respondent violated DR 1-102(A)(5) by attempting to sell information to other attorneys to be used as factual evidence in a case in which respondent was not otherwise involved
How later courts described this case
- respondent violated DR 1-102(A)(5) by attempting to sell information to other attorneys to be used as factual evidence in a case in which respondent was not otherwise involved
- attempting to sell information to other attorneys to be used as factual evidence in a case
Written by the judges who cited it.
The opinion
NEBEKER, Associate Judge,
concurring:
I would look to all the evidence and adopt the Board’s recommendation. Judge Fer-ren would take an extreme and unwarranted step in limiting not only the authority of Bar Counsel to investigate allegations of disciplinary rule violations, but also in excluding evidence obtained through that in *294 vestigation. This idea of excluding evidence in lawyer discipline cases appears to be bom of the rule for constitutional violations by police. I do not agree that Bar Counsel should be so limited in his investigatory responsibilities and that a perceived “violation” of D.C. Bar Rule XI, sec. 4(3)(b) has the gravity of a constitutional violation triggering the exclusionary rule. Section 4(3)(b), supra, is more realistically looked at as an administrative rule to ensure that there is fiscal responsibility in staff appointments. The rule as written informs no one that we intended it to confer any rights in an investigated lawyer let alone any right of the magnitude of a constitutional right.
Bar Counsel did what any good lawyer would do when Hills and Marcus went to him with the report of petitioner’s efforts to sell evidence. He enlisted their willing aid for further investigation. Implicit in Judge Ferren’s willingness to exclude the evidence revealed in that subsequent investigation is that petitioner had a right under the rule that Bar Counsel not undertake covert inquiry. Rather, according to Judge Ferren, Bar Counsel should have “educated” petitioner as to the error of his ways. This is an important policy statement to which the entire court should speak by way of its rules.
The issues presented in this case are the authority of Bar Counsel to enlist private assistance for further investigation and the application of an exclusionary rule if he violates some rule of administration. It seems to me that disciplinary litigation is not the way to resolve these questions. It is fortunate that this division has been unwilling to resolve them in favor of petitioner. My suggestion is that the Board on Professional Responsibility submit to the court proposed rules amendments to make clear Bar Counsel’s authority to conduct post-complaint covert investigation and any evidentiary rules deemed just. In this way we may decide these issues without use of the “dog law” theory of Jeremy Bentham for the “blunder” of the constable.