May a lawyer for a congressional committee subpoena a witness who has said in advance that he will invoke the Fifth Amendment to every question?

Plain-English summary

Opinion 358 (published January 2011) responds to a request to vacate the Committee's 1977 Opinion 31. Opinion 31, decided under the former D.C. Code of Professional Responsibility, concluded that a congressional staff lawyer violated the Code by requiring a witness to appear before a congressional committee when the committee had been informed the witness would invoke the self-incrimination privilege as to all substantive questions "and the sole effect of the summons will be to pillory the witness." Some witnesses had read Opinion 31 as making it a per se violation to compel the appearance of a witness who announced he would assert the Fifth Amendment to every question, and refused to appear on that basis.

The request argued there are legitimate reasons for a congressional committee to summon such a witness, including the committee's right to evaluate the privilege assertion question by question, the possibility the witness will waive or decline to assert the privilege, the possibility of hearing the witness in executive session, the possibility of immunizing the testimony under 18 U.S.C. 6005, and the adverse inference a fact-finder may draw in a civil proceeding under Baxter v. Palmigiano (1976). The opinion concludes those points are well taken.

The opinion concludes Opinion 31 does not establish a per se rule. Under both the former Code and the current D.C. Rules, the violation arises only where the summons serves no substantial purpose other than to embarrass, delay, or burden the witness (the standard now reflected in Rule 4.4). Because Opinion 31 is consistent with the existence of legitimate reasons to summon a witness who has signaled an intent to invoke the privilege, the Committee declines to vacate it. The opinion also notes that a subordinate lawyer who follows a supervisory lawyer's reasonable resolution of an arguable question of professional duty is protected under Rule 5.2.

In practice

Under the D.C. rules as they stood at the time of the opinion, a lawyer for a congressional committee does not violate the Rules merely by subpoenaing a witness who has announced an intent to invoke the Fifth Amendment. The opinion concludes the violation arises only where the summons serves no substantial purpose other than to embarrass, delay, or burden the witness, and that there are often legitimate reasons to compel the appearance, so Opinion 31 sets no per se bar.

The opinion declines to vacate Opinion 31 because it reads consistently with that standard. It also notes that, under Rule 5.2, a subordinate lawyer who acts on a supervisory lawyer's reasonable resolution of an arguable question of professional duty is not subject to discipline. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.

Common questions

Q: Is it per se improper to subpoena a witness who says he will plead the Fifth to everything?

A: The opinion concludes no. Opinion 31 does not establish a per se rule; the violation arises only where the summons serves no substantial purpose other than to embarrass, delay, or burden the witness.

Q: What are legitimate reasons to summon such a witness?

A: The opinion lists the committee's right to evaluate the privilege claim, the possibility the witness will not assert or will waive it, hearing the witness in executive session, immunizing the testimony under 18 U.S.C. 6005, and the adverse inference permitted in civil proceedings under Baxter v. Palmigiano.

Q: Did the Committee overrule or vacate Opinion 31?

A: The opinion concludes it did not. The Committee declines to vacate Opinion 31, reading it as consistent with the rule that a violation occurs only when the summons has no substantial purpose other than to embarrass, delay, or burden the witness.

Q: Is a junior committee lawyer protected if a supervisor directs the subpoena?

A: The opinion notes that under Rule 5.2 a subordinate lawyer who acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty does not violate the Rules.

Background and rules framework

The opinion interprets the D.C. Rules governing fairness and respect for others in litigation, centering on Rule 4.4 (respect for the rights of third persons; the "no substantial purpose other than to embarrass, delay, or burden" standard), read with Rule 3.4 (fairness to opposing party and counsel), Rule 3.5 (impartiality and decorum of the tribunal), Rule 3.8 (special responsibilities of a prosecutor), Rule 5.2 (subordinate lawyers), and Rule 8.4 (misconduct). It carries forward the standard the Committee applied under the former D.C. Code of Professional Responsibility in Opinion 31.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 4.4 / Model Rule 4.4 (respect for rights of third persons)
• D.C. RPC 3.4 / Model Rule 3.4 (fairness to opposing party and counsel)
• D.C. RPC 3.5, 3.8, 5.2, 8.4 / Model Rules 3.5, 3.8, 5.2, 8.4

Statutes:

• 18 U.S.C. 6005 (congressional immunity orders)

Cases:

• Baxter v. Palmigiano, 425 U.S. 308 (1976), adverse inference from invoking the privilege in civil proceedings

Other opinions cited:

• D.C. Bar Legal Ethics Op. 31 (1977): revisited and not vacated by this opinion

See also

• DC Ethics Op. 360: Contact With a Treating Physician Witness
• ABA Formal Op. 92-363: Threatening Prosecution
• ABA Formal Op. 92-367: Examining a Client as Adverse Witness

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-358