Statement of Concern in Support of Investigating Alleged Ethical Violations and Chilling Threats by Elizabeth Lynne Cheney

Office of Disciplinary Counsel, District of Columbia Court of Appeals 515 5th Street, NW, Building A, Suite 117 Washington, DC 20001

I. Introduction

This Statement of Concern is submitted in support of the complaint filed by Stefan Passantino, represented by America First Legal, alleging severe ethical violations and improper conduct by former Congresswoman Elizabeth Lynne Cheney. Specifically, the complaint asserts that Ms. Cheney violated Rule 4.2 of the District of Columbia Rules of Professional Conduct by engaging in unauthorized communications with Cassidy Hutchinson, a represented witness.

More troubling, however, are Ms. Cheney’s recent public statements suggesting that any attorney who dares investigate the January 6th Committee or its members may face sanctions. Such remarks constitute an attack on the independence of the legal profession, a direct threat to the rule of law, and a chilling attempt to suppress lawful investigations into alleged misconduct by public officials.

This Office has a duty to investigate these allegations rigorously to affirm the principles of legal ethics, safeguard the attorney-client relationship, and protect the rule of law from intimidation by those in positions of power.

II. Statement of Interest

The undersigned are committed to preserving the integrity of the legal profession, the attorney-client relationship, and the rule of law. This matter is of paramount importance to maintaining public confidence in the ethical conduct of attorneys, particularly those in public office. The chilling nature of Ms. Cheney’s threats and the gravity of the ethical violations alleged demand swift and decisive action.

III. Argument

A. Liz Cheney’s Alleged Violation of Rule 4.2 Undermines the Attorney-Client Relationship

1. Rule 4.2 Prohibits Unauthorized Communications with Represented Parties
   • Rule 4.2 of the District of Columbia Rules of Professional Conduct is clear: attorneys are prohibited from communicating directly with individuals they know to be represented by counsel unless the attorney representing that individual consents.
   • The complaint alleges Ms. Cheney engaged in unauthorized communications with Cassidy Hutchinson, a witness represented by Stefan Passantino, thereby violating this rule and undermining the sanctity of the attorney-client relationship.
2. Relevant Case Law
   • In In re Grand Jury Subpoenas (571 F.3d 1200), the court reinforced the fundamental importance of safeguarding the attorney-client relationship from interference by unauthorized communications.
   • Similarly, McSurely v. McClellan (521 F.2d 1024) underscores the principle that no party, including members of Congress, may engage in conduct that circumvents the ethical duties owed to represented individuals.

B. Cheney’s Threats to Investigating Attorneys Create a Chilling Effect on Legal Advocacy

1. Threatening Sanctions for Lawful Investigations Undermines Legal Advocacy
   • Ms. Cheney’s public warnings that attorneys investigating the January 6th Committee or its members could face sanctions are a blatant attempt to intimidate members of the legal profession and suppress legitimate oversight. These statements conflict directly with principles outlined in Eastland v. U.S. Servicemen’s Fund (421 U.S. 491), which emphasized the importance of protecting legitimate investigations into government actions.
2. The Speech or Debate Clause Does Not Protect Intimidation or Misconduct
   • While the Speech or Debate Clause provides immunity for legitimate legislative activities, it does not shield members of Congress from accountability for illegal or unethical conduct. The Supreme Court in Gravel v. United States (408 U.S. 606) made it clear that legislative immunity does not extend to actions outside the sphere of legitimate legislative activity, particularly when such actions interfere with the rights of others or violate ethical norms.
3. Precedent Supports the Protection of Investigatory Efforts
   • In Trump v. Committee on Oversight and Reform (380 F. Supp. 3d 76), the court affirmed the necessity of legitimate legislative investigations while cautioning that such investigations must be conducted in good faith and within the bounds of the law. Ms. Cheney’s threats represent a direct affront to this principle and pose a danger to the independence of the legal profession.

C. Upholding Ethical Standards and Accountability for Public Officials is Essential

1. The Public Trust Requires Transparency and Accountability
   • The allegations against Ms. Cheney involve a dual threat: unethical conduct in direct violation of Rule 4.2 and intimidation of attorneys exercising their lawful right to investigate. Both allegations undermine the public’s trust in government transparency and ethical governance.
   • Failure to address these claims thoroughly would set a dangerous precedent, eroding public confidence in both the legal profession and the rule of law.
2. Enforcement of Ethical Rules is Critical to Maintaining Professional Integrity
   • The legal profession is predicated on adherence to ethical standards that protect clients, attorneys, and the public. As demonstrated in Rangel v. Boehner (785 F.3d 19), even actions by high-ranking officials must comply with the ethical rules governing attorneys. No one, regardless of position, is above these rules.

IV. Conclusion

The undersigned respectfully urge the Office of Disciplinary Counsel to:

1. Thoroughly investigate the allegations of ethical misconduct involving Ms. Cheney’s unauthorized communications with Cassidy Hutchinson.
2. Consider the chilling effect of Ms. Cheney’s threats against attorneys and their broader implications for the independence of the legal profession.
3. Take all appropriate actions to affirm the principles of accountability, transparency, and ethical integrity in the practice of law.

The integrity of the legal profession and the rule of law depend on swift and decisive enforcement of ethical rules.

Best regards,

David Levin, Esq. 

References

Gravel v. United States, 408 U.S. 606 (1972)

• Held that the Speech or Debate Clause does not protect illegal or unethical conduct outside the sphere of legitimate legislative activities.

McSurely v. McClellan, 521 F.2d 1024 (1975)

• Emphasized that no party, including congressional members, may engage in conduct that undermines ethical and legal duties.

Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975)

• Affirmed the importance of protecting legitimate investigations while ensuring actions remain within the bounds of the law.

In re Grand Jury Subpoenas, 571 F.3d 1200 (2009)

• Reinforced the protection of the attorney-client relationship and the prohibition against unauthorized communications with represented parties.

Trump v. Committee on Oversight and Reform of U.S. House of Representatives, 380 F. Supp. 3d 76 (2019)

• Affirmed the necessity of legitimate investigations and cautioned against overreach or bad faith actions.

Rangel v. Boehner, 785 F.3d 19 (2015)

• Held that actions by public officials, including those in legislative roles, are subject to the ethical rules governing attorneys.