Sunday, July 15, 2007

Constitutional Confrontation, Disciplinary Consequences?

A recent post by John Dean discusses the possibility of a constitutional confrontation over the refusal of former White House counsel Harriet Miers to respond to a subpoena from Congress. One question that struck me is the potential disciplinary issues raised by her conduct. Mr. Dean suggests that the prospect of criminal prosecution is unlikely, so bar provisions that require or permit discipline for a conviction will likely never be invoked.

Several disciplinary rules may be implicated. Rule 3.1 prohibits an attorney from asserting a frivolous position, but recognizes that a lawyer may permissibly test the bounds of the law. Rule 1.6 applies a duty of confidentiality to the benefit of a former client, but that duty is trumped by adherence to law and court order. Rule 8.4 provides, in pertinent part, that a lawyer not engage in criminal conduct and refrain from conduct prejudicial to the administration of justice. On the state of the public record, is there a basis for a bar investigation?

Interestingly, the question appears to be one governed by the law of the District of Columbia. Ms. Miers is an active member of the D. C. bar and the conduct at issue took place in the District of  Columbia. D.C.'s Rule 8.5(b) would thus control for choice of law purposes and apply D.C. ethics rules and standards. In D.C., Bar Counsel is required to conduct a confidential investigation where the apparent facts, if true, may warrant discipline. The information may come from any source. During my time at Bar Counsel, many investigations had a genesis in information from the news as opposed to a formally submitted victim complaint.

A failure to respond to a congressional subpoena would seem to satisfy the low threshold standard required for an investigation. Given that the lawyer here is following the client's instruction regarding the assertion of privilege, discipline will likely not even be seriously considered unless and until there is a contempt citation and all appeals are exhausted, and if the refusal to respond persists in the face of an order to disclose. (Mike Frisch)

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