February 9, 2011
Old Law Still Good Law
A recent opinion from the Legal Ethics Committee of the D.C.Bar is summarized below:
D.C. Legal Ethics Opinion 31 (1977) concluded that it was a violation of the former Code of Professional Responsibility for a congressional staff lawyer to require a witness to appear before a congressional committee when the committee has been informed that the witness will invoke the self-incrimination privilege as to all substantive questions “and the sole effect of the summons will be to pillory the witness.” The committee declines a request to vacate Opinion 31 but notes that under the D.C. Rules of Professional Conduct, as under the former Code of Professional Responsibility, a violation occurs only where the summons serves no substantial purpose “other than to embarrass, delay, or burden” the witness.
A final footnote:
We express no opinion on the propriety of a witness invoking an opinion of this committee as a basis for refusing to comply with a congressional subpoena.
As you might imagine, there is no District of Columbia case imposing discipline for such a violation. Good luck proving that the "sole effect...will be to pillory the witness." (Mike Frisch)
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