Friday, January 16, 2009

Suspension For False Testimony

The full Massachusetts Supreme Judicial Court yesterday remanded a bar discipline matter to a single justice with direction to impose a six-month suspension of an assistant district attorney found to have testified falsely under oath at a trial in Tennessee where she had been the victim of a domestic assault. The incident had taken place when the attorney was clerking for a federal judge in Nashville and was involved in a romantic relationship with the defendant. A hearing committee had recommended a reprimand. The court noted significant mitigation:

From the immediate aftermath of the January, 2005, incident until the day of Knox's trial, the respondent was clear and unequivocal that she neither wanted to press charges against Knox nor wanted to testify at trial. Yet, her wishes were ignored, and she was called as a witness against Knox. The hearing committee found credible the opinions of Dr. Rosmarin that the respondent's false testimony was "genuinely but superficially motivated by a moral decision to protect Mr. Knox," that she had a "cognitive blind spot" for her own ethical and legal jeopardy, and that her focus was on protecting Knox and his children. The committee also credited the testimony of Dr. Harney that the respondent "was not cognizant of engaging in unethical behavior during her false testimony." In all, the respondent's dysfunctional psychological state, brought about by the domestic abuse, was a substantial contributing cause of her misconduct. Bar counsel accepts that the respondent did not act for a selfish motive. In addition, the hearing committee credited the testimony of Dr. Rosmarin that, because the respondent has accepted responsibility for her actions and has received psychological treatment, she is highly unlikely to breach her ethical duties again and is "more likely to be hyper alert to even gray zone improprieties." These unique and compelling mitigating circumstances warrant a downward departure from the sanction of a two-year suspension.

By the same token, we cannot overlook or minimize the fact that the respondent knowingly gave false testimony, under oath, at a criminal trial, the result of which was that the charges against Knox were dismissed. As Drs. Rosmarin and Harney testified, the physical and emotional trauma suffered by the respondent was considerable, and it served to explain and put into perspective the underlying reasons for her false testimony. However, those reasons did not negate the fact of the respondent's misconduct. Contrary to the respondent's contention, even though she may not have made her false statement while she, herself, was engaged in the practice of law, the respondent made such statement while participating in a formal legal proceeding at which she was obligated to give truthful testimony. Moreover, the seriousness of that misconduct cannot be downplayed simply by saying that the matter about which she testified falsely was a private one that arose in the context of a purely personal relationship. When the respondent was admitted as an attorney in this Commonwealth, she took an oath of office pursuant to G.L. c. 221, ยง 38, in which she solemnly swore, among other things, that she would "do no falsehood, nor consent to the doing of any in court." All attorneys, whether those of long standing or those recently admitted to the Massachusetts bar, are expected to know and understand their professional obligation to be truthful in court. It is a simple and unambiguous standard of ethical conduct, and the respondent violated it. Notwithstanding the substantial mitigating factors in this case, we cannot condone the actions of an attorney in giving false testimony under oath, irrespective of the circumstances. We conclude that the appropriate disciplinary sanction for the respondent's misconduct is a six-month suspension from the practice of law.

We recognize and share the board's concern about the perceived inequity of sanctioning the respondent more severely than attorneys who have been convicted of domestic assault. See Matter of Grella, 438 Mass. 47, 51 (2002) (attorney suspended for two months after conviction of misdemeanor arising from violent assault on estranged wife). As we have stated, "[e]ngaging in violent conduct is antithetical to the privilege of practicing law." Id. at 52. The distinction with respect to the circumstances of the present case is that the respondent's misconduct occurred in the context of testifying under oath in a criminal trial. Such misconduct was a violation of the fundamental tenets of her oath of office and of her ethical obligations, matters at the very heart of the legal profession.

The case is Matter of Balliro. Readers may recall that we posted a Minnesota decision yesterday concerning an attorney who was suspended for 90 days for testifying falsely in a deposition where there did not appear to be mitigation such as that found here.(Mike Frisch)

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