In re Clark

678 F.Supp.3d 112

IN RE Jeffrey B. CLARK

Case No.: 22-mc-0096

Case No.: 22-mc-0117

Case No.: 23-mc-0007

United States District Court, District of Columbia

Signed June 8, 2023

Harry W. MacDougald, Pro Hac Vice, Caldwell, Carlson, Elliott & Deloach, LLP, Atlanta, GA, Charles Burnham, Burnham & Gorokhov PLLC, Washington, DC, for Jeffrey B. Clark in No. 22-mc-0096.

Hamilton P. Fox, III, Theodore Paul Metzler, Jr., Office of Disciplinary Counsel, Washington, DC, for D.C. Office of Disciplinary Counsel in No. 22-mc-0096.

Charles Burnham, Burnham & Gorokhov PLLC, Washington, DC, for Jeffrey B. Clark in Nos. 22-mc-0117, 23-mc-0007.

Hamilton P. Fox, III, Office of Disciplinary Counsel, Washington, DC, for D.C. Office of Disciplinary Counsel in Nos. 22-mc-0117, 23-mc-0007.

MEMORANDUM OPINION

GRANTING MOTIONS TO REMAND

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

On July 19, 2022, the Office of Disciplinary Counsel ("ODC") for the D.C. Board on Professional Responsibility (the "Board"), the entity that regulates the conduct of attorneys admitted to the D.C. Bar, commenced a disciplinary proceeding against Jeffrey B. Clark, an attorney admitted to the D.C. Bar and a former Assistant Attorney General of the United States. See 1d Notice of Removal, Ex. A-2 ("Petition and Specification"), ECF No. 1-2. Mr. Clark removed the disciplinary proceeding to this Court, see 1d Notice of Removal, Case No. 22-mc-0096, ECF No. 1, and subsequently filed separate notices of removal as to ODC's motion to enforce a subpoena, see 2d Notice of Removal, Case No. 22-mc-0117, ECF No. 1, and as to a separate subpoena later issued by ODC, see 3d Notice of Removal, Case No. 23-mc-0007, ECF No. 1. Before the Court are ODC's motions to remand. See 1d Mot. Remand, ECF No. 5; 2d Mot. Remand, ECF No. 4; 3d Mot. Remand, ECF No. 4.¹ As set forth in detail below, because the Court lacks subject-matter jurisdiction over the Board's disciplinary proceeding, ODC's motions to remand are granted.²

II. BACKGROUND

A. The DCCA and Attorney Discipline in D.C.

In 1970, Congress passed legislation creating the Superior Court of the District of Columbia and the District of Columbia Court of Appeals ("DCCA") as Article I courts. See District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub. L. No. 91-358, § 101, 84 Stat. 473, 475 (1970). For present purposes, two sections of that legislation bear notice. First, the legislation rewrote subchapter I of chapter 5 of title 11 of the D.C. Code, which concerns the jurisdiction of the U.S. District Court for the District of Columbia. Id., 84 Stat. at 476. As amended, that subchapter contained three sections. The first two provided for the District Court's jurisdiction, "[i]n addition to its jurisdiction as a United States district court and any other jurisdiction conferred on it by law," over certain "civil action[s]" and "criminal case[s]," respectively, brought under D.C. law. Id., 84 Stat. at 476-78. The third provided that "[a] civil action or criminal prosecution in the Superior Court of the District of Columbia is removable to the United States District Court for the District of Columbia in accordance with [28 U.S.C. § 1441, et seq.]." Id., 84 Stat. at 478. These provisions remain unchanged in the version of the D.C. Code in force today. See D.C. Code §§ 11-501-03.

Second, the legislation separately rewrote chapter 25 of title 11 of the D.C. Code. 84 Stat. at 520. It provided that the DCCA "shall make such rules as it deems proper respecting the examination, qualification, and admission of persons to membership in its bar, and their censure, suspension and expulsion," specifying that the DCCA "may censure, suspend from practice, or expel a member of its bar for crime, misdemeanor, fraud, deceit, malpractice, professional misconduct, or conduct prejudicial to the administration of justice." Id., 84 Stat. at 521. The legislation required that "written charges, under oath" be filed with the DCCA before a member of "its bar" could be censured, suspended, or expelled, but also permitted "other courts"—the "Federal courts in the District of Columbia and the Superior Court"—to "censure, suspend, or expel an attorney from the practice at their respective bars." Id. All of this language remains unchanged in the D.C. Code today. See D.C. Code §§ 11-2501-04. No provision for removal of disciplinary actions to the U.S. District Court was included in the original legislation, nor has one been added since. See D.C. Code tit. 11, ch. 25.

Pursuant to its authority under this chapter, the DCCA has adopted standards of conduct for members of the D.C. Bar and rules governing attorney discipline. See generally D.C. Rules of Pro. Conduct (D.C. Bar 2018); D.C. Bar R. XI (disciplinary proceedings). Specifically, D.C. Bar Rule XI lays out the grounds for discipline and the procedure for disciplinary proceedings. See D.C. Bar R. XI. As relevant here, it establishes the Board and authorizes it to "consider and investigate any alleged ground for discipline . . . called to its attention, or upon its own motion, and to take such action with respect thereto as shall be appropriate to effect the purposes of this rule." Id. § 4(e)(1). In particular, Rule XI authorizes the Board to "adopt rules, procedures, and policies not inconsistent with this rule or any other rules of [the DCCA]," id. § 4(e)(10), which the Board has done, see Board Rules (Bd. on Prof. Resp. 2023). Rule XI also empowers the Board to appoint "Disciplinary Counsel," together with a staff, and to appoint "Hearing Committees." D.C. Bar R. XI, § 4(e)(2), (e)(4).

Disciplinary Counsel is charged with "investigat[ing] all matters involving alleged misconduct by an attorney subject to the disciplinary jurisdiction of [the DCCA]" and "prosecut[ing] all disciplinary proceedings before Hearing Committees, the Board, and the Court." Id. § 6(a)(2), (a)(4). Hearing Committees are three-member panels that "conduct hearings on formal charges of misconduct" and "submit their findings and recommendations on formal charges of misconduct to the Board, together with the record of the hearing." Id. § 5(c). The Board "review[s] the findings and recommendations of the Hearing Committees" and "prepare[s] and forward[s] its own findings and recommendations, together with the record of proceedings before the Hearing Committee and the Board, to the [DCCA]." Id. § 4(e)(7). Upon receiving the Board's report, the DCCA must "enter an appropriate order as soon as the business of the Court permits." Id. § 9(h)(1). In doing so, the DCCA must "accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, and shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." Id.

B. 28 U.S.C. § 530B, the McDade Amendment

In 1979, Congress folded a requirement into a Department of Justice ("DOJ") appropriations bill that DOJ attorneys "shall be duly licensed and authorized to practice as an attorney under the laws of a State, territory, or the District of Columbia." Department of Justice Appropriation Authorization Act, Pub. L. No. 96-132, § 3(a), 93 Stat. 1040, 1044 (1979). The following year, the DOJ Office of Legal Counsel ("OLC"), responding to an American Bar Association ("ABA") disciplinary rule that prohibited direct contact with a represented opposing party without the consent of the party's counsel (the "no-contact rule"), issued an opinion finding that "courts have no authority to exclude evidence solely on the basis of a violation of [the ABA rule], and state bar associations may not, consistent with the Supremacy Clause, impose sanctions on a government attorney who has acted within the scope of his federal responsibilities." Ethical Restraints on the ABA Code of Professional Responsibility on Federal Investigations, 4B Op. O.L.C. 576, 577 (1980).

Spurred by unanimous state-level adoption of a version of the no-contact rule over the following years, see Charles Doyle, Cong. Rsch. Serv., RL30060, McDade-Murtha Amendment: Ethical Standards for Justice Department Attorneys 10 (2001), together with a Second Circuit decision rejecting DOJ's argument that state bar ethics rules did not apply to prosecutors conducting investigations before formal initiation of a prosecution, see United States v. Hammad, 858 F.2d 834 (2d Cir. 1988), cert. denied, 498 U.S. 871, 111 S.Ct. 192, 112 L.Ed.2d 154 (1990), Attorney General Richard Thornburgh issued a memorandum in 1989 to all DOJ litigators, see N.Y. Bar Ass'n v. FTC, 276 F. Supp. 2d 110, 131-32 (D.D.C. 2003) (citing Hammad, 858 F.2d at 837). The Thornburgh Memorandum "encouraged" DOJ attorneys to be "sensitive to the interests that are sought to be protected by [the no-contact rule]," but explained the "Department's position that contact with a represented individual in the course of authorized law enforcement activity does not violate [the no-contact rule]" and that DOJ would "resist, on Supremacy Clause grounds, local attempts to curb legitimate federal law enforcement techniques." In re Doe, 801 F. Supp. 478, 492-93 (D.N.M. 1992) (quoting in full the Thornburgh Memorandum). Both the courts and Congress took issue with the Thornburgh Memorandum. See, e.g., United States v. Lopez, 4 F.3d 1455, 1458 (9th Cir. 1993) (endorsing the district court's "trenchant analysis of the inefficacy of the [Thornburgh Memorandum]," which the district court described as "preposterous") (citing United States v. Lopez, 765 F. Supp. 1433, 1453 (N.D. Cal. 1991), vacated on other grounds, 989 F.2d 1032 (9th Cir. 1993)); United States ex rel. O'Keefe v. McDonnell Douglas Corp., 961 F. Supp. 1288, 1294 (E.D. Mo. 1997) (quoting House Subcommittee's conclusion, after a hearing in 1990 "address[ing] the propriety of the Thornburgh Memorandum," that it "disagree[d] with the Attorney General's attempts to exempt...