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More Implications of DC Bar Ethics Opinion No. 358

As mentioned in my last post, D.C. Bar Legal Ethics Opinion No. 358 amplifies the 1977 opinion in a couple ways that are of interest.  First, the Legal Ethics Committee (LEC) states that a prosecutor holds “a position akin to counsel for an investigative congressional committee” for purposes of the legal ethics rules. Although the 1977 opinion partly relied on decisions that prohibited prosecutors from requiring witnesses to assert the Fifth before a grand jury, it did not generally equate the positions of prosector and committee counsel.

One can only imagine how lawyers for clients investigated by congressional committees might use this language.  For example, Rule 3.8(a) of the DC Bar Rules of Professional Conduct states that a prosecutor shall not “in exercising discretion to investigate or to prosecute, improperly favor or invidiously discriminate against any person.”  Could this provision be used to file a complaint against a committee counsel who investigates wrongdoing solely when it is associated with the other political party (or, conversely, opposes investigations against persons associated with his own political party)?

Rule 3.8(f) also sharply limits the prosecutor’s ability to make extrajudicial statements prejudicial to the accused.  The LEC specifically cites Comment 2 to Rule 3.8, which states that “a prosecutor should use special care to avoid publicity, such as through televised press conferences, which would unnecessarily heighten condemnation of the accused.”  The logic of this position would not seem to be limited to requiring witnesses to take the Fifth in an open hearing, but could apply to any negative or prejudicial comments regarding persons who are subject to congressional investigation.

Opinion No. 358 also provides some guidance on the types of conduct that might cause a lawyer to violate the ethical rules.  Committee lawyers, of course, do not have the power to issue subpoenas or to decide whether hearings should be closed.  These powers belong to the committee (or, in some cases, to the chairman).  The LEC suggests, however, that a staff lawyer might be guilty of “assisting another in violating the rules.”  It is not clear exactly what that means, but one could infer that committee lawyers have some sort of duty to refuse to assist the committee in activities that would violate the rules.

The LEC also notes that “[i]n addition to participation in the hearing itself, such related activities as preparing subpoenas also could subject a lawyer to sanctions, although we note that Rule 5.2 protects a subordinate lawyer who acts as the direction of a supervising attorney so long as there a reasonable argument that calling the witness is permitted by the Rules.”

How would this work in the congressional context?  Suppose, for example, a committee chair directs counsel to prepare a subpoena for a witness.  Can the counsel rely on this instruction as a defense? Probably not, if the chair is not a lawyer (or a member of the DC bar).  What about the House General Counsel’s office, which reviews all subpoenas under House practice?  Can the committee counsel rely on the General Counsel’s determination as to whether the subpoena is permitted under the DC Bar ethics rules?  Perhaps, but the House Counsel is not a “supervising attorney” of the committee lawyer.  The House Counsel, however, may need to ensure that the subpoena complies with the legal ethics rules, to avoid a potential charge that he or she has “assisted” the committee in violating those rules.

Opinion No. 358 may open up an interesting can of worms on the Hill.

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