analyzes the issue under the current rules and concludes that there is no basis to vacate the prior opinion. In doing so, however, it both qualifies and perhaps extends the reach of the opinion in notable ways.
Opinion No. 358 acknowledges, as did the 1977 opinion, that the LEC’s “jurisdiction is confined to rendering opinions on the applicability of the ethics rules to the conduct of staff attorneys acting in their capacities as attorneys.” Thus, the opinion presumably does not apply to Members of Congress, even though many are lawyers and some may be members of the D.C. Bar.
Nevertheless, the LEC reiterates that a committee staff lawyer may violate the ethical rules if he or she participates in calling a witness who has asserted an intention to plead the Fifth. According to Opinion No. 358, such conduct potentially violates Rule 4.4(a), which states that “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person,” and Rule 8.4(d), which prohibits a lawyer from “engag[ing] in conduct that seriously interferes with the administration of justice.”
According to Opinion No. 358, the rules are not violated simply by the fact that a witness who intends to assert the Fifth is subpoenaed to do so in an open hearing. Instead, a violation occurs only if the sole purpose of calling the witness is to degrade or harass. The opinion implicitly acknowledges that there are circumstances in which this is not the sole purpose of calling the witness to appear in public, although it does not provide much guidance on what those circumstances may be.
This is a significant qualification to the 1977 opinion, which has generally been understood to hold that it is per se improper to require a witness to appear in a public hearing if he or she has stated an intention to plead the Fifth. Thus, while Opinion No. 358 purports to reaffirm the 1977 opinion, it arguably makes it more difficult for a witness to use it as a basis for refusing to appear (the LEC expressly declines to opine on whether it is ever appropriate for a witness to invoke the opinion as a basis for refusing to comply with a congressional subpoena).
On the other hand, there are aspects of Opinion No. 358 which could raise new problems for congressional lawyers. I will discuss those in my next post.