Thursday, February 8, 2018

D.C. Suspends Attorney Who Violated Confidentiality As Whistleblower

The District of Columbia Court of Appeals has ordered a 60-day suspension with fitness in a high-profile discipline matter in which two attorneys who represented the Respondent (an alleged corporate whistleblower) in her claims against her former employer General Electric also were subjected to bar charges

In this case, the Board on Professional Responsibility has adopted the Ad Hoc Hearing Committee’s uncontested findings that respondent M. Adriana Koeck violated Rule of Professional Conduct 1.6 (a) when she improperly disclosed confidences and secrets of her former employer to a newspaper reporter. In addition, the Board has determined that respondent violated Rule 1.6 (a) by making separate disclosures of confidences to the United States Attorney’s Office for the Northern District of Illinois, the government of Brazil, and the Securities and Exchange Commission. Based on its determination that Respondent committed four separate rule violations, the Board has recommended a sixty-day suspension with a fitness requirement. (The Hearing Committee recommended a thirty-day suspension with a fitness requirement.) Respondent did not participate in these disciplinary proceedings at any stage, and she did not file any exceptions to the Committee’s report or to the Board’s Report and Recommendation.

This case would have been of far greater precedential value if the allegations had been contested.

The intersection between the continuing duties to a former employer under Rule 1.6 and the ability to blow the whistle on an alleged corporate wrongdoer is a complex and fact-intensive place where ethical duties conflict  that could not be fully explored without the participation of the accused attorney.

Sanction here

We discern no reason to depart from the Board’s determination of misconduct to the extent it is based on the Committee’s findings, adopted by the Board, that respondent disclosed the confidences of a prior client to a newspaper reporter, provided no defense for her disclosure, and did not respond to Disciplinary Counsel's request for information...the Board’s recommended sanction—a sixty-day suspension with a fitness requirement—is reasonable in light of the facts supporting this single violation of Rule 1.6 (a), see, e.g., In re Martin, 67 A.3d 1032, 1053 (D.C. 2013) (in determining the appropriate sanction, the court considers the seriousness and extent of the conduct and respondent’s response to the allegations); In re Cater, 887 A.2d 1, 6 (D.C. 2005) (to impose a fitness requirement the record must contain clear and convincing evidence that casts doubt on attorney’s fitness to practice law), and Ms. Koeck’s failure to object to discipline by this court in any measure.

Bloomberg News reported on the related cases

A prominent attorney to whistle-blowers was admonished by a Washington disciplinary panel Aug. 30 for helping a fired General Electric in-house attorney leak damaging information about GE to law enforcement officials and journalists ( In re Koeck, D.C. Ct. App. Bd. on Prof’l Responsibility, No. 14-BD-061, 8/30/16).

The admonition—issued by the District of Columbia Board of Professional Responsibility and directed at against plaintiffs’ lawyer Lynne Bernabei—could bring an end to a trio of consolidated discipline cases that has drawn the ire of the D.C. whistle-blower bar.

The proceedings arose out of Bernabei’s representation of Adriana Koeck, who was also a respondent in this case. The ethics charges against Bernabei, Koeck, and a third lawyer—Notre Dame Law Professor G. Robert Blakey—were tied to events that occurred after GE fired Koeck in 2006.

ABA Journal had the story of the bar charges.

Associate Judge Fisher concurred in the judgment only. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2018/02/the-district-of-columbia-court-of-appeals-in-this-case-the-board-on-professional-responsibility-has-adopted-the-ad-hoc-hear.html

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