Kyle D. Sampson

Updated July 28, 2008, to include the recent report, An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General, by the United States Department of Justice Office of Professional Responsibility and Office of the Inspector General, which concluded that Kyle D. Sampson engaged in conduct during the course of his employment at the Department Justice that calls into question his fitness to practice law.

Personal Information:

• Name: Sampson, Kyle D.
• Bar: Utah
• ID No: 8112
• Status: Active

Grievance Information: Utah

• Bar Home Page: Utah State Bar
• Main Grievance Page: Utah State Bar Office of Professional Conduct
• Ethics Rules: Utah Court Rules
• Complaint Form: Utah State Bar Consumer Assistance Program Request Form
• Attorney Search: Utah State Bar Attorney & Associate Member Directory Service

Grievance Information: Washington, D.C.

• Bar Home Page: D.C. Bar
• Main Grievance Page: When Complaints Arise
• Ethics Rules (current): D.C. Rules of Professional Conduct (effective February 1, 2007)
• Ethics Rules (previous): D.C. Rules of Professional Conduct (effective January 1, 1991 through January 31, 2007)
• Complaint Form: D.C. Bar Complaint Forms
• Attorney Search: D.C. Bar Member Search

Allegations:

Illegal Utilization of political considerations personally and in conjunction with Monica Goodling in Hiring and Firing Personnel at the Department of Justice in violation of the Hatch Act

As originally reported by Dan Eggen in the Washington Post,

“The Justice Department considered political affiliation in screening applicants for immigration court judgeships for several years until hiring was frozen in December after objections from department lawyers, current and former officials said yesterday. “The disclosures mean that the Justice Department may have violated civil service laws, which prohibit political considerations in hiring, for as long as two years before the tenure of Monica M. Goodling, the former aide to Attorney General Alberto R. Gonzales who testified about the practice this week. “Goodling told the House Judiciary Committee on Wednesday that she “crossed the line” in considering political affiliation for several categories of career applicants at Justice, including immigration judges.

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“The department’s hiring practices have come under scrutiny in the furor over the firings last year of nine U.S. attorneys. A Justice Department investigation of the dismissals has been expanded to include whether Goodling and other Gonzales aides improperly took politics into account in hiring for nonpolitical jobs. “Goodling testified that Sampson told her that the department’s Office of Legal Counsel had concluded that immigration judges were not covered by civil service rules. The Justice Department said after her testimony that it had “located no record” of an OLC opinion that reached that conclusion.”

Officials Say Justice Dept. Based Hires on Politics Before Goodling Tenure, Dan Eggen, Washington Post, May 26, 2007

Additional Sources:

Letter regarding Investigation of Kyle Sampson, From U.S. Department of Justice Office of the Inspector General, August 24, 2007

Document Shows Widening Probe Into DOJ Hiring , Paul Kane, Washington Post, August 30, 2007

This has now been confirmed by the United States Department of Justice Offices of Professional Responsibility and Office of the Inspector Generals in their report, An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General:

We concluded that Sampson violated Department policy and federal law, and committed misconduct, by considering political or ideological affiliations when hiring IJs. Sampson knew that, historically, most IJ hiring was handled by career employees at EOIR. However, he moved that authority from EOIR and placed it in the OAG. Sampson told us that he had understood it was appropriate to consider “political criteria” in selecting IJs. He stated that his understanding was based on a conversation he had with Ohlson in April 2004 about the Attorney General’s direct appointment authority for IJs, combined with advice he claimed to have received from OLC that IJ hiring was not subject to civil service requirements.

However, as detailed above, Ohlson said he did not tell Sampson that direct appointments were exempt from federal civil service laws. Ohlson said he merely noted to Sampson that direct appointments had been used occasionally in the past to appoint IJs. Nor does the evidence support Sampson’s claim that OLC advised him that civil service laws did not apply to the career IJ positions. Neither OLC nor we could find any record of OLC ever providing such advice to Sampson, and the two officials he identified as possible sources of the advice – AAGs Goldsmith and Levin – had no recollection of advising Sampson that civil service laws did not apply to IJ hiring. To the contrary, the evidence showed that neither would have offered legal guidance on this point informally. While it is possible that Sampson mistakenly inferred on his own that civil service laws did not apply to direct appointments by the Attorney General, there is no evidence that he was ever so advised by OLC.

Moreover, as described in the document attached to his October 8, 2003, e-mail, Sampson sought to use the Attorney General’s direct appointment authority to appoint candidates as IJs who had been recommended by the White House and screened using political criteria
well before those conversations with OLC and Ohlson supposedly occurred. It is clear from Sampson’s October 8 e-mail that he contemplated using political considerations in IJ hiring at least 6 months before his conversation with Ohlson; at least 9 months before Levin (one
of the OLC Assistant Attorney Generals he cited as a possible source of OLC’s legal advice) became the head of OLC in July 2004; and before any conversation he had with Goldsmith (the other OLC Assistant Attorney General cited by Sampson), who did not begin serving in OLC until October 3, 2003, just 5 days before Sampson’s e-mail.

In sum, we concluded that the evidence did not support Sampson’s claim that he was advised by OLC that IJ positions were exempt from federal law governing career civil service positions.

Because the Attorney General’s direct appointment authority to hire IJs is a departure from the usual Department career hiring practices, we considered the possibility that Sampson may have been confused or mistaken about whether civil service laws apply to such hires. Yet, even if Sampson was confused or mistaken in his interpretation of the rules that applied to IJ hiring, we do not believe that would excuse his actions. His actions, which were carried out over a lengthy period of time and were not based on formal advice from anyone, systematically violated federal law and Department policy and constituted misconduct.

Report, pp. 117-118.

In sum, the evidence showed that Sampson, Williams, and Goodling violated federal law and Department policy, and Sampson and Goodling committed misconduct, by considering political and ideological affiliations in soliciting and selecting IJs, which are career positions protected by the civil service laws.

Report, p. 137.

Rules Violated (Pursuant to Rule 8.5. Disciplinary Authority; Choice of Law , Utah Rules of Professional Conduct):

1. Rule 8.4 – Misconduct – This Rule governed the practice of law in the District of Columbia from January 1, 1991, through January 31, 2007. As of February 1, 2007, the New Rules took effect.
2. Rule 8.4 – Misconduct of the D.C. Rules of Professional Conduct (effective February 1, 2007)

Misleading Statements to Congress

Chairman Rep. John Conyers, Jr., provided this summary of the misleading testimony of Kyle Sampson, Chief of Staff to then-Attorney General Alberto Gonzales, in the Executive Summary of his memo to the members of the House Committee on the Judiciary:

Mr. Sampson appears to have made at least two significant misstatements to Congress. On January 18, 2007, he emailed the Senate Judiciary Committee Chief Counsel that “last year, eight USAs [were] asked to resign” and further assured him “per my prior reps to you, the number of USAs asked to resign in the last year won’t change: eight.” However, as the Committee subsequently learned, Mr. Graves was in fact forced to resign in January 2006. On February 23, 2007, Kyle Sampson drafted a Department letter, which was also approved by Chris Oprison of the White House Counsel’s office, stating that Karl Rove did not play any role in the decision to appoint Tim Griffin as interim U. S. Attorney for the Eastern District of Arkansas. Documents subsequently came to light showing that before proposing that statement be made to Congress, Kyle Sampson had written to Mr. Oprison that the appointment of Mr. Griffin was “important to Harriet, Karl, etc.,” and just a week before Mr. Oprison signed off on the statement, Tim Griffin had emailed both Karl Rove and Mr. Oprison and others regarding the U.S. Attorney position.

Memorandum to Members of the Committee on the Judiciary, from Rep. John Conyers, Jr., Chairman, regarding Full Committee Consideration of Report on the Refusal of Former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten to Comply With Subpoenas By the House Judiciary Committee, July 24, 2007, page v.

Rep. Conyers’ memorandum provides additional, sourced details:

Mr. Sampson has made a number of statements to Congress that may have been inaccurate. One such statement appears to have concealed the forced resignations of U.S. Attorney Todd Graves, which was not confirmed by the Department as a forced (as opposed to voluntary) resignation until May 2007. On January 18, 2007, Kyle Sampson emailed the Senate Judiciary Committee’s Chief Counsel that “last year, eight USAs asked to resign” and further assured him, “per my prior reps to you, the number of USAs asked to resign in the last year won’t change: eight.” [FN113] Such misstatements hampered the Committee’s investigation by concealing Mr. Graves’ connection to the firing process while many hearings and interviews on the matter were conducted, and caused the Committee to expend substantial resources trying to learn which U.S. Attorneys had been forced to resign by the Department and which had not. [FN114]

Mr. Sampson also led the drafting of a letter send by Richard Hertling on February 23, 2007, to several U.S. Senators that inaccurately stated that “The Department is not aware of Karl Rove playing any role in the decision to appoint Mr. Griffin,” a letter that the Department subsequently acknowledged was in part “contradicted by Department documents.” [FN115] Mr. Sampson’s knowledge of the inaccuracy of his statement regarding Mr. Rove is shown by his prior email stating “getting [Mr. Griffin] appointed was important to Harriet, Karl, etc.” [FN116] Mr. Sampson’s effort to explain this contradiction to the Senate Judiciary Committee by claiming that he had merely assumed that the Griffin appointment was important to Mr. Rove, and had not truly “known” that fact, is hard to credit. White House information, and particularly documents of Mr. Rove, would be critical in determining whether Mr. Sampson’s statements on this issue were truthful.

Mr. Sampson’s testimony regarding reasons for the firings and the development and maintenance of the firing list may itself prove to have been false or incomplete. As described below, many of the reasons offered by Mr. Sampson for the removal of these U.S. Attorneys do not appear to hold up to scrutiny. [FN117] And Mr. Sampson’s inability to remember many important details of the process, including critical recent details such as who suggest that David Iglesias be placed on the firing list just months prior to Mr. Sampson’s testimony on the subject, is particularly troubling. [FN118] Finally, the Committee has some concern about the email described above, transmitted to Mr. Moschella as he was preparing to testify before this Committee, in which Mr. Sampson appeared to validate an inaccurate version of events.

[FN113] OAG 1805-06. [This and subsequent like citations refer to numbered documents provided by the Office of the Attorney General to the Committee – E.M.]
[FN114] The Attorney General’s prepared testimony to the House Judiciary Committee in May 2007 also suggested that only eight U.S. Attorneys had been fired, referencing “the decision to request the resignations of eight (of the 93) U.S. Attorneys,” although there appears to be no fair basis for excluding Mr. Graves from the discussion of these issues other than the fact that the Committee had not learned at that time that Mr. Graves’ resignation had been forced. See Alberto Gonzales May 10, 2007, H. Comm. on the Judiciary, Prepared Testimony at 2.
[FN115] Letter from Richard Hertling to John Conyers, Jr., Chairman, H. Comm. on the Judiciary, and Linda Sanchez, Chair, Subcomm. on Commercial and Admin. Law, Mar. 28, 2007.
[FN116] OAG 127
[FN117] See Section I.D.1 and I.D.2 below.
[FN118] Sampson, Apr. 15, 2007, Interview at 143.

Id., at pages 16-17.

In Section I.D.1 and I.D.2 referenced in footnote 117 above, the memorandum makes clear that Mr. Rove “raised the idea with officials in the White House Counsel’s office of replacing some or all of U.S. Attorneys[,] [FN135] and that “Mr. Rove’s request was forwarded to Kyle Sampson, then a deputy Chief of Staff to Attorney General Alberto Gonzales, who responded that most U.S. Attorneys ‘are doing a great job, are loyal Bushies, etc.’ and that even ‘piecemeal’ replacement of U.S. Attorneys would cause political upheaval. [FN137] The memorandum adds that with “‘That said.’ Mr. Sampson wrote, ‘if Karl thinks there would be political will to do it, then so do I.'” [FN138]

[FN135] OAG 180; Greenburg, E-mails Show Rove’s Role in U.S. Attorney Firings, ABC News, Mar. 15, 2007; Shapiro, Documents Show Justice Ranking US Attorney, NPR, Apr. 13, 2007 available at http://www.npr.org/templates/story/story.php?storyID=9575434.
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[FN137] OAG 180.
[FN138] Id .

Rules Violated (Pursuant toRule 8.5. Disciplinary Authority; Choice of Law , Utah Rules of Professional Conduct):

1. Rule 3.3 – Candor Toward the Tribunal – This Rule governed the practice of law in the District of Columbia from January 1, 1991, through January 31, 2007. As of February 1, 2007, the New Rules took effect.
2. Rule 3.3 – Candor to Tribunal of the D.C. Rules of Professional Conduct (effective February 1, 2007)
3. Rule 3.4 – Fairness to Opposing Party and Counsel – This Rule governed the practice of law in the District of Columbia from January 1, 1991, through January 31, 2007. As of February 1, 2007, the New Rules took effect.
4. Rule 3.4 – Fairness to Opposing Party and Counsel of the D.C. Rules of Professional Conduct (effective February 1, 2007)
5. Rule 3.9 – Advocate in Nonadjudicative Proceedings – This Rule governed the practice of law in the District of Columbia from January 1, 1991, through January 31, 2007. As of February 1, 2007, the New Rules took effect.
6. Rule 3.9 – Advocate in Non-adjudicative Proceedings of the D.C. Rules of Professional Conduct (effective February 1, 2007)
7. Rule 4.1 – Truthfulness in Statements to Others – This Rule governed the practice of law in the District of Columbia from January 1, 1991, through January 31, 2007. As of February 1, 2007, the New Rules took effect.
8. Rule 4.1 – Truthfulness in Statements to Others of the D.C. Rules of Professional Conduct (effective February 1, 2007)
9. Rule 8.4 – Misconduct – This Rule governed the practice of law in the District of Columbia from January 1, 1991, through January 31, 2007. As of February 1, 2007, the New Rules took effect.
10. Rule 8.4 – Misconduct of the D.C. Rules of Professional Conduct (effective February 1, 2007)

Providing Misleading Information in violation of Federal Law to Assistant Attorney General Richard Hertling which Sampson knew AAG Hertling would communicate to Congress

As noted in the previous allegation, Rep. Conyers reports that:

Mr. Sampson also led the drafting of a letter send by Richard Hertling on February 23, 2007, to several U.S. Senators that inaccurately stated that “The Department is not aware of Karl Rove playing any role in the decision to appoint Mr. Griffin,” a letter that the Department subsequently acknowledged was in part “contradicted by Department documents.” [FN115] Mr. Sampson’s knowledge of the inaccuracy of his statement regarding Mr. Rove is shown by his prior email stating “getting [Mr. Griffin] appointed was important to Harriet, Karl, etc.” [FN116] Mr. Sampson’s effort to explain this contradiction to the Senate Judiciary Committee by claiming that he had merely assumed that the Griffin appointment was important to Mr. Rove, and had not truly “known” that fact, is hard to credit. White House information, and particularly documents of Mr. Rove, would be critical in determining whether Mr. Sampson’s statements on this issue were truthful.

[FN115] Letter from Richard Hertling to John Conyers, Jr., Chairman, H. Comm. on the Judiciary, and Linda Sanchez, Chair, Subcomm. on Commercial and Admin. Law, Mar. 28, 2007.
[FN116] OAG 127

As further reported at TPMMuckraker.com:

“On February 23, acting Assistant Attorney General wrote Sen. Chuck Schumer (D-NY) and other senators in response to questions about the appointment of Timothy Griffin, a former aide to Rove. In the letter, Hertling stated “The Department is not aware of Karl Rove playing any role in the decision to appoint Mr. Griffin.”

“But emails subsequently released by the Justice Department showed that wasn’t the case. Last December, for example, Sampson wrote in an email that Griffin’s appointment was “important to Harriet, Karl, etc.” Other emails showed that Rove’s deputy had been intimately involved in the effort to get Griffin installed as the U.S. Attorney in Eastern Arkansas.

“In a letter accompanying documents sent to Congress today, Hertling admits that the assertion in his letter isn’t true, adding, “We sincerely regret any inaccuracy.” And to answer questions about who was responsible for that inaccuracy, he accompanied his letter with 202 pages documents “reflecting the preparation and transmittal of the February 23 letter.”

“Among the documents is a February 8th email from Kyle Sampson providing what ultimately, with a few small revisions, comprised Hertling’s letter. And in that email Sampson wrote that Hertling should say, “I am not aware of Karl Rove playing any role in the Attorney General’s decision to appoint Griffin.”

“Now, Hertling might not have known of Rove’s role in Griffin’s selection, but Sampson sure did.”

New Docs Show Sampson Behind Misleading Statement to Congress, TPMMuckraker.com, March 28, 2007.

White House OK’ed Sampson Statement on Rove, TPMMuckraker.com, March 28, 2007.

Rules Violated (Pursuant toRule 8.5. Disciplinary Authority; Choice of Law , Utah Rules of Professional Conduct):

1. Rule 4.1 – Truthfulness in Statements to Others – This Rule governed the practice of law in the District of Columbia from January 1, 1991, through January 31, 2007. As of February 1, 2007, the New Rules took effect.
2. Rule 4.1 – Truthfulness in Statements to Others of the D.C. Rules of Professional Conduct (effective February 1, 2007)
3. Rule 8.4 – Misconduct – This Rule governed the practice of law in the District of Columbia from January 1, 1991, through January 31, 2007. As of February 1, 2007, the New Rules took effect.
4. Rule 8.4 – Misconduct of the D.C. Rules of Professional Conduct (effective February 1, 2007)

Text of, and selected comments to, Rules of Professional Conduct Violated by D. Kyle Sampson:

Rule 8.5. Disciplinary Authority; Choice of Law, Utah Rules of Professional Conduct

(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.

(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:

(b)(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and

(b)(2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occur, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.

Comment

Disciplinary Authority

[1] It is longstanding law that the conduct of a lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction. Extension of the disciplinary authority of this jurisdiction to other lawyers who provide or offer to provide legal services in this jurisdiction is for the protection of the citizens of this jurisdiction. Reciprocal enforcement of a jurisdiction’s disciplinary findings and sanctions will further advance the purposes of this Rule. See Rules 6 and 22, Utah Rules of Lawyer Discipline and Disability.

[1a] Utah has declined to adopt the portion of ABA Model Rule 8.5 Comment [1] providing that a lawyer who is subject to Utah disciplinary authority under Rule 8.5(a) is deemed to have appointed a court-designated official to receive service of process. This would be a substantive procedural rule that is not appropriate for these Rules. The last sentence of ABA Comment [1] is an unnecessary comment on jurisdiction in civil matters, and Utah has declined to adopt it.

Choice of Law

[2] A lawyer may be potentially subject to more than one set of rules of professional conduct that impose different obligations. The lawyer may be licensed to practice in more than one jurisdiction with differing rules or may be admitted to practice before a particular court with rules that differ from those of the jurisdiction or jurisdictions in which the lawyer is licensed to practice. Additionally, the lawyer’s conduct may involve significant contacts with more than one jurisdiction.

[3] Paragraph (b) seeks to resolve such potential conflicts. Its premise is that minimizing conflicts between rules, as well as uncertainty about which rules are applicable, is in the best interests of both clients and the profession (as well as the bodies having authority to regulate the profession). Accordingly, it takes the approach of (i) providing that any particular conduct of a lawyer shall be subject to only one set of rules of professional conduct, (ii) making the determination of which set of rules applies to particular conduct as straightforward as possible, consistent with recognition of appropriate regulatory interests of relevant jurisdictions, and (iii) providing protection from discipline for lawyers who act reasonably in the face of uncertainty.

[4] Paragraph (b)(1) provides that, as to a lawyer’s conduct relating to a proceeding pending before a tribunal, the lawyer shall be subject only to the rules of the jurisdiction in which the tribunal sits unless the rules of the tribunal, including its choice of law rule, provide otherwise. As to all other conduct, including conduct in anticipation of a proceeding not yet pending before a tribunal, paragraph (b)(2) provides that a lawyer shall be subject to the rules of the jurisdiction in which the lawyer’s conduct occurs, or, if the predominant effect of the conduct is in another jurisdiction, the rules of that jurisdiction shall be applied to the conduct. In the case of conduct in anticipation of a proceeding that is likely to be before a tribunal, the predominant effect of such conduct could be where the conduct occurs, where the tribunal sits or in another jurisdiction.

[5] When a lawyer’s conduct involves significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect of the lawyer’s conduct will occur in a jurisdiction other than the one in which the conduct occurred. So long as the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect will occur, the lawyer shall not be subject to discipline under this Rule.

[6] If two admitting jurisdictions were to proceed against a lawyer for the same conduct, they should, applying this Rule, identify the same governing ethics rules. They should take all appropriate steps to see that they do apply the same rule to the same conduct and in all events should avoid proceeding against a lawyer on the basis of now-inconsistent rules.

[7] The choice-of-law provision applies to lawyers engaged in transnational practice, unless international law, treaties or other agreements between competent regulatory authorities in the affected jurisdictions provide otherwise.

Rule 3.3 – Candor Toward the Tribunal – This Rule governed the practice of law in the District of Columbia from January 1, 1991, through January 31, 2007. As of February 1, 2007, the New Rules took effect.

(a) A lawyer shall not knowingly:

(1) Make a false statement of material fact or law to a tribunal;

(2) Counsel or assist a client to engage in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the law;

(3) Fail to disclose to the tribunal legal authority in the controlling jurisdiction not disclosed by opposing counsel and known to the lawyer to be dispositive of a question at issue and directly adverse to the position of the client; or

(4) Offer evidence that the lawyer knows to be false, except as provided in paragraph (b).

(b) When the witness who intends to give evidence that the lawyer knows to be false is the lawyer’s client and is the accused in a criminal case, the lawyer shall first make a good-faith effort to dissuade the client from presenting the false evidence; if the lawyer is unable to dissuade the client, the lawyer shall seek leave of the tribunal to withdraw. If the lawyer is unable to dissuade the client or to withdraw without seriously harming the client, the lawyer may put the client on the stand to testify in a narrative fashion, but the lawyer shall not examine the client in such manner as to elicit testimony which the lawyer knows to be false, and shall not argue the probative value of the client’s testimony in closing argument.

(c) The duties stated in paragraph (a) continue to the conclusion of the proceeding.

(d) A lawyer who receives information clearly establishing that a fraud has been perpetrated upon the tribunal shall promptly reveal the fraud to the tribunal unless compliance with the duty would require disclosure of information otherwise protected by Rule 1.6, in which case the lawyer shall promptly call upon the client to rectify the fraud.

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Rule 3.3 – Candor to Tribunal of the D.C. Rules of Professional Conduct (effective February 1, 2007)

(a) A lawyer shall not knowingly:

(1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer, unless correction would require disclosure of information that is prohibited by Rule 1.6;

(2) Counsel or assist a client to engage in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the law;

(3) Fail to disclose to the tribunal legal authority in the controlling jurisdiction not disclosed by opposing counsel and known to the lawyer to be dispositive of a question at issue and directly adverse to the position of the client; or

(4) Offer evidence that the lawyer knows to be false, except as provided in paragraph (b). A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

(b) When the witness who intends to give evidence that the lawyer knows to be false is the lawyer’s client and is the accused in a criminal case, the lawyer shall first make a good-faith effort to dissuade the client from presenting the false evidence; if the lawyer is unable to dissuade the client, the lawyer shall seek leave of the tribunal to withdraw. If the lawyer is unable to dissuade the client or to withdraw without seriously harming the client, the lawyer may put the client on the stand to testify in a narrative fashion, but the lawyer shall not examine the client in such manner as to elicit testimony which the lawyer knows to be false, and shall not argue the probative value of the client’s testimony in closing argument.

(c) The duties stated in paragraph (a) continue to the conclusion of the proceeding.

(d) A lawyer who receives information clearly establishing that a fraud has been perpetrated upon the tribunal shall promptly take reasonable remedial measures, including disclosure to the tribunal to the extent disclosure is permitted by Rule 1.6(d).

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Rule 3.4 – Fairness to Opposing Party and Counsel – This Rule governed the practice of law in the District of Columbia from January 1, 1991, through January 31, 2007. As of February 1, 2007, the New Rules took effect.

A lawyer shall not:

(a) Obstruct another party’s access to evidence or alter, destroy, or conceal evidence, or counsel or assist another person to do so, if the lawyer reasonably should know that the evidence is or may be the subject of discovery or subpoena in any pending or imminent proceeding. Unless prohibited by law, a lawyer may receive physical evidence of any kind from the client or from another person. If the evidence received by the lawyer belongs to anyone other than the client, the lawyer shall make a good-faith effort to preserve it and to return it to the owner, subject to Rule 1.6;

(b) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(c) Knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

(d) In pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;

(e) In trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused; or

(f) Request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) The person is a relative or an employee or other agent of a client; and

(2) The lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.

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Rule 3.4 – Fairness to Opposing Party and Counsel of the D.C. Rules of Professional Conduct (effective February 1, 2007)

A lawyer shall not:

(a) Obstruct another party’s access to evidence or alter, destroy, or conceal evidence, or counsel or assist another person to do so, if the lawyer reasonably should know that the evidence is or may be the subject of discovery or subpoena in any pending or imminent proceeding. Unless prohibited by law, a lawyer may receive physical evidence of any kind from the client or from another person. If the evidence received by the lawyer belongs to anyone other than the client, the lawyer shall make a good-faith effort to preserve it and to return it to the owner, subject to Rule 1.6;

(b) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(c) Knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

(d) In pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent efforts to comply with a legally proper discovery request by an opposing party;

(e) In trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused;

(f) Request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) The person is a relative or an employee or other agent of a client; and

(2) The lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information; or

(g) Peremptorily strike jurors for any reason prohibited by law.

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Rule 3.9 – Advocate in Nonadjudicative Proceedings – This Rule governed the practice of law in the District of Columbia from January 1, 1991, through January 31, 2007. As of February 1, 2007, the New Rules took effect.

A lawyer representing a client before a legislative or administrative body in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3, 3.4(a) through (c), and 3.5.

Comment

[1] In representation before bodies such as legislatures, municipal councils, and executive and administrative agencies acting in a rule-making or policy-making capacity, lawyers present facts, formulate issues, and advance argument in the matters under consideration. The decision-making body, like a court, should be able to rely on the integrity of the submissions made to it. A lawyer appearing before such a body should deal with it honestly and in conformity with applicable rules of procedure.

[2] Lawyers have no exclusive right to appear before nonadjudicative bodies, as they do before a court. The requirements of this Rule therefore may subject lawyers to regulations inapplicable to advocates, such as nonlawyer lobbyists, who are not lawyers. However, legislatures and administrative agencies have a right to expect lawyers to deal with them as they deal with courts.

[3] This Rule does not apply to representation of a client in a negotiation or other bilateral transaction with a government agency; representation in such a transaction is governed by Rules 4.1 through 4.4.

[4] This Rule is closely related to Rules 3.3 through 3.5, which deal with conduct regarding tribunals. The term “tribunal,” as defined in the Terminology section of these Rules, refers to adjudicative or quasi-adjudicative bodies.

Rule 3.9 – Advocate in Non-adjudicative Proceedings of the D.C. Rules of Professional Conduct (effective February 1, 2007)

A lawyer representing a client before a legislative or administrative body in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3, 3.4(a) through (c), and 3.5.

COMMENT

[1] In representation before bodies such as legislatures, municipal councils, and executive and administrative agencies acting in a rule-making or policy-making capacity, lawyers present facts, formulate issues, and advance argument in the matters under consideration. The decision-making body, like a court, should be able to rely on the integrity of the submissions made to it. A lawyer appearing before such a body should deal with it honestly and in conformity with applicable rules of procedure.

[2] Lawyers have no exclusive right to appear before nonadjudicative bodies, as they do before a court. The requirements of this rule therefore may subject lawyers to regulations inapplicable to advocates, such as nonlawyer lobbyists, who are not lawyers. However, legislatures and administrative agencies have a right to expect lawyers to deal with them as they deal with courts.

[3] This rule does not apply to representation of a client in a negotiation or other bilateral transaction with a government agency; representation in such a transaction is governed by Rules 4.1 through 4.4.

[4] This rule is closely related to Rules 3.3 through 3.5, which deal with conduct regarding tribunals. The term “tribunal,” as defined Rule 1.0(n), refers to adjudicative or quasiadjudicative bodies.

Rule 4.1 – Truthfulness in Statements to Others – This Rule governed the practice of law in the District of Columbia from January 1, 1991, through January 31, 2007. As of February 1, 2007, the New Rules took effect.

In the course of representing a client, a lawyer shall not knowingly:

(a) Make a false statement of material fact or law to a third person; or

(b) Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Comment

Misrepresentation

[1] A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by failure to act. The term “third person” as used in paragraphs (a) and (b) refers to any person or entity other than the lawyer’s client.

Statements of Fact

[2] This Rule refers to material statements of fact. Whether a particular statement should be regarded as material, and as one of fact, can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. There may be other analogous situations.

Fraud by Client

[3] Paragraph (b) recognizes that substantive law may require a lawyer to disclose certain information to avoid being deemed to have assisted the client’s crime or fraud. The requirement of disclosure created by this paragraph is, however, subject to the obligations created by Rule 1.6.

Rule 4.1 – Truthfulness in Statements to Others of the D.C. Rules of Professional Conduct (effective February 1, 2007)

In the course of representing a client, a lawyer shall not knowingly:

(a) Make a false statement of material fact or law to a third person; or

(b) Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

COMMENT

Misrepresentation

[1] A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. For dishonest conduct that does not amount to a false statement or for misrepresentations by a lawyer other than in the course of representing a client, see Rule 8.4. The term “third person” as used in paragraphs (a) and (b) refers to any person or entity other than the lawyer’s client.

Statements of Fact

[2] This rule refers to material statements of fact. Whether a particular statement should be regarded as material, and as one of fact, can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation. There may be other analogous situations.

Fraud by Client

[3] Under Rule 1.2(e), a lawyer is prohibited from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent. Paragraph (b) states a specific application of the principle set forth in Rule 1.2(e) and addresses the situation where a client’s crime or fraud takes the form of a lie or misrepresentation. Ordinarily, a lawyer can avoid assisting a client’s crime or fraud by withdrawing from the representation. Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like. In extreme cases, substantive law may require a lawyer to disclose client information to avoid being deemed to have assisted the client’s crime or fraud. If the lawyer can avoid assisting a client’s crime or fraud only by disclosing such client information, then under paragraph (b) the lawyer is required to do so, unless the disclosure is prohibited by Rule 1.6. If, in the particular circumstances in which the lawyer finds himself or 116 herself, the lawyer has discretion to disclose a client confidence or secret under Rule 1.6(c), (d), or (e), disclosure is not prohibited by Rule 1.6, and the lawyer must disclose the information if otherwise required by this rule.

Rule 8.4 – Misconduct – This Rule governed the practice of law in the District of Columbia from January 1, 1991, through January 31, 2007. As of February 1, 2007, the New Rules took effect.

It is professional misconduct for a lawyer to:

(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects;

(c) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

(d) Engage in conduct that seriously interferes with the administration of justice;

(e) State or imply an ability to influence improperly a government agency or official;

(f) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable Rules of Judicial Conduct or other law; or

(g) Seek or threaten to seek criminal charges or disciplinary charges solely to obtain an advantage in a civil matter.

Comment

[1] Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving “moral turpitude.” That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

[2] Paragraph (d)’s prohibition of conduct that “seriously interferes with the administration of justice” includes conduct proscribed by the previous Code of Professional Responsibility under DR 1-102(A)(5) as “prejudicial to the administration of justice.” The extensive case law on that standard, as set forth below, is hereby incorporated into this Rule.

[3] The majority of these cases involve a lawyer’s failure to cooperate with Bar Counsel. A lawyer’s failure to respond to Bar Counsel’s inquiries or subpoenas may constitute misconduct, see In re Cope, 455 A.2d 1357 (D.C. 1983); In re Haupt, 444 A.2d 317 (D.C. 1982); In re Lieber, 442 A.2d 153 (D.C. 1982); In re Whitlock, 441 A.2d 989 (D.C. 1982); In re Spencer, No. M-112-82 (D.C. June 4, 1982); In re L. Smith, No. M-91-82 (D.C. App. Mar. 9, 1982); In re Walsh, No. M-70 (81) (D.C. Sept. 25, 1981) en banc; In re Schattman, No. M-63-81 (D.C. June 2, 1981); In re Russell, 424 A.2d 1087 (D.C. 1980); In re Willcher, 404 A.2d 185 (D.C. 1979); In re Carter, No. D-31-79 (D.C. Oct. 28, 1979); In re Bush (Bush II), No. S-58-79 (D.C. Oct. 1, 1979); In re Tucker, No. M-13-75/S-56-78 (D.C. Nov. 15, 1978), as may the failure to abide by agreements made with Bar Counsel. In re Harmon, M-79-81 (D.C. Dec. 14, 1981) (breaking promise to Bar Counsel to offer complainant refund of fee or vigorous representation constitutes conduct prejudicial to the administration of justice).

[4] A lawyer’s failure to appear in court for a scheduled hearing is another common form of conduct deemed prejudicial to the administration of justice. See In re Evans, No. M-126-82 (D.C. Dec. 18, 1982); In re Doud, Bar Docket No. 442-80 (Sept. 23, 1982); In re Bush (Bush III), No. S-58-79/D/39/80 (D.C. Apr. 30, 1980); In re Molovinsky, No. M-31-79 (D.C. Aug. 23, 1979). Similarly, failure to obey court orders may constitute misconduct under paragraph (d). Whitlock, 441 A.2d at 989-91; In re Brown, Bar Docket No. 222-78 (Aug. 4, 1978); In re Bush (Bush I), No. DP-22-75 (D.C. July 26, 1977).

[5] While the above categories—failure to cooperate with Bar Counsel and failure to obey court orders—encompass the major forms of misconduct proscribed by paragraph (d), that provision is to be interpreted flexibly and includes any improper behavior of an analogous nature. For example, the failure to turn over the assets of a conservatorship to the court or to the successor conservator has been held to be conduct “prejudicial to the administration of justice.” In re Burka, 423 A.2d 181 (D.C. 1980). In Russell, supra, the court found that failure to keep the Bar advised of respondent’s changes of address, after being warned to do so, was also misconduct under that standard. And in Schattman, supra, it was held that a lawyer’s giving a worthless check in settlement of a claim against the lawyer by a client was improper.

Rule 8.4 – Misconduct of the D.C. Rules of Professional Conduct (effective February 1, 2007)

It is professional misconduct for a lawyer to:

(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects;

(c) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

(d) Engage in conduct that seriously interferes with the administration of justice;

(e) State or imply an ability to influence improperly a government agency or official;

(f) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or

(g) Seek or threaten to seek criminal charges or disciplinary charges solely to obtain an advantage in a civil matter.

COMMENT

[1] Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving “moral turpitude.” That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

[2] Paragraph (d)’s prohibition of conduct that “seriously interferes with the administration of justice” includes conduct proscribed by the previous Code of Professional Responsibility under DR 1-102(A)(5) as “prejudicial to the administration of justice.” The cases under paragraph (d) include acts by a lawyer such as: failure to cooperate with Bar Counsel; failure to respond to Bar Counsel’s inquiries or subpoenas; failure to abide by agreements made with Bar Counsel; failure to appear in court for a scheduled hearing; failure to obey court orders; failure to turn over the assets of a conservatorship to the court or to the successor conservator; failure to keep the Bar advised of respondent’s changes of address, after being warned to do so; and tendering a check known to be worthless in settlement of a claim against the lawyer or against the lawyer’s client. Paragraph (d) is to be interpreted flexibly and includes any improper behavior of an analogous nature to these examples.

[3] A lawyer violates paragraph (d) by offensive, abusive, or harassing conduct that seriously interferes with the administration of justice. Such conduct may include words or actions that manifest bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status.

Tags: Alberto Gonzales, Bud Cummins, David Iglesias, Harriet Miers, Karl Rove, Kyle Sampson, Mark Pryor, Monica Goodling, Professional Misconduct, Richard Hertling, Timothy Griffin, Utah, Washington, D.C., William Moschella