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					                           JANUARY 2011
                     FEATURED REGULATORY CASE
                                           TOPIC:
   Revolving door conflicts involve conduct that interferes with the administration of justice.

                                       SUMMARY:
A revolving door conflict, a situation involving a former government lawyer who is now serving
in private practice, and who engages in a successive conflict of interest, is a relatively rare
occurrence in lawyer regulatory case law. The most significant decision involving misconduct of
this nature hails from the District of Columbia and involved former United States State
Department official Abraham David Sofaer. In re Sofaer, 728 A.2d 625 (DC 1999). See also,
NOBC Current Developments (Atlanta 1999). Sofaer violated 1.11(a) of the District of
Columbia Rules of Professional Conduct because, after he entered private practice, he began
representing Libya in civil and criminal disputes arising out of the terrorist bombing of PanAm
Flight 103 over Lockerbie, Scotland. For his efforts on behalf of Libya, Sofaer was to receive a
retainer of $250,000 per month over three years. The only problem with this fee-generating
situation was that Sofaer formerly served as Legal Adviser at the State Department and
participated personally and substantially in the investigation of Libya's involvement in the 1998
PanAm bombing.

Now another decision involving a revolving door conflict has issued from the District. The
Office of Human Rights (“OHR”) is a District of Columbia municipal government agency
established to eradicate discrimination, increase equal opportunity and protect human rights for
persons who live, work, visit or conduct business within the District. The primary mission of the
agency is to enforce the District of Columbia Human Rights Act of 1977 and to enforce other
laws and policies on nondiscrimination including the District of Columbia Family and Medical
Leave Act of 1990, the District of Columbia Parental Leave Act and the District of Columbia
Language Access Act of 2004. In addition, the United States Equal Employment Opportunity
Commission and the United States Department of Housing and Urban Development have
designated the OHR as a fair employment practice agency and a fair housing assistant program
agency, respectively. Together, these designations allow the OHR enforce complaints of
discrimination filed under Title VII of the Civil Rights Act of 1964 (Equal Employment
Opportunity Act), the Americans with Disabilities Act, the Age Discrimination in Employment
Act, the Equal Pay Act and Title VIII of the Civil Rights Act of 1968 (Fair Housing Act).
Many times, the agency works to settle citizen complaints through mediation. If mediation fails,
the OHR conducts an investigation of any alleged discrimination, including complaints filed by
District government employees alleging employment discrimination

For a number of years, Lucille White served as the head of OHR‟s investigating unit. While in
office, she happened to supervise the investigation of an age discrimination complaint
filed by one Gladys Graye Thomas arising out of Thomas‟ discharge from a position
with the Department of Consumer and Regulatory Affairs. After a review of the facts, an
OHR investigator provided White with a draft Letter of Determination concerning
Thomas‟s complaint. Eventually, OHR advised Thomas that there was no probable
cause to support her complaint. In response to the dismissal of her grievance, Thomas
pursued her age discrimination claim by filing suit in the United States District Court for
the District of Columbia in January 2003, the same month that White was terminated
from OHR for performance issues. The termination followed several months of internal
discussions about her job performance.

After White‟s termination, Thomas‟s lawyer in the federal discrimination action, Janet
Cooper, discussed with White the possibility of White entering into a co-counsel
relationship with Cooper in the Thomas suit. In mid-December 2003, White telephoned
an unidentified representative working at the D.C. Bar Ethics Counsel to inquire about
the propriety of such a representational arrangement. As happens so often in ethics
regulatory practice, White provided only a partial description of the relevant facts during
that call and specifically omitted her involvement with the Thomas case while she was a
supervisor at OHR.

Presumably getting an answer from Ethics Counsel that she desired, White thereafter
participated in reviewing and editing court filings in the age discrimination suit, including
a draft motion on behalf of Thomas. Further, White provided Cooper and Thomas with
White‟s recollection about Thomas‟s OHR investigation file and a tape recording of her
interview of the OHR investigator in Thomas‟s case who investigated, or allegedly failed
to investigate, matters that Thomas complained about. White also attended a deposition
of a witness in the case, Bernard Ferguson. Following White‟s attendance at the
deposition, an attorney representing the District, contacted Cooper to complain about
White‟s involvement in the litigation. He then he filed a motion to disqualify White and
Cooper after Cooper refused to withdraw. In response to the motion to disqualify,
Cooper and White filed affidavits asserting that White had never played a substantive
role in the Thomas OHR investigation. The trial judge rejected the affidavits, and
disqualified both lawyers, finding that White was the supervisor overseeing the Thomas
investigation while she was at OHR. Subsequently, Bar Counsel filed charges against
White alleging that she had breached Rule 1.11 and had engaged in conduct that had
interfered with the administration of justice in violation of Rule 8.4(d).

A hearing committee found that White‟s representation of Thomas was adverse to the
District of Columbia government, and was related to a matter in which she had been
personally and substantially involved while working at OHR. However, the Committee



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concluded that Bar Counsel had not proven a violation of Rule 8.4(d). White filed
exceptions. Later, the Board issued a report that affirmed the conclusions of law and
recommended that she be suspended for six months and that she be required to
demonstrate fitness as a condition of reinstatement. Eventually, the Court of Appeals
adopted the Board conclusion as to the Rule 1.11 violation, but disagreed with the
Board‟s determination concerning Rule 8.4(d).

The Court noted that, to establish a Rule 8.4(d) violation, Bar Counsel must show (1)
that an attorney acted improperly in that the attorney either “„[took] improper action or
fail[ed] to take action when . . . he or she should [have] act[ed]‟; (2) that the conduct
involved „bear[s] directly upon the judicial process (i.e., the “administration of justice”)
with respect to an identifiable case or tribunal‟; and (3) that the conduct „taint[ed] the
judicial process in more than a de minimis way,‟ meaning that it „at least potentially
impact[ed] upon the process to a serious and adverse degree.‟” Looking at the criteria
stated above, the Court of Appeals concluded that the evidence clearly and convincingly
supported the conclusion that White violated Rule 8.4(d) with respect to her conduct
during the Thomas litigation. The Court viewed the actions that the federal judge had to
take in response to the motion to disqualify as having affected the judicial process in
more than a de minimis manner. Indeed, the Court of Appeals noted that the entire
federal case was disrupted and delayed while the District Court dealt with the motion to
disqualify. The federal judge concluded that White‟s participation had tainted the
proceedings and he struck the deposition of Bernard Ferguson because of White‟s
presence.

Based upon the revolving door conflict, White should have been suspended for six
months. But White also engaged in additional wrongdoing that ultimately led to her
disbarment. In an apparent attempt to head off her termination, White filed a
“whistleblower” complaint with the Office of the Inspector General (“OIG”) regarding an
allegedly improper contract between OHR and a private attorney. In the sequence of
events that followed, White engaged in an elaborate and extraordinary series of actions
to shore up her allegations of improper contracting by OHR by furnishing documents
and other evidence to OIG investigating agents and even to a D.C. Council member. An
ensuing investigation by OIG demonstrated that White had manipulated and fabricated
documents that she presented before the Council and had testified falsely before the
Council, purporting to recount events that actually never took place. Bar Counsel
initiated his own investigation of White and supplemented the revolving door charge. A
hearing panel concluded that three documents that White introduced as evidence to the
panel were either altered versions of other documents, or of doubtful authenticity.

The case is In re Lucille Saundra White, 09-BG-1012 & 10-BG-795 (DC January 20, 2011). ).


JAMES J. GROGAN, DACC, Illinois ARDC



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MAINLIB_#374246_v1                                                                          3

				
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