*2 time after the ately and some wit- before GRAAFEILAND, Before VAN defendant, of ness, employee who was . ALTIMARI, Circuit and WINTER by Doe. a testified at Judges. between Doe During the first conversation one”) (“conversation oc- which client and Judge: ALTIMARI, Circuit deposition, client just prior to the curred Doe, attorney appear- John Appellant client had to Doe a conversation related vice, pro court hac the ing before According to deposition witness. the with order of the United from an appeals defend- client, told him that the witness of Connecti- the District Court for District him “to instructed Judge) which Daly, Chief (T.F. Gilroy cut story responding to cer- when change practicing Doe suspended A deposition.” few questions at tain [his] period six a of District for in the Doe had a after the months Dis- finding that Doe violated months after (“con- with client subsequent conversation (“DR 7- ciplinary Rule two”) client related anoth- where versation Re- 102(B)(2)”) Code of Professional of the in engaged he with er wit- conversation “Code”). (the The district sponsibility1 conversation, During this second ness. conclusion, the that Doe violated court’s he had told client “followed witness Code, upon evidence that was based attorneys] the instructions [of deposi- lied at a that a witness suspected ques- response to lied and had [those] not disclose the witness’s Doe did tion and deposition].” Witness also the tions [at we to the court. Because alleged penury testi- told nevertheless client information clear- Doe lacked conclude that truthfully at trial. fy fraud on establishing existence of ly the a court, year reverse. one after witness’s Approximately the conver- of Doe’s deposition, the substance
FACTS BACKGROUND and brought the at- was to with client sations in- After this Judge Zampano. tention basis for formed the The conduct which received, Zampano formation was disciplinary decision court’s the district parties that he would hold to the indicated discovery phase of an during the arose investigate possible miscon- hearing a Judge Zampano pending before action in con- during discovery the action duct On two occa- District of Connecticut. the the Doe/client conversations with sions, nection Doe had conversations with Pending resolu- as as other matters.2 client, underlying action well plaintiff the sought to discover the plaintiff, defendant provides the Code 1. organization. De- identity “mole” their receives information A who - investigation on to such carried fendant’s establishing that: . has, questioned repre- point client were (1) sentation, that even and in the course His client person during depositions their knowl- perpetrated a fraud their promptly his client edge call mole. or tribunal shall the existence same, rectify if his client having and refuses of the mole’s denied Both so, shall reveal fraud to he engaged unable to do had not stated existence tribunal, except person when the affected employees defendant's in conversations protected ordinary business. With course of outside communication. Judge Zampa- also available this (2) perpe- person A other than client no, possible miscon- decided to promptly upon a tribunal shall trated a fraud plaintiff’s use of defendant's duct reveal the to the tribunal. fraud and whether Doe and documents confidential depositions truthfully at their answered discovery, plaintiff Apparently during had ac- identity of the mole. asked about when of defendants. cess to confidential documents misconduct, allegations of how- of these organization None ever, Suspecting that their someone in appeal. subject of is the turning these confidential documents over allegations, Judge Rather, misconduct tion of the decided that “[¡judgment on the proceedings in the stayed credibility further Zampano of these witnesses must be left On action. December to the usual and customary processes avail- hearing was held a closed able test the truthfulness of individuals’ client, and Doe testified. Client pretrial witness and trial given statements under that he did in fact testified have two Judge Zampano oath.” left ques- (as *3 with witness summarized versations perjury tion of whether has been commit- above) reported and that he had those con- by ted and whom for determination at trial. versations to Doe conversations one Despite Judge the fact that Zampano de- testimony and two. Witness’s at the hear- special hearing cided that the was not the ing completely contradicted client’s. He “appropriate forum” determining for stated that he never had conversations witness, client, whether or engaged had regarding his with client testi- perjury, ques- nevertheless ordered that he. mony. He also denied that he had been regarding tions Doe’s involvement in this or instructed to lie had fact lied at his matter be referred to a Grievance Commit- deposition. investigation tee for an and recommenda- Finally, hearing Doe testified at the that tion appropriate as to action concerning client related his conversations with wit- possible ethical Judge misconduct. Zampa- (in substantially ness set forth manner observed that Doe have violated his above) and that he believed that client had duty 7-102(B)(2) under DR when he did not those conversations with witness. With re- disclose to the court the information he spect conversation, to the first Doe ex- possessed concerning witness’s however, plained, gave he little cre- perjury and attorneys’ alleged defendant’s suggestion dence to witness’s that defend- subornation of attorneys had instructed him to lie at In January hearing was held be- deposition, primarily because he doubt- fore the Grievance Committee which was ed that would en- comprised practitioners from the District gage in perjury subornation of and also According of Connecticut. to the reference he because felt that witness’s statements Judge Zampano, the Grievance Com- to client reflected more than a mittee was to determine whether Doe vio- “layperson’s [misinterpretation deposi- 7-102(B)(2). Thus, lated DR the Committee preparation.” respect With to conver- necessarily had to determine whether Doe sation person- Doe stated that he had clearly establishing had “information ... a ally suspected that witness had not told the 1) fraud on the as a result of tribunal” truth deposition, at his explained but he 2) conversations with client and his own did not occur himto that he had an independent evi- obligation ethical to the court this dence in the action. The Griev- fact, information. just he believed ance Committee also had to determine opposite. thought that he was ethical- whether, since most of the information Doe ly obligated not to reveal the information perjury witness’s since it privileged constituted confi- client client, obligated came from Doe was under explained, dences and/or secrets. Doe however, Code not to reveal that that he would infor- disclose the since it mation constituted client confi- possible perju- 4-101(B). ry trial, dences and/or secrets. DR at presumably impeach wit- testimony. ness’s During testimony before the Griev- Committee, that, Zampano again explained ance subsequently issued an opinion in September client, after he had conversation one with 1985 in which he found, alia, inter any wrongdoing doubted that had oc- between witness, stated, however, “one of perjurer.” curred. He two is a that after Judge Zampano concluded, however, (which conversation two occurred after Doe special hearing “the appropri- deposition), was not the had taken witness’s he believed ate forum which to resolve the conflict.” deposition. that witness had lied at the alleged deposition however, that the basis explained, [witness’s] client confidences originate from were based clear- did belief client, ly protected by the but rather was the from disclosure attor- versations therefore, and, independent ney-client privilege own conclusions product of his 4-101(B), obligation the case: he had no ethical drawn from any other disci- under DR really Well, relate to mes- it didn’t plinary rule to these mean, I related to me. sage that [client] Judge Zampano[,] frauds to taking as I was [witness’s] case, ei- other evidence on and, second, that of dealers ther documents if Conversations One and Two do [e]ven witnesses, there other] or [defendant’s attorney-client priv- not fall with [sic] situa- There were were inconsistencies. ilege, had no under DR [Doe] there was evidence that tions in which 7-102(B)(2)to reveal either conversation something was involved [witness] to the court he did not have because *4 denying that he was in- knowledge clearly establishing that [de- meeting of action or a course volved—a attorneys] attempted su- fendant’s to had testified or other in which [others] perjury or that born [witness’s] [witness] employees testified that he [defendant’s] in fact had failed to tell the truth at this in which he either not was involved Instead, deposition. testified that [Doe] So, recalling denying. I didn’t think he believed Conversation One reflected a telling he was the truth. layman’s misinterpretation of [witness’s] that most of Doe also stated felt deposition preparation. respect to With defendant’s other witnesses were not tell- Two, merely suspect- Conversation [Doe] during discovery. ing the truth ed from his own assessment the facts of the lawsuits that testifying [witness]
Also before the Grievance and other witnesses [of defendant’s] professor an ethics Committee was from not truthful their were University. part, New York relevant testimony.... knowledge Without professor explained attorney’s that an fraud, clearly establishing either duty to maintain his client’s confidences extremely it would have been detrimental 4-101(B) and secrets under DR overrides hotly to his clients’ interests contested 7-102(B) under DR to reveal attorney-client litigation and to his rela- potential fraud on tionship attempted for to have professor [Doe] the court. The testified further prevail upon permit him that, trigger attorney’s [client] order an obli- reveal communications 7-102(B) gation under DR to disclose “in- Conversations One and Two to the court. clearly establishing formation ... a fraud tribunal,” on the he must have actual After the Grievance Committee issued its Finally, fraud. Doe, exonerating unanimous decision its professor opined complaint recommendation to dismiss the present triggered record would came before the district After re- court. duty to disclose the information viewing transcripts proceedings per- or subornation of Judge Zampano before and the Grievance knowledge. jury since he lacked actual Committee, the district court concluded that Doe violated DR and or- opinion July In an issued on suspended practice dered that he be Grievance Committee recommended that no court in the District for six disciplinary against action Doe be months. lodged against and complaint that the him pertinent part, be dismissed. In the Griev- DISCUSSION concluded, first, ance Committee argument appeal of the al- Doe’s main on this [b]ecause [Doe’s] leged perjury by finding subornation of that the district court erred in [defend- attorneys] 7-102(B)(2). Specifically, and his of he violated DR argues nary misinter- rule. Since resolution that the of this Doe is one “information establish- which “leaves little preted leeway” for an points discretion, the rule. out exercise of ing” element of we review this mat- court construed that term ter de novo. that the district convincing mean “clear evidence.” proper instead contends that the stan- B. DR and the “information knowledge, is one of actual and con- dard clearly establishing” requirement. that, standard, under a cludes 7-102(B)(2) pro Rule ? clear that he did not know that witness “lawyer vides when a receives agree. committed We clearly establishing that ... [a] person other than his client has A. review. Standard of promptly he] tribunal^ turning Before to the merits of this fraud to the tribunal.” Under appeal, must first examine what is the rule, attorney’s duty ethical to re appropriate governing standard our review port a triggered fraud on the court is once the district court’s decision. A district receives “information establish disciplining court’s decision ing” the existence of a fraud on the court. ordinarily misconduct will not be set ethical The interpreted district court the term “in appeal aside on absent an abuse of discre formation clearly establishing” to mean See, e.g., Taylor, tion. In Re must have “clear and con (2d Cir.1977); Allegaert v. Per vincing evidence” that a fraud on the court *5 ot, (2d Cir.1977); 565 F.2d Hull v. has occurred before the to dis (2d Corp., 513 F.2d Cir. Celanese Applying close fraud arises. this stan 1975). apply discretionary this stan We dard, the district court found recognition in dard the fact that “[t]he upon conversations one and Doe did responsibility district court bears the not convincing have clear and evidence that supervision bar,” of the members of its attorneys engaged in suborna Hull, 571, and, accordingly, 513 F.2d at it and, thus, tion of the court conclud prop must have wide discretion to maintain obligated ed that he to disclose discipline. er recognized information. The court also that conversations one and two did not is, however, recognized There a ex provide convincing Doe with clear and evi ception general to this rule. When the alleged perjury. dence of witness’s Never determination of presented ap issues in an theless, the court concluded that Doe’s sub peal depends upon particular a whether jective concerning veracity ABA disciplinary prohibits rule the conduct coupled with the information he received question, in appellate review is not con provided from client him with clear and fined to the abuse of discretion standard. convincing perjury. evidence of witness’s Miller, See United v. States Accordingly, the district court found (3d Cir.1980). Because resolution of failing disciplinary he violated the rule questions leeway such “leaves little for the to disclose the information wit discretion,” (quoting exercise id. Ameri disagree. ness’s We can Budinger, Roller Co. v. 513 F.2d (3d Cir.1975)), 985 n. 3 appellate Determining attorney in review has re- whether an Miller, plenary. establishing” those cases is 624 ceived a “information 1201; F.2d at triggering Washing fraud on the court—and thus ton, (9th Cir.1986) duty 1465 n. information to the disclose that (reviewing de novo task.” whether affected a “difficult tribunal —is Comm, applied legal district court correct standard ABA and Professional on Ethics matter). (1975). in disciplinary Op. As discussed be Our Responsibility, Formal low, the meaning resolution of question present inquiry is made into the term’s ed in appeal the instant in upon turns an it is not used even more difficult because interpretation particular discipli- of a in- any provision ABA and was not other Code provision prede- ly establishing” requires any attorney in of the Code’s
eluded cessor, of Professional Ethics the Canons have actual questioned issue, (1908). is the term included fraud. When on this a Nor successor, pointed the Mod- of the Committee provision of the Code’s member out that (1983), if Rules of Professional Conduct the drafters of the Code had intended el govern research has standard and our exhaustive uncovered that DR 7- 102(B), professional ethics committee used the term definitively interpreted “knowledge” knowledge” decision that has or “actual rule, means. we are left provi- what the term as was the case other Code examining professor responded, however, to determine the draft- the Code sions. The intent,3 reviewing the context in er’s which that the drafter’s failure to use the actual applied, searching “knowledge” the term has been term in the rule reflected adopted of the term poor draftsmanship out definitions other more than do, however, jurisdictions. adopt We have the rather than an intent to some stan- professor’s expert the ethics knowledge. benefit of dard less than actual The subject. opinion on this apparently Grievance Committee was satis- professor’s analysis fied with the because Code, examining After we observe agreed with his adopted conclusions and provisions obligate that in most Code purposes standard for the attorney to take affirmative measures the rule. doSo we. preserve the integrity judicial system, knowledge required before the jurisdiction We note that at least one duty See, disclosure arises. e.g., provide endeavored to its 103(A) (requires lawyer possess- guidance in Virginia, some this area. “[a] ing unprivileged knowledge of required “[¡Informa- a violation to reveal (governing attorney of DR 1-102 miscon- [ establishes that his duct)] has, such to a representa- the course of the authority empowered tion, or other tribunal a fraud related to the violation”) or act such subject representation matter of added); (emphasis (requires 4-101(D)(l), Virgi- tribunal.” DR Revised *6 lawyer possessing unprivileged that Responsibility nia Code of Professional “[a] knowledge (1983) or evidence added). another (emphasis Included in this lawyer judge or fully reveal such rule is a definition for the term “informa- upon proper or evidence request clearly establishing” provides authority empowered a tribunal or other “[¡information that is clearly established or act the conduct of when the acknowledges to the attor- lawyers judges”) (emphasis added). ney It has therefore seems added). reasonable that the (emphasis Thus, Code’s tribunal.” Id. drafters would have intended that a Virginia adopted knowl- an actual edge standard be included determining standard for attorney when an 102(B)(2) triggering its affirmative has received sufficient information to obligations. disclosure “clearly establish” that his client has com- mitted a fraud.
When
professor
the ethics
testified at the
hearings
Committee,
before the Grievance
Virginia’s approach
Consistent with
are
opined
that the term “information clear-
jurisdictions arising
decisions from other
3. The Committee which
provision
drafted the Code "inten-
pre-
that that
was not included in the
tionally compiled no record of its discussions
liminary draft of the Code circulated for com-
and deliberations” because of a concern for
ment. See Annotated Code at 306-07. Because
potentially inhibiting
pants.
partici-
the discussion of
preliminary
the
draft was criticized for "not
Foundation,
See American Bar
Annotat-
requiring
to reveal misconduct of oth-
(1979)
ed Code
Responsibility,
of Professional
xi
ers,"
form,
when the Code came out in final
("Annotated Code”). Therefore,
comprehen-
obligations
included the
contained in DR 7-
legislative history
sive
of the Code exists.
Id.
102(B).
Id.
it was included in the Code
addition, discerning
meaning
the
of DR
being subject
public scrutiny.
without
complicated
further
the fact
attorney suspects
brings
ted before he
context where
this knowledge
the
to the
perjury.
his client intends to commit
court’s attention.
that
attorney
attempt
permit
Those cases
the
Applying the above
appeal,
to the instant
rectify
only
the client’s
it becomes clear that Doe did not violate his
establishing
attorney
if the
has information
ethical duties when he
report
did not
to the
“firm
that
client will
factual basis”
court the
possessed
information he
See, e.g.,
commit
Whiteside v.
cerning
perjury. Nei-
1323,
(8th
Scurr,
Cir.1984),
ther the information Doe received from
grounds,
rev’d on other
U.S.
conversations one and
indepen-
nor his
(1986);
S.Ct.
89 L.Ed.2d
dent information concerning the facts of
Johnson,
rel.
States ex. Wilcox
case, provided
him with
that
(3d Cir.1977).
explained
As
in a fraud on the court had
place.
Al-
Whiteside,
suspicion or inconsist-
“[m]ere
though
subjective
may
ent statements ... are insufficient to es-
suspect
caused him
strongly
that wit-
tablish
lied, they
ness
did not amount to actual
would have been false.”
dard less than actual
adopted
context,
in this
serious conse-
CONCLUSION
quences might
If attorneys
follow.
were
part
bound as
of their ethical duties to
always
We must
be mindful that
report
to the court each time
strongly
perspective
judge
of a
greatly
differs
than
suspected
lied,
that a witness
courts would that of
practicing attorney.
“From the
reports.
be inundated with such
Court perspective
judge,
particu-
... a
[a]
quickly
dockets would
become overbur-
lar
may
fact
be as clear and certain as a
conducting
pro-
dened with
these collateral
piece
crystal
or a small
A
diamond.
trial
ceedings
necessarily
up
which would
hold
lawyer, however, must often deal with mix-
disposition
ultimate
clay.
tures of
pebble
sand and
Even a
action. We do not believe that the Code’s
enough
glance
seems clear
at
first
drafters intended to
sys-
throw
take on a different hue in a handful of
Instead,
tem into such a morass.
it seems gravel.”
Whiteside,
Nix v.
475 U.S.
only
reasonable conclusion is that
106 S.Ct.
64 GRAAFEILAND, Judge, Circuit VAN America, Appellee, of STATES concurring: UNITED Judge Alti- fully in I concur Although v. sepa- I opinion, write mari’s well-reasoned PINEDA, Defendant-Appellant. William put the case even I would rately because 971, he did. strongly than 87-1452. more No. Docket witness, by Untruthful Appeals, States Court lawyer, suborned has not been Circuit. Second alone, fraud constitute not, standing does Man Serzysko v. Chase upon the court. 13, May 1988. Submitted (2d Cir.), 699, 702 Bank, F.2d 461 hattan 26, May Decided 173, 883, 34 denied, 409 U.S. 93 S.Ct. cert. v. United Bulloch (1972); 139 L.Ed.2d 713, (10th Cir.
States, 718-19 F.2d 721 Express, Inc. v. In Coastal 1983); Great Teamsters, Brotherhood ternational denied, (4th Cir.1982), cert.
675 F.2d 764, 1128, 103 74 L.Ed.2d S.Ct.
459 U.S. where, true
(1983). particularly This pre given during a
here, testimony is deposition is deposition. Until
trial evidence, part it does not become
placed in Miles v. court. case (3d n. 4 Cir.
Ryan, 484 F.2d Employers Liability As
1973); Demara Cir.), (5th Corp.,
surance denied, 79 S.Ct.
cert. 358 U.S. Brook (1958); United States v.
L.Ed.2d 79
haven, (5th Cir.1943).
Accordingly, appellant even if was con- opposing had testi-
vinced that an witness falsely during
fied
102(B)(2) appellant require did not to dis- to the court. The drafters of the
close this thing realized that it is one
Rule must have something; convinced of it is another be
thing prove I it. can think of better damage
way for a his client’s by making pretrial
case than accusation prove. that he is unable to