In re Dobbie & In re Taylor ( 2023 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 21-BG-0024
IN RE MARY CHRIS DOBBIE, RESPONDENT.
A Member of the Bar of
the District of Columbia Court of Appeals
(Bar Registration No. 975939)
IN RE REAGAN TAYLOR, RESPONDENT.
An Attorney Licensed to Practice Law
in the State of Tennessee
On Report and Recommendation
of the Board on Professional Responsibility
(Disciplinary Docket Nos. 2014-D208 & D209)
(Board Docket No. 19-BD-018)
(Argued May 24, 2022 Decided December 7, 2023)
Timothy J. Simeone, with whom Thomas B. Mason and Amy E. Richardson
were on the brief, for respondent Dobbie.
J. Alex Little for respondent Taylor.
Hamilton P. Fox, III, Disciplinary Counsel, with whom Hendrik deBoer,
Assistant Disciplinary Counsel, was on the brief, for the Office of Disciplinary
Counsel.
Donald B. Verrilli, Jr. filed a brief on behalf of the National Association of
Assistant United States Attorneys and Individual Former Assistant United States
Attorneys as amici curiae, in support of respondents.
2
David B. Goodhand, with whom Stacy M. Ludwig, Channing D. Phillips,
Elizabeth Trosman, John P. Mannarino, and Patrice M. Mulkern were on the brief
on behalf of the United States as amicus curiae, in support of respondents.
Samia Fam filed a brief on behalf of the Public Defender Service as amicus
curiae, in support of the Office of Disciplinary Counsel.
Sarah F. Kirkpatrick filed a brief on behalf of the Mid-Atlantic Innocence
Project as amicus curiae, in support of the Office of Disciplinary Counsel.
Before DEAHL and ALIKHAN, Associate Judges, and GLICKMAN, * Senior Judge.
Opinion for the court by Associate Judge ALIKHAN.
Dissenting opinion by Associate Judge DEAHL at page 72.
ALIKHAN, Associate Judge: In Vaughn v. United States, 93 A.3d 1237(D.C. 2014), this court held that the United States Attorney’s Office for the District
of Columbia had violated its constitutional obligation under Brady v. Maryland, 373
U.S. 83 (1963), to disclose exculpatory information to the defense during the
prosecution of Carl Morton and Alonzo Vaughn. We consequently reversed
Morton’s convictions for aggravated assault and assault on a law enforcement
officer. Vaughn, 93 A.3d at 1244. 1
*
Judge Glickman was an Associate Judge of the court at the time of argument.
He began his service as a Senior Judge on December 21, 2022.
1
For reasons not relevant here, we did not reverse Vaughn’s convictions on
this basis, although we did reverse one of his convictions on other grounds. Vaughn,
93 A.3d at 1266, 1270.
3
After Vaughn, Disciplinary Counsel initiated disciplinary proceedings against
the prosecutors who committed the Brady violation, respondents Mary Chris Dobbie
and Reagan Taylor. This case arises out of those proceedings.
In its Report and Recommendation, the Board on Professional Responsibility
found that respondents had violated Rules 3.8(e), 8.4(c), and 8.4(d) of the District of
Columbia Rules of Professional Conduct. Rule 3.8(e), in relevant part, prohibits
prosecutors from “[i]ntentionally fail[ing] to disclose to the defense . . . any
evidence or information that the prosecutor knows or reasonably should know tends
to negate the guilt of the accused or to mitigate the offense.” Rule 8.4(c) proscribes
“conduct involving dishonesty, fraud, deceit, or misrepresentation.” And
Rule 8.4(d) forbids conduct that “seriously interferes with the administration of
justice.” The Board recommended that respondents be suspended from the practice
of law for six months.
We agree with the Board that respondents violated each of these rules, but we
disagree as to the appropriate sanction. In recognition of the inadequate and
ill-advised guidance provided to respondents by their supervisors; the nature of
respondents’ Rule 8.4(c) violation; respondents’ lack of bad faith and otherwise
unblemished records; and our obligation to treat similar cases alike, we instead
impose a six-month suspension, stayed as to all in favor of one year of probation.
4
I. Factual Background and Procedural History
A. The Collins Report
In late 2007, a brawl erupted at the D.C. Jail, resulting in injuries to several
inmates and a guard. Security camera footage of the incident was not very clear, so
the U.S. Attorney’s Office relied on D.C. Department of Corrections (“DOC”)
officers to identify the participants in the incident for purposes of investigation and
potential criminal charges. One such officer was Lieutenant Angelo Childs, who
was not present for the events but claimed to recognize inmates Vaughn and Morton
in the video footage. The U.S. Attorney’s Office indicted Vaughn and Morton for
assault and assigned respondents to prosecute the case.
About six months before the trial, Childs sprayed a chemical agent—think
mace or pepper spray—on an inmate, Ernest Heath, during a search for contraband
at the jail. Heath’s arms were restrained behind his back at the time Childs sprayed
him. After this incident, Childs submitted a disciplinary report charging Heath with
“Assault Without Serious Injury and Lack of Cooperation.” Childs also prepared an
incident report defending his own use of force. This latter report stated that Childs
had sprayed Heath only after he began “kicking at” a drug-sniffing dog involved in
the search. The report also said that Heath had behaved violently and implied—
5
without explicitly stating—that Heath had been unrestrained at the time Childs had
sprayed him. The relevant passage of his incident report read:
On Tuesday, April 7, 2009, at approximately 2:12 p.m., I
was on North Two conducting a shakedown. Inmate
Ernest Heath (309-656) refuses to be search [sic] by the
K-9. K-9 Handler David Thomas attempted to search
Ernest Heath. Inmate Ernest Heath started kicking at the
dog. Because Inmate Ernest Heath’s actions interfered
with the normal operations of the facility, I sprayed one
burst of chemical agent. I then instructed Inmate Ernest
Heath to seize [sic] his disruptive behavior.
Inmate Ernest Heath was placed in restraints, escorted to
male Receiving and Discharge, given a shower, change of
underwear and bed linen. After showering, Inmate Heath
was escorted to the Infirmary to be medically evaluated
and treated. . . .
This incident stemmed from the violent/disruptive
behavior of Inmate Ernest Heath.
Childs’s supervisor was present for the search and, along with another officer,
stated that—contrary to what Childs had claimed in the report—Heath had been
restrained when Childs used force on him. The supervisor subsequently
reprimanded Childs, issuing him a “Letter of Direction” for violating DOC’s
use-of-force policies.
The fallout from Childs’s actions did not end there. DOC opened a formal
investigation into the incident, led by investigator Benjamin Collins. Collins
reviewed security camera footage of the incident, as well as other evidence, and
6
issued a report memorializing his findings (the “Collins Report”). The Collins
Report is 10 pages long with 76 pages of appendices. It includes three substantive
sections: a “Background” section describing the basic facts; an “Investigation”
section describing the video footage Collins reviewed, the reports the officers
involved filed, and any discrepancies between the two; and a “Findings” section with
four formal findings.
The Investigation section makes clear that Childs filed multiple false reports
about the Heath incident. It explains that Childs “composed and submitted a
Disciplinary Report charging inmate Heath with Assault without Serious Injury and
Lack of Cooperation,” but that the “[v]ideo footage of the incident does not support
the allegation that inmate Heath assaulted any Correctional Officer or canine.” It
also recounts how Childs filed an incident report “suggest[ing] that at the time of the
incident, inmate Heath was not restrained, displayed disruptive behavior, and was
‘kicking at’ the canine causing Lieutenant Childs to use chemical agent to restore
‘normal operations.’” But the evidence indicated that in fact “Inmate Heath was in
restraints and not a threat to ‘normal operations’ when he was sprayed with chemical
agent by Lieutenant Childs.” This section also states that, during an interview,
Childs admitted that his incident report “was incorrect and written in error,” and that
he was issued a Letter of Direction reprimand because of his wrongful use of force.
7
Two of the statements in the report’s Findings section also pertain to Childs.
The first is that Childs’s use of chemical agent on a restrained inmate was a violation
of DOC policy. The second restates the Investigation section’s adverse credibility
finding about Childs’s incident report (although not the one about his disciplinary
report): “Lieutenant Angelo Childs submitted a false and or misleading Incident
Report of the facts in stating that the inmate was placed in restraints after being
sprayed with chemical agent.”
In sum, the Collins Report concluded that Childs had violated DOC’s use-of-
force policy, had been reprimanded for doing so, had filed a false or misleading
incident report, and had filed a false disciplinary report accusing Heath of an assault
he did not commit. But only the first two of these four conclusions were formal
“findings” in the Findings section (a fact that will be relevant later). Several months
after Collins issued his report, DOC demoted Childs from the rank of lieutenant to
that of sergeant. 2
Aware that the U.S. Attorney’s Office was planning to sponsor Childs in the
Vaughn prosecution, Collins informed respondent Taylor that “there was an issue”
with Childs. He later emailed her his report, although he did not send any of the
2
According to respondent Taylor, Childs took a “voluntary demotion” in lieu
of a harsher sanction for his violation of DOC policy.
8
evidence on which he had relied—i.e., the videotape—or the appendices. Collins
also informed Taylor that DOC had demoted Childs.
Respondents recognized that the Collins Report called Childs’s credibility
into question and sought guidance from their supervisors about how best to proceed.
Jeffrey Ragsdale, Chief of the Felony Major Crimes Section at the U.S. Attorney’s
Office, decided to refer the issue to the Lewis Committee, a committee of senior
prosecutors that determines whether the government can sponsor the testimony of
law enforcement officers with whom there are credibility concerns. Ragsdale
emailed John Roth, the head of the committee, a copy of the Collins Report and a
summary of the concerns regarding Childs. At this point, the Collins Report was the
only information the U.S. Attorney’s Office had about the incident; neither
respondents nor anyone else had reviewed the underlying evidence on which it was
based. 3
3
Shortly after Ragsdale sent the Collins Report to the Lewis Committee,
Taylor conducted a standardized “Oral Request for Giglio Information” interview
with Childs. She asked him: (1) whether there were any findings of misconduct that
reflected upon his truthfulness or possible bias; (2) whether there were any past or
pending criminal charges or investigations against him; and (3) whether there were
any credible allegations of misconduct on his part that reflected on his truthfulness
or bias that were subject to a pending investigation. Childs answered “no” to all
three questions. Childs also informed Taylor that he had taken “a voluntary
demotion because of his excessive force and because he made errors in cutting and
pasting in a report.” According to Taylor, she believed that Childs had answered her
9
Although the Vaughn trial was only five weeks away when Ragsdale first
emailed Roth, the Lewis Committee proved less than forthcoming with its guidance.
Respondents and Ragsdale followed up, eventually prompting a response from Roth
less than two weeks before trial. Roth said that the government could sponsor Childs
and instructed respondents to “disclose the report and litigate its admissibility.” He
also expressed his “personal opinion” that Childs’s report was “simply unclear” and
that he was not sure “that the DOC conclusion that he lied is supported by the
record,” but he left it to respondents to “hash that out.” Roth formed this personal
opinion even though the only “record” before him was the Collins Report, which
had concluded in no uncertain terms that Childs had filed two false reports.
While respondents could have followed Roth’s instructions by disclosing the
Collins Report to the defense directly and then litigating whether it was admissible
at trial, that is not the route they took. Instead, Ragsdale recommended that
respondents file the report with the court ex parte and under seal and summarize its
contents in a motion in limine arguing that the defense should not be permitted to
cross-examine Childs about the report or the incident with Heath. This approach
was not uncommon in the U.S. Attorney’s Office at the time. The purported purpose
questions truthfully to the best of his knowledge, because she assumed he was not
aware of the Collins Report and its conclusions about his false reporting. There is
no evidence that respondents provided any of this information to the Lewis
Committee.
10
of proceeding in this manner—submitting evidence only to the court and
summarizing it in a motion for the defense—was to disclose to the defense
information to which the defense was entitled, while keeping from the defense
information that presented a security risk or was otherwise sensitive. According to
the respondents, the Collins Report contained “sensitive employment information”
and thus needed to be kept from the defense.
B. Motions Practice Concerning the Collins Report
Five days before trial, respondents filed the Collins Report and an
accompanying motion in limine with the court. The stated purpose of the motion in
limine was to “limit the scope of cross examination [of Childs] by the defendant”
and “preclude the defense from referring to the fact [that] DOC Office of Internal
Affairs may have made potentially adverse credibility findings regarding Officer
Child’s [sic] statement regarding when Inmate A was handcuffed.” The motion
explained that DOC’s investigation “resulted in two findings related to Officer
Childs: (1) Officer Childs’[s] use of force violated DOC policy and (2) Officer
Childs submitted a false and or misleading statement in reciting the facts.” The
motion did not, however, mention the Collins Report’s additional conclusion that
Childs submitted a disciplinary report falsely accusing Heath of assault. It also did
not disclose that Childs had been demoted, or that before his demotion or the
11
issuance of the Collins Report, his supervisor had reprimanded him for his use of
force on a restrained inmate. Respondents also included in the motion a block quote
from Childs’s incident report that describes Heath “kicking at the dog” and
“interfer[ing] with the normal operations of the facility,” without clarifying that
Collins had discredited these very assertions.
The motion in limine also cast considerable doubt on the Collins Report’s
conclusions, echoing Roth’s earlier assessment. It declared that the government was
“not conceding that Officer Childs in fact made a false and/or misleading statement.”
It also contended that “even assuming arguendo that Officer Childs made a false
and[/]or misleading statement into an Internal Affairs investigation, that ‘bad act’
does not ‘bear[] directly upon’ his veracity” with respect to the Vaughn trial. Yet
more, the motion stated that “[t]he conclusion that Officer Childs made a false or
misleading statement is at odds with the body of the report and does not appear
evident from the text of Officer Childs’[s incident report].”
This commentary was seriously misleading. The Collins Report
unequivocally states that Childs filed two false or misleading reports, and the “body
of the [Collins] [R]eport” supports those conclusions. In the most generous possible
framing, Childs’s incident report was unclear about whether Heath was restrained at
the time Childs sprayed him. But the incident report also says that Heath was
12
behaving in a “violent” and “disruptive” manner, something the Collins Report
found to be untrue. Respondents also omitted Collins’s conclusion that Childs
falsely charged Heath with assault. And the motion did not explain how Childs’s
alleged misrepresentations would not “‘bear[] directly upon’ [Childs’s] veracity” in
the Vaughn trial.
Respondents also filed an ex parte motion to keep the Collins Report under
seal. This motion expressed the government’s belief that it was unnecessary to
disclose the actual Collins Report to the defense, because the “essential facts” of the
report were “related in the Background section of the Government’s Motion in
Limine.” Based on the record, this was not correct. 4
Making matters worse, the disclosure of the Collins Report itself did not go
as planned. Dobbie attempted to fax it to the court but, due to a faxing error, sent
only the first five pages. The information respondents omitted from the motion in
4
Before the Hearing Committee, respondents offered several explanations for
these drafting decisions. Dobbie, the motion’s primary author, explained that she
started with the Collins Report’s Findings section and worked backward, for the
most part including in the motion only the facts related to the formal findings. She
also testified that she did not think that the government had any obligation to disclose
the fact that Childs had submitted a false disciplinary report. And although she
recognized that Childs’s demotion should have been disclosed, she claimed to have
forgotten about this fact when drafting the motion. Taylor, for her part, said that she
was aware that both the Collins Report’s conclusion about Childs’s disciplinary
report and his demotion were Brady material, but she largely failed to explain why
these facts were left out of respondents’ filings.
13
limine (about Childs’s false disciplinary report and reprimand for using force) began
on the sixth page.
C. Use of the Collins Report and its Consequences
The defense requested the Collins Report before trial, but the government
opposed. During the hearing on this request, the trial court asked respondents
whether Childs had been “put on any probationary status” because of the incident
with Heath. Dobbie replied that Childs had been demoted and she expected him to
testify that “he was demoted related to this incident, but not as to the particulars.”
In that same hearing, the court pressed respondents about why the government
could not simply provide the Collins Report to the defense subject to a protective
order. Dobbie answered that “the government doesn’t believe that there is anything
in the report that wasn’t disclosed in the motion [in limine] that would be necessary
for the defense counselors for the purposes that the Court has allowed the
questioning.” But in the same conversation, she also asked the court whether any
further disclosures were necessary:
The government does not agree that it[’]s required to turn
over the final report. I’ve made representations in the
motion, and the Court has the final report, to be clear. And
if the Court finds that there’s anything in the final report
that should additionally be disclosed to defense counsel, if
there’s anything that I didn’t include that would be
14
useful—and I also want to make clear that the government
is requesting that—I understand the Court’s ruling that the
defense counsel are permitted to ask about the—this event.
The court ultimately ruled that the defense could cross-examine Childs about his
false incident report but denied the defense’s request for the Collins Report itself.
After Childs testified at trial, the trial judge asked respondents whether they
had provided the entire Collins Report, noting that the version he had been given
was only five pages long. Dobbie had only brought to court a copy of what she had
faxed—that is, an incomplete version of the report—and after consulting it, affirmed
that her copy was also only five pages. She did so despite the fact that the Findings
section on which she purportedly had relied while drafting the motion in limine
began on page nine and thus was not part of the copy she consulted. Although Taylor
had a complete copy of the report with her, she did not consult it or attempt to
supplement Dobbie’s response to the court’s question.
The jury convicted both Morton and Vaughn of aggravated assault and assault
on a law enforcement officer. In post-trial litigation, the court ordered the full
Collins Report disclosed to the defense, at which point it became apparent that the
court had previously received only a partial copy. Morton moved for a judgment of
acquittal or a new trial because the government had not fulfilled its Brady
obligations. Morton pointed out, among other things, that the government’s motion
15
in limine never disclosed that Officer Childs had submitted a false disciplinary
report. The trial court denied the motion and sentenced both Vaughn and Morton to
over 60 months in prison. On appeal, this court reversed Morton’s convictions
specifically because of the government’s Brady violations. Vaughn, 93 A.3d at
1266. The government did not retry Morton.
Because we concluded in Vaughn that respondents had failed to disclose
exculpatory information to the defense, the Office of Disciplinary Counsel charged
them with violating Rule 3.8(e). It also charged them with a violation of Rule 3.4(d),
which makes it professional misconduct to “fail to make reasonably diligent efforts
to comply with a legally proper discovery request by an opposing party,” as well as
violations of Rules 8.4(c), and 8.4(d). 5 The Hearing Committee concluded that
respondents had violated all four rules and recommended a 30-day suspension. The
Board agreed except as to Rule 3.4(d). But despite finding fewer violations than did
the Hearing Committee, the Board recommended a suspension of six months.
5
Disciplinary Counsel additionally charged respondents with violating
Rule 3.3(a)(1), which prohibits knowingly making false statements of fact to a
tribunal or failing to correct such statements, and Rule 3.3(a)(4), which forbids a
lawyer from offering evidence that she knows to be false. These charges relate to
Childs’s trial testimony and are not relevant to this appeal.
16
II. Standard of Review
Disciplinary Counsel bears the burden of proving attorney violations of the
Rules of Professional Conduct by clear and convincing evidence. In re Anderson,
778 A.2d 330, 335 (D.C. 2001). The Board reviews the Hearing Committee’s legal
conclusions de novo and accepts its factual findings if they are supported by
substantial evidence. In re Martin, 67 A.3d 1032, 1039 (D.C. 2013). We in turn
review the Board’s legal conclusions de novo and factual findings for substantial
evidence. In re Kline, 113 A.3d 202, 206 (D.C. 2015).
The Board’s recommended sanction “comes to us with a strong presumption
in favor of its imposition.” In re McClure, 144 A.3d 570, 572 (D.C. 2016)
(per curiam) (quoting In re Baber, 106 A.3d 1072, 1076 (D.C. 2015)). We “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.” D.C. Bar R. XI, § 9(h)(1).
III. Disciplinary Violations
A. Rule 3.8(e)
The Board concluded that respondents violated Rule 3.8(e) by failing to
disclose to the defense both that Childs had filed a false disciplinary report charging
17
Heath with assault and that Childs was demoted. We agree as to the former but not
the latter.
1. Rule 3.8(e)’s State-of-Mind Requirements
Rule 3.8(e) reads in relevant part:
The prosecutor in a criminal case shall not . . . .
[i]ntentionally fail to disclose to the defense, upon request
and at a time when use by the defense is reasonably
feasible, any evidence or information that the prosecutor
knows or reasonably should know tends to negate the guilt
of the accused or to mitigate the offense . . . except when
the prosecutor is relieved of this responsibility by a
protective order of the tribunal.
A Rule 3.8(e) violation thus requires the following: (1) there must be evidence or
information that tends to negate the guilt of the accused or mitigate the offense—
call it exculpatory information; (2) the prosecutor must be aware of this information
and either know that it is exculpatory, or the information must be such that a
reasonable prosecutor would know that it is exculpatory; and (3) the prosecutor must
intentionally fail to disclose this information to the defense upon request.
The parties and their amici devote considerable briefing to Rule 3.8(e)’s
state-of-mind requirement, and we address it at the outset. Properly understood,
Rule 3.8(e) has two such requirements, and our interpretation of the rule must give
effect to both. See Corley v. United States, 556 U.S. 303, 314 (2009). The first is
18
“intentionally,” and it modifies the action (or more likely inaction) element of the
rule: a failure to disclose information to the defense. “Intentionally” is an adverb
that means “on purpose.” Oxford English Dictionary 1080 (2d ed. 1991); Black’s
Law Dictionary 810 (6th ed. 1990) (explaining that a person acts “intentionally” only
if he “desires to cause [the] consequences of his act or he believes [those]
consequences are substantially certain to result”). Consistent with these dictionary
definitions, we have explained that “‘intentional’ requires an element of
purposefulness or deliberateness or, at a minimum, of aggravated neglect.” In re
Kline, 113 A.3d at 213. So, to violate the rule, a prosecutor must act or fail to act
with the purpose that information not be disclosed.
Rule 3.8(e)’s second state-of-mind requirement is knowledge or an
unreasonable lack of knowledge. This mental state applies to the nature of the
information that the prosecutor intentionally fails to disclose. It contemplates two
situations, either of which suffices for a violation. In the first, the prosecutor knows
that the information she intentionally failed to disclose is exculpatory. In the second,
the prosecutor does not know that the information she intentionally failed to disclose
is exculpatory, but this absence of knowledge is unreasonable. Rule 3.8(e) cannot
be read to exclude either scenario. It uses the disjunctive—“knows or reasonably
should know”—meaning that it contemplates either of two mutually exclusive
possibilities: knowledge, or a lack of knowledge that is not reasonable.
19
The way these two states of mind interact in the Rule 3.8(e) context is not
always straightforward, but consider the following examples. In the first example,
a prosecutor is aware of two pieces of information, both of which he knows are
exculpatory. He decides to disclose both of them to the defense and attempts to do
so. But, because of a genuine accident on his part, he fails to attach one of the pieces
of information to his submission and thus the defense never receives it. This
prosecutor has not violated Rule 3.8(e) because his failure of disclosure was not
intentional. It was not his purpose or objective to withhold the second piece of
information. To the contrary, his goal was to disclose it, but because of an accident,
he failed to do so.
In the second example, a prosecutor is aware of two pieces of information,
one of which is objectively exculpatory and one of which is not. She decides to
disclose only the second, non-exculpatory piece of information to the defense, and
she does just that. In this situation, the prosecutor has intentionally failed to disclose
exculpatory information to the defense. Her purpose and objective was to not
disclose the first piece of information, and she accomplished that objective. Has that
prosecutor violated Rule 3.8(e)? It depends. If, at the time she intentionally failed
to disclose the first piece of information, she knew that it was exculpatory, the
answer is yes. If instead she did not know that the information was exculpatory, but
a reasonable prosecutor would have known that it was, the answer is also yes. In
20
that scenario, the prosecutor has intentionally failed to disclose information to the
defense that the prosecutor reasonably should have known was exculpatory. But if
the prosecutor did not know that the first piece of information was exculpatory, and
a reasonable prosecutor also would not have known that the information was
exculpatory, the answer is no. She did not have the requisite state of mind with
respect to the nature of the information she intentionally failed to disclose.
This is how the court interpreted Rule 3.8(e)’s state-of-mind requirements in
In re Kline, our only prior case on this issue. Kline was a prosecutor who failed to
disclose a piece of exculpatory information to the defense because he “did not
believe he had an obligation to turn it over.” 113 A.3d at 206. We held that he had
violated Rule 3.8(e). Id. at 213-14. Kline had acted intentionally, we explained,
because his failure to disclose the information “was a purposeful or deliberate act”
and the product of a “conscious[] deci[sion].” Id. Kline’s conscious, purposeful
inaction was sufficient for a Rule 3.8(e) violation. We could hardly have been
clearer on this point, stating at the end of our analysis that “the evidence is such that
it produces in the mind of the trier of fact a ‘firm belief’ that Kline intentionally
withheld the statement because he did not think it was exculpatory.” Id. at 214(emphasis added).
21
Respondents and their amici resist this understanding of Rule 3.8(e)’s
state-of-mind requirements. Although they use varying terminology, their positions
amount to the same thing: to violate Rule 3.8(e), a prosecutor must act or fail to act
with the purpose to deprive the defense of exculpatory information. Put another
way, the prosecutor must intend the forbidden result, so her intentionality must
extend not only to the nondisclosure, but also to the nature of the information.
To reach this result, respondents focus on the word “intentionally.” They
begin where we do, with the word’s ordinary meaning. To act intentionally, they
correctly explain, is to act “on purpose; with conscious intent.” But they break with
us regarding exactly what must be done on purpose. In their view, a prosecutor must
not just fail to disclose information on purpose; she must fail to do what Rule 3.8(e)
requires her to do on purpose.
The primary problem with this reading of Rule 3.8(e) is that it fails to account
for the phrase “reasonably should know.” To reiterate, Rule 3.8(e) holds a
prosecutor liable for intentionally failing to disclose information she “knows or
reasonably should know” is exculpatory. This means that a prosecutor can violate
Rule 3.8(e) if she intentionally fails to disclose information she does not know is
exculpatory, so long as this belief is not reasonable. But that result, dictated by the
plain text of Rule 3.8(e), cannot be reconciled with how respondents would read the
22
rule, because in that situation the prosecutor has not violated her disclosure
obligations intentionally. Because she did not know that the information she
intentionally withheld was information she was required to disclose, her purpose was
not to shirk the rule. In other words, her intentionality did not extend to the nature
of the information. Put another way, respondents’ interpretation would make it
impossible for prosecutors to violate the rule accidentally, but unreasonably.
“It is ‘a cardinal principle of statutory construction’ that ‘a statute ought, upon
the whole, to be so construed that, if it can be prevented, no clause, sentence, or word
shall be superfluous, void, or insignificant.’” TRW Inc. v. Andrews, 534 U.S. 19, 31
(2001) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)). The same is true for
rules of professional conduct. See In re Greenspan, 910 A.2d 324, 335-36
(D.C. 2006). For respondents’ reading of Rule 3.8(e) to prevail, they must offer an
interpretation of “reasonably should know” that is at least as compelling as the
common-sense one offered above.
Their effort to do so falls short. Respondents submit that “reasonably should
know” simply indicates that whether information is exculpatory or not should be
evaluated based on what is known at the time of trial, not what is known
retrospectively during the adjudication of a Rule 3.8(e) charge. That may be true,
but it is unclear how this serves respondents. In theory, if a piece of information’s
23
exculpatory nature was not reasonably apparent or knowable at the time it is
withheld, then a prosecutor cannot be said to have violated the rule. But here, the
withheld information was clearly exculpatory, and its exculpatory value existed
before, during, and after it was withheld.
Nor can we square respondents’ preferred construction of Rule 3.8(e) with In
re Kline. Recall that Kline was held liable under Rule 3.8(e) for not disclosing
exculpatory information that he did not believe he needed to disclose. 113 A.3d at
214. Because we concluded that Kline was simply mistaken as to the evidentiary
significance of the information at issue, we necessarily did not conclude—and could
not have concluded—that he had acted in bad faith or with a purpose to achieve a
wrongful result. Id. That is to say, Kline did not think he was violating his disclosure
obligations, so he did not intentionally violate them. Id. But he was held to have
violated Rule 3.8(e) nevertheless.
Respondents’ efforts to recast In re Kline are not persuasive. They argue that
the court inferred from Kline’s pervasive pattern of nondisclosure that he acted with
the intention to violate Rule 3.8(e). Their amici further suggest that the court in In
re Kline imposed a “bad faith” requirement. Neither contention is correct. The court
24
in fact said that “Kline consciously decided that [the information] did not have to be
produced and thus acted with ‘deliberateness.’” 113 A.3d at 214. 6
Finding little support in text or precedent, respondents and their amici devote
much of their briefing to legislative history. Even if the legislative history strongly
favored respondents’ position, it would not matter, because legislative history cannot
override unambiguous language and binding precedent. Hood v. United States, 28
A.3d 553, 559 (D.C. 2011) (“The primacy of the statutory text means that resort to
legislative history to construe a statute is generally unnecessary (if not, indeed,
disfavored); usually it is appropriate only to resolve a genuine ambiguity or a claim
that the ‘plain meaning’ leads to a result that would be absurd, unreasonable, or
contrary to the clear purpose of the legislation.”). But the legislative history on
which respondents rely has little to offer. To support their understanding of
“intentionally,” respondents cite to a 1986 joint report from the D.C. Bar’s Model
6
Respondents and their amici also cite two concurrences in Miller v. United
States, 14 A.3d 1094 (D.C. 2011), for support, but these separate writings add little
to our analysis. It is true that Judge Ruiz’s solo concurrence suggests in passing that
a violation of Rule 3.8(e) requires bad faith. Id. at 1134-35 n.1 (Ruiz, J., concurring).
But a solo concurrence is just that—a solo concurrence. And even if Judge Ruiz’s
solo concurrence was a majority opinion, her comment on Rule 3.8(e) would be
dictum because Miller did not involve a Rule 3.8(e) charge, only a Brady violation
in the context of a direct criminal appeal. Id. at 1097. The U.S. Attorney’s Office’s
appeal to Judge Schwelb’s concurrence is also unconvincing because that opinion
does not even purport to address the scope of liability under Rule 3.8(e). Id. at 1135(Schwelb, J., concurring).
25
Rules of Professional Conduct Committee (the “Jordan Committee”) and the D.C.
Bar Board of Governors, which made recommendations to this court regarding the
Rules of Professional Conduct, and the various materials on which the drafters of
that report relied in making their recommendations. See Proposed Rules of
Professional Conduct and Related Comments, Showing the Language Proposed by
the American Bar Association, Changes Recommended by the District of Columbia
Bar Model Rules of Professional Conduct Committee, and Changes Recommended
by the Board of Governors of the District of Columbia Bar (“Jordan Report”) 171-76
(1986). The recommendations contained in this report provided the foundation for
the District’s current rules. Respondents explain that when writing Rule 3.8(e), the
drafters drew from several other similar rules, and only one of these, Standard
3-3.11(a) of the ABA Standards for Criminal Justice, includes the word
“intentionally.” Jordan Report, supra, at 175; ABA Standards for Criminal Justice,
The Prosecution Function, Standard 3-3.11(a) (Am. Bar Ass’n 2d ed. 1980). Other
ABA materials in turn define the mental state of “intent” as “when the lawyer acts
with the conscious object or purpose to accomplish a particular result.” ABA
Standards for Imposing Lawyers Sanctions § II (Am. Bar. Ass’n 1986). Thus,
respondents conclude, the drafters of Rule 3.8(e) sought to incorporate this ABA
definition and therefore to give “intentionally” its ordinary meaning: on purpose.
26
We take no issue with any of that, but we also do not find it particularly
probative of the answer to the critical question: what must be done on purpose? On
that score, respondents’ argument boils down to the somewhat circular contention
that because the drafters of the report included the word “intentionally,” it must bear
the meaning respondents ascribe to it—a violation, not just a failure to disclose
information, must be intentional. But as we have already explained, the answer to
that question must be such that “reasonably should know” also has a reasonable
meaning. And the legislative history respondents offer in support of their
interpretation of “reasonably should know” is unpersuasive.
Respondents insist that a set of notes summarizing the discussion in a meeting
of the D.C. Bar’s Board of Governors regarding the proposed Rule 3.8(e)
demonstrates that “reasonably should know” addresses issues of temporality. D.C.
Bar Board of Governors, Minutes of March 11, 1986, Attachment D (Notes
Summarizing the Board’s Discussion of Rule 3.8) (“Board of Governors’ Notes”).
But they candidly do “not pretend . . . that it is crystal-clear from the Board of
Governors’ Notes that this is what the Board was trying to achieve with the addition
of ‘knows or reasonably should know.’” These notes indicate that a single Board
member, Charles F.C. Ruff, was concerned about the retrospective vantage point
from which prosecutors’ actions would be evaluated in disciplinary proceedings.
Board of Governors’ Notes, supra, at 4-5. And they show that certain Board
27
members, including Ruff, endorsed adding “knows or reasonably should know” to
the rule. Id. at 2. But the notes provide no indication that this linguistic change was
related to the separate concern about temporality. Id. at 2, 4-5. The discussions are
distinct, and no member proposed adding “reasonably should know” as a way to
prevent prosecutors from being judged unfairly in hindsight. That is unsurprising,
because inserting “reasonably should know” would be a confusing and
counterintuitive way to accomplish that result.
In the excerpt from the notes most helpful to respondents, Ruff notes that “the
Subcommittee [on Rules for Prosecutors of the D.C. Bar Model Rules of
Professional Conduct Committee] was in agreement that [what is now Rule 3.8(e)]
should express the concept that a prosecutor knew or reasonably should have known
that he was in violation of his obligation to disclose mitigating information.” Id. at
2. Even if we read this statement as favoring respondents’ proffered interpretation
of Rule 3.8(e), it has little persuasive value. It is a note describing the way a single
Board member understood the sense of a subcommittee, and third-hand synopsis
cannot make the text of a rule mean something it does not say. This also points to a
larger problem: even if the subcommittee wanted to “express the concept” that a
violation of Rule 3.8(e) must be intentional—something it easily could have done—
that is not the concept expressed by the words comprising Rule 3.8(e). Simply put,
legislative history and speculation about the desires of those who contributed to a
28
text cannot override the clear language of that text. In any event, this excerpt is
unconnected to any discussion of when a prosecutor must be aware that information
is exculpatory. It is a separate comment about a separate issue. In short, nothing in
the legislative history causes us to second-guess our reading of the rule’s text and
our precedent. 7
Respondents’ appeals to public policy and those of their amici are likewise
unavailing. They first contend that it is simply unfair to discipline prosecutors who
have not acted in bad faith. But standards of reasonableness—standards that do not
require bad faith—pervade the Rules of Professional Conduct. 8 And we routinely
7
Still another excerpt of the notes states that Ruff “observed that what the
Jordan Committee was trying to do was to step back from Brady and simply state
that, where the prosecutor knowingly failed to meet some minimum standard of
disclosure, he had committed an ethical violation.” Board of Governors’ Notes,
supra, at 4. We find this third-hand statement even less probative than the others we
have discussed, because Ruff refers to a state of mind—knowingly—found nowhere
in Rule 3.8(e).
8
See, e.g., D.C. R. Pro. Conduct 2.3(b) (“When the lawyer knows or
reasonably should know that [an] evaluation [of a matter affecting a client provided
for the use of someone other than the client] is likely to affect the client’s interests
materially and adversely, the lawyer shall not provide the evaluation unless the client
gives informed consent.” (emphasis added)); id. Rule 2.4(b) (“A lawyer serving as
a third-party neutral shall inform unrepresented parties that the lawyer is not
representing them. When the lawyer knows or reasonably should know that a party
does not understand the lawyer’s role in the matter, the lawyer shall explain the
difference between the lawyer’s role as a third-party neutral and a lawyer’s role as
one who represents a client.” (emphasis added)); id. Rule 3.4(a) (“A lawyer shall
not . . . [o]bstruct another party’s access to evidence or alter, destroy, or conceal
29
affirm serious penalties for behavior without requiring a showing of bad faith. To
take just one example, this court has often meted out lengthy suspensions to
attorneys who negligently comingled or misappropriated client funds. 9 We see no
reason why prosecutors, who wield tremendous power and exercise broad discretion
over the lives of others, should not be held to a similar standard. We would also be
remiss to overlook the manifest unfairness in the other direction: Brady violations
can cause innocent people to lose their liberty, whether those violations were
committed merely unreasonably or instead with ill intent. Rule 3.8(e) quite properly
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.” (emphasis added)); id. Rule 3.6 (“A lawyer
engaged in a case being tried to a judge or jury shall not make an extrajudicial
statement that the lawyer knows or reasonably should know will be disseminated by
means of mass public communication and will create a serious and imminent threat
of material prejudice to the proceeding.” (emphasis added)).
9
See, e.g., In re Robinson, 74 A.3d 688, 697-98 (D.C. 2013) (noting that “[a]
six-month suspension is the norm as a starting point for negligent misappropriation
cases” and suspending an attorney for seven months for negligent misappropriation
of client funds); In re Herbst, 931 A.2d 1016, 1017 (D.C. 2007) (“[A] six-month
suspension is the norm for attorneys who have negligently misappropriated client
funds.”); In re Davenport, 794 A.2d 602, 605 (D.C. 2002) (suspending an attorney
for six months for negligent misappropriation of client funds); In re Anderson, 778
A.2d 330, 342 (D.C. 2001) (same); In re Chang, 694 A.2d 877, 878 (D.C. 1997)
(same); In re Reed, 679 A.2d 506, 509 (D.C. 1996) (same); In re Evans, 578 A.2d
1141, 1143 (D.C. 1990) (same); In re Hessler, 549 A.2d 700, 703 (D.C. 1988)
(same).
30
imposes discipline in both circumstances. 10 Finally, we note that the District’s rule
is more lenient with prosecutors than the comparable rules of nearly every other
state, which at least by their terms do not apply an elevated standard of culpability
like “intentionally” to any component of a prosecutor’s failure to disclose
exculpatory information. 11
10
We use “Brady violations” here as a shorthand, and we do not mean to imply
that all Rule 3.8(e) violations are Brady violations, or vice versa. As we explained
in In re Kline, that is not the case. 113 A.3d at 209-11.
11
See, e.g., Alaska R. Pro. Conduct 3.8(d); Ariz. R. Pro. Conduct 3.8(d); Ark.
R. Pro. Conduct 3.8(d); Cal. R. Pro. Conduct 3.8(d); Colo. R. Pro. Conduct 3.8(d);
Conn. R. Pro. Conduct 3.8(d); Del. R. Pro. Conduct 3.8(d)(1); Fla. R. Pro.
Conduct 4-3.8(c); Ga. R. Pro. Conduct 3.8(d); Haw. R. Pro. Conduct 3.8(b); Idaho
R. Pro. Conduct 3.8(d); Ill. R. Pro. Conduct 3.8(d); Ind. R. Pro. Conduct 3.8(d);
Iowa R. Pro. Conduct 32:3.8(d); Kan. R. Pro. Conduct 3.8(d); Ky. R. Sup.
Ct. 3.130(3.8(c)); La. R. Pro. Conduct 3.8(d); Me. R. Pro. Conduct 3.8(b); Md. R.
Att’ys R 19-303.8(d); Mass. R. Pro. Conduct 3.8(d); Mich. R. Pro. Conduct 3.8(d);
Minn. R. Pro. Conduct 3.8(d); Miss. R. Pro. Conduct 3.8(d); Mo. R. Pro. Conduct 4-
3.8(d); Mont. R. Pro. Conduct 3.8(d); Neb. Ct. R. Pro. Conduct § 3-503.8(d); Nev.
R. Pro. Conduct 3.8(d); N.H. R. Pro. Conduct 3.8(d); N.J. R. Pro. Conduct 3.8(d);
N.M. R. Pro. Conduct 16-308(D); N.Y. R. Pro. Conduct 3.8(b); N.C. R. Pro.
Conduct 3.8(d); N.D. R. Pro. Conduct 3.8(d); Ohio R. Pro. Conduct 3.8(d); Okla. R.
Pro. Conduct 3.8(d); Or. R. Pro. Conduct 3.8(b); Pa. R. Pro. Conduct 3.8(d); R.I. R.
Pro. Conduct 3.8(d); S.C. R. Pro. Conduct 3.8(d); S.D. R. Pro. Conduct 3.8(d);
Tenn. R. Pro. Conduct 3.8(d); Tex. R. Pro. Conduct 3.09(d); Utah R. Pro.
Conduct 3.8(d); Vt. R. Pro. Conduct 3.8(d); Va. R. Pro. Conduct 3.8(d); Wash. R.
Pro. Conduct 3.8(d); W. Va. R. Pro. Conduct 3.8(d); Wis. R. Pro. Conduct 20:3.8(f);
Wyo. R. Pro. Conduct 3.8(d). Almost every jurisdiction besides the District phrases
its rule as a command—“[a] prosecutor shall make timely disclosure”—rather than
a prohibition. Nevertheless, the rules of these other jurisdictions do not on their face
give any indication of a culpability requirement besides that a prosecutor have
knowledge of the information that she does not timely disclose.
31
Respondents’ amici also argue that only bad-faith Brady violations can be
deterred through professional misconduct sanctions, so penalizing non-bad-faith
violations accomplishes nothing in practice. We reject that proposition. The specter
of discipline can and should motivate prosecutors’ offices to institute the kind of
training, review, and procedural safeguards that make such violations less likely.
Finally, respondents’ amici insist that the level of disclosure required by our reading
of Rule 3.8(e) would put witnesses at risk. But they have given us no reason to
believe that devices like protective orders will be inadequate to address such
concerns in almost every case.
2. Rule 3.8(e): The Collins Report
Having explained Rule 3.8(e)’s requirements, we now apply them. No one
disputes before this court that the Collins Report contained information that
“tend[ed] to negate the guilt of the accused” in the Vaughn prosecution. While the
duties Rule 3.8(e) imposes on prosecutors are not in every respect identical to those
the Constitution does under Brady and its progeny, see In re Kline, 113 A.3d at
209-11, we agree with the Hearing Committee and the Board that the two overlap
here. In Giglio v. United States, 405 U.S. 150 (1972), the Supreme Court held that,
under Brady, prosecutors must disclose to the defense material information that
32
impeaches the prosecution’s witnesses. Id. at 153-54. Rule 3.8(e) incorporates that
principle, absent the materiality requirement.
We can think of few things more powerfully impeaching of Childs—whose
task was to tell the jury that certain D.C. Jail inmates had committed assault—than
that he had previously falsely accused an inmate of assault. So too that he had
violated DOC’s use-of-force policies, filed a false incident report after the fact, and
been disciplined for his use of force. This last piece of information is important
because DOC demoted Childs after he was reprimanded for his unauthorized use of
force. While the record is murky about the exact reason for this demotion, that
Childs was previously reprimanded for his use of force at least allows the inference
that he was demoted for some additional infraction—namely, his untruthful
reporting. Indeed, we made this very inference in Vaughn. See 93 A.3d at 1255.
The ability to make this inference, of course, would have been useful to the defense.
Respondents’ conduct also satisfies both of Rule 3.8(e)’s state-of-mind
requirements. A reasonable prosecutor would have known that the information just
described was Giglio information. Vaughn, 93 A.3d at 1266 (“[W]hether the
government had an obligation to accurately and completely disclose the contents of
the [Collins Report] and the DOC’s consequent decision to demote Officer Childs
should not have been a hard call for the government.”). Respondents make no
33
argument to the contrary, and Taylor testified that she knew all of this material
needed to be disclosed.
Respondents also intentionally failed to disclose some (but not all) of this
information to the defense. The motion in limine they filed—the only disclosure of
the Collins Report’s substance they made available to the defense—did not disclose
that Childs had submitted a false disciplinary report wrongfully accusing an inmate
of assault. And it did not disclose that he had been reprimanded for improperly using
force on an inmate. Crafting the motion that way was the product of a conscious
decision and an intentional act on respondents’ part. As the Board put it:
“Respondents disclosed everything they intended to,” because they “included
everything in the motion in limine that they intended to include.” Much like the
prosecutor in In re Kline, respondents “consciously decided” not to include certain
portions of the Collins Report in their motion “and thus acted with deliberateness.”
113 A.3d at 214 (internal quotation marks omitted). Nothing more is required.
All of that, though, does not quite settle the issue. There is a further question
whether, despite the defects with the motion in limine, respondents nevertheless
adequately disclosed the exculpatory information from the Collins Report by
submitting (part of) the report to the court and asking during trial whether any
additional disclosure was necessary. It is undisputed that it was relatively common
34
at that time for prosecutors who had Brady questions to submit evidence to the court
and ask whether it needed to be provided to the defense. And both the Hearing
Committee and the Board declined to find a Rule 3.8(e) violation based solely on
respondents’ decision to disclose the Collins Report to the court instead of directly
to the defendants.
We agree, in the abstract, that in certain circumstances it may be unfair to
penalize prosecutors for following a practice that was accepted and apparently
approved by the courts. In theory, if respondents had submitted a clear request for
Brady guidance to the trial court, and if the trial court had subsequently held
disclosure to be unnecessary, we might be less inclined to find a Rule 3.8(e)
violation. But that is not what respondents did. Begin with the fact that neither the
motion in limine nor the ex parte motion even mentions Brady or any case in the
Brady line. Nor does either motion ask the court to identify any information not
summarized therein that should be disclosed. To the contrary, the ex parte motion
says: “The government does not believe that disclosure of the Final Report is
necessary for resolution of the Government’s Motion in Limine. The essential facts
are related in the Background section of the Government’s Motion in Limine.” The
argument section of the motion in limine is also devoted to explaining why the
contents of the Collins Report should be excluded from the scope of
cross-examination. It strains credulity to suggest that these motions were actually,
35
despite all appearances, meant to put the court on notice that respondents wanted to
make sure their disclosures were sufficient.
But there is more. The motion in limine casts groundless aspersions on the
Collins Report’s conclusions, which surely counts against the argument that the
motion was a straightforward request for Brady guidance. It is important to
remember that at the time respondents wrote this motion, they had not viewed any
of the underlying evidence on which the Collins Report was based, so they had no
basis to doubt whether Collins’s conclusions were reasonable or not. But that
unfortunately proved no barrier to their disputing those conclusions. Respondents
wrote that “[t]he government is not conceding that Officer Childs in fact made a
false and/or misleading statement,” despite the report’s identification of three such
statements made in two separate reports. 12 Respondents also said that “[t]he
conclusion that Officer Childs made a false or misleading statement is at odds with
the body of the report.” We cannot identify any reasonable justification for that
statement. If anything, respondents sought to downplay the potential Giglio
significance of even the aspects of the Collins Report that they disclosed, arguing
that the finding that Childs filed a false incident report did not “‘bear[] directly upon’
12
These false statements are the false assault charge, the statement that Heath
was acting violently, and the strong implication that Heath was not restrained when
Childs sprayed him with a chemical agent.
36
his veracity with respect to this trial.” This was hardly a reliable means of flagging
to the trial judge that there may have been more Brady material for him to consider
asking the government to release.
Respondents are nevertheless correct that the evidence is not one-sided.
Starting with the motions themselves, a footnote in the motion in limine states that
the Collins Report contains “sensitive employment information” and requests that
the court “review the report in camera prior to disclosing it to defense counsel.” The
ex parte motion similarly says that “[e]ven if the court determines that defense
counsel is entitled to the Final Report or a portion of the Report, the government
requests that this disclosure be made via discovery letter.” These passages suggest
that respondents at least contemplated that the court would review the report and
might order it disclosed to the defense. But these asides do not count for much. For
one, neither passage says anything about reviewing the adequacy of the
government’s Brady disclosures. For another, both statements aim to keep the report
away from the defense and specify procedures to be followed if the court ultimately
disagrees with the government’s arguments. Their goal is clearly to limit disclosure
to the greatest extent possible.
37
More significant are two statements that Dobbie made during trial, one shortly
after the other. As mentioned earlier, when arguing to the court that the government
was not obligated to share the Collins Report with the defense, Dobbie stated:
The government does not agree that it[’]s required to turn
over the final report. I’ve made representations in the
motion, and the Court has the final report, to be clear. And
if the Court finds that there’s anything in the final report
that should additionally be disclosed to defense counsel, if
there’s anything that I didn’t include that would be
useful—and I also want to make clear that the government
is requesting that—I understand the Court’s ruling that the
defense counsel are permitted to ask about the—this event.
Dobbie then reiterated her position that the government had disclosed everything it
was obligated to: “[T]he government doesn’t believe that there is anything in the
report that wasn’t disclosed in the motion that would be necessary for the defense
counselors for the purposes that the Court has allowed the questioning.”
The first statement contains what is absent from the motions: a request for
guidance about whether the government needed to turn additional information over
to the defense. The second statement somewhat undercuts the first, although there
is nothing inconsistent about Dobbie (1) believing that respondents had disclosed
everything they were obligated to but also (2) asking the court whether more was
necessary.
38
While we credit Dobbie’s belated effort to ask the court whether further
disclosures were necessary, we do not think it obviates respondents’ Rule 3.8(e)
violation. Too much went wrong for that. As a refresher, respondents (1) filed a
misleading and factually incomplete motion to exclude evidence; (2) incorrectly
represented that the body of that motion contained all necessary disclosures;
(3) succeeded in getting the evidence excluded, likely in part because of their
misrepresentations; and (4) inadvertently failed to share the underlying evidence
with the court, and at the very least negligently failed to accurately and adequately
respond to the court’s question about whether it had all such evidence. Rule 3.8(e)
cannot abide that course of conduct, even if Dobbie eventually asked in passing
whether the government needed to disclose additional information. One brief
remark cannot turn respondents’ misleading and ultimately successful effort to
exclude evidence into good-faith compliance with their disclosure obligations.
Respondents make much of the fact that they attempted to share the entire
Collins Report with the trial court and were stymied by what appears to have been
an uncooperative fax machine. But we do not think that Dobbie’s faxing mishap
makes much difference to the disposition of the Rule 3.8(e) charge. Because the
record indicates that Dobbie’s failure to fax the full report was a genuine accident,
let us pretend for the purpose of analysis that no such accident occurred and that
Dobbie did manage to fax the entire Collins Report at the appropriate time. That
39
does not convert respondents’ motion in limine into a request for Brady guidance,
make up for the fact that its summary of the relevant facts was incomplete despite
respondents’ repeated assurances to the contrary, or erase the misleading gloss
respondents put on the Collins Report’s conclusions. It is of course possible that
everything else notwithstanding, the trial court could have taken it upon itself to
scrub the Collins Report, compare it to the motion in limine, identify the Brady
material that had been withheld, and order that material disclosed at an early enough
time to be useful to the defense. But this counterfactual is speculative and unlikely,
even assuming that the trial court had the full report. We might view the situation
differently if respondents had made a clear and timely request for Brady guidance.
In that scenario, respondents’ only real error may well have been a botched faxing
job. But that scenario is not this one. Here, respondents’ errors were substantive
and numerous. And here, supposition about how the trial court could have bailed
respondents out if equipped with all of the information cannot be dispositive.
We are also unconvinced by respondents’ assertion that, despite what the
motion in limine said, the trial court understood it as a request for Brady guidance.
In his testimony before the Hearing Committee, the trial judge, Judge Robert E.
Morin, said that it was “not unusual for the government at that time to
submit . . . materials that they wanted me to review and determine whether or not it
should be turned over to the defense.” But he did not say that is what happened here.
40
Instead, he said that the motion in limine “came up in a little different posture . . . in
the sense that . . . it was an ex parte motion by the government to prevent
cross-examination.” Judge Morin made clear that he was “not trying to convey an
opinion one way or the other,” but also described the motion as “proactive” and “in
line with what had happened before, in other cases.” We think this testimony means
what it says: Judge Morin correctly understood respondents’ motion not as a request
for Brady guidance but rather as a proactive motion to prevent cross-examination, a
kind of motion the government had made in other cases. And even if it is not
perfectly clear what Judge Morin intended to convey, we still do not think that the
motion in limine can be treated as a request for Brady guidance. The best evidence
of the motions’ intended purposes comes from the motions themselves. At the risk
of belaboring the point, neither had any indicia of a request for Brady guidance.
They were efforts to keep information away from the defense and out of the trial.
Speculation about what implicit understandings Judge Morin might or might not
have had, but left unstated before the Hearing Committee, does not disturb this
conclusion.
Finally, respondents argue that their conduct fell within Rule 3.8(e)’s safe
harbor that exempts prosecutors from making disclosures they otherwise would be
required to make if they are “relieved of this responsibility by a protective order of
the tribunal.” They contend that because they filed the Collins Report with the court
41
and the court denied the defense access to it, there was the equivalent of a protective
order in place that relieved them of their obligation to disclose the contents of the
report. It is debatable whether the trial court imposed some form of protective order.
While the court did not order respondents to provide the Collins Report to the
defense during trial, it did order the report disclosed after trial subject to an express
protective order. So, the court knew how to impose a protective order in direct terms,
and it did not do so during the trial.
But even if we accept that the court implicitly put in place a protective order
for the duration of trial, we have no trouble concluding that it did not cover the Brady
information that respondents had failed to disclose to the defense. Whatever
protective order respondents obtained was obtained at least in part through omission
or misrepresentation. 13 They claimed that the motion in limine contained all
“essential facts” from the Collins Report. But they failed to disclose key conclusions
from the report, most significantly that Childs had filed a false disciplinary report.
13
We recognize that even when the trial court had all of the information before
it post-trial, it affirmed its earlier rulings with respect to the Collins Report. Vaughn,
93 A.3d at 1253. But as we explained in Vaughn, when the entire record is
considered from the outset, it becomes apparent that “the trial court was misled and
that its adoptive fact-finding was clearly wrong.” Id. at 1255. We thus agree with
the suggestion in Vaughn that “[h]ad the defense and the court known the full details
of the OIA’s actual findings and of the discipline meted out by DOC as a result—
and had the government known the defense knew—we think it likely that this case
would have played out very differently.” Id. at 1263.
42
They also cast doubt on and mischaracterized the findings they did disclose. And
they again inaccurately represented in court that they had disclosed all information
to which the defense was entitled. It was only after these actions that the trial court
declined to let the defense access the report.
We therefore understand the trial court’s actions as follows: because the
defense had, so far as the trial court understood, received all the information to which
it was entitled, the trial court simply allowed the prosecution to withhold the rest of
the report—that is, information to which the defense had no entitlement. In other
words, because the trial court was acting on the understanding that all Brady
disclosures had been made, to the extent it imposed a protective order, that order
should be understood only to have covered non-Brady information. By the same
token, it should not be understood to have covered the Brady information that the
government had not disclosed. Respondents thus cannot avail themselves of the
protective order safe harbor with respect to the exculpatory information they left out
of the motion in limine.
Closing out this issue, we emphasize the following: respondents chose—albeit
at the suggestion of their supervisor—not to follow the typical and advisable practice
of disclosing Brady evidence to the defense directly. While we question the wisdom
of using the trial court as a Brady backstop, we do not hold that doing so inherently
43
breached Rule 3.8(e). But we do hold that pursuing this alternative course in the
way respondents did was a violation of the rule. When prosecutors proceed in a
manner inconsistent with Rule 3.8(e)’s text—when they do not disclose exculpatory
information “to the defense”—they assume the risk that their alternative measures
will be inadequate and that they will be held responsible for their actions.
3. Rule 3.8(e): Childs’s Demotion
The Board concluded that, in addition to respondents’ Rule 3.8(e) violation
with respect to the contents of the Collins Report, they committed another, distinct
Rule 3.8(e) violation by failing to disclose that Childs had been demoted. We
disagree for the simple reason that respondents did disclose that Childs had been
demoted. On the first day of trial, the court asked whether Childs had been “put on
any probationary status,” and Dobbie responded that he had been demoted and she
expected him so to testify.
According to the Board, Dobbie’s statement was inadequate, largely because
it was unaccompanied by two additional disclosures: first, that Childs had filed a
false disciplinary report, and second, that Childs had been separately reprimanded
for his use of force through a Letter of Direction. As we have explained, this latter
fact allows the inference that Childs was demoted for his false reporting. See
Vaughn, 93 A.3d at 1255 & n.20. The Board reasoned that without this additional
44
context, Dobbie’s disclosure of Childs’s demotion was not meaningful in the Brady
and Giglio sense because the significance of the demotion to Childs’s credibility was
not apparent.
That is all fair enough, but these important contextual facts were missing only
because of respondents’ inadequate disclosure of the Collins Report, not their
inadequate disclosure of the fact that Childs had been demoted. Had the Collins
Report or all of the material facts therein been provided to the defense, the defense
would have been able to draw the same inferences Disciplinary Counsel, the Board,
and the Vaughn court did—namely, that Childs was likely demoted for his
dishonesty—and make use of those inferences at trial. It was thus respondents’
failures related to the Collins Report that prevented their disclosure of Childs’s
demotion from being meaningful. Unlike the Board, we do not find two Rule 3.8(e)
violations—one for inadequately disclosing the report and another for inadequately
disclosing the demotion. We instead find one violation: the failure to disclose all
Brady information in the Collins Report. 14
14
For this reason, we decline to pass on the Board’s express factual finding
that respondents knew that Childs had been demoted “because of the conclusions in
the Collins Report, including the false disciplinary charge.”
45
B. Rule 8.4(c)
We agree with the Board that respondents violated Rule 8.4(c) by acting with
reckless dishonesty, although we depart from the Board slightly as to the particulars.
We note at the outset that while we by no means condone respondents’ conduct, we
consider it at the low end of culpability as far as Rule 8.4(c) misconduct goes.
“[C]onduct involving dishonesty” is not a precise standard, but we must draw the
line somewhere. We think a fair reading of our cases constrains us to hold that
respondents crossed that line. But we do not think that respondents acted with the
kind of malign intent often associated with those words. Rather, they were
inexperienced, poorly supervised, and made serious mistakes that we have no reason
to believe they will make again.
Rule 8.4(c) makes it professional misconduct for a lawyer to “[e]ngage in
conduct involving dishonesty, fraud, deceit, or misrepresentation.” Id.“[D]ishonesty, fraud, deceit, and misrepresentation are four different violations, that
may require different quantums of proof.” In re Romansky (“Romansky I”), 825
A.2d 311, 315 (D.C. 2003). Dishonesty is the most capacious of the four, id., and
the only violation relevant here.
We have explained that sanctionable dishonesty “does not always depend on
a finding of intent to defraud or deceive.” Id. (quoting In re Estate of Corriea, 719
46
A.2d 1234, 1242 (D.C. 1998)). Conduct that demonstrates a “reckless disregard of
the truth” can therefore sustain a charge of dishonesty, In re Ukwu, 926 A.2d 1106,
1113-14 (D.C. 2007), although mere negligence cannot, see In re Romansky
(“Romanksy II”), 938 A.2d 733, 742 (D.C. 2007). Recklessness is a “state of mind
in which a person does not care about the consequences of his or her action.” Id. at
740 (quoting Romansky I, 825 A.2d at 316). “To show recklessness, Bar Counsel
must prove by clear and convincing evidence that [an attorney] ‘consciously
disregarded the risk’” that her conduct was untruthful or that it would lead to a
misapprehension of the truth. Id. (quoting In re Anderson, 778 A.2d at 339).
Whether an attorney’s conduct amounted to recklessness is a legal question, not a
factual one, so this court reviews the Board’s conclusion on the issue de novo.
Romansky II, 938 A.2d at 739.
Romansky II governs our approach to analyzing reckless dishonesty in the
Rule 8.4(c) context. In that case, a law firm partner overcharged several clients for
the firm’s services, using a billing methodology out of step with the engagement
letters the firm had with those clients. 938 A.2d at 736-37. The firm had just
transitioned to a new set of billing practices, and the firm’s agreements with the
clients in question reflected the prior policy. Id. at 736. It was apparent that the
attorney had not overbilled his clients knowingly, but we still had to decide whether
he had acted recklessly and therefore violated Rule 8.4(c). Id. at 740.
47
To answer this question, the court weighed the evidence for and against a
finding of recklessness. In the former camp were the following facts: the attorney
admitted that when he had billed the clients he had not consulted the relevant
engagement letters or even considered whether the firm’s old or new billing policy
applied, despite his awareness of the recent policy change. Id. at 741. He was also
responsible for a disproportionate number of billings at the firm, something that
arguably should have put him on high alert about the need for diligence during a
period of flux. Id. But several pieces of evidence cut the other way. The firm’s
recent change in policy made mistakes more likely, and the billings in question were
sent out shortly after the firm adopted a new model engagement letter implementing
the revised policy—something that could have led the attorney to assume that this
new letter governed billings with the clients in question. Id. And in fact, two
attorneys at the firm testified that these circumstances could have caused confusion
as to what approach to take. Id. In addition, the attorney’s responsibility for a large
number of billings cut both ways: a mistake was simply more likely given his
significant book of business. Id. Finding the evidence “virtually in equipoise,” we
could not “conclude . . . by the requisite ‘clear and convincing’ evidence that the
[attorney] was reckless rather than negligent.” Id. at 742. We therefore held that he
had not violated Rule 8.4(c). Id.48
Before applying Romansky II here, we must determine what specific conduct
by respondents may have been dishonest. The Board identified respondents’ failure
to include in the motion in limine that Childs had falsely charged an inmate with
assault. We can think of another, better candidate: respondents’ mischaracterization
of the Collins Report’s conclusions in the motion in limine and related decision not
to “conced[e]” that Officer Childs “had made a false and/or misleading statement.”
We do not believe that there is clear and convincing evidence that respondents
acted with reckless dishonesty by omitting from the motion in limine that Childs had
falsely accused an inmate of assault. Dobbie testified that she did not think that this
information needed to be disclosed, and the Hearing Committee and Board did not
make an adverse credibility finding with respect to this testimony. Admittedly, it is
hard to understand how she could have thought that. And if this were the only
evidence before us, we would be hard-pressed to conclude that she had not been
reckless. But there is other evidence we must consider as well. Respondents
attempted—unsuccessfully, as it turned out—to fax the entire Collins Report to the
trial court, which is not the kind of thing one would do if one truly did not care
whether its contents were disclosed. Dobbie also asked the court whether anything
further needed to be disclosed to the defense and testified that she was trying to get
her disclosures correct. There are facts on both sides for Taylor as well. She testified
that she knew that the false assault charge was Brady material, suggesting a higher
49
level of culpability than exists for Dobbie. At the same time, Dobbie, not Taylor,
was the primary drafter of the motion and might therefore reasonably bear more
responsibility for its omissions. Ultimately, we do not perceive any material
difference between the respondents when it comes to culpability. And as to both,
we find ourselves where the Romansky II court did: on the fence between
recklessness and negligence and therefore unwilling to uphold a charge of reckless
dishonesty.
We have no such ambivalence, however, about respondents’ refusal to
concede that Childs had made a false statement and mischaracterization of the
Collins Report’s conclusions. There is simply no justifying the former. As Taylor
testified, at the time respondents filed the motion in limine, they had not reviewed
any of the video or documentary evidence on which the Collins Report was based.
All they had to go on was the report itself and Taylor’s pro forma Giglio interview
with Childs that did not call the Collins Report into question so much as indicate that
Childs was not aware of it. The Collins Report says:
Lieutenant Childs’[s] narrative suggests that at the time of
the incident, inmate Heath was not restrained, displayed
disruptive behavior, and was “kicking at” the canine
causing Lieutenant Childs to use chemical agent to restore
“normal operations.”
Upon review of the facts and circumstances of the
incident, it is evident that Inmate Heath was in restraints
50
and not a threat to “normal operations” when he was
sprayed with chemical agent by Lieutenant Childs.
During his interview with OIA investigators, Lieutenant
Childs stated that the Incident Report he prepared
regarding this matter was incorrect and written in
error. . . .
Lieutenant Childs also composed and submitted a
Disciplinary Report charging inmate Heath with Assault
without Serious Injury and Lack of Cooperation. Video
footage of the incident does not support the allegation that
inmate Heath assaulted any Correctional Officer or canine.
The report does not just explain that Childs made several false or misleading
statements; it says that he admitted to making one of them. We do not understand
how respondents could have read this text and yet refused to concede that Childs had
made a false or misleading statement unless they had some amount of indifference
about whether their motion was truthful. The same is true for their contention that
“[t]he conclusion that Officer Childs made a false or misleading statement is at odds
with the body of the report and does not appear evident from the text of Officer
Childs’[s incident report].” On the contrary, “[t]he conclusion that Officer Childs
made a false or misleading statement” is completely consistent with the body of the
report.
There is not enough evidence going the other way to justify these actions as
anything but reckless. To be sure, the motion in limine does acknowledge one of
51
the Collins Report’s adverse credibility determinations; it just takes issue with the
accuracy of that determination. But that admission does little for respondents.
Although it indicates that they were not entirely hiding the ball with respect to the
contents of the report, it does not ameliorate their disregard for the truth of what
actually happened, given that the only evidence they had for the truth was the report
itself. While respondents’ attempt to disclose the underlying report to the trial court
mitigates any inference of reckless dishonesty with respect to the court, it does not
do so with respect to the defense. Respondents’ stated goal was to keep the Collins
Report from the defense and thereby force the defense to rely entirely on the
government’s summary of the report in the motion in limine. Respondents
succeeded. But as we have explained, the motion in limine both omitted key facts
and put a misleading spin on the facts it included. Respondents therefore exhibited
reckless disregard for whether the defense would ever know the truth about Childs’s
conduct. Turning the report over to the court with the well-founded expectation that
the defense would never see it does not change any of this. 15
15
While we consider respondents’ attempt to provide the Collins Report to
the court in assessing both (1) whether respondents acted with reckless dishonesty
in failing to include Childs’s false assault charge in the motion in limine and
(2) whether they acted with reckless dishonesty by casting doubt on the Collins
Report in that motion, we reach different results in each case due to the balance of
the other evidence. Dobbie’s apparent confusion about the government’s obligation
to disclose the false assault charge mitigates the culpability of her decision not to
52
A final consideration is the conduct of respondents’ superiors, in particular
John Roth, head of the Lewis Committee. Roth cast doubt on the Collins Report’s
findings, stating in an email that he was “[n]ot sure that the DOC conclusion that
[Childs] lied is supported by the record.” Dobbie testified that she was influenced
by Roth’s view when writing the motion. But while Roth’s email indicates that
respondents were not operating in a vacuum, it does little to show that respondents
were not acting recklessly. It is not as though Roth actually told respondents what
representations and arguments to make to the court. Instead, he said he was leaving
it to respondents to “hash . . . out” how to characterize the report.
Respondents hashed things out in a manner ultimately attributable to them.
Dobbie testified that she had conducted a detailed reading of the Collins Report after
receiving Roth’s email and, based on that reading, had decided that she agreed with
Roth. Moreover, it should have been apparent to respondents that Roth had not
viewed any of the evidence on which the Collins Report was based, so his doubts
about what the “record” supported lacked foundation. Nor were the views of senior
attorneys in the U.S. Attorney’s Office in lockstep. In his initial email to the Lewis
include that charge in the motion in limine. There is no similar mitigating fact
related to respondents’ refusal to concede that Childs had made any false or
misleading statement and their assertion that the body of the report did not support
the conclusion that Childs made such a statement. We also find it easier to discern
recklessness with respect to affirmative statements respondents made in the motion,
versus omissions of facts they ought to have included.
53
Committee, on which respondents were copied, Ragsdale said that DOC had
“concluded that [Childs] lied.” We also cannot lose sight of a fundamental point:
respondents were federal prosecutors. They were vested with tremendous authority
and discretion, and that comes with tremendous responsibility for their actions.
Ultimately, we hold that there is clear and convincing evidence that
respondents acted with reckless dishonesty. To illustrate, we return to Romansky II.
At bottom, Romansky II involved an attorney’s failure to verify that his firm’s new
billing practices applied to particular clients. 938 A.2d at 741-42. Respondents
argue that because they carefully reviewed the Collins Report, they are less culpable.
We see things differently. Even after studying the Collins Report, respondents still
wrote a motion that was obviously inaccurate in numerous ways. Their intimate
familiarity with the truth makes it all the more apparent that they disregarded it. The
attorney in Romansky II also made his mistakes at a time when such mistakes were
most likely, because of his firm’s recent changes to its billing practices. 938 A.2d
at 741. There is no reason to believe that respondents suffered from any similarly
understandable confusion; they simply read a report and then wrote a motion about
that report without sufficient regard for whether their motion was accurate. We do
not think the evidence shows that these misrepresentations were willful or
intentional, but it does support the conclusion that they were reckless.
54
C. Rule 8.4(d)
We next affirm the Board’s conclusion that respondents violated Rule 8.4(d),
which makes it professional misconduct for a lawyer to “[e]ngage in conduct that
seriously interferes with the administration of justice.” A Rule 8.4(d) violation
requires three elements: (1) an attorney’s conduct must be “improper,” In re
Hopkins, 677 A.2d 55, 60-61 (D.C. 1996); (2) it must “bear directly upon the judicial
process (i.e., the ‘administration of justice’) with respect to an identifiable case or
tribunal,” id. at 61 (italics omitted); and (3) it must “taint the judicial process in more
than a de minimis way; that is, at least potentially impact upon the process to a
serious and adverse degree,” id. (italics omitted). Rule 8.4(d) does not have a strict
scienter requirement; even conduct “somewhat less blameworthy” than
recklessness—i.e., negligent conduct—can violate it. In re L.R., 640 A.2d 697, 701
(D.C. 1994).
The first two Rule 8.4(d) elements are clearly met. Respondents’ Brady
violation was improper and bore on an identifiable case and tribunal. The disputed
question is whether respondents’ improper conduct bore on the case and tribunal “in
more than a de minimis way.” In re Hopkins, 677 A.2d at 61 (italics omitted). We
conclude that it did.
55
We have often held that conduct that places a more-than-de-minimis burden
on the time and resources of courts and litigants violates Rule 8.4(d). In In re Cole,
967 A.2d 1264 (D.C. 2009), we held that an attorney’s serious neglect of his client’s
case violated Rule 8.4(d) in part because it “led to an unnecessary expenditure of
time and resources by the Immigration Court” and “required successor counsel to
file a new motion, immigration prosecutors to file papers in opposition, the
Immigration Court to prepare a Memorandum of Decision and Order denying the
motion, all parties to prepare appellate documents for filing, and the Board of
Immigration Appeals to draft an opinion.” Id. at 1266. Similarly, in In re Spikes,
881 A.2d 1118 (D.C. 2005), we held that an attorney violated Rule 8.4(d) because
his frivolous defamation actions “waste[d] the time and resources of this court,
delay[ed] the hearing of cases with merit[,] and cause[d] appellees unwarranted
delay and added expense.” Id. at 1127 (quoting Slater v. Biehl, 793 A.2d 1268, 1277
(D.C. 2002)). This was true in substantial part because the motions “necessitated
extensive [additional] briefing” and “additional pleadings.” Id. at 1126-27 (internal
quotation marks omitted); see In re Yelverton, 105 A.3d 413, 427 (D.C. 2014)
(holding that frivolous motions “tainted the judicial process in more than a de
minimis way,” in part because they “required responsive action from both the
Superior Court and this court, as well as from the defendant” (italics omitted)); In re
Pearson, 228 A.3d 417, 426-27 (D.C. 2020) (per curiam) (similar).
56
All the same, not all conduct that “place[s] an unnecessary burden on the
administrative processes” of the judicial system violates Rule 8.4(d). In re
Hallmark, 831 A.2d 366, 375 (D.C. 2003). It is ultimately a “matter of degree.” In
re Yelverton, 105 A.3d at 427. In In re Hallmark, an attorney submitted a late
Criminal Justice Act voucher that “claim[ed] fees in an amount substantially above
the statutory limit without providing supporting information” and then ignored the
presiding judge’s request for more information. 831 A.2d at 369. We held that
although this conduct was “troubling and negligent,” the burden it placed on the
courts and the judge was not “more than . . . de minimis” and “did not seriously and
adversely affect the administration of justice, or [the attorney’s] client.” Id. at
374-75 (italics omitted). We reached a similar conclusion in In re Owusu, 886 A.2d
536 (D.C. 2005), where an attorney did not maintain a current address with the D.C.
Bar and as a result failed to receive notice of and respond to investigative inquiries
from Disciplinary Counsel related to potential neglect of a client. Id. at 539-40.
There, we explained that failing to comply with an administrative requirement such
as maintaining a current address “does not ‘bear directly on the judicial process,’”
id. at 541, or “taint that process ‘to a serious and adverse degree,’” id. at 542 (quoting
In re Hopkins, 677 A.2d at 61).
Respondents’ conduct resulted in a substantial and avoidable use of judicial
time and resources, ultimately resulting in the vacatur of a criminal conviction. It
57
therefore “taint[ed] the judicial process in more than a de minimis way.” In re
Hopkins, 677 A.2d at 61 (italics omitted). As the Hearing Committee recounts, “[i]n
addition to the pre-hearing conference treating the disclosure issue and the trial time
spent renewing and reviewing the Court’s initial determination, there were five post-
conviction hearings in the Superior Court spanning 14 months after the return of the
jury verdicts” as a result of respondents’ actions. Worse yet, several of the Vaughn
defendants received prison sentences—one of whom, Morton, served four years in
prison before his conviction was reversed due to respondents’ Brady violation, after
which he was not retried. The impact on the judicial process, the resources of the
court system, and the lives of the defendants was far greater than that at issue in In
re Hallmark and In re Owusu and much more analogous to that in cases where we
have found Rule 8.4(d) violations, such as In re Cole, In re Spikes, and In re
Yelverton. As in those cases, respondents’ actions resulted in additional pleadings,
briefings, hearings, and ultimately a published opinion from this court in Vaughn.
Respondents’ contrary arguments are not convincing. They largely ignore the
cases establishing that a more-than-de-minimis waste of judicial and litigant time
and resources can give rise to a Rule 8.4(d) violation. They focus instead on a single
quote from In re Alexander, 496 A.2d 244 (D.C. 1985) (per curiam), where the court
stated that Rule 8.4(d)’s predecessor rule, DR 1-102(A)(5), “is purposely broad to
encompass derelictions of attorney conduct considered reprehensible to the practice
58
of law.” Id. at 255. They try to use that quote, along with language from In re
Hallmark and In re Owusu, to argue that Rule 8.4(d) requires culpability amounting
to recklessness at a minimum. Respondents are correct that In re Owusu implies, at
least in the context of abiding by an administrative regulation like maintaining a
current address on file with the Bar, that some degree of recklessness or
intentionality is highly relevant to a Rule 8.4(d) violation, even if not strictly
required. See 886 A.2d at 542 (“[T]he issue would be different if evidence showed
that Owusu had willfully blinded himself to Bar Counsel’s inquiries; under our
decisions, purposefully evading an inquiry by changing address without notifying
the Bar would presumptively, and seriously, affect the disciplinary process. But
there was no proof of deliberate avoidance on Owusu’s part.”). But the court in In
re L.R. rejected a strict recklessness requirement, and In re Owusu does not purport
to abrogate In re L.R., nor could it have. In re L.R., 640 A.2d at 700-01. It is also
relevant that respondents’ conduct did not involve an administrative violation as in
In re Owusu; it involved a Brady violation that, when revealed, resulted in the
reversal of a criminal conviction. Therefore, any elevated scienter requirement we
suggested In re Owusu should not be understood to apply to actions like those of
respondents. In any event, as we have just explained, respondents acted with
reckless dishonesty, so even under a broader reading of In re Owusu it would be
appropriate to find a Rule 8.4(d) violation. Nor are we as confident as are
59
respondents that their Brady violation was not “reprehensible to the practice of law.”
In re Alexander, 496 A.2d at 255.
D. Rule 3.4(d)
The Hearing Committee reasoned that because respondents violated
Rule 3.8(e), they a fortiori violated Rule 3.4(d), which prohibits attorneys from
“fail[ing] to make reasonably diligent efforts to comply with a legally proper
discovery request by an opposing party” in “pretrial procedure.” The Board
disagreed. In its view, the specific governed the general: although Rule 3.8(e)
Brady-type violations are in some basic sense also failures of discovery compliance,
Rule 3.8(e) is directed only at such violations, so it, not Rule 3.4(d), should control.
Disciplinary Counsel did not take exception to the Board’s recommendation on
appeal, so we decline to disturb it. Cf. In re Chapman, 284 A.3d 395, 400-01
(D.C. 2022).
IV. Sanction
We turn last to the issue of the appropriate sanction. The Board recommended
that respondents be suspended for six months, and “[g]enerally speaking, if the
Board’s recommended sanction falls within a wide range of acceptable outcomes, it
will be adopted and imposed.” In re Kline, 113 A.3d at 215 (quoting In re Howes,
60
39 A.3d 1, 13, as amended nunc pro tunc, 52 A.3d 1 (D.C. 2012)). But, as noted,
we will not defer to the Board where doing so “would foster a tendency toward
inconsistent dispositions for comparable conduct or would otherwise be
unwarranted.” D.C. Bar R. XI, § 9(h)(1). Thus, while we always accord respect to
the Board’s recommendation, “the responsibility of ‘imposing sanctions rests with
this court in the first instance.’” In re Chapman, 284 A.3d at 403 (quoting In re
Godette, 919 A.2d 1157, 1164 (D.C. 2007)). In our view, the Board gave
insufficient weight to the significant mitigating circumstances in this case. We thus
adopt the recommended six-month suspension but stay it in favor of a one-year term
of probation.
Our cases set forth seven non-exhaustive factors for consideration when
determining the appropriate sanction for attorney misconduct: (1) the seriousness of
the conduct; (2) the prejudice, if any, to the client; (3) whether the conduct involved
dishonesty; (4) whether the attorney violated other disciplinary rules; (5) the
attorney’s disciplinary history; (6) whether the attorney has acknowledged his or her
wrongful conduct; and (7) any mitigating circumstances. See In re Martin, 67 A.3d
at 1053. Ultimately, “[a]n appropriate sanction is one that is necessary to protect the
public and the courts, maintain the integrity of the profession, and deter other
attorneys from engaging in similar misconduct.” In re Kline, 113 A.3d at 215 n.9.
“In all cases, our purpose in imposing discipline is to serve the public and
61
professional interests . . . rather than to visit punishment upon an attorney.” In re
Reback, 513 A.2d 226, 231 (D.C. 1986) (en banc). Within this general framework,
this court is obligated to treat like cases alike. See D.C. Bar R. XI, § 9(h)(1); In re
Cleaver-Bascombe, 986 A.2d 1191, 1194 (D.C. 2010) (per curiam).
Seriousness of the conduct: Respondents’ conduct was serious. While some
Rule 3.8(e) violations may be more egregious than others, none are trivial. Our
opinion in Vaughn left no doubt about the gravity of what happened here—Brady
violations that led to the reversal of Morton’s criminal conviction. 93 A.3d at 1266.
We are obligated to take Brady violations particularly seriously not only due to their
devastating potential consequences in any given case, but also because Brady
violations are both common and difficult to detect. Kevin C. McMunigal,
Disclosure and Accuracy in the Guilty Plea Process, 40 Hastings L.J. 957, 962 n.22
(1989) (“Brady violations are hard to detect. Unless the defendant somehow
fortuitously learns of the exculpatory information and the prosecution’s possession
of it, a Brady violation will never come to light.”).
Prejudice to the client: A prosecutor’s client is the general public, rather than
any specific government agency or criminal victim. ABA Standards for Criminal
Justice, Prosecutorial Investigations, Standard 1.2(b) (Am. Bar Ass’n 3d ed. 2014).
Any action by a prosecutor that erodes the public’s trust in the criminal justice
62
system’s ability to correctly mete out justice is therefore prejudicial. Respondents’
conduct, which cast doubt on the reliability of that system, thus weighs in favor of a
harsher sanction.
Dishonesty: Respondents’ conduct also involved dishonesty, although we take
a different view of the gravity of that dishonesty for sanctions purposes than the
Board did. As we have explained, several of the assertions respondents made in the
motion in limine evinced a reckless disregard for the defendants’ right to know the
truth about Childs’s conduct and history of dishonesty. That is a serious matter, and
the Board is correct that some of our cases have considered dishonesty a substantial
aggravating factor in the sanctions analysis. See, e.g., In re Howes, 52 A.3d at 22,
25; In re Cleaver-Bascombe, 986 A.2d at 1199-1200.
But In re Howes and In re Cleaver-Bascombe, the cases on which the Board
relies, are different from this case in three ways. First, the attorneys in In re Howes
and In re Cleaver-Bascombe were intentionally dishonest—flagrantly so. In re
Howes, 52 A.3d at 4, 16-18; In re Cleaver-Bascombe, 986 A.2d at 1195-96. They
misused court funds and then affirmatively concealed the misconduct; they were
therefore disbarred. In re Howes, 52 A.3d at 25; In re Cleaver-Bascombe, 986 A.2d
at 1201. Respondents’ dishonesty was quite different. While problematic, their
dishonesty was reckless, not intentionally malicious. Second, the attorneys in In re
63
Howes and In re Cleaver-Bascombe were repeatedly dishonest. See In re Howes, 39
A.3d at 16 (“The nature of a case is made more egregious by repeated violation of a
rule prohibiting dishonest conduct.”). In In re Cleaver-Bascombe, the attorney
submitted a false voucher and then “exacerbated the misconduct with false testimony
at the [disciplinary] hearing.” 986 A.2d at 1198. The attorney in In re Howes
wrongfully distributed more than $42,000 worth of witness vouchers in multiple
felony prosecutions over the course of two years. 39 A.3d at 4-6. Here, on the other
hand, respondents’ dishonesty was confined to one isolated case. Third, in In re
Howes and In re Cleaver-Bascombe, the court was focused on the need “to deter
other attorneys from engaging in similar misconduct.” In re Cleaver-Bascombe, 986
A.2d at 1199-1200 (quoting In re Reback, 513 A.2d at 231); see In re Howes, 52
A.3d at 22. Here, it is worth nothing that the U.S. Attorney’s Office overhauled their
approach to Brady after Vaughn in order to prevent incidents like this, thereby
providing important deterrence outside of the disciplinary context.
Accordingly, while dishonesty factors into our analysis, we do not think it
requires the kind of upward adjustment the Board recommended.
Violation of other disciplinary rules: The “violation of other disciplinary
rules” prong of the analysis considers how many rules were violated. Respondents
violated three: Rules 3.8(e), 8.4(c), and 8.4(d). But because all of the violations in
64
this case arose out of essentially the same conduct, we do not think this factor weighs
heavily here.
Disciplinary history and acknowledgment of wrongdoing: Neither Dobbie nor
Taylor has any prior disciplinary history, and they both have acknowledged the
wrongfulness of their conduct to the extent consistent with mounting a robust
defense in a difficult case. We have “recognize[d] that an attorney has a right to
defend himself and we expect that most lawyers will do so vigorously, to protect
their reputation and license to practice law.” In re Yelverton, 105 A.3d at 430. It
would not be appropriate to hold respondents’ exercise of that right against them
where, as here, respondents admitted that they had made mistakes and stated again
and again that they would do things differently if given the opportunity.
Mitigating circumstances: We identify one overriding mitigating
circumstance: the deficient conduct of respondents’ supervisors, John Roth and
Jeffrey Ragsdale, in their oversight of this case. Roth erred in at least two ways.
First, as head of the Lewis Committee, it was his responsibility to ensure that the
committee acted expeditiously and gave respondents ample opportunity to carefully
execute its decisions. The committee did not do so here. Respondents and Ragsdale
brought the Childs matter to the committee’s attention on September 29. Several
weeks later, having heard nothing, respondents prevailed on Ragsdale to follow up.
65
Only after another week had passed, on October 21, did Roth respond with the
committee’s decision. At this point, the trial was less than two weeks away. Even
if the guidance Roth ultimately provided had been careful and useful—to be clear, it
was neither—he still left the case team in the lurch for nearly a month while the
credibility of one of its key witnesses was in question and trial was fast
approaching. 16
Roth also made a mistake by expressing unsubstantiated skepticism about the
Collins Report’s conclusions—skepticism that found its way into respondents’
motion in limine. As noted, he told respondents: “My personal opinion is that the
officer’s written report is simply unclear, and the officer attempted to clear it up in
his interview. Not sure that the DOC conclusion that he lied is supported by the
record, but I will leave it to you folks to hash that out.” But it bears repeating—Roth
had no record before him against which to evaluate the Collins Report’s findings and
conclusions. Childs’s incident report was not “simply unclear” in its charge that
Heath had behaved in a “violent/disruptive” manner. It was, in fact, inaccurate.
16
We agree with the dissent that the Lewis Committee is “not a Brady
committee,” and that the Lewis Committee’s inquiry is not co-extensive with that
required by Brady. See infra page 76. However, we also see the Lewis Committee’s
long delay as one more example of the U.S. Attorney’s systemic failure to adequately
supervise its young prosecutors. The Committee’s delay did play a role in the
decisions these prosecutors made, and we therefore find it to be a mitigating
circumstance.
66
There is also no valid argument that Childs’s false disciplinary report was merely
unclear, because no portion of that report was included in the Collins Report. While
we ultimately must hold respondents accountable for their actions—they are the sole
signatories of the motion in limine—we find it significant that Roth’s inaccurate
framing of the matter informed the motion in limine.
Ragsdale, too, played a role in this case going awry. While there was some
dispute among members of the Hearing Committee on this score, we think
substantial evidence supports the conclusion that Ragsdale directed respondents to
proceed ex parte, thereby disclosing the Collins Report only to the court and not to
the defense. This was a regrettable instruction. We see no reason why disclosing
the report to the defense subject to a protective order would not have adequately
addressed the government’s security or personnel concerns. Ragsdale thus advised
respondents to take a risky strategy in a case that did not demand it. After doing so,
he did not appear to exercise further oversight to ensure that respondents
nevertheless made all required disclosures. To be sure, respondents are ultimately
responsible for their own decisions. But their supervisors did them no favors, and
their sanction should reflect as much.
We are also guided by the imperative to avoid “inconsistent dispositions for
comparable conduct.” D.C. Bar R. XI, § 9(h)(1). We are aware of only three
67
Rule 3.8(e) cases apart from this one. One of those, In re Howes, is inapposite and
involved an extensive pattern of more egregious conduct than that at issue here. 52
A.3d at 5-8. The other two are In re Kline and In re Cockburn, Bar Docket
No. 2009-D185 (Letter of Informal Admonition), the latter of which did not result
in a published opinion from this court. In re Kline is thus the most relevant
precedent.
Kline violated Rule 3.8(e) only, and the Board recommended a 30-day
suspension. In re Kline, 113 A.3d at 215. After looking at cases from other
jurisdictions, this court identified the range of sanctions “that generally would be
appropriate” for such conduct to be anything from a public reprimand to a six-month
suspension. Id. Although a 30-day suspension fell within that band, the violation in
In re Kline rested on an issue regarding the proper understanding of Rule 3.8(e) that
had generated “a great deal of confusion” in the legal community. Id. Specifically,
Kline had not actually violated Brady, because to violate Brady a prosecutor must
withhold information that is “material” to guilt or innocence, and the information
Kline withheld was not. Id. at 206-07, 215-16. Before In re Kline, it was widely
assumed that Brady’s materiality requirement also applied to Rule 3.8(e). Id. at
215-16. In In re Kline itself, we held the opposite. Id. But because we were
clarifying the law for the first time, we felt it unfair to penalize Kline for his “wrong”
68
but “not unreasonable” understanding of Rule 3.8(e)’s requirements and therefore
imposed no sanction. Id. at 216.
Determining the appropriate sanction requires balancing a wide array of
competing interests and factors. As the preceding paragraphs make clear, various
considerations cut both in favor of and against a harsh penalty. The Board’s
recommended six-month suspension accounts for these considerations—and we owe
deference to that determination. At the same time, the respondents here have clean
disciplinary slates and committed the relevant violations due in large part to the
collective action and inaction of members of their office. Our responsibility to
properly sanction their wrongdoing and deter future misconduct is moderated by the
knowledge that they are not solely responsible for the disciplinary infractions in
question. 17
17
In this way, respondents are different from, for example, a solo practitioner
who recklessly misappropriates client funds. See, e.g., In re Gray, 224 A.3d 1222,
1234-35 (D.C. 2020). By definition, solo practitioners are solely responsible for
disciplinary infractions they commit. We therefore disagree with the dissent’s
argument that our decision today is necessarily inconsistent with the harsh sanctions
we routinely issue in misappropriation cases. It is true that, “in virtually all cases of
misappropriation, disbarment will be the only appropriate sanction.” In re Addams,
579 A.2d 190, 191 (D.C. 1990) (en banc). But it is also true that (1) this practice is
common nationwide, see State ex rel. Couns. for Discipline of Neb. Sup. Ct. v.
Nimmer, 916 N.W.2d 732, 750 (Neb. 2018), and (2) an outsized number of our
misappropriation cases concern solo practitioners, see, e.g., In re Gray, 224 A.3d at
1225, 1235 (D.C. 2020) (disbarring solo practitioner for misappropriating client
69
For these reasons, we conclude that a six-month suspension, stayed in favor
of a one-year probationary period, is warranted. The length of the suspension
reflects the gravity of the violation, while the stay acknowledges that the respondents
should not, and probably do not, shoulder full responsibility. We believe that this
result strikes the proper—though nuanced—balance that this case requires.
Stays of suspensions are typically reserved for situations where attorneys
commit clearly sanctionable conduct, but under circumstances that explain or blunt
their culpability. See, e.g., In re Peek, 565 A.2d 627, 631-34 (D.C. 1989)
(concluding that the attorney’s clinical depression was causally connected to his
misconduct and therefore a sufficient mitigating factor to warrant a stay); In re
funds), In re Edwards, 990 A.2d 501, 524, 530 (D.C. 2010) (same), In re Cloud, 939
A.2d 653, 658, 664 (D.C. 2007) (same), In re Berryman, 764 A.2d 760, 761, 774
(D.C. 2000) (same), In re Marshall, 762 A.2d 530, 531, 540 (D.C. 2000) (same).
Because solo practitioners do not have the same checks on their conduct that lawyers
(public and private) have in larger organizations, it is especially difficult for this
court to ensure that violations will not recur. Compare In re Hessler, 549 A.2d 700,
716 (D.C. 1988) (holding that an attorney’s misappropriation of client funds “may
have been influenced in part by the fact that he was . . . a sole practitioner,” and the
fact that he “is now associated with a firm where he is not directly responsible for
client funds . . . suggests that similar misconduct will not occur in the future”), with
In re Ekekwe-Kauffman, 267 A.3d 1074, 1082 (D.C. 2022) (disbarring a solo
practitioner who had repeatedly misappropriated client funds and “did not
meaningfully change her accounting practices to prevent future misappropriations.”)
A law firm or government entity, on the other hand, can prevent future negligent
infractions by firing attorneys for intentional misconduct and reforming their
policies (as the U.S. Attorney’s Office did here). Thus, although this court is
obligated to treat like disciplinary cases alike, this case is simply not like that of a
solo practitioner who misappropriates client funds. D.C. Bar R. XI, § 9(h)(1).
70
Mooers, 910 A.2d 1046, 1046-47 (D.C. 2006) (similar). Cf. In re Pearson, 228 A.3d
at 428 (declining to impose a stay, even where the Hearing Committee had
recommended one, because the sanctions factors were generally aggravating).
While stays are an established mechanism in the disciplinary context, see, e.g.,
In re Johnson, 158 A.3d 913 (D.C. 2017), we recognize that they are usually
imposed pursuant to the Board’s recommendation. Even so, we have previously
exercised our discretion to implement stays that depart from the Board’s guidance.
For example, in In re Askew, 96 A.3d 52 (D.C. 2014), the Board (and the Hearing
Committee) had recommended that we issue a 30-day suspension stayed in favor of
a one-year term of probation. Id. at 54. Neither Askew nor Disciplinary Counsel
filed exceptions to the Board’s recommendation. Id. But rather than approve the
uncontested recommendation, we concluded that such a sanction was “inadequate”
and elected to suspend Askew for six months, with all but 60 days stayed. 18 Id. at
59, 62.
18
As the body with ultimate disciplinary decision-making authority, we also
have discretion to implement or modify probationary periods as part of an attorney’s
sanction. See D.C. Bar R. XI, § 3(a)(7) (“Probation may be imposed in lieu of or in
addition to any other disciplinary sanction.”); In re Adams, 191 A.3d 1114, 1118,
1123 (D.C. 2018) (extending an attorney’s probationary period to 18 months, despite
the Board’s recommendation that the probation only last one year).
71
Because we believe that the Board’s recommendation in this case similarly
does not fairly account for all of the relevant considerations, we conclude that a stay
of respondents’ suspensions—subject to probationary requirements—is appropriate.
For the duration of the one-year probationary period, respondents must refrain
from committing any crimes or violating any further Rules of Professional Conduct.
In the event that either respondent fails to comply, that respondent’s six-month
suspension will take effect from the date of noncompliance.
V. Conclusion
For the foregoing reasons, Mary Chris Dobbie and Reagan Taylor are hereby
suspended from the practice of law in the District of Columbia for six months, stayed
as to all in favor of a one-year term of probation.
So ordered.
72
DEAHL, Associate Judge, dissenting: Carl Morton and Alonzo Vaughn were
each sentenced to seven years’ imprisonment after being convicted for attacking a
fellow inmate and a corrections officer who came to his aid. They did not know at
the time of trial that Officer Angelo Childs, one of two witnesses who identified
them as the culprits based on grainy and choppy surveillance footage, had very
recently been caught falsely implicating another inmate in an assault, as detailed in
the “Collins Report.” 1 The reason they did not know that is that their prosecutors
and the respondents before us—Mary Chris Dobbie and Reagan Taylor—failed to
disclose this critical fact, in violation of their clear constitutional obligations to do
so. See Vaughn v. United States, 93 A.3d 1237, 1266 (D.C. 2014) (disclosure
“should not have been a hard call”); Brady v. Maryland, 373 U.S. 83, 87 (1963).
In more detail, the respondents (1) affirmatively misrepresented the Collins
Report’s contents to the defense in their motion in limine, omitting its most
important finding (that Officer Childs, in coordination with other officers, falsely
implicated another inmate in an assault); (2) purported to turn over the entire report
to the trial judge for ex parte review, but in reality submitted an incomplete report
missing the same exculpatory evidence that they failed to summarize in their motion
in limine (the relevant passages cut off by a claimed “faxing error”); and (3) assured
1
Benjamin Collins was an investigator for the Department of Corrections
Office of Internal Affairs asked to investigate Childs’s potential misconduct.
73
the trial judge, when he noted that he seemed to be missing key pages, that he had
the Collins Report in its entirety. I agree with my colleagues that Dobbie and Taylor
thereby violated Rules 3.8(e), 8.4(c), and 8.4(d) of the District of Columbia Rules of
Professional Conduct.
I do not agree with my colleagues that a six month suspension from the
practice of law is too harsh a sanction for their misconduct. The nine members of
the District’s Board on Professional Responsibility unanimously recommended a six
month suspension after carefully considering Dobbie and Taylor’s misconduct and
weighing its seriousness. Not only is that recommendation “within the wide range
of acceptable outcomes” that we are bound to defer to, In re Ekekwe-Kauffman, 210
A.3d 775, 797 (D.C. 2019) (quoting In re Martin, 67 A.3d 1032, 1053 (D.C. 2013)),
in my view it was based on a charitable construction of the facts under which a six
month suspension remains on the more lenient side of an acceptable sanction.
The majority notes just “one overriding mitigating circumstance” driving its
departure from the Board’s recommendation: respondents’ supervisors “did them no
favors.” Supra at 64, 66. I disagree. Those supervisors did respondents the favor
of telling them to disclose the Collins Report’s contents to the defense. If
respondents had abided that direction they would not be before us today. Lost in the
majority’s discussion of the supervisors’ failings is the simple fact that nobody
74
advised Dobbie and Taylor to commit any of the misconduct underlying their
disciplinary infractions. Nobody advised them to conceal the exculpatory evidence.
Nobody told them to misrepresent the Collins Report’s contents in their motion in
limine or to provide the trial judge with only a partial report that omitted the same
critical portions they neglected to summarize in their motion. And nobody told them
to falsely assure the judge that he had the entire report when he correctly flagged
that portions were missing. Had any of that advice been offered, no fit prosecutor
would have followed it. So I do not share my colleagues’ view that it is really the
supervisors who are largely to blame here, and the limited blame that can fairly be
attributed to them does not mitigate respondents’ culpability in any event.
Dobbie and Taylor should face real consequences for their actions—Morton
certainly did when he spent more than four years imprisoned for offenses that the
government would not even retry him for once respondents’ Brady violations came
to light. The majority instead, after paying repeated lip service to the severity of
respondents’ misconduct, doles out a probationary sanction directing them to
“refrain from committing any crimes or violating any further Rules of Professional
Conduct” for a year. That slap on the wrist does not adequately reflect the
seriousness of respondents’ misconduct here, nor does it adequately protect future
criminal defendants from meeting a fate similar to Morton’s.
75
Finally, I am troubled by what the majority’s opinion reveals about this court’s
values when policing the District’s bar. As a court, we almost invariably disbar
attorneys who have engaged in even the slightest reckless or intentional
misappropriation of client funds. In re Addams, 579 A.2d 190, 191 (D.C. 1990) (en
banc). Even negligent misappropriation will result in “the usual sanction” of a six
month suspension from the practice of law. In re Greenwald, 926 A.2d 169, 171
(D.C. 2007). That is too harsh a result, the majority concludes, when prosecutors
intentionally suppress evidence in violation of the Constitution and thereby secure
felony convictions resulting in years of unjust imprisonment. I disagree and dissent.
I. The Recommended Sanction Is Appropriate
A. The Majority Misallocates Blame for the Misconduct
The most critical points of departure between the majority and I are that I do
not believe Dobbie and Taylor’s supervisors, John Roth and Jeffrey Ragsdale, are
largely to blame here. Nor do I think the failings of those supervisors mitigate
Dobbie and Taylor’s own wrongdoing. Those supervisors’ failings, thoroughly
accounted for in the Board’s report, are not an “overriding mitigating circumstance”
that justifies departing from the Board’s recommended sanction. I will discuss the
relative culpability of the supervisors and the respondents in turn.
76
Roth Cannot Be Scapegoated
I begin with Roth, to whom the majority assigns an outsized portion of the
blame due to two purported failings: (1) his Lewis committee took too long to advise
respondents on whether they could call Officer Childs as a witness, and (2) he
expressed “unsubstantiated skepticism” about the Collins Report. Supra at 65-66.
It should be noted up front that Roth was never even asked to advise on whether the
Collins Report’s contents should be turned over to the defense, but he nonetheless
offered one piece of advice on that front: “disclose” it. As the Board accurately
recounted, that meant “disclose the information in the Collins Report to the defense.”
(emphasis added). I fail to see how Roth bears any share of the blame for Brady
violations stemming from respondents’ failures to do precisely what he gratuitously
advised. If Dobbie and Taylor had heeded Roth’s advice, they would not be here.
Let me next be clear on what the Lewis committee is and what it is not, because
it underscores why I think the majority is mistaken to belabor its delays. The Lewis
committee advises on whether the government should even call a particular witness
in its case, or if instead the witness’s credibility issues are so severe that the
government will not even have them take the stand. But it is emphatically not a
Brady committee asked for advice on what evidence should be turned over to the
defense. There can be oodles of clear and obvious Brady material impeaching a
77
government witness whom the government nonetheless chooses to have testify. If
there is evidence so damning that prosecutors have to ask if they can even call the
witness to the stand, they already have the answer to any Brady question: that
evidence needs to be turned over to the defense. The Lewis committee’s delayed
advice on whether Dobbie and Taylor should sponsor Childs as a witness was thus
irrelevant to their Brady violations. They were not thrust into any “lurch” by the
committee’s delays, as the majority posits, because they were constitutionally
required to turn the Collins Report over to the defense no matter what the Lewis
committee advised. 2
It was in fact improper for Dobbie and Taylor to even wait for the Lewis
committee’s advice before turning over the Brady material. Brady requires
disclosures to be made “at the earliest feasible opportunity.” See Miller v. United
States, 14 A.3d 1094, 1108 (D.C. 2011) (citation omitted). We have emphasized
2
That would be true even if, counterfactually, Dobbie and Taylor had
ultimately opted not to call Childs as a witness. Childs was the first of two officers
who identified Morton and Vaughn as the assailants, and the other was Sergeant
Harper. Harper was on the scene and could not identify Morton or Vaughn from his
direct observations of the melee. He did so only after watching surveillance footage
of the assault with Childs. The fact that Childs’s previous fabrications were backed
by other officers would have provided a potent attack on the government’s entire
case whether or not he testified—Childs got the entire case against Morton and
Vaugn rolling. Dobbie was thus wrong when she testified that she would have had
no Brady obligation to disclose the Collins Report had respondents not called Childs
as a witness. It is concerning that she apparently continues to think that.
78
again and again that “a prosecutor’s timely disclosure obligation with respect to
Brady material can never be overemphasized, and the practice of delayed production
must be disapproved and discouraged.” Id. (citing Boyd v. United States, 908 A.2d
39, 57 (D.C. 2006)). Dobbie and Taylor should have disclosed the Collins report to
the defense right after they read it, and certainly no later than when they realized that
it raised a question worth putting to the Lewis committee. Nobody advised them
otherwise, and it was not “a hard call.” Vaughn, 93 A.3d at 1266. The Lewis
committee’s delay is thus irrelevant to the Brady violations because respondents had
no valid reason, and were not even permitted, to wait on that committee’s advice.
Plus, it would have made no conceivable difference if Roth and the Lewis
committee had more promptly advised respondents to disclose the Collins Report to
the defense. Perhaps respondents’ incomplete disclosures would have been more
timely, but there is no reason to think respondents would have disclosed the critical
information that they otherwise failed to disclose at every turn. In fact, eight months
after the Lewis committee rendered its advice, respondents maintained in their post-
trial pleadings that “the relevant portions” of the Collins Report “were disclosed in
the Motion in Limine.” So what we know is that even with eight months of
reflection, respondents saw nothing wrong with keeping the critical exculpatory
evidence concealed.
79
The majority next faults Roth for expressing “unsubstantiated skepticism”
about the Collins Report’s findings. Two things about that: First, and most
importantly, this comment was accompanied by Roth’s unequivocal advice to
disclose the Collins Report to the defense, so his skepticism cannot possibly justify
respondents’ failures to heed that advice. Second, Roth’s skepticism is at least partly
attributable to respondents misdirecting the Lewis committee’s attention to a
relatively innocuous aspect of the Collins Report. This second point, while a
relatively minor one, requires elaboration because it speaks to a pattern regarding
respondents’ misconduct that cannot be easily squared with the Hearing
Committee’s findings of inadvertence.
To paraphrase the Collins Report, it found that Childs filed an incident report
that told a smaller implied lie and a bigger overt lie. The smaller implied lie was
that Childs falsely suggested that an inmate whom he maced was unrestrained.
Childs’s report from that incident did not actually say that, but implied it by saying
that the inmate was “placed in restraints” after he was maced. When Dobbie
summarized the relevant issue for the Lewis committee, this was the only aspect of
the Collins Report’s findings that she mentioned—that “Childs” falsely “wrote in his
report that the inmate was placed in restraints after he was maced.” So it is no
mystery why Roth speculated that Officer Childs was “simply unclear” in this aspect
of his incident report. As the Board put it, this was “the kind of thing that could be
80
an inaccurate detail in an otherwise honest report.” Maybe the inmate was restrained
before being maced and then subjected to additional restraints afterward, so that
Childs said nothing inaccurate at all. Roth’s skepticism was responsive to the one
and only aspect of the Collins Report that Dobbie had focused the Lewis committee’s
attention on. And that aspect of the Collins Report is irrelevant to the Brady
violations here, because the respondents did disclose this smaller implied lie to the
defense before trial.
The bigger overt lie identified by the Collins Report was that Childs
fabricated an assault on a police K-9 and falsely charged the inmate with that offense,
claiming the imagined assault prompted him to mace the inmate in the first place.
And then Childs apparently colluded with multiple other officers to support his false
account of that assault. That was the evidence critical to Morton and Vaughn.
Morton and Vaughn maintained that Childs and another officer had falsely
implicated them in a criminal assault, just as (unbeknownst to them) Childs had
previously, in coordination with other officers, falsely implicated another inmate in
a criminal assault. Dobbie made no mention of those facts in her synopsis of what
she was asking the Lewis committee to opine upon; respondents later omitted those
same facts from their motion in limine; and a fax machine then happened to
malfunction (or something) right before transmitting the page of the Collins Report
that would have laid those facts bare for the court.
81
Roth’s skepticism was at least partly a byproduct of respondents misdirecting
him and the Lewis committee to a relatively innocuous portion of the Collins Report.
I do not see that as a mitigating factor in their favor. Regardless, Roth’s bottom line
was to disclose the Collins Report’s contents to the defense, so the blame for
respondents’ failure to do that cannot be deflected unto him.
Ragsdale Cannot Be Scapegoated
The majority next shifts blame to Ragsdale. Like Roth, Ragsdale never
advised Dobbie and Taylor to conceal the contents of the Collins Report from the
defense, but instead told respondents to disclose them. The majority nonetheless
casts blame on him because he supposedly told respondents to file the actual report
with the court ex parte while summarizing its pertinent contents for the defense.
Assuming that was in fact Ragsdale’s advice, 3 I agree with the majority that it was
bad advice. But it was only a “risky strategy,” as the majority puts it, supra at 66,
to the extent that Dobbie and Taylor could not be trusted to competently summarize
the report’s contents and to transmit the entire report to the court for review.
3
The Hearing Committee was split 2-1 over whether Ragsdale had instructed
Dobbie and Taylor to proceed in this manner. Neither Ragsdale nor Taylor had any
memory of such an instruction, but Dobbie said she remembered it, and Ragsdale
surmised that he must have given it because he could not imagine why else
respondents would have proceeded in the manner they did.
82
Respondents’ disciplinary infractions thus did not stem from Ragsdale’s advice
either, but once again, stemmed from their failures to carefully abide it.
The majority’s complaints with Ragsdale are effectively that he did not stop
respondents from engaging in their misconduct, but that is not any sort of mitigating
factor that I am familiar with. The majority laments that Ragsdale “did not appear
to exercise further oversight to ensure that respondents . . . made all [the] required
disclosures” he told them to make in their motion in limine. But there is (1) no
indication that either Dobbie or Taylor ever sought his input or asked him to review
their motion in limine, and (2) no evidence that line prosecutors generally require
such handholding. Ragsdale did not independently demand to review the motion in
limine because, in his words, he “had full faith that” respondents would provide “an
accurate statement of the facts.” It is a disservice to line prosecutors everywhere to
suggest that such faith is misplaced and that supervisors must directly oversee
matters as simple as summarizing a report’s critical findings and faxing the complete
report for the court’s review.
Respondents are professional federal prosecutors, not hapless amateurs. They
undertook the enormous responsibility of representing the United States in a trial
featuring multiple defendants and dozens of felony charges. U.S. Attorney’s Offices
could not function if supervisors were required to micromanage their subordinates’
83
every simple task. The top of page six of the Collins Report succinctly captured the
most relevant Brady material that respondents could have (and should have) relayed
verbatim, without the need for any summarizing:
Childs’[s] narrative suggests that at the time of the
incident, inmate Heath was not restrained, displayed
disruptive behavior, and was ‘kicking at’ the [police K-
9]. . . . Childs also composed and submitted a Disciplinary
Report charging inmate Heath with Assault without
Serious Injury and Lack of Cooperation. Video footage of
the incident does not support the allegation that inmate
Heath assaulted any Correctional Officer or K-9.
All Dobbie and Taylor had to do was copy and paste these lines from the Collins
Report, which just so happen to appear immediately after a block quote that was in
their motion in limine, and immediately after their apparent faxing error cut off the
report at page five. 4 I do not see Ragsdale’s failure to micromanage the simple tasks
of accurately summarizing and transmitting that evidence as mitigating respondents’
culpability.
4
I take it as an established factual finding that there was a faxing error that
led to the critical pages of the Collins’ Report never reaching the court, but it is far
from the most natural inference from the evidence before the Hearing Committee.
84
The Blame Lies with Dobbie and Taylor
Now let’s focus on Dobbie and Taylor’s responsibility for their actions. The
evidence against them readily supported either of two very different conclusions.
The first, more nefarious explanation of what happened is that respondents made
repeated errors in judgment: (1) they chose not to tell the defense that Childs had
previously, and in coordination with other officers, falsely implicated an inmate in
an assault; (2) they intentionally did not highlight that adverse finding for the Lewis
committee; (3) they purposefully omitted those facts from their motion in limine
summarizing the Collins Report; (4) they then purposefully faxed only part of the
Collins Report to the court, omitting the same critical information that they omitted
from their motion in limine; and (5) when the court noticed the apparently missing
pages, they decided to lie and cover their tracks by falsely assuring the court that it
had the entire report.
There was no shortage of evidence supporting this more nefarious narrative.
Dobbie herself testified that she did not think she was required to disclose the fact
that Childs had falsely accused another inmate of assaultive behavior. The motion
in limine she drafted, as the Board accurately put it, “dramatically misconstrued the
adverse finding about Childs’[s] credibility that was made in the” Collins Report,
“include[d] a great deal of detail about the Collins Report, yet scrupulously
85
avoid[ed] mention of the false disciplinary charge,” and “include[ed] a block quote
from the Collins Report that”—just like respondents’ fax to the court—cut off
immediately before “the Report discusses the false disciplinary charge.” If the
findings before us were that respondents took these intentional steps to keep this
exculpatory evidence from coming to light, then we would not be here debating a
six month suspension. We would instead be talking about disbarment, in what I
could only hope would be a brief discussion because that would be the only suitable
sanction.
The Hearing Committee, quite generously to respondents, adopted a more
innocuous explanation for their misconduct. It concluded that respondents’ failings
were primarily not errors of judgment but errors of care. In other words, respondents
(1) failed to competently summarize the Collins Report’s key findings in their
motion in limine and carelessly omitted the aspects of the report that were most
damaging to the government’s case; (2) Dobbie then attempted to fax the entire
Collins Report to the court but an unnoticed faxing error cut the report off just one
sentence before the most exculpatory evidence in the report, mirroring where their
motion in limine cut off a block quote; and (3) when the court informed them that
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they had appeared to transmit only a partial report, Dobbie then carelessly believed
the court was mistaken and assured the court that it had the full report. 5
Under this more generous view of respondents’ misconduct, their failings
were that they did not care enough to be scrupulous when other people’s lives—
literally decades of imprisonment—hung in the balance. They did not care enough
to craft a halfway decent motion in limine that disclosed the most exculpatory
evidence in the Collins Report. They did not care enough to copy and paste that
report’s most important findings, or to simply redact whatever “sensitive
employment information” animated their decision not to turn over the entire report.
They did not care enough to make sure that their fax of the Collins Report had gone
through to the court in its entirety. And when the court alerted them to the fact that
some pages were missing from their transmission, they did not care enough to take
two seconds to look at the entire report that was sitting in Taylor’s files right then
and there and would have immediately confirmed the court’s suspicions; they
instead gave the court false assurance that it had the entire report. Neither Roth,
5
It was Dobbie, the more experienced and more senior of the respondents,
who was the principal drafter of the motion in limine, who errantly faxed the Collins
Report to the court, and who falsely assured the court that it had the entirety of the
report. If I put aside the deference owed to the Board’s recommendation, I would
likely conclude that Dobbie deserves a harsher punishment than what the Board
recommends, and perhaps that Taylor deserves a more lenient one given her relative
inexperience and lack of involvement in the most egregious misconduct here.
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Ragsdale, nor anybody else at the U.S. Attorney’s Office can be blamed for
respondents’ utter lack of care.
Dobbie and Taylor counter that “an unconscious failure to disclose cannot be
deterred” so they should receive no discipline at all. That is obviously wrong; people
can be incentivized not to make unconscious errors. To illustrate, imagine if we
were talking about inculpatory evidence in the Collins Report—say Morton
confessed to the assaults—is there any doubt that the government would have
remembered to bring that evidence to the jury’s attention? Is it conceivable that they
would have “unconsciously fail[ed]” to do so? Of course not, because they are no
doubt highly motivated to secure convictions. “[P]rotecting the constitutional rights
of the accused was just not very high on th[ese] prosecutor[s’] list of priorities.”
United States v. Olsen, 737 F.3d 625, 631 (9th Cir. 2013) (Kozinski, C.J., dissenting
from denial of petition for rehearing en banc).
Or imagine if you had a dog who required a daily medication to stave off a
life-threatening malady. If you were boarding that dog for a few weeks, might you
“unconsciously fail” to alert the kennel of that essential medication? Is it
conceivable that you might omit that fact when writing a summary of the dog’s
required medications, while instead highlighting a more trivial medication for a mild
rash? Would you send the details of those required prescriptions via fax and then
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not double check to make sure that the fax went through? If you then received a call
from the kennel informing you that it seemed to be missing some of your dog’s
medical information, is there a universe in which you might glibly brush them aside
and assure them that they had everything? It is unlikely that you would fail at any
of those steps; it is inconceivable that you would fail at each of them unless you
wanted your dog dead or were indifferent to that possibility. That is because people
generally do not unconsciously and repeatedly fail to relay critical information
provided they attach any gravity to it. And in this case we are not talking about a
dog, but human beings. When these prosecutors repeatedly failed to provide them
with information vital to their defense, it can only be because they attached little
gravity to the defendants’ constitutional rights and liberty interests. That
indifference to a matter that demanded the utmost care should not be tolerated and
deserves a serious sanction, as the Board unanimously and cogently explained.
“The fact that a constitutional mandate elicits less diligence from a
government lawyer than one’s daily errands signifies a systemic problem: Some
prosecutors don’t care about Brady because courts don’t make them care.” Id. The
result today is one more datapoint in support of that thesis. Imposing a meaningful
sanction is necessary to instill the extraordinary care that these cases deserve in
whatever segment of prosecutors—no doubt a distinct minority—otherwise lack it.
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B. The Majority Downplays a Substantial Aggravating Factor
In addition to misallocating the blame among respondents and their
supervisors, the majority also downplays a substantial aggravating factor:
respondents’ dishonesty. Like me, the majority agrees with the Board and Hearing
Committee that Dobbie and Taylor acted dishonestly, and so violated Rule 8.4(c).
They find this dishonesty in Dobbie and Taylor’s “mischaracterization of the Collins
Report’s conclusions in the motion in limine and related decision not to ‘conced[e]’
that Officer Childs ‘had made a false and/or misleading statement.’” While the
majority says that “[t]here is simply no justifying these misrepresentations,” it
nonetheless gives them no discernible weight when determining the appropriate
sanction.
Dishonesty is one of the enumerated factors that we must take into account
when considering an appropriate sanction. See In re Martin, 67 A.3d 1032, 1053
(D.C. 2013). My colleagues say the dishonesty here was “problematic,” but not
“flagrant[],” because it was “confined to one isolated case.” See supra at 62-63. I
do not agree with that assessment—the protracted pattern of dishonesty here cannot
fairly be described as isolated—but it does not matter because dishonesty need not
be repeated or flagrant to weigh in favor of a six month sanction. “Where we have
concluded that the attorney’s conduct falls into a category of dishonesty of a flagrant
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kind we have held disbarment to be the appropriate sanction.” In re Cleaver-
Bascombe, 986 A.2d 1191, 1199 (D.C. 2010) (Cleaver-Bascombe II) (per curiam)
(emphasis added); see also In re Howes, 52 A.3d 1, 15 (D.C. 2012) (“[W]here []
dishonesty is aggravated and prolonged, disbarment is the appropriate sanction.”).
If Dobbie and Taylor’s dishonesty were flagrant, we again would not be debating a
six month suspension, but talking about disbarment. When deciding between much
lesser sanctions, dishonesty of any kind is an aggravating factor that we must take
seriously.
To put things into perspective, the attorney in In re Cleaver-Bascombe’s sin
was asking to be paid for a single jail visit that did not occur, and then continuing to
insist that it had occurred during disciplinary proceedings. Cleaver-Bascombe II,
986 A.2d at 1193. We disbarred her. Id. Why is it that we see an attorney submitting
a false voucher and then continuing to defend it as “demean[ing] their noble calling
and bring[ing] disgrace to themselves and to their profession,” and worthy of
disbarment, id. at 1198-99 (citation omitted), but apparently see dishonesty resulting
in years of unjust imprisonment as merely “problematic”?
For this reason, too, I am not persuaded to the majority’s view that a six month
suspension would be inconsistent with In re Kline, 113 A.3d 202 (D.C. 2015). In its
comparison to that case, the majority overlooks the fact that In re Kline did not
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involve so much as an allegation of dishonesty—something we attached
considerable weight to when declining to suspend the respondent in that case. 113
A.3d at 216. Given the emphasis we have put on dishonesty as an aggravating factor,
this case merits a harsher sanction. See, e.g., In re Daniel, 11 A.3d 291, 300 (D.C.
2011) (“There is nothing more antithetical to the practice of law than dishonesty.”).
In fact, it would run counter to our precedents not to impose a harsher sanction. See
In re Balsamo, 780 A.2d 255, 261 (D.C. 2001) (“Where an aggravating element of
dishonesty is present, the sanction normally imposed for types of disciplinary
violations other than violations of 8.4(c) may be increased.”). And six months is
unquestionably within the normal range of sanctions for cases involving dishonesty.
See id. (“For conduct involving ‘dishonesty, fraud, deceit, or misrepresentation,’
Rule 8.4(c), the discipline this court has imposed has ranged from censure to
disbarment.”); In re Guberman, 978 A.2d 200, 207 & n.7 (D.C. 2009) (citing cases
involving false or dishonest statements with sanctions that “range from a suspension
of thirty days to a suspension of three years”).
A variety of factors compound rather than mitigate respondents’ dishonesty.
First, putting aside their failures to disclose the exculpatory evidence, Dobbie and
Taylor sat idly by as Childs lied in his sworn trial testimony. Childs testified under
oath that he was demoted only for making copying and pasting errors. Respondents
knew that was false, but did not correct the record. Vaughn, 93 A.3d at 1261. They
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listened to him say that his demotion was “voluntary” and not the result of any
disciplinary action. They again knew better, but did not correct the record. Id. They
knew both of these things to be untrue, and yet while their witness lied to the jury
they sat silently by, in violation of their duty to correct false testimony. See Longus
v. United States, 52 A.3d 836, 844 (D.C. 2012) (“A bedrock principle of due process
in a criminal trial is that the government may neither adduce or use false testimony
nor allow testimony known to be false to stand uncorrected.”).
Second, even after the trial had concluded, Dobbie and Taylor fought to keep
the Collins Report concealed. Morton and Vaughn challenged their convictions in
post-trial motions partly on the ground that the court had improperly limited their
cross-examinations of Childs. In considering that challenge, the court asked if there
was “any reason” not to disclose the Collins Report to the defense “for the purpose
of arguing the motion,” and Dobbie objected to disclosing it, maintaining that the
report should remain under seal with the court. It was only when the court overruled
that objection and ordered respondents to disclose the entire report to the defense
that respondents’ misconduct came to light. At this point, Dobbie and Taylor again
had the opportunity to admit their mistakes, but instead they dug in their heels. They
filed a supplement to their opposition to Morton’s post-trial motion, in which they
continued to assert that the motion in limine had adequately disclosed and
summarized the Collins report; that it was not clear that Childs had filed a false
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report because the text of his report “was found to be misleading” and “was
ambiguous at best”; and that, in any case, the Collins report did not contain any
Brady information.
The Hearing Committee cut Dobbie and Taylor repeated breaks in its factual
findings, ultimately crediting their testimony that their actions were mistakes,
despite strong evidence to the contrary. So many things had to “go wrong” for
Dobbie and Taylor to successfully deprive the defense of this critical exculpatory
evidence that it is close to impossible to chalk it up to inadvertence. I nonetheless
accept the Hearing Committee’s factual findings on this point, despite my view that
they toe the line of being belied by the record. See In re Stuart, 290 A.3d 20, 27
(D.C. 2023) (per curiam) (“We defer to the Hearing Committee’s findings of fact
. . . unless those findings are not supported by substantial evidence.”). But that just
leaves us with the conclusion that Dobbie and Taylor were extraordinarily reckless
in a case of considerable gravity. Their degree of recklessness merits the
recommended six month suspension.
C. A Six Month Suspension Is Fitting for Reckless Conduct
Mere recklessness has never been a bar to serious sanctions. See In re Gray,
224 A.3d 1222, 1235 (D.C. 2020) (disbarment for misappropriation of client funds
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that was reckless, not intentional); In re Ekekwe-Kauffman, 267 A.3d 1074, 1077
(D.C. 2022) (same). And it is not a bar here where a real sanction is necessary.
Brady relies on prosecutors to voluntarily disclose exculpatory material.
Short of disciplinary sanctions, prosecutors have very little to lose if they violate
Brady. If they do not disclose Brady material, it is likely the defense will never find
out (as Morton and Vaughn very nearly failed to uncover the exculpatory evidence
here). If the defense somehow does find out, then the convictions will be reversed
only if the undisclosed evidence clears the materiality bar. 6 And even when
convictions are reversed, the result is typically a second trial in which the
prosecutors get a second bite at the apple.
I do not doubt that the vast majority of prosecutors take their Brady
obligations extremely seriously, but there is nonetheless “a serious moral hazard”
for the minority of “prosecutors who are more interested in winning a conviction
than serving justice.” Olsen, 737 F.3d at 630 (Kozinski, C.J., dissenting). It is
therefore necessary to sanction prosecutors who violate Rule 3.8(e), in the rare
circumstances when those violations come to light, to deter noncompliance with
6
See Richard A. Rosen, Disciplinary Sanctions Against Prosecutors For
Brady Violations: A Paper Tiger, 65 N.C. L. Rev. 693, 705 (1987) (“[T]he deterrent
effect of a potential reversal has been undermined by the Supreme Court’s
development of strict materiality requirements in Brady cases.”).
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disclosure obligations. And it is exactly these rare, hard to detect violations where
harsh discipline is appropriate. See Cleaver-Bascombe II, 986 A.2d at 1199-1200(“[T]he severity of a sanction should take into account the difficulty of detecting and
proving the misconduct at issue.” (quoting Cleaver-Bascombe I, 892 A.2d at 414
(Glickman, J., dissenting in part))). 7
D. The Majority Sows Asymmetry in Our Precedents
Finally, I see this case as a small part of a larger problem. We frequently
subject private practitioners to serious sanctions for relatively minor missteps, while
we rarely subject public servants to sanctions of the same caliber, even though their
misconduct often results in significantly more harm and is at least as morally
blameworthy.
We have disbarred private practitioners for misappropriating client funds
countless times. “[I]n virtually all cases of misappropriation, disbarment will be the
only appropriate sanction unless it appears that the misconduct resulted from nothing
more than simple negligence.” See Addams, 578 A.2d at 191. To take just two
examples: In In re Gray, a solo practitioner recklessly misappropriated client funds
7
For this reason, I do not agree with the United States, participating as amicus,
that any new Brady trainings that it has implemented obviate the need for
disciplinary sanctions here.
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by twice mistakenly overdrawing a client account by about $10,000 because he
forgot the funds in the account were being held in trust. 224 A.3d at 1227. Both
times, Gray quickly replaced the funds with money from his personal account when
the error came to light, so that ultimately nobody was actually harmed. Id. at 1227,
1231. We disbarred him. Id. at 1235. In In re Ekekwe-Kauffman, another solo
practitioner was found to have recklessly misappropriated funds from four client
accounts by unintentionally drawing out money that belonged to her clients. 267
A.3d at 1077. The largest sum she misappropriated was $2750, and the smallest was
$12.35. Id. at 1079. We disbarred her too. Id. at 1077.
This “relentlessly unforgiving approach to misappropriation” is “difficult to
reconcile” with the “substantially greater and sometimes excessive leniency towards
violations involving far more dishonorable conduct.” In re Micheel, 610 A.2d 231,
237 (D.C. 1992) (Schwelb, J., concurring); see also Addams, 579 A.2d at 209-10 &
nn.16-19 (Schwelb, J., dissenting); In re Berryman, 764 A.2d 760, 774 (D.C. 2000)
(“[D]isbarment may appear to be quite harsh in this case where [respondent]
previously enjoyed a twenty-four year career as an attorney without a single blemish,
[and] rendered extraordinary service to [her client].”). This is one of those cases that
involves far more dishonorable conduct than the reckless or even intentional
misappropriation that would lead us to disbar attorneys without batting an eye.
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II. Conclusion
Dobbie and Taylor, through their actions, sent two men to prison for years on
the basis of unreliable testimony, and prevented them from being able to effectively
challenge that testimony at trial. Perhaps they did so unintentionally, but we take a
ruthless approach to even unintentional accounting errors. And here we are not
talking about money that can be restored. We are talking about “the accuracy of the
mechanism by which our society deprives individuals of their freedom and their
lives.” 8 We are talking about four and a half years of people’s lives, which stood to
be even longer had respondents’ misconduct not fortuitously come to light despite
their efforts to keep it concealed.
This court has an integral role to play in upholding standards of professional
conduct. See In re Chapman, 284 A.3d 395, 403 (D.C. 2022) (“[T]he responsibility
of ‘imposing sanctions rests with this court in the first instance.’” (quoting In re
Godette, 919 A.2d 1157, 1164 (D.C. 2007))). It is important that we hold civil
servants just as accountable as private practitioners, particularly when they wield the
vast power of the State. By discarding the Board’s recommended sanction and
8
Rosen, supra note 6 at 731.
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replacing it with what amounts to an admonition, this court shows an unwillingness
to hold public servants accountable for the most grievous of attorney misconduct.
It is especially important that we “hold prosecutors accountable in light of
their pivotal role in the justice system, the great discretion they are given, and the
few tools available to oversee their compliance with the legal standards that govern
their conduct.” See In re Howes, 52 A.3d at 23; cf. Diaz v. United States, 716 A.2d
173, 180 (D.C. 1998) (“The prosecutor [] plays a special role in our judicial system
and carries unique responsibilities and is expected to know and abide by the rules of
the court and [their] profession.”). Prosecutors “are the representative of the
sovereign, whose ‘interest . . . in a criminal prosecution is not that it shall win a case,
but that justice shall be done.’” Vaughn, 93 A.3d at 1253 (quoting Berger v. United
States, 295 U.S. 78, 88 (1935)). But perhaps out of respect for their institutional
role, disciplinary bodies rarely sanction prosecutors, and when they do, they often
impose no more than a slap on the wrist. 9 Here, the Board comes to us—despite
innumerable favorable inferences drawn in respondents’ favor—with the rare
9
See Thomas P. Sullivan & Maurice Possley, The Chronic Failure to
Discipline Prosecutors for Misconduct: Proposals for Reform, 105 J. Crim. L. &
Criminology 881, 894 & n.54 (2015) (citing articles detailing a lack of discipline);
see also Rosen, supra note 23 at 697 (surveying the lawyer disciplinary bodies in
every state and the District and concluding that “despite numerous reported cases
showing violations of [disciplinary rules prohibiting prosecutorial suppression of
exculpatory evidence], disciplinary charges have been brought infrequently and
meaningful sanctions rarely applied”).
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recommendation of an actual suspension that at least comes close to reflecting the
gravity of this serious prosecutorial misconduct. Yet this court balks. I wouldn’t.
The recommended six month sanction is well within the range of acceptable
outcomes and we should therefore impose it. I respectfully dissent from the
majority’s contrary conclusion.