Lawyers panic upon receiving a bar complaint from the Office of Disciplinary Counsel.
Am I going to lose my law license?
How will public discipline impact my practice?
Can I sue the complainant for filing this complaint?
Can I file a counter-complaint against a lawyer?
Is my name going to appear in the Nota Bene for all my law school friends to see?
All of these are legitimate concerns. However, an important but infrequently asked question is what information a lawyer may use to defend themselves. That is, whether and to what extent may a lawyer produce confidential client information to bar counsel during a disciplinary investigation. Prudent lawyers think about this consideration on the front end. Other lawyers, such as recently disciplined lawyer Dana Paul from the District of Columbia, do not consider this until it is too late.
In re Dana Paul
The District of Columbia Court of Appeals laid out the facts as follows:
In 2014 and 2015, Mr. Paul, a member of the D.C. Bar, represented N.E. and her husband in a matter in a Maryland court. He represented them again in 2017 when they sued their realtor and others, also in a Maryland court, alleging a “botched” real estate deal.
Mr. Paul and his clients began to disagree about the case, and, a few months later, he resigned. In April 2018, N.E. and her husband reported Mr. Paul to the Attorney Grievance Commission of Maryland and the District of Columbia Office of Disciplinary Counsel. They alleged that he had improperly retained an expert witness, had failed to communicate with N.E. and her husband, had not prepared them for depositions, and had entered unauthorized stipulations on their behalf.
In May 2018, Mr. Paul responded to both complaints. In his response to N.E.’s complaint in the District and at Disciplinary Counsel’s request, Mr. Paul submitted his entire client file for N.E. Three months later, while Disciplinary Counsel was investigating N.E.’s complaint against Mr. Paul, he filed a disciplinary complaint against N.E., who is also a member of the D.C. Bar. Mr. Paul included the case number of the matter against him in his disciplinary complaint, and he disclosed information that N.E. had shared with him when he was her attorney. The Office of Disciplinary Counsel eventually dismissed N.E.’s complaint against Mr. Paul and requested that N.E. respond to Mr. Paul’s complaint against her. After N.E. responded, Mr. Paul replied, noting: “I am only filing this grievance because of the grievance [N.E.] filed against me.” In his reply, Mr. Paul included additional information that he had learned during his 2017 representation of N.E. and her husband.
The D.C. Office of Disciplinary Counsel prosecuted Mr. Paul for violating the D.C. Rules of Professional Conduct. Specifically, the ODC alleged that in Mr. Paul’s response to N.E.’s grievance, his disciplinary complaint against N.E., and his reply to N.E.’s response, Mr. Paul had disclosed client confidences or secrets, which had been unnecessary to establish a defense to the disciplinary charge against him and therefore violated Rule 1.6. Second, the ODC alleged that Mr. Paul’s retaliatory disciplinary complaint against N.E. seriously interfered with the administration of justice in violation of Rule 8.4(d).
A Hearing Committee concluded that Mr. Paul’s conduct violated the Rules of Professional Conduct and recommended a 90-day suspension from the practice of law. As to Rule 1.6, the Hearing Committee determined that Mr. Paul had knowingly revealed N.E.’s confidences when he intentionally gave private information about her—information he only knew because he had represented her— to Disciplinary Counsel. It reached this conclusion only with respect to Mr. Paul’s disciplinary complaint against N.E. and his subsequent reply in that matter, finding that those disclosures were offensive (rather than defensive) in nature and not reasonably necessary for Mr. Paul to defend himself against N.E.’s accusations. The Hearing Committee did not find a Rule 1.6 violation with regard to the disclosures that Mr. Paul had made in response to N.E.’s complaint against him, concluding that those were necessary for him to defend himself. See D.C. R. Prof. Conduct 1.6(e)(3) (allowing reasonable disclosures to defend against a disciplinary action). As to the Rule 8.4(d) violation, the Hearing Committee concluded that Mr. Paul’s retaliatory complaint seriously interfered with the administration of justice because it was improper, bore directly on the judicial process, and affected the process “in more than a de minimis way.”
The case then went to the Disciplinary Board for consideration. The Board agreed with the Hearing Committee’s conclusion that Mr. Paul had violated Rule 1.6 when he disclosed N.E.’s confidences in his complaint against N.E. and his subsequent reply in that matter. The Board also determined that D.C. Bar. R. XI, § 19(a) did not provide Mr. Paul absolute immunity from attorney discipline—as opposed to civil liability—for complaints submitted to Disciplinary Counsel, because such immunity was not consistent with the plain text of the rule, and because a contrary reading would conflict with other D.C. Rules of Professional Conduct. Finally, the Board concluded that Mr. Paul had not violated Rule 8.4(d) because his conduct did not impact the judicial system “in more than a de minimis way.” The Board also recommended that Mr. Paul be suspended from the practice of law for 90 days.
Mr. Paul objected to the Hearing Committee and the Board’s rulings.
On appeal, Mr. Paul advanced three arguments. First, he argued that D.C. Bar R. XI § 19(a) immunized him from disciplinary action stemming from the complaint he filed against his former client, N.E. Second, Mr. Paul argued that he did not disclose confidential information, and even if he did, the disclosure was necessary to defend himself against the earlier disciplinary action N.E. had filed against him. Third, he argued that the 90-day suspension was unwarranted.
The D.C. Court of Appeals rejected two of Mr. Paul’s three arguments on appeal. First, the Court held “that Section 19(a) does not immunize an attorneycomplainant from professional discipline if he violates the Rules of Professional Conduct in the course of filing or pursuing his disciplinary complaint against another attorney.” See id. at 15. This means that an attorney who commits misconduct in pursuing a disciplinary complaint against another attorney may not be sued, but he could face disciplinary action for his misdeeds. Second, the court held that Mr. Paul violated rule 1.6 in disclosing confidential information in the complaint he filed against his client because it was offensive in nature and not necessary or connected with his own defense. The court differentiated between the disclosures Mr. Paul made in the course of responding to N.E.’s complaint about him and those in the court of pursuing his own complaint against N.E., concluding that the former were protected by the rules on confidentiality while the latter were not. Said the court:
Mr. Paul’s disciplinary complaint against N.E. and his reply to N.E.’s response to his complaint were part of an offensive action against N.E. and not necessary to defending against the complaint she had filed against him. Indeed, by the time Mr. Paul submitted these materials, he had already responded to the allegations in N.E.’s complaint. In his disciplinary complaint, however, he went on to argue that N.E. “[wa]s not mentally competent to be a member” of the D.C. Bar and “should [not] be allowed to practice law.” Mr. Paul attached to his complaint documents that N.E. had sent him when he represented her, which he alleged proved her criminal conduct and provided a civil cause of action against her. He also stated that he “filed the grievance against her,” because she “is dishonest.” His complaint is plainly read as one that is offensive in nature and not necessary to or connected with his own defense.
In re Paul at 16.
Finally, the court concluded that Mr. Paul’s conduct warranted some period of suspension because the court “consider[ed] the complaint to be retaliatory and serious conduct.” See id. at 20. The court imposed a 30-day suspension from the practice of law.
What does this mean for you?
A lawyer may need to disclose confidential information when the lawyer is accused of malpractice or receives a disciplinary complaint to defend himself. An exception to the attorney-client privilege and a lawyer’s broader duty of confidentiality is when the client puts certain information or facts at issue in the proceedings. Under the “at issue” doctrine, a party that places confidential information or communications “at issue” is deemed to have waived the privilege as to that information and communications. This means that if a client sues a lawyer for malpractice or files a disciplinary complaint, confidential information related to those issues may be disclosed.
Deciphering the nuances of the “at-issue” doctrine may be difficult to navigate. Lawyers should consider whether the client has placed certain information “at-issue” subjecting that information to disclosure to the bar or in defense of a malpractice action. Lawyers, however, should be careful not to over disclose confidential information. Those lawyers could find themselves in a situation much like Mr. Paul. Moreover, lawyers should be mindful of balancing their duty to cooperate with the ODC, see La. Rule of Prof’l Conduct, r. 8.1, with the decision to decline to produce certain information for fear of violating the duty of confidentiality. Finally, lawyers should always consider seeking the client’s informed consent to disclose confidential information even if they believe that the “at issue” doctrine would allow the disclosure.
You are not alone if you feel these issues are complex and stressful. Outside ethics counsel may be able to help.