In re Paul
| Decision Date | 20 April 2023 |
| Docket Number | 22-BG-457,Bar Registration 490142 |
| Parties | In re Dana A. Paul, Respondent. A Member of the Bar of the District of Columbia |
| Court | D.C. Court of Appeals |
Submitted January 24, 2023
On Report and Recommendation of the Board on Professional Responsibility (Disciplinary Docket No. 2019-D199) (Board Docket No. 19-BD-63)
Dana A. Paul, pro se.
Hamilton P. Fox and Myles V. Lynk were on the brief for the Office of Disciplinary Counsel.
Before Howard and Alikhan, Associate Judges, and Fisher, Senior Judge.
After respondent Dana A. Paul disclosed client confidences in a disciplinary complaint that he filed against his former client, N.E., the District of Columbia Office of Disciplinary Counsel investigated him for violating multiple District of Columbia Rules of Professional Conduct. The Board on Professional Responsibility concluded that he had violated D.C. R. Prof. Conduct 1.6(a) and recommended that we impose a 90-day suspension. Before this court, Mr. Paul argues that D.C. Bar R. XI, § 19(a) immunizes him from disciplinary action stemming from his complaint, that his disclosures do not fall under Rule 1.6's protections and were necessary to defend himself against an earlier disciplinary action that N.E. had filed against him, and that the Board's recommended 90-day suspension was unwarranted. We disagree that he is immune from discipline, conclude that he violated Rule 1.6(a), and order a 30-day suspension.
The Hearing Committee and the Board made the following findings of fact, most of which are undisputed. 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.
In June 2022, the Office of Disciplinary Counsel instituted disciplinary proceedings against Mr. Paul, alleging that he had violated D.C. R. Prof. Conduct 1.6 and 8.4(d). First, the Office of Disciplinary Counsel alleged that in his 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, it 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).
After a hearing in March 2020, an Ad Hoc Hearing Committee concluded that Mr. Paul had violated both rules and recommended that he receive a 90-day suspension. 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) ().
As to Rule 8.4(d), 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." In re Hopkins, 677 A.2d 55, 61 (D.C. 1996). The Hearing Committee recommended a 90-day suspension after considering (1) the seriousness of Mr. Paul's conduct; (2) prejudice to the client; (3) whether the conduct involved dishonesty; (4) violation of other disciplinary rules; (5) Mr. Paul's disciplinary history; (6) whether Mr. Paul had acknowledged his wrongful conduct; and (7) mitigating circumstances. See In re Daniel, 11 A.3d 291, 300 (D.C. 2011).
Mr. Paul filed exceptions to each of these conclusions. In June 2022, the Board issued its report and recommendation. 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." In re Hopkins, 677 A.2d at 61.
Despite finding fewer violations than the Hearing Committee, the Board adopted the Hearing Committee's recommendation of a 90-day suspension. In so doing, it explained that Mr. Paul's disciplinary complaint against N.E. was retaliatory and egregious and thus warranted a 90-day suspension even without a finding that Mr. Paul had violated Rule 8.4(d).
Mr. Paul took exception to several of the Board's conclusions and its recommended sanction, and he filed a brief in this court. The Office of Disciplinary Counsel did not file exceptions, but it filed a brief supporting the Board's report and recommendation.
We "accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, and [we] 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." D.C. Bar R. XI, § 9(h)(1). We review the Board's legal determinations de novo. In re Samad, 51 A.3d 486, 495 (D.C. 2012) (per curiam).
Before this court, Mr. Paul argues that (1) D.C. Bar R. XI, § 19(a) immunizes him from disciplinary action stemming from the complaint he filed against N.E.; (2) he did not disclose information protected by Rule 1.6 and, even if he did, such disclosure was necessary to defend himself against the earlier disciplinary action N.E. had filed against him; and (3) a 90-day suspension was unwarranted. We take each in turn.
In the District of Columbia, an individual may submit allegations of an attorney's misconduct to the Board or to the D.C. Office of Disciplinary Counsel. D.C. Bar R. XI, § 6(a)(2), 8(a).[1] These allegations may come through formal complaints or other sources, id. § 6(a)(2), and they may come from other lawyers, see D.C. R. Prof. Conduct 8.3.
All complaints submitted to Disciplinary Counsel or the Board are "absolutely privileged, and no claim or action predicated thereon may be instituted or maintained." D.C. Bar R. XI, § 19(a). Additionally, "[m]embers of the Board, its employees," and other similarly situated individuals are "immune from disciplinary complaint . . . and from civil suit for any conduct in the course of their official duties." Id.[2]
Mr Paul argues that Section 19(a)'s proviso that disciplinary complaints are "absolutely privileged, and [that] no claim or action predicated thereon may be instituted or maintained" means that an attorney who submits a disciplinary complaint is immune from both litigation and disciplinary action related to the complaint. In contrast, the Board concluded, and the Office of Disciplinary Counsel argues, that this language immunizes attorneys who file complaints only from suit but not from disciplinary action. This is so, they reason, because the next sentence of Section 19(a) provides immunity from both civil suit and disciplinary action, but only to a select group of people: "[m]embers of the Board, its employees," and other similarly...
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