Ethics Opinion 358

Subpoenaing Witness When Lawyer for Congressional Committee Has Been Advised that Witness Will Decline to Answer Any Questions on Claim of Privilege; Legal Ethics Opinion 31 Revisited.

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.

Applicable Rules

• Rule 3.4 (Fairness to Opposing Party and Counsel)
• Rule 3.5 (Impartiality and Decorum of the Tribunal)
• Rule 3.8 (Special Responsibilities of a Prosecutor)
• Rule 4.4 (Respect for Rights of Third Persons)
• Rule 5.2 (Subordinate Lawyers)
• Rule 8.4 (Misconduct)

Inquiry

The Request

The Legal Ethics Committee (“Committee”) has received a request (“Request”) to vacate Legal Ethics Opinion No. 31 (“Opinion 31” or “the Opinion”), which the Committee rendered in 1977 under the former D.C. Code of Professional Responsibility (“D.C. Code”). The Request explains that witnesses subpoenaed to appear before congressional committees have on occasion interpreted Opinion 31 as concluding that compelling the public appearance of a witness who had declared that he would assert his self-incrimination privilege in response to all questions constituted a per se violation of the D.C. Code. Based on this interpretation, some witnesses have refused to appear before Congress.

The Request asserts that various legal authorities “establish that there are legitimate reasons for a congressional committee and its staff to summon a witness even when the witness indicates in advance an intent to invoke the Fifth Amendment privilege.” Among these, according to the Request, are the committee’s right to evaluate the privilege assertion, the possibility that the witness will waive or not assert the privilege, the possibility that the committee will agree to hear the witness in executive session, and the possibility that the committee will immunize the witness’s testimony under 18 U.S.C. § 6005.

The Request also states that Opinion 31 did not take into account the Supreme Court’s 1976 decision in Baxter v. Palmigiano, 425 U.S. 308 (1976), which the Request asserts permits the finder of fact in a civil proceeding to draw an adverse inference from a witness’s invocation of the privilege.¹ According to the Request, this law “make[s] absolutely clear that, given the inferences that can appropriately be drawn in civil contexts from a refusal to testify [on self-incrimination grounds], there are legitimate reasons for attorneys for congressional committees to call witnesses even if it appears such witnesses plan to assert the Fifth Amendment privilege.” The Request concedes that calling a witness solely to harass or embarrass that person “is not appropriate.”

Finally, the Request notes that the Opinion was decided under the now–superseded D.C. Code and states that—

[a]lthough the ethical considerations against calling a witness solely to harass remain [under the D.C. Rules of Professional Conduct], Opinion No. 31’s apparent assumption that there can be no legitimate purpose for calling a witness who has indicated he or she will assert the Fifth Amendment privilege simply cannot stand in light of the clear legal authority set forth above.

D.C. Legal Ethics Opinion No. 31

In Opinion 31, the Committee described the inquiry before it as follows:

We have been asked to advise whether it is proper for a congressional committee whose chairman, staff and several members are attorneys to require a witness who is a “target” of a pending grand jury investigation to appear at televised hearings to be questioned when the committee has been notified in advance that the witness will exercise his constitutional privilege not to answer any questions.

Op. 31. The Opinion began its analysis by conceding that “[i]t is not per se improper . . . to cause a witness to be summoned in furtherance of a legitimate legislative function of Congress, even though the resultant attending publicity will be damaging to the witness’ reputation and possibly prejudicial to him in a future criminal trial.” Id. (emphasis added). The Opinion continued, however, that “the inquiring power of a congressional committee is limited to obtaining information in aid of Congress’ legislative function” and that “[t]here is no congressional power to expose for the sake of exposure.” Id.

Acknowledging that this Committee’s jurisdiction is confined to rendering opinions on the applicability of the ethics rules to the conduct of staff attorneys acting in their capacities as attorneys, the Opinion stated that “the inquiry before us poses the issue whether it is ethical to summon a witness [before a congressional committee] when it is known in advance that no information will be obtained and the sole effect of the summons will be to pillory the witness.” Op. 31 (emphasis added).

The Opinion discussed rulings and standards to the effect that calling a witness in a criminal proceeding, when it is known that the witness will invoke, across the board, his privilege against self-incrimination, constitutes prosecutorial misconduct.² Analogizing to those authorities, the Opinion concluded that such conduct by a lawyer for a congressional committee “appears to be in conflict with at least the spirit of” D.C. Disciplinary Rule (“DR”) 7-106(C)(2). That rule barred a lawyer from asking a witness before a tribunal any question “that [the lawyer] has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness.” D.C. Code DR 7-106(C)(2) (superseded 1991). The Opinion concluded that although a congressional committee arguably is not a “tribunal,” the principle that an attorney should not ask a witness questions that are “intended to degrade” him was applicable and that a question to which the inquiring lawyer knows the response will be the witness’s invocation of his privilege against self-incrimination is by definition irrelevant. Id.

Opinion 31 also considered whether such conduct would constitute “conduct . . . prejudicial to the administration of justice,” in violation of D.C. Code DR 1-102(A)(5). A majority of the committee concluded that “the language of this standard is too vague to permit its application as a disciplinary rule,” Opinion 31 n. 3, though a few months later, the District of Columbia Court of Appeals upheld the rule against a claim of unconstitutional vagueness, In re Keiler, 380 A.2d 119, 126 (D.C. 1977).³

Discussion

The D.C. Rules of Professional Conduct (“D.C. Rules” or “Rules”) superseded the D.C. Code effective January 1, 1991.⁴ Several provisions of the Rules are relevant to the issue presented by the Request.

Rule 4.4(a) states that “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.” The comments observe that it is not possible to catalog all the third-party rights that the rule might implicate. D.C. Rule 4.4, cmt. [1].

Rule 8.4(d) prohibits a lawyer from “engag[ing] in conduct that seriously interferes with the administration of justice.” Comment [2] states that this prohibition is intended to include conduct proscribed by the similarly worded provision of the D.C. Code, which was DR 1-102(A)(5).⁵ Comment [3] to Rule 8.4, which was among the 2007 amendments to the Rules, states that “offensive, abusive, or harassing conduct that seriously interferes with the administration of justice” violates Rule 8.4(d). Moreover, at least one ethics opinion issued under the D.C. Rules admonishes lawyers not to harass opponents. D.C. Op. 258 n. 4 (1995).⁶

Filing a frivolous lawsuit violates Rule 4.4, Attorney Grievance Comm’n v. Richardson, 712 A.2d 525 (Md. 1998), and Rule 8.4(d), Iowa Supreme Court Bd. of Prof’l Ethics & Conduct v. Ronwin, 557 N.W.2d 515 (Iowa 1996). Unjustified personal attacks on opponents violate both rules. In re Golden, 496 S.E.2d 619 (S.C. 1998); In re Vincenti, 704 A.2d 927 (N.J. 1998). Moreover, the misuse of official authority by a prosecutor—a position akin to counsel for an investigative congressional committee—violates Rule 8.4(d). In re Christoff, 690 N.E. 2d 1135 (Ind. 1997).

Finally, a violation of Rule 8.4(d) “does not have to be affiliated specifically with the judicial decision-making process; the conduct simply must bear on the administration of justice.” In re Mason, 736 A.2d 1019, 1023 (D.C. 1999). Moreover, “‘conduct that is prejudicial to the administration of justice’ can be equated to ‘conduct unbecoming a member of the bar.’” Id. (quoting In re Solerwitz, 575 A.2d 287, 292 (D.C. 1990)); see In re Keiler, 380 A.2d 119 (D.C. 1977) (finding violation of predecessor to Rule 8.4(d) where lawyer conducted sham arbitration proceeding).

Opinion 31 does not establish a per se rule that compelling a witness to testify before a congressional committee when it is known in advance that the witness will invoke the Fifth Amendment privilege violates the ethics rules. Opinion 31 provides that an attorney violates the ethics rules only when he knows that summoning a witness to appear (1) will provide no information to the committee and (2) is intended merely to degrade a witness. Specifically, the Opinion states that the issue is “whether it is ethical to summon a witness when it is known in advance that no information will be obtained and the sole effect of the summons will be to pillory the witness.” The Opinion further notes that “DR 7-106(C)(2) prohibits only questions that the lawyer has no reasonable basis to believe are relevant and that are ‘intended to degrade’ as well.” Op. 31 (emphasis added).

The Request has not persuaded us that the revised Rules of Professional Conduct, or other governing law, require us to vacate the Opinion. First, the Request concedes the critical point that calling a witness solely to harass or embarrass that person is not appropriate. We agree and conclude, as we did in Opinion 31, that such conduct violates the Rules.

Second, the Request suggests that the Opinion assumes that there can be no legitimate purpose for calling a witness before Congress when it is known that the witness will assert the privilege. We do not read Opinion 31 as making that assumption. The Opinion asserts that where an attorney has some question whether the witness will assert the privilege, there is no need to test that claim of privilege in public and the claim can be resolved by calling the witness in executive session. We do not read the Opinion to mean, however, that the only legitimate purpose for calling a witness is to determine whether he will assert the privilege.

Third, the Request relies heavily on the Supreme Court’s decision in Baxter, which held that an adverse inference properly may be drawn from an inmate’s silence at his disciplinary proceedings. Baxter, 425 U.S. at 320. Baxter and its progeny allow fact-finders to draw an adverse inference in civil proceedings from the invocation of the Fifth Amendment privilege. It is not clear, though, how that rule alters the threshold ethical question presented in Opinion 31. The Request asserts that this case law undermines “Opinion No. 31’s apparent assumption that there can be no legitimate purpose for calling a witness who has indicated he or she will assert the Fifth Amendment privilege.” As explained above, however, that assertion is based on a misreading of the Opinion. Only where the sole purpose of proceeding is to degrade the witness is there a violation of the Rules of Professional Conduct.

Opinion 31 correctly asserted that when an attorney causes a witness to be called for the sole purpose of harassing or degrading that witness, that attorney violates our rules. See Rules 4.4, 8.4(d). Similarly, a lawyer would violate Rule 8.4(d) by engaging in abuse or harassment of the witness. Further, such conduct by a staff lawyer might constitute assisting another in violating the rules. See D.C. Rule 8.4(a). In addition to participation in the hearing itself, such related activities as preparing subpoenas also could subject a lawyer to sanctions, though we note that Rule 5.2 protects a subordinate lawyer who acts at the direction of a supervising attorney so long as there is a reasonable argument that calling the witness is permitted by the Rules. See D.C. Rule 5.2 & com. [2].⁷

Conclusion

 The Request correctly observes that there may be legitimate reasons for a congressional committee to summon a witness who expresses an intention to assert her privilege against self-incrimination. Because the Opinion is consistent with that fact and because the Rules of Professional Conduct are violated only if there is no substantial purpose in calling a witness other than embarrassment, burden, or delay, we decline to vacate Opinion 31.

Published: January 2011

1. The Request cites Rad Services v. Aetna Casualty & Surety Co., 808 F. 2d 271, 275-77 (3d Cir. 1986), Brink’s Inc. v. City of New York, 717 F.2d 700, 707-10 (2d Cir. 1983), and In re Vitamin Antitrust Litigation, 120 F. Supp. 2d 58, 68 (D.D.C. 2000), as progeny of Baxter.
2. United States v. Coppola, 479 F.2d 1153, 1160 (10th Cir. 1973); San Fratello v. United States, 340 F.2d 560, 564 (4 Cir. 1965); United States v. Tucker, 267 F.2d 212, 215 (3d Cir. 1959); see ABA Project on Standards for Criminal Justice ¶ 5.7(c) (unprofessional to call witness under such circumstances “for the purpose of impressing upon the jury the fact of the claim of privilege”).
3. The Opinion also concluded that such conduct violated several D.C. Ethical Considerations (“ECs”). These were D.C. EC 7-10, which called upon lawyers to treat persons involved in the legal process with consideration and to avoid inflicting needless harm, D.C. EC 7-14, which exhorted government lawyers not to harass parties, and D.C. EC 7-25, which said that a lawyer should not ask a witness a question “solely for the purpose of harassing or embarrassing him.” Under the D.C. Code, the Ethical Considerations were “aspirational in character,” whereas the Disciplinary Rules were mandatory. D.C. Code Preliminary Statement. The Code added, though, that an agency applying the Disciplinary Rules “may find interpretive guidance in the basic principles embodied in the Canons and in the objectives reflected in the Ethical Considerations.” Id. The D.C. Rules of Professional Conduct, which superseded the D.C. Code in 1991, do not contain “aspirational” guidelines akin to the Code’s Ethical Considerations.
4. There have been a number of subsequent changes to the D.C. Rules but aside from the new comment [3] to Rule 8.4, which took effect February 1, 2007, none is material to this opinion.
5. As noted above, when this committee issued Opinion 31, a majority of the members found the language of the predecessor provision “too vague to permit its application as a disciplinary rule,” D.C. Ethics Op. 31 n. 3 (citing D.C. Code DR 1-102(A)(5)), but the D.C. Court of Appeals subsequently upheld the cited Code provision against a vagueness challenge, see In re Keiler, 380 A.2d at 126.
6. Instructive, though not literally applicable, are Rules 3.4, 3.5, and 3.8. Rule 3.4(e), whose predecessor rule Opinion 31 applied by analogy to the conduct at issue here, prohibits a lawyer from, “[i]n trial, allud[ing] to any matter that the lawyer does not reasonably believe is relevant.” Rule 3.5(d) prohibits a lawyer from engaging in “conduct intended to disrupt any proceeding of a tribunal.” A congressional committee ordinarily is not a “tribunal” because it is not adjudicatory in character. See D.C. Rule 1.0(n) (defining “tribunal”). Such a committee might be a tribunal, though, when deliberating and voting on whether to recommend to its house of Congress that a witness be cited for contempt of Congress. See id.
  Comment [2] to Rule 3.8, which sets forth special responsibilities of prosecutors, permits public release of an indictment but condemns—
  extrajudicial comment by a prosecutor that serves unnecessarily to heighten public condemnation of the accused without a legitimate law enforcement purpose before the criminal process has taken its course. When that happens, even if the ultimate trial is not prejudiced, the accused may be subjected to unfair and unnecessary condemnation before the trial takes place. Accordingly, a prosecutor should use special care to avoid publicity, such as through televised press conferences, which would unnecessarily heighten condemnation of the accused.
7. 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.