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A decision is coming. On September 10, the D.C. Bar’s disciplinary board meets, and my misconduct complaint against Chief Justice John Roberts, docketed as No. 2026-U795, is in front of them. Roberts is bound by the Bar’s rules as a member, and the decision is whether they will apply those rules as written, or whether they will say that because this is the Chief Justice of the United States, we will look the other way.

John Roberts has been a member of the D.C. Bar since 1981. The rule that establishes disciplinary jurisdiction, Rule XI, Section 1(a), covers all members of the District of Columbia Bar, and no provision of it exempts judges or Justices.

When someone files a complaint against a lawyer, the disciplinary office opens a case, gives it a number, and takes at least a first look at whether the allegations, if true, would break the ethics rules. Even weak complaints get that much. The lawyer usually gets a chance to respond. In April I filed a complaint against Roberts over more than ten million dollars in commissions his wife, Jane Roberts, received from law firms appearing before his Court, pay far beyond her peers at the firm where she was employed.

That complaint got none of it. The Office of Disciplinary Counsel did not evaluate whether the allegations had merit, did not ask Roberts to respond, did not take the first step. They sent a letter saying, in effect, this is not ours to handle, and treated the complaint as if it never entered the system.

The letter, signed by Senior Assistant Disciplinary Counsel Dru Foster, gave one reason. It cited 28 U.S.C. § 351. That law covers complaints about how a federal judge performs his judicial duties. The complaint I filed did not concern his rulings or anything he has done from the bench. It concerned household income and how he reported it on his federal disclosure forms, reporting worth investigating because it could suggest a pattern of obscuring financial benefit connected to his position. Those forms are personal documents, and Roberts signs them as an individual bound by the rules of the D.C. Bar. Rule XI, Section 2 permits discipline for misconduct “whether or not the act or omission occurred in the course of an attorney-client relationship.” The office cited a law about judicial duties, a law that does not even cover Justices, to close a complaint about a bar member’s disclosure forms.

They know no exemption exists because they proved it. When Jeffrey Clark, a former senior Justice Department official, argued that his federal office placed him beyond the reach of D.C. Bar discipline, this same office took the opposite position and won. No exemption from bar discipline exists for members holding federal office. That was their argument. It prevailed. The position they established in the Clark proceedings and the position stated in their June 24 letter cannot both be correct.

Whether Roberts violated the rules is the question they refused to ask. This article is about the refusal.

The forms listed the money as salary from Major, Lindsey & Africa, Jane Roberts’s employer. An internal spreadsheet, attached to a whistleblower complaint sent to Congress in 2022, showed commissions: $10.3 million between 2007 and 2014, paid out of placement fees from WilmerHale, Hogan Lovells, and Davis Polk. A commission is not a salary. Bennett Gershman, a law professor and former prosecutor, said calling the income salary is incorrect as a matter of law. Richard Painter, chief White House ethics lawyer under George W. Bush, called the characterization misleading. Kendal Price, an attorney who worked alongside Jane Roberts, alleged under oath that her earnings traded on her husband’s position. Their own letter confirms they considered none of it.

The people who run this system wrote themselves an unreviewable exit. The Board’s own Rule 2.4 states that Disciplinary Counsel’s decision whether to docket a complaint “is not subject to review.” No provision anywhere in the rules gives a complainant a right to appeal. The American Bar Association’s model rules for discipline systems recommend that complainants get exactly that right, an appeal of a dismissal to the supervising board. D.C. chose not to adopt it. So before this complaint ever existed, D.C. was already an outlier on a basic question: how many jurisdictions let disciplinary counsel decline a facially serious complaint against a bar member with no review?

The Barr letter added the second layer. In 2020, twenty-seven lawyers, including four past presidents of the D.C. Bar, filed a complaint against Attorney General William Barr. The office declined to docket it, and among their stated reasons was that they will not intervene in matters currently and publicly being discussed in the national political arena. Read that as a rule of decision and it means visibility is immunity. Put the two layers together and the discipline system can refuse to look at any complaint, for any reason or a wrong reason, and answer to no one, and the more attention a matter draws, the stronger their excuse for inaction. The more powerful the member and the more visible the alleged misconduct, the less the rules apply.

On July 18 I wrote to the Board on Professional Responsibility, the body that supervises the Office of Disciplinary Counsel, and asked them to review the closure. On August 17 their Executive Attorney, James Phalen, responded: the request is docketed, the Board meets September 10, and they will notify me once they have fully considered it. Copies of the letter went to Disciplinary Counsel Hamilton Fox and to Dru Foster, who signed the closure.

I want to be honest about the odds. I can be right on every point of law and they can still close it, because they have reserved that power to themselves. And they are deciding this while the Department of Justice is actively suing their Disciplinary Counsel for prosecuting a different federal official, so the price of applying their rules has never been more visible to them. What they cannot do is close it without cost.

And one path remains open that no rule shields. Rule XI, Section 4(e)(1) empowers the Board to “consider and investigate any alleged ground for discipline ... upon its own motion.” Rule 2.4 protects the office’s decision from review, but nothing prevents the Board from acting on their own authority. Declining to review is easy. Declining to use your own power against your own precedent is a harder letter to write.

When the nine members of the D.C. Bar’s disciplinary board sit down on September 10 for their first meeting of the new term, the complaint I submitted against the Chief Justice is in front of them. They will look at the closure letter, the rules that bind them, and the Clark precedent their own disciplinary office won, and they will choose. They can apply their rules, or they can decide that protecting themselves matters more than the meaning of their own license, because a bar whose rules stop at power is certifying proximity to it, not conduct. To keep it closed, they have to point to an exemption that does not exist, or say nothing and place on the record that they declined to apply their own rules and their own precedent when the member under complaint was the Chief Justice of the United States. Either way we win. If the complaint gets docketed, a Chief Justice answers to the same system as every other lawyer for the first time. If they keep it closed, they hand us proof, in their own letters, that this discretion needs to be taken away from them. Whichever they choose, the question this publication has been asking since April gets its answer in writing, and you will read it here.

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