DISTRICT OF COLUMBIA COURT OF APPEALS BOARD OF PROFESSIONAL RESPONSIBILITY

HEARING COMMITTEE NUMBER SIX In the Matter of: : : MARC A. RIGRODSKY, : : Respondent. : Bar Docket No. 243-06 : A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No. 401169) :

REPORT AND RECOMMENDATION OF HEARING COMMITTEE NUMBER SIX

INTRODUCTION Bar Counsel alleges in this case that Respondent Marc Rigrodsky violated three Rules of

Professional Conduct by making false statements as a witness in an administrative trial involving

a colleague’s equal employment opportunity complaint. Bar Counsel claims that a post-trial

affidavit that Mr. Rigrodsky filed to supplement his testimony in that administrative trial

contradicted statements he made at the trial and in his pre-trial deposition. A majority of

Hearing Committee Six concludes and recommends that, although this is a close case, there is

not sufficiently clear and convincing evidence to find any violation. When examined closely,

there are no misrepresentations in Mr. Rigrodsky’s affidavit or oral testimony. To the extent Mr.

Rigrodsky’s testimony may have been technically true but nonetheless misleading, the totality of

circumstances here does not establish that he acted in a dishonest manner.

PROCEDURAL HISTORY

Bar Counsel charged Mr. Rigrodsky with three violations of the Rules of Professional

Conduct arising from Mr. Rigrodsky’s 2005 appearance as a witness in an administrative trial

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before the Equal Employment Opportunity Commission (EEOC) concerning an employment

discrimination complaint filed by one of his colleagues at the Federal Motor Carrier Safety

Administration (FMCSA) where Mr. Rigrodsky worked. Specifically, Bar Counsel alleged that:

a) Mr. Rigrodsky knowingly made false statements of material fact to a tribunal in violation of Rule 3.3(a)(1);

b) Mr. Rigrodsky engaged in conduct involving dishonesty, fraud, deceit, or

misrepresentation in violation of Rule 8.4(c); and

c) Mr. Rigrodsky engaged in conduct that seriously interfered with the administration of justice in violation of Rule 8.4(d).

Mr. Rigrodsky filed a Motion for a More Definite Statement, which Bar Counsel opposed, and

the Hearing Committee Chairperson denied by written order. Mr. Rigrodsky then filed an

answer denying that his conduct violated any Rule of Professional Conduct.

On August 29, 2007, the Committee conducted an evidentiary hearing in this matter

where Mr. Rigrodsky was represented by counsel. The parties agreed to a Joint Stipulation of

Facts, admitted into evidence as joint exhibit (JX) 1. Bar Counsel presented two witnesses:

Suzanne TeBeau, the chief counsel of FMCSA and Mr. Rigrodsky’s second line supervisor at the

time in question,1 and Ray Martinez, the lawyer who represented FMCSA at the EEOC hearing

at issue in this case. Respondent Rigrodsky testified on his own behalf and also called Grant

Lattin, one of his supervisors at FMCSA. Each side presented documentary exhibits.

The parties noted during the first phase of the hearing that they would have no evidence

to present in aggravation or mitigation. Tr. 131-132, 259. See Board on Professional

1 At the hearing in this matter, Ms. TeBeau used her married name, Suzanne TeBeau Rohde, although she is otherwise referred to in the record and in this Report by her maiden name, TeBeau.

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(..continued)

Responsibility Rule of Procedure 11.10. At the conclusion of the first phase of the hearing, after

a brief meeting in executive session, the Committee declined to issue a preliminary non-binding

determination at that time, but asked the parties to submit post-hearing submissions. Tr. 259-60.

FINDINGS OF FACT

A. General Findings

Marc Rigrodsky is a member of the Bar of the District of Columbia Court of Appeals,

admitted by motion on July 18, 1986. Joint Exhibit (JX) 1. He was a credible and sincere

witness in this disciplinary proceeding.

Mr. Rigrodsky is also admitted in the state of Connecticut. The Connecticut Bar found

no probable cause of an ethical violation and declined to initiate a discipline proceeding when it

received the same complaint that the D.C. Bar received here. Respondent’s exhibits 1-2; Tr. 45.

The D.C. Bar requested additional information from the complainant including a transcript of the

relevant EEOC hearing, and then brought the charges here. Tr. 47. Mr. Rigrodsky has not been

subject to any other disciplinary proceedings or investigations. Tr. 151.

Mr. Rigrodsky graduated from law school in 1983 and then clerked for a judge on a

federal appeals court. Tr. 148-49. Until the matters at issue here arose in 2005, he had had a

successful career as an attorney in the private sector and with the federal government. He had

always received “outstanding” evaluations and received large bonuses. Tr. 148-49, 223; BX 1.

Grant Lattin, an attorney who supervised Mr. Rigrodsky at FMCSA in 2006 after the events at

issue here, considered Mr. Rigrodsky to be a fine attorney and a man of the “highest quality”

honesty and integrity. Tr. 139.

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Mr. Rigrodsky started work with FMCSA in November 2003 as an Assistant Chief

Counsel, responsible for managing the General Law Division of the Chief Counsel’s office. Tr.

150, 153. He took this supervisory position in hopes of moving up to the Senior Executive

Service. Tr. 223-24. Mr. Rigrodsky’s first line supervisor was Judy Rutledge. His second line

supervisor was initially Brigham McCown. Mr. McCown was succeeded by Suzanne TeBeau,

who eventually filed the complaint with Bar Counsel that led to this proceeding. Tr. 152.

Mr. Rigrodsky found the work environment in the Chief Counsel’s office to be

unprofessional and dysfunctional. Tr. 153. He felt that there was constant criticism, second-

guessing, and micro-managing, some of which was directed at him, and there was a “reckless

disregard for the law.” Id. He considered his immediate supervisor Ms. Rutledge to be a “finger

pointer,” a “blame passer,” a “micro-manager” and “a yeller.” Tr. 163. Mr. Rigrodsky started

looking for new employment within a few months of his arrival at FMCSA. Id. Mr. Lattin, who

came to the agency in May 2006, shared Mr. Rigrodsky’s view that the Chief Counsel’s office

was dysfunctional and that Ms. Rutledge was an ineffective manager. Tr. 141-47.

A woman known for purposes of this discipline proceeding as Ms. Doe was an attorney

who worked for Mr. Rigrodsky at FMCSA. Tr. 7, 154. When Mr. Rigrodsky joined the office,

Ms. Doe had already been in the office close to a year and her pay grade was a GS-13. Tr. 154-

55. Around late December 2003-early January 2004, within a month or two of Mr. Rigrodsky’s

arrival at FMCSA, Ms. Doe asked him for a promotion to a GS-14. Tr. 155. After observing

Ms. Doe’s work for several months, Mr. Rigrodsky wrote a memorandum to his supervisors in

May 2004 recommending Ms. Doe for the promotion based on the sustained improvement in the

quality of her work over those months. Tr. 156-57; JX 1 ¶ 4; Bar Counsel Exhibit (BX) 1.

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However, Ms. Rutledge and Mr. McCown concluded that Ms. Doe was not ready to be

promoted, but said they would reconsider the issue again in the future. Tr. 157; JX 1 ¶ 4.

Over the rest of 2004, Ms. Doe continued to ask Mr. Rigrodsky to renew his

recommendation that she be promoted. Tr. 158. He drafted another memorandum on December

3, 2004, renewing the recommendation. Tr. 159; JX 1 ¶ 5; BX 2. However, after reflecting on

the memo, he decided he could not in good faith submit it to management because “there had

been some backsliding” in Ms. Doe’s work performance. Tr. 159-60; JX 1 ¶ 5. He did not share

that draft memo with anyone until it was subsequently produced in discovery in Doe’s EEO case.

Id.

On December 15, 2004, Mr. Rigrodsky revised the memorandum to explain why Ms.

Doe should not be promoted to a GS-14 because she required “more supervision than is needed

at the GS-14 level, her inter-office skills are dubious, and she does not show sufficient

initiative.” Tr. 160; JX 1 ¶ 6; BX 3. Mr. Rigrodsky gave the revised memorandum to Ms.

Rutledge. Tr. 160.

B. Ms. Doe’s EEOC Case

Meanwhile, in January 2004, soon after Mr. Rigrodsky arrived at FMCSA, Ms. Doe had

filed a gender discrimination complaint with the Equal Employment Opportunity (EEO)

counselor at FMCSA, and subsequently filed a formal complaint with the EEOC. JX ¶ 3; Tr.

160-61. In 2004-2005, management in the Chief Counsel’s Office at FMCSA, including Mr.

Rigrodsky, discussed the merits of Ms. Doe’s complaint and their defense of the matter. Tr. 161-

62. Eventually, following a trial in July-August of 2005, the EEOC judge found that Ms.

Rutledge discriminated against Ms. Doe at the beginning of October 2003, before Mr. Rigrodsky

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arrived at the agency. Tr. 234, BX 5-6.

For a long period, Ms. Doe represented herself pro se in the EEOC matter. Tr. 162.

During the period May to December 3, 2004, Ms. Rutledge twice stated to Mr. Rigrodsky that it

was her opinion that, if Ms. Doe handled her official FMCSA cases as she was handling her

personal EEO complaint, then Ms. Doe did not deserve a promotion. Tr. 162, 237. Ms.

Rutledge made these statements as part of discussions of the defense of the EEO claim, and not

in the context of actually evaluating whether Ms. Doe should in fact be promoted. Tr. 236-37,

239.

Mr. Rigrodsky stated in his December 3, 2004, draft memorandum renewing his

recommendation that Ms. Doe be promoted (the memorandum he revised before submitting it to

upper management):

[Ms. Doe’s] personal allegations against the agency contain reckless and false statements of facts and questionable interpretations of the law. I do not consider these issues to be relevant because she is representing herself, not the agency. The adage that a lawyer who represents himself has a fool for a client applies in this situation.

BX 2 at 2. Mr. Rigrodsky included this statement in his draft because, in light of Ms. Rutledge’s

earlier comments, he anticipated that Ms. Rutledge might object to the renewed promotion

recommendation at least in part based on how Ms. Doe was handling the EEOC case. He wanted

to anticipate and counter-balance such a reaction by Ms. Rutledge because he knew that denying

Ms. Doe a promotion based on her EEO claim would be considered retaliatory and improper.

BX 8 at ¶¶10-11. As noted, Mr. Rigrodsky did not submit the December 3, 2004, memorandum

to anyone; it became public only when it was produced in discovery in Ms. Doe’s EEOC case in

February 2005. JX 1 ¶ 7.

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Ms. Doe’s counsel in the EEOC case deposed Mr. Rigrodsky on March 16, 2005. BX 4.

Before the deposition, FMCSA’s counsel met with Mr. Rigrodsky and gave him “standard”

instructions about testifying, including that he should be honest, answer only the question posed,

and not volunteer information. Tr. 166.

In preparation for Ms. Doe’s EEOC trial, Mr. Rigrodsky again met with FMCSA’s

counsel, Ray Martinez, and reviewed his expected testimony. Tr. 125-26. Mr. Martinez

instructed Mr. Rigrodsky to answer questions with a yes or no, if possible. Tr. 246, 248. Mr.

Rigrodsky informed Mr. Martinez at this time about the comment that Ms. Rutledge had made

about Ms. Doe’s handling of the EEOC case. Tr. 95-97.

Mr. Rigrodsky felt intimidated and pressured because Ms. Rutledge monitored his

involvement in the Doe case – she reviewed affidavits he submitted to the EEOC investigator

before he signed them, screamed at him when he gave Doe a day of official time to work on her

complaint, and sat within earshot as he reviewed his anticipated trial testimony with the agency’s

lawyer. Tr. 106, 229, 232-34. Leading up to the Doe trial, Ms. Rutledge told Mr. Rigrodsky and

senior management that Mr. Rigrodsky would be responsible if the agency lost the case because

his December 3 draft memorandum would damage the agency’s defense. Tr. 164, 199; JX 1 ¶ 7.

The trial in Ms. Doe’s case was held before an EEOC administrative judge, spanning

dates in July and August 2005. Tr. 168, BX 5-7. The agency’s defense was that the agency’s

actions were not discriminatory but were legitimate in light of the poor quality of Ms. Doe’s

work product. Tr. 82-83. Mr. Rigrodsky was called as a witness by the agency and testified

about Mr. Doe’s work. Tr. 86. He also testified about the December 2004 memoranda in which

he first renewed his recommendation that Ms. Doe be promoted, and then recommended against

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it. Id. He completed his testimony on August 9, 2005. Tr. 168. Mr. Rigrodsky felt “stressed

out” while testifying, and feared reprisal if he did not testify in a manner satisfactory to

management, but was trying to tell the truth during his testimony. Tr. 207, 258.

Mr. Rigrodsky was nervous when he testified. As FMCSA’s trial counsel Martinez

noted, “everybody is always nervous when [they] testify, so that’s a given.” Tr. 87. Mr.

Rigrodsky’s testimony for FMCSA was “fine” and “okay,” but not “totally strong” or “totally

bad[.]” Tr. 87 (testimony of Mr. Martinez). Mr. Martinez had the impression that Mr.

Rigrodsky testified truthfully at the hearing and had no reason to believe that Mr. Rigrodsky was

testifying anything other than truthfully at the hearing. Tr. 87-88.2

In July 2005, the same month the EEO trial started, Ms. TeBeau started working at

FMCSA, succeeding Mr. McCown as Mr. Rigrodsky’s second line supervisor. Tr. 22, 41-42,

168. On August 25, 2005, about two weeks after Mr. Rigrodsky had completed his testimony in

the EEOC hearing, Ms. TeBeau reassigned him to be a staff lawyer, relieving him of his

supervisory duties. Tr. 22, 168; JX ¶¶ 2, 14.3

2 Ms. TeBeau testified that Mr. Rigrodsky was a “strong witness” for FMCSA, but she was not at the EEOC hearing and only received reports from others at the hearing. Tr. 49-50. Accordingly, Mr. Martinez’ first hand account is credited over that of Ms. TeBeau’s. Further, Mr. Martinez (who did not work at FMCSA, Tr. 76) was an impartial witness, unlike Ms. TeBeau who filed the complaint with Bar Counsel here and had been embroiled in her own employment dispute with Mr. Rigrodsky. 3 Ms. TeBeau cited several incidents at work that allegedly lead her to lose confidence in Mr. Rigrodsky shortly upon her arrival at FMCSA. Tr. 24, 26-41. Those incidents ranged from Mr. Rigrodsky dressing casually on a Friday and telling her falsely that the office had a casual-Friday policy, Tr. 33-34, to him somehow inaccurately or unreliably conveying advice he received from the FMCSA Finance Office on how to deal with a situation where an employee used a credit card inappropriately, Tr. 37-38, to Mr. Rigrodsky supposedly lying to her about his interaction with staff in the FMCSA Administrator’s office. Tr. 26-29.

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(..continued)

Mr. Rigrodsky reasonably believed that he was reassigned in retaliation for having

initially recommended Ms. Doe for a promotion and for his testimony at the EEOC hearing, as

he reasonably believed in good faith that none of the reasons given by Ms. TeBeau for his

reassignment were factually supportable. Tr. 168, 182.4 He felt, not unreasonably, that Ms.

TeBeau “had, for false reasons, essentially ruined [his] career” within six weeks of her arrival at

FMCSA, and two weeks after completion of his Doe testimony. Tr. 224. He was angry and

humiliated. Tr. 181, 224. Mr. Rigrodsky initiated an EEOC complaint against Ms. TeBeau and

other supervisors, alleging that they had retaliated against him for originally recommending Ms.

Doe for a promotion. JX1 ¶ 14; Tr. 181.5

After he was reassigned, Mr. Rigrodsky contacted Ms. Doe’s attorney in the EEOC case,

indicating that he had additional information about the case. JX ¶ 15; Tr. 182-83. His

sympathies had shifted towards Ms. Doe because of what he perceived as the agency’s retaliation

against him. Tr. 224. He thought there had “been a lot of wrongdoing by the agency that never

4 Mr. Rigrodsky disputed each of Ms. TeBeau’s claims that he had acted improperly or lied to her. Tr. 170-181. For example, there was a long-standing practice of dressing casually on Fridays followed by many people at the agency, and the accusation that he lied about it was “absurd.” Tr. 174. When one of his employees violated office policy by charging legitimate work-related travel expenses to a personal credit card, there were extensive discussions about how to handle the situation and whether the employee was entitled to be reimbursed, but he never misrepresented Finance’s position, especially since, when he consulted Finance about the situation, he did not receive a definitive response. Tr. 179-180. His visit to the Administrator’s office was related to the process of hiring a new secretary and he did not lie about it. Tr. 170-73. 5 Mr. Rigrodsky subsequently added other claims of retaliation. He eventually settled that case with FMCSA. Tr. 202. As a condition of the settlement, Mr. Rigrodsky left the agency’s employ. A job offer he later received from the Department of Homeland Security was withdrawn, after Mr. Rigrodsky revealed during a security check that this disciplinary proceeding was pending against him. Tr. 203-204.

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came out at the hearing[.]” Tr. 182. He thought “that there were additional things that needed to

be in the record” that were not asked, and he wanted to “add additional testimony[.]” Tr. 183,

225. Ms. Doe’s attorney told Mr. Rigrodsky to consult with FMCSA’s lawyers about the matter.

Tr. 182.

Mr. Rigrodsky then informed the attorneys who represented FMCSA at the EEOC

hearing that he wanted to reopen the hearing record because of the agency’s reprisal against him.

JX 1 ¶ 16; Tr. 89, 183. The FMCSA attorneys arranged for a joint discussion with the

administrative judge, and informed the judge that Mr. Rigrodsky wanted to submit additional

information in the case. Id. The judge allowed Mr. Rigrodsky to submit an affidavit September

6, 2005, in the matter. JX 1 ¶ 17; BX 8. That affidavit appears in the record as BX 8.

Mr. Rigrodsky would not have filed the affidavit correcting his testimony if he had not

been reassigned, since “there are many occasions when we all have testified and then thought on

further reflection” that something was not entirely accurate. Tr. 221. But he thought that

management’s “blatant retaliation” in reassigning him strengthened Doe’s case, and there were

things he needed to bring to the administrative judge’s attention that had not come out at the

hearing. Tr. 182, 221, 224.

At the time Mr. Rigrodsky prepared his affidavit, he did not have, and had not seen, a

transcript of his actual testimony in the EEOC trial. His descriptions of his prior testimony were

based solely on his recollection. Tr. 184; BX 8 ¶ 4.

The judge in Ms. Doe’s EEO case concluded that none of the information in the affidavit

except one paragraph, ¶ 5, required any reopening of the record. Tr. 207-208.

C. Mr. Rigrodsky’s Testimony and Affidavit

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The transcripts of Mr. Rigrodsky’s pre-trial deposition and trial testimony in the Doe

EEOC case and his post-trial affidavit in that case are in the record here as BX 4 – 8. There is no

dispute as to their content or accuracy. Bar Counsel argues that four of the statements in Mr.

Rigrodsky’s post-trial affidavit – paragraphs 5, 9, 10, and 17 – “materially differed from and

contradicted” his prior oral testimony in Doe. See Bar Counsel’s post-hearing brief, proposed

finding of fact ¶ 19. Bar Counsel does not opine as to which version of events is true, but says

only that both the oral testimony and the affidavit cannot be true. Id. at p. 16.

1. Affidavit ¶ 5 Reprisal.

Paragraph 5 of Mr. Rigrodsky’s affidavit is set out here, along with his allegedly

conflicting oral testimony.

Rigrodsky’s September 6, 2005 Affidavit (BX 8)

Rigrodsky’s Testimony

¶ 5. I was asked during the hearing whether I had told Ms. [Doe] that I was concerned about reprisal for my actions regarding the complaint and that I would file an EEO claim if reprisal were to occur. I responded in the negative. [Italics added.] I hereby amend my answer to respond in the affirmative. The discussion occurred in Ms. [Doe’s] office. I do not recall the date of the discussion, but I believe it was sometime during the period in which I was on record as having recommended Ms. [Doe’s] promotion, i.e., between May 27, 2004, and December 15, 2004.6

March 16, 2005 deposition testimony, BX 4 at 75-76: Q [by Ms. Doe’s counsel]: My question to you is did you ever tell Ms. [Doe] that you felt that Ms. Rutledge retaliated against you for supporting her GS-14? A: Never. Q: Do you feel that Ms. Rutledge in any way is retaliating against you – A: No. Q: -- or is treating you poorly or in any adverse manner, due to the situation of Ms. [Doe]? A: Is she treating me poorly because

6 Mr. Rigrodsky’s memory of his testimony as described in the italicized portion was inaccurate. He was not asked about reprisal or retaliation at the Doe hearing, although he was asked about pressure. Tr. 189, 213, 241. He was asked about retaliation at his deposition, but not reprisal. Tr. 189-90. He did, however, have the 2004 conversation with Ms. Doe described in this paragraph. Tr. 241-42.

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she’s filed an EEO complaint, is that what you’re asking me? Q: My question to you is, do you feel that Ms. Rutledge is in any way – or do you feel that you are being retaliated against by Ms. Rutledge for supporting the GS-14 when you did? A: No. August 9, 2005 trial testimony, BX 7 at 275: ADMINISTRATIVE JUDGE: Did you ever indicate to Ms. [Doe] that you were thinking about filing your own EEO complaint because of pressure put upon you regarding her promotion or her request for promotion? The WITNESS: No.

Mr. Rigrodsky believed that his March 16 deposition testimony – that he had not been

subject to retaliation – was accurate when given. Tr. 187-88. He interpreted the question about

retaliation to be a term of art in the EEO field, sometimes known as reprisal, referring to action

taken against an employee because of the employee’s involvement in protected activity. Tr. 187-

88. He had not been subject to any retaliation in his position as Assistant Chief Counsel at the

time of his March 16, 2005, deposition. Id. He thought that retaliation occurred only when he

was reassigned on August 25, 2005. Id.

Mr. Rigrodsky subsequently recalled the incident described in the second half of ¶ 5 of

his affidavit after a discussion with a colleague that refreshed his recollection. Tr. 218-29.

After chatting with the colleague about the issue, he remembered saying that he would file an

EEO complaint in the event there was retaliation. Tr. 219, 243, 248-250.7

7 This testimony prompted Bar Counsel to add a new charge in his post-hearing brief that Mr.

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After remembering the conversation, Mr. Rigrodsky decided that he had been non-

responsive to a question at the hearing, although his memory of the actual question he

received in this regard was inaccurate, as explained in footnote 6 above. See BX 8, affidavit

at ¶ 28 (“I had not anticipated the question when it was put to me during the hearing, and I

was unable to recall the incident in the few moments I had to respond). He may have been

thinking of the question put to him about pressure during his August 9, 2005, testimony (see

discussion of affidavit ¶ 17 below). Tr. 213, 218, 244-45, 247.

Mr. Rigrodsky thought that his answer to the administrative judge’s question at the

August 9, 2005, trial, that he never told Ms. Doe that he was thinking of filing his own EEO

complaint, was a true statement when he made it. Tr. 189. His answer “had to be no, because

[he] wouldn’t have had any basis to file a retaliation claim based on pressure.” Tr. 217-18.

He was not thinking of filing an EEO complaint because of pressure on him. Tr. 245.

2. Affidavit ¶ 9, Ms. Rutledge’s Comments.

Paragraph 9 of Mr. Rigrodsky’s affidavit is set out here, along with his allegedly

conflicting oral testimony.

Rigrodsky’s September 6, 2005 Affidavit (BX 8)

Rigrodsky’s Testimony

¶ 9. I testified that Ms. Rutledge stated at a meeting she attended with me and Mr. McCown, the former FMCSA Chief Counsel, the purpose of which was to review Ms. Doe’s allegations, that if Ms. [Doe] handled her FMCSA cases in the

July 12, 2005 trial testimony, BX 5 at 164-165: Q: Now, you mentioned that you had discussions with Ms. Rutledge. During the 2003/2004 time frame – and I’m not picking a particular date – in any of the discussions with Ms. Rutledge or McCown,

(..continued) Rigrodsky interfered with the administration of justice by violating the administrative judge’s directive not to discuss his testimony with anyone, as discussed further below.

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same manner as she was handling her own EEO case, she did not deserve a promotion. [Italics added.]8 This testimony is accurate. However, Ms. Rutledge subsequently repeated the statement in a one-on-one meeting with me held shortly before I prepared the December 3 memorandum. I responded that I did not agree with her assessment because I believed Ms. [Doe] had a different perspective regarding her personal EEO claims.

was the plaintiff’s gender or EEO activity discussed as a factor in not promoting her? A: Never. Q: Help me explain why on the December memo – the December 3rd memo, which is Exhibit 8, directing your attention to the last paragraph, why do you reference her current complaint? A: Well, I wanted it on paper that this promotion – and remember this was a recommendation for a promotion – was based on merits of performance and had nothing to do at all with her EEO case. I wanted to make that clear. So that was why that was there. You know, she had made some reckless allegations against the agency. There’s no question about that. But I was judging her ability – or my recommendation based on her official duties and nothing else. July 22, 2005 trial testimony, BX 6 at 137, 185-86 : Q: Did you discuss this draft document with Ms. Rutledge at any time? A: No. [BX 6 at 137.]

*** Judge Schreffler: Speaking of that, why did you put in this draft, the December 3, 2004, draft, about the EEO activity? The Witness: Well, I didn’t consider it to be – well, let me put it this way. I wanted to make absolute[ly] clear that her EEO activity had nothing to do with my recommendation to promote her.

(..continued) 8 As Bar Counsel acknowledges in its post-hearing filing at 10 n.1, Mr. Rigrodsky did not in fact testify at either his deposition or at trial in the Doe EEO case to the facts set forth in italics, Mr. Rigrodsky’s memory was again inaccurate in this regard. Mr. Rigrodsky was mixing up what he had actually testified to and what he had told the agency’s lawyers. Tr. 195, 257. Ms. Rutledge did, however, in fact make the statement described in the italicized passage. Tr. 209-210.

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Judge Schreffler: Why did you put it there? The Witness: I wanted to be explicit.

*** Judge Schreffler: But the last sentence says, “The lawyer who represents himself has a fool for a client” applies in this situation. So you’re essentially calling her a fool, right? The Witness: No, I’m saying that anything that had to do with her EEO case is out of bounds. It’s not a factor. It’s not her work product. [BX 6 185-86.]

The discussion with Ms. Rutledge that Mr. Rigrodsky described in ¶ 9 of his affidavit

(“Ms. Rutledge subsequently repeated the statement in a one-on-one meeting with me held

shortly before I prepared the December 3 memorandum”) was again in the context of discussing

how to defend the EEO claim. Tr. 197, 236-38. It was not in the context of evaluating Ms.

Doe’s request for a promotion or whether she deserved a promotion. Id. Accordingly, Mr.

Rigrodsky believed both his affidavit and his trial testimony to be accurate and true. Tr. 192,

212.

His testimony on July 22, 2005, that he never discussed the draft document with Ms.

Rutledge or anyone else (before it was produced in discovery in the Doe case) was accurate and

true. Tr. 194; JX 1 at ¶ 5.

3. Affidavit ¶ 10, the Draft Memorandum.

Paragraph 10 of Mr. Rigrodsky’s affidavit is set out here, along with his allegedly

conflicting oral testimony.

Rigrodsky’s September 6, 2005 Affidavit (BX 8)

Rigrodsky’s Testimony

¶ 10. The December 3 recommendation

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memorandum contains this statement: [Ms. Doe’s] specific personal allegations against the agency contain reckless and false statements of facts and questionable interpretations of law. I do not consider these issues to be relevant because she is representing herself, not the agency. The adage that a lawyer who represents himself has a fool for a client applies in this situation.

I included this language in the memorandum because I anticipated Ms. Rutledge would object to the promotion recommendation at least in part on the ground that she thought Ms. [Doe’s] handling of her own case reflected poorly on her job performance. Ms. Rutledge’s reaction to the document caused me emotional distress because I included the statement to counter-balance Ms. Rutledge’s position and thus protect her from her own potential retaliatory statement.

See Mr. Rigrodsky’s testimony given July 12 and 25, 2005, quoted above for ¶ 9.

As noted above, Ms. Rutledge made the comments about how Ms. Doe handled her EEO

case in the context of discussing how to defend the EEO case, not in a discussion of whether Ms.

Doe should be promoted. Tr. 197, 236-39. Accordingly, Mr. Rigrodsky believed both his

affidavit and his trial testimony to be accurate and true. Tr. 192, 201-202, 212.

In response to questioning by the Committee Chair at the disciplinary hearing, Mr.

Rigrodsky candidly acknowledged that, with the benefit of hindsight, he could have been more

expansive in his Doe trial testimony concerning the draft memorandum, and could have

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explained that he added the controversial passage to his draft memo because of Ms. Rutledge’s

comments and to anticipate that she might, in the future, object to the recommended promotion

based on the EEOC case. Tr. 227-228, 239.

4. Affidavit ¶ 17, Pressure on Mr. Rigrodsky.

Paragraph 17 of Mr. Rigrodsky’s affidavit is set out here, along with his allegedly

conflicting oral testimony.

Rigrodsky’s September 6, 2005 Affidavit (BX 8)

Rigrodsky’s Testimony

¶ 17. Any testimony by me at the hearing that I did not feel coerced, pressured, or otherwise subject to reprisal is incorrect and was made under duress, and should be amended.

July 22, 2005 trial testimony, BX 6 at 180-81, 182 : Q: -- there was a question in regards to Ms. Rutledge pressuring you to take action regarding Ms. [Doe]. Can you explain what you’re talking about in terms of pressure, and what kind of action she was pressuring you to do? A: Ms. [Doe] was pressuring me. Ms. Rutledge wasn’t pressuring me.

*** Q: Was there any pressure from Ms. Rutledge then? A: On – Q: From Ms. Rutledge to you in regards to Ms. [Doe]. A: No. [BX 6 at 180-81, 182]. August 9, 2005 trial testimony, BX 7 at 275: ADMINISTRATIVE JUDGE: Did you ever indicate to Ms. [Doe] that you were thinking about filing your own EEO complaint because of pressure put upon you regarding her promotion or her request for promotion? The WITNESS: No.

18

In ¶ 17 of his affidavit, Mr. Rigrodsky was not referring back to any specific testimony at

the Doe trial, and may have mixed up in his mind his discussions with the agency lawyers. Tr.

257. In ¶ 17, he was describing “pressure that Ms. Rutledge was exerting on [him] throughout

the course of 2005, regarding” Ms. Doe’s EEO case. Tr. 198-99. Mr. Rigrodsky felt pressure

from Ms. Rutledge to make sure that Ms. Doe’s case was resolved favorably to the government;

she was “watching” him, and pressuring him because he had initially recommended Ms. Doe for

a promotion. Tr. 199, 232, 234, 240, 252. He did not feel pressure to change his

recommendation. As noted, despite the pressure, he tried to be truthful at the EEO hearing. Tr.

207.

Mr. Rigrodsky’s testimony on July 22, 2005, at the EEOC trial that Ms. Doe was

pressuring him, not Ms. Rutledge, came up in the context of questioning about who was

pressuring him to write the memo recommending Ms. Doe for a promotion. Tr. 253-56. Ms.

Rutledge was not pressuring him in that regard. Id. Mr. Rigrodsky acknowledged at the

disciplinary hearing that, in retrospect, to the extent his answer took on a broader meaning that

Ms. Rutledge was not pressuring him about anything, it needed clarification. Tr. 253-56.

As noted above, Mr. Rigrodsky thought that his answer to the administrative judge’s

August 9th question was a true statement when he made it. Tr. 189.

5. Affidavit ¶ 29, Amended Testimony

Paragraph 29 of Mr. Rigrodsky’s affidavit states, “Regarding my proffer in ¶¶ 6-17, I

need to amend my testimony because it was given under duress because I feared reprisal if I did

not respond in a manner satisfactory to management.” After actually reviewing the transcript of

his testimony in the Doe case, Mr. Rigrodsky realized that those paragraphs were supplemental,

19

not contradictory to, his testimony. Tr. 208.

CONCLUSIONS OF LAW

A. General Principles

Lawyers must be scrupulously honest. In re Hutchinson, 534 A.2d 919, 924 (D.C. 1987)

(en banc). Under Rule 8.4(c), it is professional misconduct for a lawyer to “engage in conduct

involving dishonesty, fraud, deceit, or misrepresentation.” Those four terms should be

“understood as four separate categories, denoting differences in meaning or degree.” In re

Shorter, 570 A.2d 760, 768 (D.C. 1990). The rule “is not to be accorded hyper-technical or

unduly restrictive construction.” In re Ukwu, 926 A.2d 1106, 1113 (D.C. 2007). “A lawyer is

held to a high standard of honesty, no matter what role the lawyer is following: acting as a

lawyer, testifying as a witness in a proceeding, handling fiduciary responsibilities, or conducting

the private affairs of every day life.” In re Jackson, 650 A.2d 675, 677 (D.C. 1994). Lawyers

are prohibited from engaging in “active deception or positive falsehood,” as well as from acting

in a dishonest manner by “evincing a lack of integrity and straightforwardness[.]” In re Shorter,

570 A.2d at 768.

Bar Counsel’s burden in this proceeding is by clear and convincing evidence. See Board

Rule 11.5. That evidentiary standard lies “somewhere between a preponderance of evidence and

evidence probative beyond a reasonable doubt” and should “produce in the mind of the trier of

fact a firm belief or conviction as to the facts sought to be established.” Estate of Walker, 890

A.2d 216, 222 n.6 (D.C. 2006) (citations omitted).

The majority concludes that Bar Counsel failed to establish by clear and convincing

evidence that Mr. Rigrodsky’s conduct here violated Rule 8.4(c) (engaging in conduct involving

20

dishonesty, fraud, deceit, or misrepresentation), Rule 3.3(a)(1) (making false statements to a

tribunal), or Rule 8.4(d) (serious interference with the administration of justice). The factual

basis for all three alleged violations is that portions of Mr. Rigrodsky’s oral testimony in the Doe

proceeding and/or his affidavit were false or evasive. To be sure, Mr. Rigrodsky confused

matters by not accurately remembering and describing his actual testimony when he filed his

affidavit to supplement and correct that testimony. But a careful review of the evidence does not

produce the requisite firm belief or conviction that Mr. Rigrodsky made knowingly false

statements to the administrative tribunal, violated his duty of candor to that tribunal, or otherwise

acted dishonestly.

B. Bar Counsel Did Not Prove by Clear and Convincing Evidence that Mr. Rigrodsky’s Affidavit “Materially Differed From and Contradicted” His Oral Testimony.

As noted, Bar Counsel has not advocated a position as to which of Mr. Rigrodsky’s

statements were dishonest, but says only that both the oral testimony and the affidavit cannot be

true. This supports our conclusion that Bar Counsel failed to establish a violation by clear and

convincing evidence, since even Bar Counsel cannot identify the dishonesty with clarity.

We first address paragraphs 5 and 17 of the affidavit concerning reprisal and pressure.

We then address paragraphs 9 and 10, concerning the draft memorandum and Ms. Rutledge’s

comments.

1. Affidavit ¶ 5, Reprisal against Respondent

Paragraph 5 of Mr. Rigrodsky’s affidavit did not contradict his testimony in the Doe case.

Mr. Rigrodsky was mistaken when he stated in the first sentence of ¶ 5 that he was asked

at the Doe hearing whether he had told Doe that he was “concerned about” reprisal and would

21

file an EEO claim if reprisal were to occur. The evidence does not show that Mr. Rigrodsky was

in fact asked such a question during his testimony and Bar Counsel does not contend otherwise.

Thus, the portion of ¶ 5 in which Mr. Rigrodsky states that he is changing his answer to the

question from negative to affirmative is erroneous as he was not asked whether he told Doe that

he was concerned about future reprisal or what he would do if reprisal were to occur. Bar

Counsel does not charge Mr. Rigrodsky with dishonesty for his faulty recollection of his hearing

testimony.

Nor did the second half of ¶ 5 -- the description of the conversation that Mr. Rigrodsky in

fact had with Ms. Doe about reprisal in 2004 -- contradict either his March 16, 2005, deposition

testimony that he had not, to that point, been the subject of retaliation, or his August 9, 2005,

testimony that he never told Ms. Doe that he was thinking of filing his own EEO complaint

because of pressure regarding his initial support of her promotion. According to ¶ 5 of the

affidavit, in 2004, after he recommended Ms. Doe for a promotion, Mr. Rigrodsky told Ms. Doe

that he was “concerned” about reprisal and would file an EEO claim in the future if reprisal

occurred. In contrast, Mr. Rigrodsky was asked at the March 16, 2005, deposition whether he

had ever told Ms. Doe that Ms. Rutledge had (past tense) retaliated against him or was in fact in

any way retaliating against him for supporting Ms. Doe’s promotion.

Similarly, ¶ 5 of the affidavit did not contradict Mr. Rigrodsky’s August 9, 2005,

testimony that he never told Ms. Doe that he was thinking of filing his own EEO complaint

because of pressure put on him regarding her request for a promotion. The August 9th testimony

was truthful because no pressure had been exerted on him regarding her promotion and so he had

not considered filing an EEO complaint based on such pressure.

22

Thus, Mr. Rigrodsky’s testimony in March and mid-August 2005 that he did not believe

that he had been the subject of any retaliation or pressure for recommending Ms. Doe for a

promotion was truthful when given and not materially different from or contradicted by the

statement in ¶ 5 of his affidavit that he had expressed “concern” about future reprisal. The

statements concern the same subject area but different situations, and are not contradictory.

Moreover, even if ¶ 5 of the affidavit materially differed from or contradicted any of Mr.

Rigrodsky’s testimony, Bar Counsel did not establish by clear and convincing evidence that Mr.

Rigrodsky knowingly or intentionally made a false statement, evaded the truth, or otherwise

acted dishonestly on this topic. Shorter, 570 A.2d at 768. Mr. Rigrodsky credibly testified at the

disciplinary hearing that he did not recall the conversation described in ¶ 5 until he subsequently

discussed the matter with a colleague and she refreshed his recollection. He was unable to recall

the incident in the few moments he had to respond to questioning at the trial. Thus, we conclude,

he was not trying to deprive the tribunal of the truth or otherwise act dishonestly.9

9 Bar Counsel argues post-trial that Mr. Rigrodsky violated the EEOC judge’s directive that Mr. Rigrodsky not discuss his testimony with anyone, and thereby violated Rule 8.4(d) by interfering with the administration of justice. Post-hearing brief at 23; Reply at 10 n. 3. There are two fatal flaws with this argument. First, this charge was not pleaded in Bar Counsel’s Specification of Charges. Paragraph 13 of the Specification quotes the directive of the EEOC judge on August 9, 2005, that Mr. Rigrodsky not discuss his testimony with anyone “while this matter continues.” See BX7 at 276. But the Specification contains no allegation that Mr. Rigrodsky discussed his testimony in violation of the judge’s directive. Thus, Mr. Rigrodsky had no notice that such a violation would be asserted against him and therefore no need to develop any factual defense to that allegation, in violation of due process. See In re Ruffalo, 390 U.S. 544 (1968) (charging document must give attorney sufficient notice of the charges against him); In re Smith, 403 A.2d 296 (D.C. 1979) (Bar Counsel may bring new charges based on a respondent’s admissions at hearing, if respondent has an opportunity to respond). Second, Bar Counsel has not proved that Mr. Rigrodsky in fact violated the judge’s directive not to discuss his testimony while the matter continued. The record does not reflect when the EEOC trial concluded, although the record had closed by the time Mr. Rigrodsky

23

(..continued)

2. Affidavit ¶ 17, Pressure on Mr. Rigrodsky

Paragraph 17 of Mr. Rigrodsky’s affidavit did not contradict his testimony in the Doe

case.

Mr. Rigrodsky stated in ¶ 17 that any “testimony by [him] at the hearing that [he] did

not feel coerced, pressured, or otherwise subject to reprisal is incorrect and was made under

duress, and should be amended.” He explained at the disciplinary hearing that he was

referring in the affidavit to pressure on him to support the agency’s defense in the Doe case.

Since he did not have the transcript of the Doe trial when he wrote his affidavit, he was

writing from memory only and was mistaken about the actual content of his Doe trial

testimony. He did not in fact say anything in the Doe proceeding about pressure to testify a

certain way in that proceeding. Again, Bar Counsel does not charge any violation based on

Mr. Rigrodsky’s faulty recollection of his testimony.

Mr. Rigrodsky did testify at the EEOC trial about pressure concerning a different

subject – Doe’s promotion. Ms. Doe was pressuring him about her promotion; Ms. Rutledge

was not so pressuring him. He was not contemplating filing an EEO claim because of any

pressure put on him in regards to Ms. Doe’s promotion. Thus, his hearing testimony relates to

whether Ms. Rutledge or anyone else at FMCSA was pressuring him with respect to

recommending Ms. Doe for a promotion, not whether he was experiencing pressure

concerning his hearing testimony. Since the two subjects are different, there is no

contradiction between the statements.

submitted his affidavit September 6, 2005. Tr. 207-208. If the trial concluded shortly after Mr. Rigrodsky’s August 9, 2005, testimony, his conversation with his colleague would not have

24

(..continued)

The fact that Mr. Rigrodsky stated in his affidavit that he was changing his hearing

testimony confused matters and perhaps led Bar Counsel to bring the charges here. But, Mr.

Rigrodsky did not have a transcript of his hearing testimony and so only thought he was

changing or correcting his testimony. In fact, he supplemented his testimony, and there were no

contradictions between that additional information and his hearing testimony in this regard.

3. Affidavit ¶ 10, the Draft Memorandum

Paragraph 10 of Mr. Rigrodsky’s affidavit did not contradict his testimony in the Doe

case.

Mr. Rigrodsky’s December 3, 2004, draft memorandum renewed his recommendation

that Ms. Doe be promoted and recorded thoughts to support that recommendation. In the

memorandum, which was never finalized or sent to anyone (before discovery in the Doe case),

Mr. Rigrodsky included the comment about Doe’s EEO case to be clear that her EEO activity

had nothing to do with her entitlement to a promotion. The affidavit does not contradict his

hearing testimony that he did not discuss the draft memo with Ms. Rutledge. The reference in

the affidavit to “Ms. Rutledge’s reaction to the document” must refer to her reaction to the draft

memorandum after it was produced in discovery in the Doe case, since Bar Counsel conceded

that Mr. Rigrodsky did not publish or otherwise transmit that document to anyone before its

production in discovery. JX 1 ¶ 5.

Nor does the affidavit contradict Mr. Rigrodsky’s testimony about why he included the

reference to Doe’s EEO complaint in the memorandum. In both, he stated that he wanted to

violated the judge’s order or interfered with the administration of justice.

25

separate the merits of Doe’s promotion consideration from any discussion of how she was

handling her EEO complaint.

4. Affidavit ¶ 9, Ms. Rutledge’s Comments

Paragraph 9 of Mr. Rigrodsky’s affidavit did not contradict his testimony in the Doe case.

In ¶ 9 of his affidavit, Mr. Rigrodsky stated that he testified at the Doe hearing that Ms.

Rutledge had made a negative comment about Doe’s handling of her EEO case. Again, Mr.

Rigrodsky’s memory was faulty, as he had shared this information with agency counsel before

the trial but did not testify about it at the trial.

There is no contradiction between affidavit ¶ 9 and Mr. Rigrodsky’s July 12th and 25th

hearing testimony. Mr. Rigrodsky truthfully stated in the affidavit that Ms. Rutledge

commented, in a meeting whose purpose was to review Ms. Doe’s EEO allegations, that if Ms.

Doe handled her FMCSA cases the way she was handling her pro se EEOC case, she did not

deserve a promotion. Ms. Rutledge later repeated the comment to Mr. Rigrodsky, again in a

discussion of how to defend the EEOC case.

But Mr. Rigrodsky was adamant, and credible, at the disciplinary hearing that this

comment was an aside made in a meeting about the EEOC case, and Ms. Rutledge did not make

the comment in the context of any discussion whatsoever of whether Ms. Doe should be

promoted. The agency was not then actively considering Ms. Doe for a promotion; the

comments were not made during any deliberative process concerning her promotion.10

10 We read the record differently than the dissent in this regard. Ms. Rutledge and Mr. McCown had rejected Mr. Rigrodsky’s earlier recommendation that Ms. Doe be promoted, although they indicated they would consider it again at some unspecified future time. Tr. 157-58. There was no evidence that management was actively considering the promotion in the second half of 2004,

26

(..continued)

Thus, when Mr. Rigrodsky was asked whether Ms. Doe’s EEO activity was ever

discussed as a factor in not promoting her, he truthfully answered “never” because Ms.

Rutledge’s asides were not made in the context of actually considering whether to promote her.

It is noteworthy in this regard that the agency counsel at the EEOC trial, Mr. Martinez,

thought Mr. Rigrodsky’s testimony was truthful. Accordingly, Mr. Martinez must have

interpreted the questioning the same way as Mr. Rigrodsky and determined that Mr. Rigrodsky’s

answers were not deceitful. This is so even though Mr. Martinez knew about Ms. Rutledge’s

comments about the way Ms. Rutledge was handling her EEO case (because Mr. Rigrodsky had

told him about those comments before the trial).

Thus, we find no actual contradiction between Mr. Rigrodsky’s affidavit and testimony.

C. Bar Counsel Did Not Prove by Clear and Convincing Evidence that Mr. Rigrodsky Was Otherwise Dishonest.

Although this is a close case, we do not otherwise find clear and convincing evidence that

Mr. Rigrodsky evaded the truth in his testimony or otherwise acted dishonestly as a witness in

the EEOC case.

Mr. Rigrodsky candidly testified at the disciplinary hearing that, in retrospect, he could

have been more expansive in two areas of his EEOC testimony. Tr. 227-28. In response to

questions about the December 3rd draft memorandum, he could have explained that he added the

controversial paragraph to the memo -- that Ms. Doe’s EEO case was not relevant to her

entitlement to a promotion -- in light of Ms Rutledge’s comments about Ms. Doe’s handling of

which is why Ms. Doe continued to ask Mr. Rigrodsky to renew his recommendation, leading to his drafting of the December 4, 2004, memorandum.

27

the EEO case and out of concern that she might, in the future, make it an issue when considering

the merits of the promotion recommendation. Tr. 228, 239. Mr. Rigrodsky also acknowledged

that, with the benefit of hindsight, he could have been more expansive in his answer to the

question about pressure on July 22, and could have talked about the pressure Rutledge was

putting on him concerning the agency’s defense of Doe’s EEO case. Tr. 228, 252-53.

Although Mr. Rigrodsky could have testified more broadly in response to the questioning

at the EEOC trial, we do not find the requisite lack of fairness, integrity, or straightforwardness

to establish dishonesty in the circumstances here. He was nervous and under stress when he

testified. He had been advised to answer succinctly and not volunteer information. He had little

time to reflect on questions, on whether “pressure” referred to pressure to deny Ms. Doe a

promotion, pressure to defeat her EEO claim, or both. He had to make an immediate

determination whether to describe Ms. Rutledge’s asides made in the context of defending the

EEO case, when he was certain that those comments were not made in the context of actually

evaluating any current recommendation to promote Ms. Doe. Mr. Rigrodsky is not guilty of

dishonesty simply because, with the benefit of hindsight and the time to study the transcript of

his testimony, it appears that he could have been more expansive in his answers.11

11 By analogy, when a police officer is sued for the use of force, the law requires that “the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight” and the “calculus of reasonableness” must allow for the fact that police officers have to make split-second judgments about the amount of force necessary in a particular situation. Etheredge v. District of Columbia, 635 A.2d 908, 916 and n.10 (D.C. 1993). Here, we should view Mr. Rigrodsky’s testimony from the perspective of a nervous witness at a hearing making an immediate decision about the meaning of the question and the scope of his answer, rather than with the leisure of hindsight parsing the question and answer in the transcript. With any witness, one might peruse the transcript of the witness’s testimony, dispute nuances, and find instances where the witness

28

(..continued)

The Committee Chairperson makes an eloquent case in his dissent that portions of Mr.

Rigrodsky’s testimony at the EEOC trial were evasive and misleading to the point of being

dishonest, as in Shorter. Unlike the dissent, we find Shorter distinguishable under the totality of

circumstances here.

In Shorter, an attorney who had evaded paying his taxes for many years, and who owed

the IRS hundreds of thousands of dollars, was found to have engaged in dishonesty because he

knowingly made technically true but evasive statements in an interview with Internal Revenue

Service agents who were attempting to locate his assets to satisfy the unpaid taxes. Shorter

answered the agents’ questions in such a narrow and parsimonious fashion as to be dishonest (for

example, he indicated he had no individual assets when he had an interest in partnership assets).

He knew what information the IRS agents were after, and that they wanted it in order to seize his

assets to satisfy his tax debt, but refrained from supplying that information for his own financial

gain even when the agents’ questions “grazed the truth.” 570 A.2d at 768. Under these

circumstances, the Court of Appeals found no “active deception or positive falsehood” but

nonetheless found dishonesty in light of Shorter’s “lack of integrity and straightforwardness[.]”

Id. We find this case distinguishable from Shorter for the following reasons.

First, we credit Mr. Rigrodsky’s testimony that he was trying to tell the truth at the EEOC

trial despite the stressful nature of the situation, and tried to supplement that testimony truthfully

in his affidavit. In fact, by submitting the post-trial affidavit here, Mr. Rigrodsky was attempting

to be as candid and comprehensive as possible, consistent with Shorter. He provided additional

might have interpreted a question differently, expanded on an answer, or volunteered additional information.

29

(..continued)

information in his affidavit to supplement what was requested of him at the hearing, to assure

that the tribunal had all the relevant information and that his trial testimony was completely

accurate. That he may have been motivated to do this by his anger and humiliation at being

reassigned does not change the fact that he was attempting to be thorough and comprehensive in

his testimony.

As the Connecticut Bar recognized when finding no probable cause to bring discipline

charges based on the same complaint as here, “Attorney Rigrodsky felt pressured to testify and

upon reflection advised the Court that he had to supplement and appeal [amend] his prior

testimony. ... [B]y coming forward, Attorney Rigrodsky acted appropriately.” RX 2 at 2.

Second, we are persuaded that Mr. Rigrodsky’s failure to testify about Ms. Rutledge’s

comments did not evince a lack of fairness or straightforwardness because his post-trial affidavit

reflects that he thought he had testified at the Doe trial about one of those comments. See ¶ 9 of

affidavit. If Mr. Rigrodsky had omitted that subject from his testimony in order to deceive the

EEOC judge or evade the full truth, it seems incongruous that he would then remember

providing that testimony.

Third, there was overarching evidence of Shorter’s lack of integrity and

straightforwardness that is missing here. Shorter had spent years arranging his finances in such a

way as to evade paying his taxes, and provided parsimonious answers to the IRS agents

consistent with that evasive pattern. The holding in Shorter is not limited to the context of tax

evasion, but the history of tax evasion there gave credence to the finding that Shorter acted

dishonestly with the IRS agents. There is no such pattern of evasiveness or lack of integrity here

30

to bolster a conclusion that Mr. Rigrodsky acted evasively at the EEOC hearing. To the

contrary, his former supervisor Grant Lattin testified that Mr. Rigrodsky was a man of honesty

and integrity. Moreover, Mr. Rigrodsky told the FMCSA lawyer about Ms. Rutledge’s comment

before the EEOC hearing, thereby revealing the controversial comment, not hiding it.12

Accordingly, we find Shorter distinguishable under the totality of circumstances here.

CONCLUSION

The majority of the Hearing Committee concludes that Bar Counsel has not proved by

clear and convincing evidence that Mr. Rigrodsky made false statements to the administrative

12 As noted above, Mr. Martinez had the impression that Mr. Rigrodsky testified truthfully at the EEOC hearing and had no reason to believe that Mr. Rigrodsky was testifying anything other than truthfully at that hearing. Tr. 87-88.

31

tribunal, violated his duty of candor, acted dishonestly, or otherwise committed the charged

disciplinary offenses. We recommend dismissal of the charges.

No recommendation is made as to sanction because the Committee majority concludes

that no sanction is warranted.

For this reason, we also recommend that the Board of Professional Responsibility deny

the respondent’s pending motion to dismiss because this decision renders that motion moot.

Respectfully Submitted, HEARING COMMITTEE NUMBER SIX /MLW/ MARY L. WILSON Attorney Member /LF/ LA VERNE FLETCHER Public Member Mr. Glassman has filed a separate Dissenting Statement. Date: June 26, 2009

DISTRICT OF COLUMBIA COURT OF APPEALS BOARD OF PROFESSIONAL RESPONSIBILITY

HEARING COMMITTEE NUMBER SIX In the Matter of: : : MARC A. RIGRODSKY, : : Respondent. : Bar Docket No. 243-06 : A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No. 401169) :

DISSENTING STATEMENT OF THE COMMITTEE CHAIR

Respondent in this matter provided evasive and misleading testimony under oath

in an EEO case involving the decision of the FMCSA not to promote his supervisee, “Ms.

Doe,” to a GS-14 grade. The EEO case was based in part on a claim that the non-

promotion constituted retaliation by Respondent’s supervisor, Ms. Rutledge, for Ms.

Doe’s EEO activity. Unbeknownst to Ms. Doe, her counsel, and the court at the time,

Ms. Rutledge had twice stated in Respondent’s presence that if Ms. Doe handled her

FMCSA work in the same way she was handling her EEO case she did not deserve to be

promoted. When Ms. Rutledge made this statement, Respondent believed she meant it

and would act on it. Disclosure of this statement would have been a “bombshell” (as the

government’s lawyer in the EEO case testified) for the government’s defense. And

Respondent was keen to suppress it: he urged the government’s attorney to settle the case

for this reason. Yet, when Respondent was asked under oath whether Ms. Doe’s “EEO

activity [was ever] discussed as a factor in not promoting her?” he answered “Never.”

When asked whether Ms. Rutledge had said anything to him about not promoting Ms.

1

Doe other than as he had already testified, Respondent replied that the question was too

vague to answer. After he was relieved of his supervisory duties, Respondent submitted

an affidavit attempting to recant material aspects of his testimony as having been given

under “duress.” A majority of the Committee recommends finding no ethical fault with

Respondent’s conduct. Because I believe that this and similar misleading testimony by

Respondent transgressed the line set down by our Court in In re Shorter, 570 A.2d 760

(D.C. 1990), and its progeny, I respectfully dissent. I would recommend finding a

violation of Rules 3.3(a) and 8.4(d) and imposing a brief suspension or a public censure.

I. Dishonesty

It is common ground that the disposition of this matter is in large measure

determined by the applicability (vel non) of our Court’s decision in Shorter, and hence it

will be helpful at the outset to review the facts and reasoning of that case with some care.

I then return to the facts of the present case, which, departing from my colleagues, I find

to be closely analogous to those described in Shorter.

A. Requirements for Dishonesty Under Shorter

The Shorter matter involved a “highly regarded member of [the] criminal defense

bar” who was convicted of tax evasion. Id. at 762-763. Shorter had suffered for many

years from a severe gambling habit and in, order to protect himself from this addiction,

had adopted a “cash lifestyle” in which he held no bank accounts or other property and

subsisted on payments from firm bank accounts held solely in the name of, and controlled

by, his law partner.1 Id. at 763. Shorter was a 50% partner in the law firm and the

primary source of its business. Id. at 764. When agents of the Internal Revenue Service

1 The partner testified that Shorter had asked her not to put his name on the firm accounts, and she assumed that this was to prevent his tax issues from “interfering with the operation of the office.” Id. at 764.

2

(IRS) interviewed Shorter about his failure to pay taxes and the assets potentially

available to meet his tax liabilities, they asked him numerous questions concerning his

ownership of bank accounts, real estate, automobiles, and other specified personal assets,

to all of which he replied in the negative. Id. In particular, when asked if he “had a bank

account or an interest in any bank account,” Shorter replied “no,” and when asked if he

had “any other assets like trailers, boats, horses, that kind of thing,” he also replied “no.”

Id. (internal quotation marks omitted). The form used by the agents as the basis for their

questioning did not include a question concerning partnership interests. Id.

The Court found that Shorter’s responses, memorialized in written statements that

the agents prepared and he signed, were “technically true” but nevertheless held that his

conduct was dishonest in violation of Disciplinary Rule 1-102(A)(4), the predecessor of

Rule 8.4(c).2 Id. at 767-768. The Court reasoned that the four different terms set out

disjunctively in the rule—fraud, deceit, misrepresentation, and dishonesty—should be

“understood as four separate categories, denoting differences in meaning or degree.” Id.

at 767. The Court held that dishonesty is the broadest of the four terms and, unlike the

other three, does not necessarily imply affirmative misstatements, but rather requires only

“‘a lack of honesty, probity or integrity in principle; [a] lack of fairness and

2 There was some evidence of other statements by Shorter to the revenue agents that were not even technically true. For example, Shorter appears to have indicated that he had only an office-sharing arrangement with his law partner (in fact, as noted, he held a 50% partnership interest) and that his partner “allowed him to use the offices until such time as he was able to meet his expenses” (in fact, as noted, he was the primary source of the firm’s business). Id. at 763. An IRS agent admitted during the criminal trial, however, that Shorter’s answers had been technically true, and the Court of Appeals agreed with this assessment based on Shorter’s testimony before the hearing Committee that the agents’ focus had been on personal assets and that he had answered their questions truthfully. Id. at 763-764. Though it is not entirely clear from the decision, it may be that these less-defensible statements were not on the signed document prepared by the agents. The Court in any event based its holding on its conclusion that Shorter’s answers were technically true but sufficiently incomplete, misleading, and/or evasive to constitute dishonesty under the Rule. Id. at 767-768.

3

straightforwardness.’”3 Id. at 768 (quoting Tucker v. Lower, 434 P.2d 320, 324 (Kan.

1967)). The Court concluded that Shorter’s conduct satisfied this definition:

Given the “technically true” nature of respondent's answers to questions posed by revenue agents, and his abstinence from actual false statements or affirmative acts of concealment, we decline to describe his financial arrangements and his parsimonious dissemination of information as either fraudulent, deceitful, or misrepresentative, which all describe degrees or kinds of active deception or positive falsehood. See supra note 12. We deem this issue a close one, however, and thus experience no difficulty in characterizing these arrangements as evincing a lack of integrity and straightforwardness, and therefore dishonest. By his own acknowledgment respondent knew what information the IRS was after, but for his own benefit refrained from supplying that information even when asked questions that grazed the truth. As long as the IRS did not ask just the right questions, respondent was prepared to deprive it of the right answers. This conduct was of a dishonest character, and thus violated DR 1-102(A)(4).

Id. at 768. The Court thus held that responses provided by an attorney (acting in his

personal capacity) in an official inquiry constituted dishonest conduct, though they were

not technically false, where the respondent: (i) knew what information the questioner was

after, (ii) refrained from supplying that information even when asked questions that

grazed the truth, and (iii) did so for his own benefit. Id.

B. Discussion of EEO Activity as Promotion Factor

The issue in this disciplinary matter is whether Respondent’s testimony in the

EEO case, even if “technically true,” was nevertheless sufficiently misleading and

evasive in light of the questions put to him to constitute dishonesty under the criteria of

Shorter. In addition to Respondent’s statements to the effect that Ms. Doe’s EEO activity

was “[n]ever” discussed as a factor in not promoting her, he also gave questionable

testimony, later revised through his affidavit, concerning his reasons for including certain

3 The Shorter Court defined deceit to be the “suppression of a fact by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact.” Id. at 777 n.12. It defined misrepresentation as “the statement made by a party that a thing is a particular way, when it is not so” or an “untrue representation” or a “false or incorrect statement or account.” Id.

4

language characterizing and discussing Ms. Doe’s EEO activity in a memorandum

concerning her promotion. Respondent’s testimony in both respects is drawn into

contrast with his affidavit (paras. 9 and 10, respectively) submitted to the ALJ after the

EEO hearing.4

The first aspect of the alleged dishonesty concerning EEO activity as a promotion

consideration is captured in the exchange at the July 12 hearing where Respondent is

asked “was the plaintiff’s gender or EEO activity discussed as a factor in not promoting

her?” and he answers “Never.” This testimony is contrasted with Respondent’s

acknowledgement of meetings with Ms. Rutledge in which she stated that if Ms. Doe

handled her FMCSA cases in the same manner as she was handling her own EEO case,

she did not deserve a promotion. BX 8, ¶ 9. Respondent testified before the Hearing

Committee that the affidavit is accurate, i.e., Ms. Rutledge did make this statement. See

Tr. at 162, 209-211, 238. Respondent contends, however, (i) that Ms. Rutledge’s

statement occurred during a meeting to discuss the agency’s response to Ms. Doe’s EEO

complaint, not her promotion, and that his testimony that EEO activity was not discussed

as a promotion factor was therefore accurate,5 Tr. at 197, 236-237, 239; and (ii) that the

conditionality of the statement—if Ms. Doe handled her FMCSA cases in the same

manner as she was handling her own EEO case—suggests that she was not expressing a

firm opinion and/or was not relying on such an opinion as an adverse consideration in

respect of Ms. Doe’s promotion. Tr. at 236-237.

4 As is the case with the other alleged misstatements, the situation is complicated by the unavailability of the hearing transcript at the time Respondent made his affidavit and consequent mis-recollections of his own testimony at the hearing. 5 Respondent was also asked at the EEO hearing “[h]as Ms. Rutledge said anything to you about not promoting Ms. Doe, other than what you’ve already testified to?” BX 4 at 76-77. He responded “[t]he question is too vague for me to answer.” Id.

5

The second aspect of the issue concerning EEO activity as a promotion factor

concerns Respondent’s reason for incorporating the following language into his

December 3, 2003 draft memorandum recommending Ms. Doe for promotion (which was

not disseminated at the time but later emerged in discovery in the Doe EEO case):

[Ms. Doe’s] specific personal allegations against the agency contain reckless and false statements of facts and questionable interpretations of law. I do not consider these issues to be relevant because she is representing herself, not the agency. The adage that a lawyer who represents himself has a fool for a client applies in this situation.

Respondent testified in the EEO hearing that he included this language out of a general

concern to make it clear that his recommendation was not taking Ms. Doe’s EEO activity

into account. See BX 5 at 164-165; BX 6 at 185-86. Respondent’s post-hearing

affidavit, by contrast, indicates that he included the EEO language because he

“anticipated Ms. Rutledge would object to the promotion recommendation at least in part

on the ground that she thought Ms. Doe’s handling of her own case reflected poorly on

her job performance,” and “to counter-balance Ms. Rutledge’s position and thus protect

her from her own potentially retaliatory statement.” BX 8, ¶¶ 10, 11. Respondent’s

defense appears to be that both his testimony and his affidavit are broadly to the same

effect, drawing a line between EEO activity and the promotion recommendation (albeit

one suggesting he was doing this as general prophylaxis and the other in anticipation of

and to preempt or warn off an expected retaliatory reaction).

Respondent’s testimony about EEO activity as a promotion factor generally, and

his testimony about the motivation for including the EEO language in his December 3

memorandum specifically, go to the same ultimate issue in the EEO case, i.e., whether

Ms. Doe’s EEO activity was considered in the deliberative process that led to her not

6

being promoted. Ms. Rutledge’s statement that, if Ms. Doe handled her FMCSA cases in

the same manner as she was handling her own EEO case, she did not deserve a promotion

was potentially critical to the determination of this issue. Indeed, as noted above, the

government’s counsel in the EEO case Mr. Martinez testified that revelation of the

statement would have been a “bombshell” for the government’s defense of the EEO

matter. Tr. at 117-118.6 Similarly, testimony to the effect that Respondent included the

December 3 memorandum language in order to preempt an expected “retaliatory”

reaction from his supervisor would have been significant to the EEO case in its own right,

Tr. 122-124,7 and would also presumably have led to disclosure of the Rutledge

statement, which was made on two occasions, BX 8, ¶ 9, and underlay Respondent’s

concerns about Ms. Rutledge’s retaliatory motives. Although he knew that the Rutledge

statement (and the specific concerns about retaliation that led him to include the language

in the December 3 memorandum) would be facts of great concern to those questioning

him, Respondent “refrained from supplying that information even when asked questions

that grazed the truth,” Shorter, 570 A.2d at 768, and gave testimony concerning these

subjects that can only be described as incomplete and misleading.

6 “Q[Cohen]: Well, that would have been a bombshell, wouldn’t it, if Mr. Rigrodsky had testified that the Deputy Chief Counsel had said that if Ms. Doe was handling her work the way she was handling her EEO case, she did not deserve a promotion. A[Martinez]: Yes, correct. Q: And if Mr. Rigrodsky had so testified, you would have remembered it, wouldn’t you? A: Yes. Q: It would have been a big deal. It would have shown that somebody in a senior management position was considering Ms. Doe’s protected activity, her EEO case, as a promotion factor, correct? A: Correct. Q: You testified earlier that that’s illegal. A: Correct. It’s reprisal.” Tr. at 117-118. 7 “Q[Cohen]: Now, if he [Respondent] had testified at the hearing that he put that statement [in the December 3 draft memo] in to anticipate a position that Rutledge was going to take, that would have been another bombshell, wouldn’t it? A[Martinez]: I don’t know. I mean, it – hard to say. I don’t know how the judge would view that, but, you know -- Q: But it would have opened up some questioning of Ms. Rutledge, wouldn’t it? A: Sure, yes. Q: And by testifying the way he did at the hearing, he may have protected Ms. Rutledge. Isn’t that correct? A: Sure, I mean you can view it that way, yes.” Tr. at 122-123.

7

On these facts, I believe that the elements of a violation under the doctrine of

Shorter are satisfied. Respondent knew what information the questioners were after and

in particular that they would have been keenly interested in the Rutledge statement and

the concerns that led him to include the language concerning Ms. Doe’s EEO activity in

his December 3 memorandum. Ms. Doe’s claims included the allegation that Ms.

Rutledge had retaliated against her for filing her EEO complaint. See Tr. at 79-80. There

can be no doubt, particularly in view of Mr. Martinez’s testimony, that the discussions

with Ms. Rutledge were highly material, as was Respondent’s true reason for including

the EEO language in his memorandum. Respondent, as the manager of a division that

handled EEO issues (see Tr. at 150), would surely have been aware of the materiality of

such information to the legal issues in the Doe litigation. This is borne out by

Respondent’s attempt to persuade Mr. Martinez to settle the Doe case because of his fear

that inquiry into the genesis of the EEO language in the December 3 memorandum would

require him to disclose the Rutledge statement. Tr. at 94-98. Thus, Respondent clearly

knew at the time he testified that Rutledge’s statement and the concern that led him to

include the language in his December 3 memorandum would have been important

evidence in the case and that the questions were trying to elicit this type of information.

The second Shorter factor is also satisfied in that Respondent refrained from

supplying the sought-after information even when asked questions that “grazed the truth.”

Shorter, 570 A.2d at 768. Despite the Rutledge statement, when asked “was the

plaintiff’s . . . EEO activity discussed as a factor in not promoting her?” Respondent’s

answer was “[n]ever.” When asked a slightly broader question, “[h]as Ms. Rutledge said

anything to you about not promoting Ms. Doe, other than what you’ve already testified

8

to?” Respondent was evasive: “[t]he question is too vague for me to answer.”8 BX 4 at

76-77 (emphasis added). Respondent’s defenses that the Rutledge statement (i) was

made in another context and/or (ii) did not reflect a firm opinion concerning Ms. Doe’s

promotion are not persuasive in context. The statement by its terms addressed Ms. Doe’s

promotion, and her EEO activity specifically as a negative consideration. The fact that

the statement was made at a meeting on another subject (with some or all of the same

managers) does not mean that Ms. Rutledge was not connecting Ms. Doe’s EEO activity

to her promotion and doing so both disparagingly and seriously.9 On the contrary, the

record is clear that Respondent viewed the statement as reflecting a firm and serious

opinion on the basis of which he expected Ms. Rutledge to act. Respondent “anticipated

Ms. Rutledge would object to the promotion recommendation at least in part on the

ground that she thought Ms. [Doe’s] handling of her own case reflected poorly on her job

performance.” BX 8 ¶ 10. And he testified to the same effect before the Committee: “Q:

Okay, so that suggests to me that you thought Rutledge was serious, that that might

actually enter into a promotion decision. A: Well, yes. If you put it that way, I guess

that's right, yes.” Tr. at 238-239. In view of Ms. Rutledge’s statement and the

8 BX 4 at 76-77: “Q: Has Ms. Rutledge said anything to you about not promoting Ms. [Doe], other than what you’ve already testified to? A[Respondent]: Can you be more specific? Q: No. If you can answer, you can answer. A: The question is too vague for me to answer. …Q: Are you aware of any responses from them [McCown and Rutledge] regarding her promotion at any time since the date that you, back in May, recommended her? A: Directly from them to her? Q: Or to anybody, directly from them to you or to anybody. A: Well, you already asked me about – Q: All right, to her. A: To her? I’m not aware of anything.” 9 According to Respondent, at the time Ms. Rutledge made her statement, Ms. Doe’s promotion was still under consideration. See Tr. at 157-158. Indeed, that conclusion is implied by the very form of the statement that Ms. Doe “does not” deserve to be promoted. To my thinking, the contention that Ms. Rutledge’s statement was not part of the agency’s deliberations concerning promotion because it happened to be made during meetings on another subject is puzzlingly formalistic, incongruous with the statement itself, which directly addresses the subject of Ms. Doe’s promotion, and at war with the evidence of Ms. Rutledge’s seriousness and intention to act on the statement by denying the promotion.

9

seriousness Respondent ascribed to it, his testimony that Ms. Doe’s EEO activity was

“[n]ever” considered as a negative promotion factor was, at best, incomplete and

misleading.10

With respect to the third Shorter element, it is clear that Respondent suppressed

the information in question for his own benefit. Respondent made it clear in his

testimony before the Hearing Committee that “there was a lot of pressure to make things

come out in a way favorable to the agency” in the EEO proceeding. Tr. at 240; see also

id. at 198-199, 239-240, 251-252. According to Respondent, Ms. Rutledge sought to

avoid responsibility for an adverse outcome in the EEO matter by (i) blaming any adverse

outcome on Respondent and his December 3 memorandum in particular, and (ii)

pressuring him to ensure a favorable outcome in the litigation. In his affidavit,

Respondent characterizes the pressure he was feeling as “duress.” See BX 8 ¶ 17.

Respondent feared that any testimony damaging to the agency would be held against him

by management in evaluating his job performance. Tr. at 198-199. When this pressure

was removed by virtue of his reassignment to a non-managerial position, Respondent

quickly came forward with his affidavit to reveal the information that he had suppressed

in his testimony. Although it may be a mitigating circumstance for purposes of sanction

that Respondent acted at least in part out of fear for his livelihood and/or career

10 The same can be said of Respondent’s testimony concerning his motive for including the EEO-related language in the December 3 memorandum. See Tr. 227-228 (Respondent’s acknowledgement that he “probably should have” indicated that EEO language was included because “Rutledge had mentioned it and I was trying to anticipate her objections”). Before his testimony, Respondent was specifically advised by Mr. Martinez that he needed to tell the truth on this point. See Tr. 99-100. Because the testimony concerning the reasons for including the EEO language in the memorandum amount to a description by Respondent of his own mental state (albeit a fairly definite one), as opposed to a specific statement actually uttered, I find it a somewhat weaker basis to establish a violation. When this testimony is considered together with Respondent’s testimony concerning the consideration of EEO activity in the promotion decision, however, I am satisfied that Respondent crossed the line drawn by the Court in Shorter.

10

prospects, his evasiveness and shading of testimony to avoid repercussions with his

supervisors in my view constitute action “for his own benefit” for purposes of

establishing a violation of Rule 8.4(c) under Shorter.

I find the majority’s effort to distinguish Shorter to be unconvincing. The

majority contends that there was “overarching evidence of Shorter’s lack of integrity that

is missing here” and in particular that Shorter’s “history of tax evasion gave credence to

the finding that Shorter acted dishonestly with the IRS agents.” H.C. Rep. 29. This

contention attempts to limit the scope of Shorter’s holding by portraying the decision as

turning on a general credibility assessment. It did not. The IRS agents’ questions and

Shorter’s answers were recorded in written statements. See Shorter, 570 A.2d at 763-

768. The actual facts he purported to describe in his answers were also of record. Id.

The agents themselves acknowledged and the Court found that his answers were

technically truthful. Id. at 763 (“As one IRS agent admitted during the criminal trial,

respondent's statements about his personal assets were technically true.”). Precisely what

Shorter had done was thus clearly of record before the Court. The question presented and

decided was whether an attorney may provide technically true but substantively evasive

and misleading answers in an official inquiry. “[O]verarching evidence of Shorter’s lack

of integrity” had nothing to do with the holding. On the contrary, the Court’s rationale

was clearly expressed: “[R]espondent knew what information the IRS was after, but for

his own benefit refrained from supplying that information even when asked questions that

grazed the truth. As long as the IRS did not ask just the right questions, respondent was

prepared to deprive it of the right answers. This conduct was of a dishonest

character . . . .” Id. at 768. The same is true here.

11

In order to reach the conclusion that Respondent’s testimony was not dishonest

under the criteria of Shorter, the majority must necessarily conclude that the testimony

was (i) at least technically truthful as to the precise responses provided and (ii) not

misleading as to the overall factual account provided to the trier of fact (because the

questions sufficiently “grazed the truth” to require such candor and to forbid technical

evasions). See Shorter, 570 A.2d at 768. The majority is thus compelled to the position,

untenable in my view, that the factual record created by Respondent’s testimony

concerning discussion or consideration of EEO activity in the promotion deliberations

was a truthful one. Was EEO activity considered or discussed in connection with the

promotion decision? The clear and natural purport of Respondent’s testimony was that it

was not considered or discussed. The truth is that it was.

For the foregoing reasons, I view Shorter as being on point and compelling the

finding of a violation. It may have been “technically true” that, in some sense of the

phrase “promotion factor,” Ms. Doe’s EEO activity had not been discussed as a

promotion factor. I confess that I find it to be a stretch, but in deference to my colleagues

let us allow that there is some room for subjectivity on this point and assume that

Respondent’s specific responses were at least arguably true. It remains the case that

Respondent was asked two questions—whether Doe’s EEO activity was discussed as a

promotion factor and whether Ms. Rutledge had said anything else to him about the

promotion—that should have elicited these statements but did not (and similarly, he was

asked questions that should have elicited his actual reason for including the language in

the December 3 memorandum but instead elicited a sanitized and misleading account,

recanted in his affidavit). Respondent thus left the record in a state of falsity which, if

12

not corrected, would have led the trier of fact to believe that the deliberative process

concerning Ms. Doe’s promotion had been devoid of any discussion or consideration of

her EEO activity. This, in turn, might foreseeably have led the court to reject Ms. Doe’s

EEO claim where it might have ruled in her favor if provided with a truthful account of

the facts. On this evidence, I would find that Respondent crossed the line laid down by

the Court in Shorter.

II. Serious Interference

Rule 8.4(d) of the D.C. Rules of Professional Conduct provides that “[i]t is

professional misconduct for a lawyer to . . . (d) [e]ngage in conduct that seriously

interferes with the administration of justice.” D.C. R. Prof. Con. 8.4(d) (2000). In order

to be deemed serious interference with administration of justice, the attorney’s conduct

(i) must be improper; (ii) must bear directly on the judicial process, i.e., the

administration of justice; and (iii) must taint the judicial process in more than a de

minimis way, i.e., must “at least potentially impact upon the process to a serious and

adverse degree.” In re Hopkins, 677 A.2d 55, 61 (D.C. 1996); see also In re Reback, 487

A.2d 235, 239 (D.C. 1985) (“‘[T]he prohibition against conduct prejudicial to the

administration of justice bars not only those activities which may cause a tribunal to

reach an incorrect decision, but also conduct which taints the decision making process.’”)

(quoting In re Keiler, 380 A.2d 119, 125 (D.C. 1977)), modified as to sanction, 513 A.2d

226 (D.C. 1986) (en banc).

I believe that Respondent’s conduct satisfies this standard. By intentionally

conveying the impression to the court that Ms. Doe’s EEO activity had not been

discussed in connection with the agency’s consideration of her promotion, Respondent

13

contributed to the creation of a materially erroneous factual record in the Doe case. He

took steps to correct the situation only when his personal interests shifted after he was

relieved of supervisory responsibilities.11 In any event, it is clear that Respondent’s

conduct (i) was improper, in that it misled the court, (ii) bore directly on the judicial

process, in that it involved testimony in a judicial proceeding, and (iii) at least potentially

impacted upon the proceedings to a serious and adverse degree, in that it could have led

the court to find against Ms. Doe when it otherwise might have found in her favor, and in

any event tainted the decision making process. Hopkins, 677 A.2d at 61.

CONCLUSION

I do not doubt that Respondent in this matter found himself in a difficult situation,

threatened by potential reprisals, or at least recriminations, if the EEO case did not go

well for the government, and I am not unsympathetic. On the other hand, Respondent’s

interests are not the only ones deserving of concern. “Ms. Doe” had a fundamental legal

right to a just adjudication of her EEO claims based on true facts—not a whitewash from

management. This Respondent knew the critical information that would damage the

government’s case when he walked into the hearing room; he had urged the

government’s lawyer to settle on account of it. He was asked questions that went directly

to this information, and he nevertheless withheld it, while under oath, through technical

11 It is abundantly clear from the record that the shift in interests occasioned by his demotion to a non-supervisory position is what drove Respondent’s recantation and not, as the majority would have it, a more high-minded desire to correct the record. See, e.g., H.C. Rep. 28 (“In fact, by submitting the post-trial affidavit here, Mr. Rigrodsky was trying to be as candid and comprehensive as possible, consistent with Shorter.”). As reflected in the majority’s own findings of fact, Respondent felt that in relieving him of his supervisory responsibilities, his supervisors “had, for false reasons, essentially ruined [his] career.” Tr. 224. He was angry and humiliated. Tr. 181, 224. He filed is own EEO action against his supervisors alleging that they had retaliated against him for his support of Ms. Doe’s promotion. Tr. 181. He “wanted to reopen the hearing record because of the agency’s reprisal against him.” H.C. Rep. 10 (citing Tr. 89, 183; JX 1 ¶ 16). He contended for the first time that “there was a lot of wrongdoing by the agency that never came out at the hearing.” Tr. 182. As the majority itself acknowledges, Respondent would not have filed the affidavit at all if he had not been reassigned. H.C. Rep. 10.

14

evasions. In my view, this conduct does not deserve the clean bill of health given to it by

the Hearing Committee majority.

For the foregoing reasons I respectfully dissent from the Report and

Recommendation of Hearing Committee No. 6 and would recommend instead (i) finding

a violation of Rule 8.4(c) under Shorter, (ii) finding a violation of Rule 8.4(d), and (iii)

imposing a brief suspension or a public censure.

Respectfully submitted,

Date: June 26, 2009 _____________________________ H. Bradford Glassman, Esq. Hearing Committee Chair

15