Lawyer disciplined & sanctioned for half-truths, speculative allegations in brief

LEGAL ETHICS – FRAUD ON COURT – SEVERITY OF SANCTION – MITIGATION AND AGGRAVATION.  The U.S. 4^th Circuit’s treatment of a lawyer’s various acts of misrepresenting the facts and making specious arguments to the court, especially in the matter of not-so-clever half-truths and less-than-half truths, is instructive.  The 4^th Circuit began by reciting the offending lawyer’s indicia of elevated standing, including his Martindale Hubbell AV rating and 33 years of experience.  The lawyer had been the court appointed attorney, successfully appealing a wire-fraud and identity theft sentence received by his client.  However, the 4^th Circuit was not at all happy about the facts that later came out about the appeal that was presented to them, and one of the more outrageous and unsupported arguments that was made.  This respondent lawyer filed a brief and an affidavit admitting the substance of the charges, claiming mistakes and poor judgment, denying intentional misconduct and expressing regret.  The burden of his counsel’s argument was that everything the man had done failed to justify any disciplinary sanctions at all.  It was argued that after all, many lawyers make mistakes all the time without being punished.  Counsel said he should get a “caution letter,” as apparently sometimes happens in the State of New York.  Mitigating factors were argued, which the 4^th Circuit thinks are actually more like aggravating factors, and prosecuting counsel argued that offenses like these have to get some public punishment.  Well just what did this highly experienced lawyer do?  The Court says that he combined two separate parts of his client’s trial transcript, making it look like the give and take of a single conversation. Nor is it mitigating that a clever reader could look up the original document and see what had actually been said.  The lawyer also misrepresented the position that the government had taken when debating how long the trial could be, and it’s obvious that the lawyer well knew this, so this was itself a misrepresentation by him to the court.  In a reply brief, the lawyer falsely stated that two of the agents who had investigated this matter had been fired for misconduct.  That statement had been supposedly based on what an informant and the represented client said, and the fact that the two agents no longer worked for the Secret Service.  However, FOIA-procured documents revealed nothing about any disciplinary action against these guys.  The lawyer should have known there was no way he could support the scandalous assertions he made.  Then there was the “internet chat” his client had supposedly had with an informant.  While this was supposed to support the allegations the lawyer was submitting in his brief, he hadn’t bothered to inform the 4^th Circuit that his client had admitted that he had faked this whole “chat.”  It was certainly up to the respondent lawyer to let the Court of Appeals know about these facts.  Most serious, as you might guess, was the fact that the lawyer had made a false accusation that the district judge had suppressed an informant’s letter.  This was a misrepresentation of the record and an unsupported attack on the trial judge’s character.  It violated the rules and requires a public sanction.  The 4^th Circuit responded with one of the least damaging weapons in its arsenal, but it was still a “public admonition.”  In Re Liotti, a published Order, at 26 VLW 781 (12/2/11).