An examination of the uniformity (or lack thereof) of attorney sanctions

Fabian, John D

INTRODUCTION

A number of recent articles have advocated that state bar associations adopt the ABA Standards for Lawyer Discipline and Disability Proceedings to encourage uniformity of sanctions for attorney misconduct.1 The strongest argument for uniformity is that it creates the appearance of comparative justice and fairness, which breeds legitimacy in the sanctioning system. This Note explores whether, under the current state sanctioning regimes, there is any need to change the regimes in order to encourage uniformity. It will question whether like situations are treated alike and different situations are treated differently. Because an examination of sanctions for all types of misconduct would take us beyond the purview of a journal Note, we will focus on sanctions for perjury and false statements to the court in four major jurisdictions: Florida, Illinois, New York, and the District of Columbia.

This Note begins with a discussion of Model Rule 3.3, entitled "Candor Toward the Tribunal," the rule at issue in cases involving perjury and false statements to the court. It proceeds with a discussion of sanctions for Model Rule 3.3 violations as provided by the ABA's Standards for Imposing Lawyer Sanctions. After identifying the sanctions suggested by the ABA, this Note will proceed with jurisdictional analyses of sanctions in perjury cases in Florida, Illinois, New York, and the District of Columbia. In the analysis of each jurisdiction, this Note will examine intra-jurisdictional uniformity to determine the extent of uniformity in each jurisdiction. Finally, after completing the jurisdictional analyses, this Note will conclude with a discussion describing the extent of uniformity in the imposition of sanctions for perjury and false statements to the court.

I. MODEL RULE AT ISSUE

Perjury and false statements to the court violate Rule 3.3 of the ABA Model Rules of Professional Conduct, entitled "Candor Toward the Tribunal." Model Rule 3.3 prohibits an attorney from knowingly: making a false statement of material fact or law to a tribunal; failing to disclose material facts when necessary to avoid an illegal act by her client; failing to disclose authority known by the attorney to be adverse to her client's position; offering evidence that is false; or failing to disclose material facts with the knowledge that such a failure might mislead the tribunal.2

II. POTENTIAL SANCTIONS

Violations of the duty of candor toward the tribunal under the Model Rule can lead to a number of potential sanctions. In 1979, the ABA published the Standards for Discipline and Disability Proceedings composed by the ABA Joint Committee on Professional Discipline;3 the ABA House of Delegates adopted these black-letter rules as official ABA policy in February 1986.4 Section 6.0 of the ABA Standards generally discusses violations of duties owed to the legal system, and Section 6.1 focuses on false statements, fraud, and misrepresentation.5

Section 6.1 and its Commentary provide the appropriate sanction in cases involving conduct prejudicial to the administration of justice or involving dishonesty, fraud, or misrepresentation to a court. Absent aggravating or mitigating circumstances, these sanctions include disbarment, suspension, reprimand, and admonition.6

Section 6.1 also provides guidelines discussing when each of these possible disciplinary sanctions is appropriate. Disbarment is appropriate when an attorney deceives the court intentionally, through false statements, false documents, or improper withholding of information. 7Specifically, disbarment is appropriate when the attorney's deceit causes either "serious or potentially serious injury to a party" or causes "a significant or potentially significant adverse effect on the legal proceeding."8 A suspension is appropriate when: the attorney knows that false statements or documents are being presented to the court or that information is being improperly withheld; the attorney takes no action to correct the affects of

the false information; and the attorney's failure to take remedial action causes either "injury or potential injury to a party to the legal proceeding" or "an adverse or potentially adverse effect on the legal proceeding."9 A reprimand is appropriate when: an attorney is negligent in determining whether information presented to the court is false or negligent in taking remedial action to correct false or improperly withheld information; and when his negligence causes either "injury or potential injury to a party to the legal proceeding" or "an adverse or potentially adverse effect on the legal proceeding."10 An admonition is appropriate when an attorney "engages in an isolated instance of neglect" in determining the falsity of statements or documents, and when the attorney's neglect causes "little or no actual or potential injury to a party" or "little or no adverse or potentially adverse effect on the legal proceeding."11

The ABA Standards, thus, require a court imposing sanctions to answer each of the following questions:

(1) What ethical duty did the lawyer violate? (A duty to a client, the public, the legal system, or the profession?)

(2) What was the lawyer's mental state? (Did the lawyer act intentionally, knowingly, or negligently?)

(3) What was the extent of the actual or potential injury caused by the lawyer's misconduct? (Was there a serious or potentially serious injury?)

(4) Are there any aggravating or mitigating circumstances?12

The above ABA standards would become the standards adopted by every state bar association if advocates of uniformity in sanctioning succeed. Again, the argument follows the reasoning that uniformity is required to promote fairness; advocates believe that with uniform standards, like cases will be treated alike, and different cases will be treated differently. 13 Before considering the validity of this argument, this Note will examine the premise upon which the argument for uniformity is based. It will examine the sanctions currently imposed for perjury and misrepresentations by attorneys in Florida, Illinois, New York, and the District of Columbia. Only after undergoing such an examination can one consider whether there are flaws in the current system, whether similar cases are in fact being treated differently in the absence of uniform standards, and whether the application of uniform standards would, in fact, promote just resolutions in cases of attorney misconduct.

III. DISTRICT OF COLUMBIA

A. DISCIPLINARY RULE

The District of Columbia rule concerning candor toward the tribunal closely resembles Model Rule 3.3. D.C. Rules of Professional Conduct Rule 3.3 provides that an attorney may not make false statements, assist a client to make false statements, or offer evidence he knows to be false, except that in limited circumstances she may permit her client to testify in narrative fashion, regardless of the veracity of the client's statements.14

B. CASES 15

The District of Columbia cases involving attorneys sanctioned for false representations to a tribunal reveal a wide disparity in sanctions, including public censure, thirty-day suspension, sixty-day suspension, three-month suspension, six-month suspension, eighteen-month suspension, five-year suspension, and disbarment.

1. PUBLIC CENSURE

The District of Columbia Court of Appeals ordered a public censure in In re Benjamin, where an attorney made two misrepresentations to the court. The attorney falsely alleged in one case that an allegation made by his client's ex-wife was barred by res judicata from a family court hearing and falsely alleged in another case that an amended complaint had been delayed because of an agreement between the parties that subsequently fell apart, when in fact there had been no agreement.16

2. THIRTY-DAY SUSPENSION

The District of Columbia court ordered thirty-day suspensions in two cases involving perjury or false representations to the court. In District of Columbia Bar v. Kleindienst, the attorney was found guilty of misrepresentations and dishonest conduct prejudicial to the administration of justice when, in Senate confirmation hearings on his nomination as Attorney General of the United States, he "expressly asserted that no effort had been made by anyone at the White House" to influence Department of Justice conduct in an antitrust litigation. 17 Tape-recorded telephone conversations revealed, however, that then-President Nixon ordered the attorney to "stay out of (the case) .... Don't file the brief (in the Supreme Court).... [D]rop the. . . thing."18

In In re Rosen, the District of Columbia Court of Appeals ordered a thirty-day suspension where the attorney was found to have made three misrepresentations to the court; in two of the misrepresentations he requested delays in the proceedings, stating that his clients were out of the jurisdiction, when in fact they were not; in a third misrepresentation, the attorney asked for more time because his clients did not have enough money to secure witnesses from out of town, when in fact the attorney needed more time because of his own procrastination.'9

3. SIXTY-DAY SUSPENSION

The District of Columbia Court of Appeals ordered sixty-day suspensions in three cases involving perjury or false representations to the court. In In re Waller, the court found that the attorney had lied to the court about a statement made to a mediator. During the mediation the attorney realized that he should have named a surgeon as a defendant, and he falsely explained to the mediator that the surgeon was not named because the attorney also represented the surgeon.20 The attorney

later falsely explained to the judge that he had claimed that he represented the surgeon solely to test the confidentiality of the mediation proceedings.21

In In re Phillips, the court also considered a sixty-day suspension appropriate when an attorney was convicted of criminal contempt for filing a false petition relating to a drug money forfeiture to the United States District Court in Virginia.22

In In re Jones-Terrell, the court also ordered a sixty-day suspension where the attorney falsely alleged in a conservatorship petition that she had been nominated in the subject's durable power of attorney to be a guardian and conservator when, in fact, the subject had executed no power of attorney.23

4. THREE-MONTH SusPENSION

The District of Columbia Court of Appeals ordered a three-month suspension in In re Sandground, after finding that the attorney assisted his client in making false replies to discovery requests regarding his assets in a divorce proceeding and that the false responses to discovery requests were "no different than if [they] had been [in] a formal pleading to be filed in court."24

5. SIX-MONTH SUSPENSION

The District of Columbia Court of Appeals ordered a six-month suspension in In re Wilkins, where the attorney was ticketed for speeding and claimed in court that his excessive speed was justified by undercover work he was doing for the U.S. Customs Service.25 The attorney was able to convince the court to dismiss speeding charge by showing his credentials, but a subsequent investigation by the Virginia police revealed that the attorney no longer worked for the Customs Service, and that the credentials he had displayed to the court were outdated.26 The attorney later pled guilty to obstructing justice by threats or force in order to avoid a perjury charge.27

6. EIGHTEEN-MONTH SUSPENSION

The District of Columbia Court of Appeals ordered a reciprocal eighteen-- month suspension in In re Klein, although it ultimately stayed all but forty-five days of the suspension and ordered eighteen months probation where the attorney falsely represented in two separate probate proceedings that the decedents whose

estates he represented were residents of two different California countries. 28

7. FIVE-YEAR SUSPENSION

The District of Columbia Court of Appeals ordered a reciprocal five-year suspension in In re Klein, where the attorney gave false testimony in relation to a proceeding before the bankruptcy court, filed frivolous motions and motions without leave of court in a legal malpractice action, and made false representations regarding his malpractice insurance in the course of his defense of the legal malpractice action.29

8. DISBARMENT

The District of Columbia Court of Appeals ordered disbarment in two cases. In In re Goffe, the court ordered disbarment when, over a number of proceedings, the attorney repeatedly created evidence, falsified evidence, forged signatures on legal documents, and forged notarizations of signatures.3

In In re Spann, the court ordered reciprocal disbarment, when the attorney was found to have violated more than fifteen ethical rules over five years, including forging documents in court proceedings, facilitating an employee's unauthorized practice of law, charging illegal fees, and making misrepresentations to the CoUrt.31

C. ANALYSIS

A review of the District of Columbia reveals a number of factors determining which offenses receive which sanctions. Some cases involve attorney misrepresentations in cases in which the attorney is involved as a party;32 others involve misrepresentations by an attorney as an advocate.33 Some cases involve misrepresentations regarding the attorney's failure to meet administrative requirements;34 others involve representations regarding material facts.35 Some cases involve isolated incidents, others a small number of discrete incidents, and still others involve an accumulation of incidents over a long period of time.36

Although the gravity of the offense does, in some sense, appear to explain more severe sanctions, it is unclear whether the sanctions could, in any sense, be

described as "uniform." Benjamin made two representations regarding nonmaterial matters and received a public censure,37 whereas Rosen, who made similar representations regarding failures to meet administrative deadlines, received a thirty-day suspension.38 Klein's misrepresentations that decedents he represented in probate lived in two separate counties resulted in an eighteen-- month suspension,39 whereas Kleindienst received only a thirty-day suspension when he lied in a Senate investigation regarding White House interference with a Justice Department investigation.40

The District of Columbia court ordered the most lenient sanctions in cases where the attorneys' misrepresentations regarded failures to meet administrative deadlines.41 It ordered the harshest sanctions only when the attorney had engaged in a series of offenses over an extended period of time.42 Between those extremes, sanctions appear to depend on the individual circumstances of each case.

IV. FLORIDA

A. DISCIPLINARY RULE Like the District of Columbia, Florida's rule regarding candor toward the tribunal closely resembles Model Rule 3.3. Florida Rule of Professional Conduct 4-3.3 prohibits an attorney from making a false statement to any tribunal, assisting her client to commit an illegal fraudulent act, withholding legal authority adverse to her client's position, or permitting a witness to offer false testimony or evidence.43

B CASES

As in the District of Columbia, the Florida cases involving attorneys sanctioned for false representations to a tribunal also reveal a wide disparity in sanctions, including thirty-day suspension, ninety-day suspension, ninety-one-- day suspension, six-month suspension, one-year suspension, three-year suspension, and disbarment.

1. THIRTY-DAY SUSPENSION

The Florida court ordered a thirty-day suspension in The Florida Bar v. Kravitz, where the attorney presented false evidence to the court, misrepresented to an employee/client that he would be arrested if he did not provide a $4,000 fee, misrepresented to opposing counsel that his trust fund contained sufficient funds to cover settlement, and misrepresented to a court that opposing counsel had agreed to proposed orders.44

2. NINETY-DAY SUSPENSION

The Florida court ordered a ninety-day suspension in The Florida Bar v. Corbin.45 The attorney represented a landlady in an action against tenants for rent, and the attorney assisted her in preparing an affidavit stating that no rent had been paid for over a year.46 In fact, the tenants gave the attorney copies of cancelled checks.47 The attorney also filed a motion for summary judgment claiming there was no issue of material fact as to whether any payments had been made, when in fact the cancelled checks placed that material fact at issue.48

3. NINETY-ONE-DAY SUSPENSION

The Florida court ordered ninety-one-day suspensions in two cases. In The Florida Bar v. Norvell, the attorney acquired an interest in an apartment complex, but when he applied to represent the complex in bankruptcy proceedings, he told the judge that he had no interest in the complex.49

In The Florida Bar v. Cibula, the court ordered a ninety-one-day suspension after the attorney intentionally misrepresented his income to the court at hearings in connection with required alimony payments.50

4. SIX-MONTH SUSPENSION

The Florida court ordered a six-month suspension in The Florida Bar v. Colclough, where the attorney misrepresented to the judge and to opposing counsel that he had already won a hearing on costs in a case regarding a monetary judgment, when in fact no hearing had yet been held.51

5. ONE-YEAR SUSPENSION

The Florida court ordered a one-year suspension in two cases. In The Florida Bar v. Abrams, the attorney initially represented a criminal defendant against whom three witnesses with immunity were prepared to testify.52 The attorney convinced two of the three witnesses that they might actually be prosecuted for the crimes for which the government had offered them immunity; they refused to testify, and the attorney offered to represent them.53 Prior to each of the witness' trials, he filed a motion to withdraw and did not appear at the trial.54 At the trial of the original defendant, the attorney told the court that he represented the third witness when, in fact, he did not.55

In The Florida Bar v. Rood, the court ordered two one-year suspensions for an attorney involved in two separate incidents.56 The attorney was suspended for one year in a case where he mistakenly transferred a settlement to the parents of a client rather than into a guardianship account. After the parents spent the money, the attorney encouraged the parents to sign false documents regarding repayment of the money, and submitted the false documents to the probate court.57 The attorney's second suspension arose from a case in which the attorney allowed his son to immediately transfer a warranty deed for a property to the attorney, in order to defraud a creditor of his son. The attorney then fraudulently swore to the civil court that he was unaware of the judgment against his son at the time of transfer.is

6. THREE-YEAR SUSPENSION

The Florida court ordered three-year suspensions in two cases. In The Florida Bar v. Hmielewski, the attorney represented a plaintiff in a medical malpractice case and knew that his client had possession of medical records at issue in the case; however, the attorney responded in the negative to the hospital's interrogatories as to whether the client had the records.59 Furthermore, the attorney reported to the trial court that one of the material issues in the case was the hospital's failure to maintain records.60 Finally, the attorney offered testimony by an expert witness, which he knew was based on the belief that the hospital lost the records.61

In The Florida Bar v. Vining, the Florida court ordered a three-year suspension where the attorney, who had been replaced by new counsel in divorce proceedings, made a fraudulent misrepresentation to the circuit court that funds in a bank account were to be released to him to pay his fee, when in fact he had already executed a release on any interest he may have had in those funds.62

7. DISBARMENT

The Florida Court ordered disbarment for perjury or false representations in seven cases. In The Florida Bar v. Merckle, the attorney was a judge who lied under oath and was convicted of perjury.63 The judge had sentenced a defendant before his court to three years in prison; however, at the request of another judge, who was a friend of the defendant's father, he changed the sentence to five years probation and a fine without the agreement of the Assistant State Attorney in charge of the case.64 In fact, he told the Assistant State Attorney at the resentencing that he had obtained the agreement of another Assistant State Attorney when, in fact, he had not.65 Later, upon inquiry by the Judicial Qualifications Commission, the judge perjured himself, claiming that he had not communicated with the second judge regarding the defendant's sentence.66

In The Florida Bar v. Onett, the Florida court ordered disbarment after the attorney was convicted of mail fraud conspiracy, conspiracy to obstruct interstate commerce by extortion, obstruction and attempted obstruction of interstate commerce by extortion, mail fraud, and two counts of perjury.67 The number of criminal convictions involved perhaps explains the court's cursory disposition of the case.

In The Florida Bar v. Leon, the Florida court ordered disbarment where the attorney, who was also a judge, was convicted of perjury in connection with an investigation into ex parte communications with another judge.68 This is the case of the second judge involved in the criminal resentencing discussed above in In re Merckle. Like Merckle, the judge in this case falsely testified to the Judicial Qualifications Commission that he had not had communications with the other judge.69

In The Florida Bar v. Ryder, the Florida court ordered disbarment after the attorney was convicted of three counts of perjury in connection with sworn testimony before the grand jury.70 As in Onett, given the presence of three established criminal convictions, the court presented little discussion of the case.

In The Florida Bar v. Swickle, the Florida court ordered disbarment after the attorney told an undercover officer that he had the ability to bribe a judge in order to lower the bond on an arrested acquaintance of the undercover officer.71 The attorney subsequently misrepresented facts to the judge regarding the arrested acquaintance's employment, residence, and family in order to persuade the judge to lower the bond.72 Although there was evidence that the attorney in fact bribed the judge, the referee did not find the evidence clear and convincing.73

In The Florida Bar v. Rightmyer, the Florida court ordered disbarment after the attorney was convicted of perjury. The attorney pled nolo contendere to three counts of perjury arising from his deposition and trial testimony in a civil mortgage foreclosure suit in which he falsely claimed that $5,000 due to be paid by a third party to an acquaintance of his on a commercial loan was not an interest payment (which may have been usurious) but rather was a portion of the balance.75

In The Florida Bar v. Kaufman, the Florida court ordered disbarment where the attorney engaged in fraud, perjury, and deception in an attempt to conceal his assets following an entry of judgment against him.76 The attorney, as landlord, had filed an action against two tenants to recover possession of leased premises; the tenants filed a counterclaim for defamation and severe emotional distress.77 The tenants won a judgment for over $333,000 and attorney's fees.78 In proceedings to collect the judgment, the attorney "engaged in tactics to thwart

discovery of his assets by testifying falsely about his assets and their whereabouts, by transferring assets to another account, and by dissipating his assets."79

C. ANALYSIS

A review of the Florida cases, like the District of Columbia cases, reveals a correlation between increasing gravity of harm and increasing severity of sanction. As in the District of Columbia cases, although the correlation may exist, no clear uniformity emerges.

The Florida court does appear to be uniform in one aspect; if an .attorney is convicted of a crime, he will be disbarred. All attorneys who had been convicted of crimes were disbarred.80 However, other than disbarment, the sanctions in Florida present the same lack of uniformity as the cases in the District of Columbia. Vining, who made a fraudulent representation that funds in a bank account were to be released to him, received a three-year suspension.81On the other hand, Abrams, who interfered in criminal proceedings by convincing witnesses with immunity to drop their testimony, agreeing to represent them and then withdrawing before their trials, and representing fraudulently to the judge that he represented a third witness when he did not, received only a one-year suspension.82 Hmielewski, who assisted his client in hiding the medical records by replying falsely to interrogatories and misleading the court, received a three-year suspension.83 In contrast, Rood, who helped clients misappropriate money that was supposed to be in a trust account and misled the court regarding that fact, and also helped his son defraud a creditor by receiving a warranty deed in a real estate transaction, received only a one-year suspension.84

V. ILLINOIS

A. DISCIPLINARY RULES

Standards for attorney discipline in Illinois emanate from Articles VII and VIII of the Illinois Supreme Court Rules.85 Article VII contains the state's Rules on Admission and Discipline of Attorneys, and Article VIII encompasses the Illinois Rules of Professional Conduct. 86 Although it does not state a clear standard for distinguishing between misconduct warranting disbarment and misconduct

warranting less severe disciplinary measures,87 Article VII displays Illinois' particular sensitivity to attorney misconduct involving dishonesty.88 When supplemented by Article VIII's numerous references to the undesirability of dishonest conduct, the more general and vague language of Article VII, which provides only broad concepts to apply in sentencing a disciplinary infraction, takes on added significance where an attorney is found guilty of a crime involving a misrepresentation.89 Still, apart from Rule 761's call for the provisional suspension of an attorney convicted of a crime involving fraud or moral turpitude, the Illinois Rules offer little insight into the state's standards with respect to appropriate sanctions for various dishonesty-related offenses.90

Illinois Rules of Professional Conduct Rule 3.3, entitled "Conduct Before a Tribunal" and patterned after Model Rule 3.3, addresses dishonest conduct by attorneys but expresses the subject matter with greater specificity.91 For example, whereas the Model Rule simply prohibits a lawyer from making a false statement

to a tribunal, the Illinois Rule narrows the definition of "false statement" with the clause, "which the lawyer knows or reasonably should know is false."92 A similar clause is included in Illinois' version of Model Rule 33(a)(2).93 The Illinois rule also forbids a variety of specific conduct that it is not expressly prohibited by Model Rule 3.3, including creation or preservation of false evidence, counsel of a client in conduct known by the lawyer to be illegal, and payment of a witness contingent on the content of the testimony or the outcome of the case.94

B. CASES

Illinois courts have imposed a wide range of sanctions upon attorneys found to be in violation of Illinois Rule 3.3, including censure, two-year suspension, three-year suspension, five-year suspension, indefinite suspension, and disbarment.

1. CENSURE

In In re Winn, the Illinois court, noting an absence of any corrupt motive, ordered the censure of an attorney who was negligent in representing his clients' interests and made misrepresentations to his client concerning the status of the client's litigation.95

2. Two-YEAR SUSPENSION

The Illinois court ordered two-year suspensions in three cases involving dishonesty. In In re Howard, the attorney made misrepresentations about a past suspension in a petition to practice pro hac vice in another jurisdiction and engaged in the practice of law while under a prior suspension.96 The two-year suspension was expressly chosen, rather than disbarment, because the attorney provided years of dedicated service to the community, cooperated with the disciplinary process, and expressed remorse.97

In In re Joyce the Illinois court found a two-year suspension appropriate when the attorney failed to preserve the identity of funds and property of his client and was found to have engaged in conduct involving dishonesty, deceit, or misrepresentation.98

In In re Guilford, the third two-year suspension case, an attorney neglected a matter entrusted to him by a client and made misrepresentations to the client and to the administrator of the Attorney Registration and Disciplinary Committee in an attempt to obstruct the disciplinary investigation into his actions.99

3. THREE-YEAR SUSPENSION

The Illinois court ordered a three-year suspension in In re Cetwinski, where an attorney mailed false billing statements to clients, provided false statements to government investigators to cover up his fraudulent activities, and claimed a bribe to a public official as a business deduction on his tax return.100 The court noted that disbarment might have been warranted had it not been for mitigating factors, including evidence that the attorney had expressed remorse, discontinued improper payments prior to the investigation into his conduct, independently began a pro bono program to provide free legal services to senior citizens, and made restitution.101

4. FIVE-YEAR SUSPENSION

The Illinois court ordered five-year suspension in In re Anglin, where an attorney commingled a client's funds to finance personal ventures and made false representations to the Committee on Inquiry, indicating that the funds had been returned to the client. 102

5. INDEFINITE SUSPENSION

The Illinois court ordered suspension until further order of the court in In re Rinella, where the attorney used his superior position as a women's legal representative to gain sexual favors from her and then gave false testimony to the Attorney Registration and Disciplinary Commission regarding his actions.103

6. DISBARMENT

The Illinois court ordered disbarment for acts of dishonesty in three cases. In the first case, In re Lewis, the attorney was found to have engaged in a pattern of gross misconduct including commingling and conversion of client funds, neglecting a legal matter, intentionally damaging a client, charging excessive fees, and lying during testimony before a disciplinary committee.104 The court

held that disbarment was appropriate despite a lack of disciplinary history, because the attorney failed to recognize the wrongfulness of his actions, which resulted in at least eighteen violations of at least eleven disciplinary rules.105

In the second case, In re Ingersoll, the attorney filed a false affidavit on behalf of a client in two separate disciplinary proceedings, commingled personal funds with client funds, improperly revealed client confidences without the client's knowledge or consent, and knowingly filed false statements in court documents.106

In the disbarment third case, In re Bell, the attorney filed a false affidavit before the Supreme Court of Tennessee, neglected criminal and civil matters, gave false testimony to the Attorney Registration and Disciplinary Commission, and received five federal convictions for making false statements to influence a bank in its evaluation of loan applications.107

C. ANALYSIS

In almost every Illinois opinion imposing lawyer sanctions, the court addressed the attractiveness of uniformity of sanctions for like offenses, but qualified its pursuit of that ideal with the disclaimer that each case must be resolved on facts and the circumstances peculiar to it. 108 So, while the Illinois court strives to treat similar violations of its rules similarly, it is constrained by the simple fact that no two cases are ever so factually similar as to require the same result with the same supporting reasons. 109

As in the District of Columbia and Florida, questions arise as to why similar offenses appear to be result in different sanctions. For the most part, however, the Illinois court makes distinctions between repeat conduct and one-time offenses; 110 between attorneys who show remorse for and remedy their wrongs and those who fail to take responsibility for their actions;111 between attorneys who violate rules for person gain and those who act for a perceived benefit of another;112 and between individuals with a history of pro bono service and

community activity and those records indicate little or no contribution to their community.113

VI. NEW YORK

A. DISPLINARY RULES

Disciplinary Rule 7-102 of the New York Code of Professional Responsibility, entitled "Representing a Client Within the Bounds of the Law," deals with attorney conduct involving dishonesty. 114 New York's rules regarding attorney misconduct and the appropriate sanctions therefor, unlike those used in the District of Columbia, Florida and Illinois, do not rely on the Model Rules but ultimately, the New York Rule covers many of the same points as the Illinois Rule, such as knowing misstatements of law or fact, participation in the creation or preservation of evidence known to be false, and counsel of a client in conduct known to be illegal or fraudulent.115

The language of the New York Rule conveys its message somewhat generally, in part requiring reference to other laws or rules to interpret its intent. Thus, the New York Code of Professional Responsibility operates in conjunction with Section 90 of the New York Judiciary Law in this area. Section 90 of the New York Judiciary Law requires the disbarment of any attorney convicted of a

felony.116 "Felony," for the purposes of attorney disbarment, is defined as "any criminal offense classified as a felony under the laws of this state or any criminal offense committed in any other state, district, or territory of the United States and classified as a felony therein which if committed within this state, would constitute a felony."117Section 90 also requires suspension of any attorney convicted of a "serious crime," pending review of the attorney's misconduct.118 Sect. 90(4)(d) defines "serious crime" as "any criminal offense denominated a felony under the laws of any state, district or territory or of the United States which does not constitute a felony under the laws of this state, and any other crime a necessary element of which, as determined by statutory or common law definition of such crime, includes interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or conspiracy or solicitation of another to commit a serious crime."119 These disciplinary sentencing requirements work to provide some sense of structure to the discipline of attorney dishonesty offenses.

B. CASES

Although New York cases impose suspensions that vary in length depending on the seriousness of the offense and relevant mitigating factors, most attorney misconduct involving a lack of candor toward a tribunal has resulted in disbarment, especially because of the classification of perjury as a felony under the New York Penal Law. Lesser sanctions have been handed down in cases that involved less flagrant deceit than outright perjury.

1. CENSURE

The New York Appellate Division ordered the censure of an attorney who engaged in professional misconduct involving dishonesty, deceit, and misrepresentation in In re Abrams. 120 The charges stemmed from the attorney's willful failure to answer questions pertinent to a Congressional inquiry.121

2. THREE-MONTH SUSPENSION

In In re Chulak, the New York court ruled that a three-month suspension was warranted for a New York attorney who had been disciplined in New Jersey for

"lack of candor toward a tribunal, assisting a non-attorney in the unauthorized practice of law, and misrepresentations."122

3. SIX-MONTH SUSPENSION

In In re Eskin, the New York Appellate Division ordered that an attorney be suspended for six months after he forged and falsely notarized his client's signature to the notice of a claim in a personal injury action he served after the statute of limitations had expired. 123 The attorney had also served a second notice containing material misrepresentations regarding the date of his client's injury to avoid having the action barred because of the expiration of the statute. 124

4. ONE-YEAR SUSPENSION

The New York Appellate Division ordered the one-year suspension of an attorney who executed a sworn affidavit containing false assertions and engaged in conduct involving deceit and misrepresentation to conceal his neglect of estate matters, which operated to the substantial detriment of his clients in In re Silberstein. 125

5. FOUR-YEAR SUSPENSION

The New York court suspended an attorney for four years in Matter of Janoff, citing misconduct involving fraud, deceit, or misrepresentation, participation in the creation or preservation of evidence known to be false, and intentionally assisting of a client in illegal or fraudulent conduct.126 The attorney was found to be complicit in the submission of false and misleading medical reports.127

6. DISBARMENT

The New York court ordered disbarment in a number of cases involving deceit and misrepresentation before a tribunal, many due to New York's automatic disbarment rule for attorneys convicted of a felony, such as perjury.128

In a case that did not involve a felony conviction, the New York Appellate Division, in In re Feldman, disbarred an attorney found to have engaged in forgery and "pervasive and venal" misrepresentation in attempts to conceal his

neglect of legal matters entrusted to him by clients. 129 He was disbarred despite a previously unblemished record because, among other reasons, his remorse was found to be "unconvincing" and his misconduct was repeated on at least four occasions. 130

C. ANALYSIS

A proportional approach may be detected in the sanctioning of attorneys in New York. Cases in which attorneys have been automatically disbarred because of a felony conviction clearly reflect New York's steadfast position against serious lawyer misconduct, but they are less informative with respect to judicial enforcement of sanctioning standards. In the cases where the court did not have the benefit of the automatic disbarment rule, penalties were generally based on the seriousness of the offense, the nature of the harm caused, and the underlying circumstances that aggravated or mitigated the offense."131

The distinction between Abrams, where the court censured the attorney involved, and Chulak, where a three-month suspension was imposed, appears to be the affirmative behavior of the attorney in the latter case. In Abrams, the lawyer simply refused to respond to official inquiries, whereas in Chulak, the attorney was found to have displayed a lack of candor toward a tribunal and made misrepresentations in other circumstances. 132 Likewise, in Silberstein, an attorney was suspended for one year for executing a sworn affidavit containing false assertions and for engaging in behavior involving deceit and misrepresentation to conceal wrongdoing to the detriment of his clients.133 Arguably, the harm to the clients in Silberstein justified a suspension longer than that imposed in Chulak, where no resulting harm was mentioned by the court. 134 These cases appear to demonstrate the proportional New York sentencing approach.

CONCLUSION

If nothing else, a review of four major states' standards for sanctioning lawyers found to be in violation of those states' rules against fraud, deceit, and misrepresentation reveals that, in the pursuit of uniformity, advocates may be overlooking a problem fundamental to our federalist system. The relative autonomy of state legislatures, courts, and bar associations certainly results in some apparent discord between how state judiciaries sanction similar offenses.

But more often, it is the minutiae of a given case, such as respondents' past records, the harm caused, the professional or extra-professional circumstances surrounding the case, and other aggravating or mitigating circumstances that force a court to handle similar offenses differently. No matter how much a state may desire uniformity of sanctions, each state judiciary recognizes the need for a case-by-case evaluation of lawyer misconduct.

That is not to say that uniformity as a goal is undesirable, even given its limitations. The benefits of sanctioning attorneys who have committed similar offenses in a similar manner appeals to our notions of comparative justice. It only seems fair that individuals who intentionally deceive should be punished more severely than individuals who knowingly permit deception. Likewise, the latter should be punished more severely than individuals who negligently permit deception. It violates a sense of fairness if an individual who commits an intentional deception in one jurisdiction is punished less severely than an individual who commits a knowing deception in another jurisdiction. Nevertheless, in a federal system with autonomous state judiciaries, comparative injustices, whether real or merely perceived, will likely continue.

Perhaps this perceived injustice is what spurs advocates of uniformity. Although adoption of uniform standards across jurisdictions will not necessarily create absolute uniformity in sanctions, uniform standards would likely decrease incidents of comparative injustice. This Note reveals that, even within states operating under the same guidelines, no clear patterns of uniformity emerge. This lack of uniformity results from the fact that the judicial process examines individuals and individual situations in their entirety; no two individuals or cases will have exactly similar characteristics, and thus no uniformity in sanctions results. Nevertheless, advocates of uniform standards might be correct that the adoption of uniform standards will result in greater uniformity among individuals who have engaged in similar acts of misconduct in different jurisdictions.

JOHN D. FABIAN* & BRIAN REINTHALER**

* J.D. Georgetown University Law Center, May 2002 (expected).

** J.D. Georgetown University Law Center, May 2002 (expected).

Copyright Georgetown University Law Center Summer 2001
Provided by ProQuest Information and Learning Company. All rights Reserved