Friday, July 7, 2006
Assistant United States Attorneys have come in for criticism in two recent opinions regarding the veracity of their statements to courts. In United States v. Stein, the prosecution of 16 former KPMG partners and employees, U.S. District Judge Lewis Kaplan criticized the government's assertions regarding pressure it put on KPMG to cut off attorney's fee payments for the defendants despite a long-standing firm policy to pay such expenses. In addition to finding the application of the Department of Justice's Thompson Memo resulted in a constitutional violation, Judge Kaplan also noted that the prosecutors were "economical with the truth" in their filings and testimony. While not calling them liars, the judge clearly implied that their statements were not fully truthful and misleading in several places.
U.S. Attorney Michael Garcia responded by sending a letter to the court (available below), dated only four days after the opinion, asking the court to withdraw the statement regarding being "economical with the truth," change the characterization of the testimony of prosecutors, and withdraw references to the prosecutors by name. Garcia's letter states, "The Government's stance in connection with this matter was an Office position, and the Government's submissions were approved by layers of supervisors. If the Court continues to find fault with those submissions, the fault should not be attributed to individual prosecutors." That raises an interesting question about the responsibility of individual lawyers for statements made on behalf of the government. The professional responsibility rules govern individual lawyers, not law firms or government offices, and while a submission on behalf of the United States is not that of an individual lawyer, there are people behind the statements. Should judges avoid naming names when they observe misconduct? Garcia's letter raises fair questions about Judge Kaplan's interpretation of the evidence, but that is more appropriately advanced in a motion for reconsideration. The question of keeping a prosecutor's name out of a judicial opinion, if the person is found to have been "economical with the truth," is a much tougher one, I think, because if only "the Office" is responsible then perhaps no one really is held accountable.
In United States v. Clark (here), Ninth Circuit Judge Alex Kozinski wrote a concurring opinion asserting that the AUSA arguing the case tried to mislead the court about record support for a judicial finding relevant to a sentencing enhancement. While the majority held that the lawyer's reference to a sentence fragment in the record was not intended to be misleading and could be interpreted as supporting the goverment's argument, Judge Kozinski found otherwise, stating:
I don’t believe that quoting portions of a sentence while leaving out key qualifiers is reasonable conduct for an attorney of this court. I don’t believe that making assertions in a brief regarding disputed factual points, without providing a citation to the record, amounts to reasonable attorney conduct. I don’t believe that ignoring the context of statements in the record — the timing, circumstances and purpose — amounts to reasonable conduct. In short, I don’t believe that it is appropriate or reasonable for a lawyer to pluck a few words from the middle of a sentence and pretend that they say something very different from what they mean in context. This is true of every lawyer who appears before us, but it goes doubly for lawyers who represent the government in criminal cases. See United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993), ("Prosecutors are subject to constraints and responsibilities that don’t apply to other lawyers. While lawyers representing private parties may—indeed, must—do everything ethically permissible to advance their clients’ interests, lawyers representing the government in criminal cases serve truth and justice first.").
The cite to Kojayan is interesting because in that case, the slip opinion identified by name the AUSAs responsible for misstatements to the court, but the opinion in the bound volume had the names removed. Similarly, while Judge Kozinski's concurrence in Clark finds that the AUSA's conduct was unreasonable, there is no mention of the person's name. Is this another situation where "the Office" takes the responsibility but not the individual? Clark involves a concurring opinion, so it is more appropriate to keep the lawyer's name out of the reported decision. As lawyers subject to the same professional responsibility rules as other lawyers, I think a good argument can be made that there is a need for some individual accountability when a prosecutor misstates the record or is "economical with the truth." If identifying the AUSA by name is not the best vehicle, then something else should be used to make it clear to the public that such conduct is a violation of the rules of the profession. (ph)
UPDATE: The Wall Street Journal Law Blog reports (here) that Judge Kaplan denied the U.S. Attorney's request to modify the opinion, including refusing to remove the names of the AUSAs. It will probably be a few more weeks before a decision is made on appealing the decision, assuming the government can appeal under the collateral order doctrine. KPMG is not a party to the case, so it's hard to see how it has standing to seek review. (ph)