Filed: Dec. 02, 2011
Latest Update: Feb. 22, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT IN THE MATTER OF THOMAS F. LIOTTI, ESQ., No. 10-9504 Respondent. On Notice to Show Cause Before the Fourth Circuit Standing Panel on Attorney Discipline. Argued: October 27, 2011 Decided: December 2, 2011 Before MOTZ, KING, and DUNCAN, Circuit Judges. Public admonishment imposed by published opinion. Judge King wrote the opinion, in which Judge Motz and Judge Dun- can joined. COUNSEL Thomas Edward Vanderbloemen, GALLIVAN, WHIT
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT IN THE MATTER OF THOMAS F. LIOTTI, ESQ., No. 10-9504 Respondent. On Notice to Show Cause Before the Fourth Circuit Standing Panel on Attorney Discipline. Argued: October 27, 2011 Decided: December 2, 2011 Before MOTZ, KING, and DUNCAN, Circuit Judges. Public admonishment imposed by published opinion. Judge King wrote the opinion, in which Judge Motz and Judge Dun- can joined. COUNSEL Thomas Edward Vanderbloemen, GALLIVAN, WHITE..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
IN THE MATTER OF THOMAS F.
LIOTTI, ESQ., No. 10-9504
Respondent.
On Notice to Show Cause Before the
Fourth Circuit Standing Panel on Attorney Discipline.
Argued: October 27, 2011
Decided: December 2, 2011
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Public admonishment imposed by published opinion. Judge
King wrote the opinion, in which Judge Motz and Judge Dun-
can joined.
COUNSEL
Thomas Edward Vanderbloemen, GALLIVAN, WHITE &
BOYD, P.A., Greenville, South Carolina, for Respondent.
Michael L. Rigsby, MICHAEL L. RIGSBY, P.C., Richmond,
Virginia, as prosecuting counsel.
2 IN THE MATTER OF LIOTTI
OPINION
KING, Circuit Judge:
By Notice to Show Cause issued on January 5, 2011 (the
"Notice"), this Court’s Standing Panel on Attorney Discipline
initiated disciplinary proceedings against respondent Thomas
Liotti, a member of the New York bar and the bar of this
Court, arising from his conduct during the appeal in United
States v. Giannone, No. 07-4844(L).1 The Notice levied five
separate charges against Liotti for violations of the applicable
rules of professional conduct, primarily for factual misrepre-
sentations. Liotti responded to the Notice, acknowledging var-
ious misrepresentations but maintaining that they were neither
intentional nor worthy of disciplinary action. We disagree and
conclude that Liotti’s conduct did, in fact, contravene the
applicable rules of professional conduct. As a result, as fur-
ther explained below, we impose a public admonishment.2
I.
A.
The five charges contained in the Notice are summarized
and explained as follows.
1
On March 8, 2007, Mr. Liotti’s client in the underlying proceedings,
Jonathan Giannone, was convicted by a jury in the District of South Caro-
lina of three counts of violating 18 U.S.C. § 1343 (wire fraud), plus two
counts of violating 18 U.S.C. § 1028A (aggravated identity theft). Gian-
none was sentenced to sixty-five months in prison. Liotti was retained to
represent Giannone at trial, and he handled Giannone’s appeal to this
Court on a court-appointed basis. By our unpublished decision of January
7, 2010, we affirmed Giannone’s convictions, vacated his sentence, and
remanded for resentencing. See United States v. Giannone, 360 F. App’x
473 (4th Cir. 2010) (per curiam).
2
Until now, these disciplinary proceedings have for the most part been
under seal.
IN THE MATTER OF LIOTTI 3
1.
According to the First Charge, Mr. Liotti improperly joined
separate and unrelated quotations in the Giannone reply brief,
causing them to appear as a single exchange on the same
topic. By combining these separate passages — located two
pages apart in the trial transcript — as a single series of ques-
tions and answers, Liotti created the erroneous impression
that the passages were actually sequential, rather than sepa-
rate, the effect of which tended to support his contention that
the government had failed to prove an offense.
2.
The Second Charge alleges that Mr. Liotti, in the Giannone
opening brief, falsely accused the trial judge of suppressing
evidence. Namely, Liotti asserted on appeal that the judge
improperly withheld a letter written to her by an informant,
revealing that the informant had used illegal drugs while
working with government agents in Giannone’s case. The
informant’s letter — dated March 1, 2007, four days prior to
the March 5 commencement of Giannone’s trial — was both
postmarked and received by the district court after the trial
concluded on March 8.3 In denying Giannone’s request for a
3
The informant’s letter was submitted to our Court in the Giannone
joint appendix, but was filed by the district court in the informant’s crimi-
nal case with the following docket entry:
ORDER as to Brett Shannon Johnson: This court received a letter
from Defendant Brett Johnson on March 13, 2007. This letter
appears to have been postmarked March 12, 2007, although the
letter itself is dated March 1, 2007. The Clerk is directed to file
this letter as of the filing date of this order and maintain the origi-
nal letter and its envelope until further order of this court. Signed
by Judge Cameron McGowan Currie on 3/16/2007.
Docket Entry No. 54, United States v. Johnson, No. 3:06-cr-01129 (D.S.C.
Mar. 16, 2007). The informant’s letter to the judge is also logged on the
docket sheet of Giannone’s district court proceedings as an exhibit to
Giannone’s pro se habeas corpus petition. See United States v. Giannone,
No. 3:06-cr-01011 (D.S.C. Sept. 7, 2010).
4 IN THE MATTER OF LIOTTI
new trial, the judge found that the court had received the letter
on March 13, 2007. Also, according to the judge, the letter
appeared to be postmarked March 12, 2007. The envelope
containing the letter reflects that the U.S. Marshal x-rayed it
on March 13, 2007. Notwithstanding the court’s explicit find-
ing to the contrary, Liotti asserted in the Giannone opening
brief that the judge "received the letter on March 1, 2007,"
and the brief insisted that she "sat on this letter during the
course of the trial." Br. of Appellant 80.
3.
The Third Charge alleges that, in the Giannone opening
brief, Mr. Liotti misrepresented facts pertinent to an unsuc-
cessful change of venue motion. In support of his appellate
contention that venue should have been transferred to New
York, Liotti accused the government of intentionally overesti-
mating the expected length of Giannone’s trial — i.e., that it
would last approximately two weeks — and maintained that
the government had padded its estimate in order to keep the
case in South Carolina and defeat the venue motion. In reality,
it was Liotti who estimated the trial would last two weeks; the
government actually disagreed, surmising that the trial would
last "3-4 days." See United States v. Giannone, No. 3:06-cr-
01011 (D.S.C. Mar. 2, 2007). In its response brief, the gov-
ernment exposed Liotti’s misstatement and Liotti replied in an
inappropriately discourteous manner.
4.
As to the Fourth Charge, the Notice alleges that Mr. Liotti
made misrepresentations in a sworn Declaration filed in the
district court and invoked on appeal. Liotti’s Declaration
asserted, inter alia, that Giannone had conducted an internet
chat on a computer in Liotti’s office prior to trial, and that the
chat established Giannone’s innocence. By filing the Declara-
tion, Liotti could have become a witness in his client’s case.
On appeal, Liotti relied on the Declaration to argue his cli-
IN THE MATTER OF LIOTTI 5
ent’s innocence, even though Giannone had made post-trial
admissions to a government agent that he had faked the inter-
net chat. Liotti did not, however, reveal his client’s post-trial
admissions to this Court.
5.
Finally, the Fifth Charge alleges that, in the Giannone reply
brief, Mr. Liotti asserted without any record support that two
of the Secret Service agents involved in Giannone’s investiga-
tion had been fired for misconduct. At oral argument, Liotti
sought to downplay the unsupported revelation, offhandedly
maintaining that the government was in a better position to
provide evidence concerning disciplinary actions against the
officers.4
B.
The Notice directed Mr. Liotti to demonstrate why appro-
priate disciplinary measures, authorized by the Local Rules of
Appellate Procedure of this Court (the "Local Rules"), should
4
After setting forth the details of the five charges, the Notice summa-
rized the charges as follows:
The [First Charge] described supports the conclusion that
Respondent Liotti combined transcript excerpts in a manner that
enabled him to misstate the evidence of record in support of
defendant Giannone’s appeal. The [Second Charge] shows that
Respondent falsely accused the trial judge of suppressing evi-
dence during trial when the record clearly supported the trial
judge’s explicit finding that the evidence was received after trial.
The [Third Charge] indicates that Respondent falsely accused the
government of misleading the trial court and, when corrected,
criticized opposing counsel in a discourteous manner. In the
[Fourth Charge], Respondent submitted a witness declaration in
a case in which he was serving as advocate and failed to correct
inaccuracies in the declaration. And the [Fifth Charge] shows that
Respondent made factual allegations in support of his client for
which he had no basis.
Notice 8-9.
6 IN THE MATTER OF LIOTTI
not be imposed. The Local Rules provide, in the pertinent part
of Rule 46(g), that
(1) A member of the bar of this Court may be dis-
ciplined as a result of
...
(c) Conduct with respect to this Court
which violates the rules of profes-
sional conduct or responsibility in
effect in the state or other jurisdiction
in which the attorney maintains his . . .
principal office[.]
Local R. App. P. 46(g)(1)(c).
The Notice referenced relevant portions of the New York
Rules of Professional Conduct (the "New York Rules"),
which apply in these proceedings because Mr. Liotti’s office
is located in the State of New York. The New York Rules
provide, inter alia, that a lawyer shall not "engage in conduct
involving dishonesty, fraud, deceit or misrepresentation[.]"
N.Y. Rules Prof’l Conduct R. 8.4(c) (emphasis added). The
New York Rules further specify that a lawyer shall not know-
ingly "make a false statement of fact or law to a tribunal or
fail to correct a false statement of material fact or law previ-
ously made to the tribunal by the lawyer." N.Y. Rules Prof’l
Conduct R. 3.3(a)(1), 3.3(f)(2). These Rules also bar a lawyer
from knowingly "offer[ing] or us[ing] evidence that the law-
yer knows to be false" and "engag[ing] in undignified or dis-
courteous conduct." N.Y. Rules Prof’l Conduct R. 3.3(a)(3).
A lawyer is precluded from acting as an advocate in a matter
in which he is likely to be a witness, and he is barred from
making false statements concerning the integrity of a judge.
See N.Y. Rules Prof’l Conduct R. 3.7, 8.2(a).
IN THE MATTER OF LIOTTI 7
II.
A.
In response to the Notice, Mr. Liotti filed his affidavit
addressing the five charges (the "Affidavit"), as well as sev-
eral supporting letters and a response brief.
1.
As explained in more detail below, the admissions con-
tained within Mr. Liotti’s Affidavit by themselves support the
imposition of discipline. We thus set forth the Affidavit in
haec verba:
THOMAS F. LIOTTI, ESQ., Respondent named
above, hereby deposes and states the following to be
true under the penalty of perjury:
1. I have been admitted to practice law in New
York since 1977 and have never been disbarred or
suspended from practice. My practice is based in
Garden City, New York, and focuses in part on the
defense of clients charged with criminal wrongdo-
ing.
2. Jonathan Giannone’s family contacted me
about representing him in the case underlying these
proceedings. The Giannone family is from New
York and has no ties to South Carolina, where that
case was pending.
3. After his conviction in district court, Gian-
none asked me to continue representing him on
appeal. Because Giannone did not have sufficient
funds to pay me as a retained lawyer, I offered to see
if the Fourth Circuit Court of Appeals would permit
me to continue as appointed counsel under the Crim-
8 IN THE MATTER OF LIOTTI
inal Justice Act ("CJA"). I have previously served as
a CJA lawyer in the district courts for the Eastern
District of New York and the Southern District of
New York, as well as in the U.S. Court of Appeals
for the Second Circuit.
4. I have reviewed the Notice to Show Cause. I
understand the court’s concerns and wish to state
that I had no intention of misleading the court, mis-
stating the evidence, or otherwise violating the
court’s rules or my obligations as a lawyer.
5. As to the first ground in the Notice, I under-
stand how the two distinct excerpts on page 32 of my
reply brief should not have been combined without
a qualification or explanation. I am not sure how this
oversight occurred, but I take responsibility for it
and regret that it occurred.
6. As to the second ground in the Notice, I had
no intention to impugn the district court or accuse
the district judge of an impeachable offense. I recog-
nize that my arguments on this point should have
been handled differently so as to avoid the appear-
ance that I was attacking the court’s credibility or
integrity, which was never my intention.
7. As to the third ground in the Notice, I was
mistaken about who made an estimate for a two-
week trial. I believe that at some point, whether on
or off the record, the government had made esti-
mates consistent with a two-week trial, but I recog-
nize that the record does not reflect this.
8. As to the fourth ground in the Notice, I was
never aware that Giannone was manipulating the
internet chat or misrepresenting what occurred. I am
IN THE MATTER OF LIOTTI 9
not knowledgeable in the way of computers and
would not know whether the chat was being faked.
9. As to the fifth ground in the Notice, I concede
that there was not direct evidence establishing that
the Secret Service agents were fired as a result of
their conduct in the investigation. However, while
there may ultimately be some validity to Giannone’s
claims on this point, I should have couched my argu-
ment more in terms of what the evidence in the
record established.
10. I wish to reiterate that I have not knowingly
intended to violate my obligations as an attorney and
do not believe that I have knowingly submitted false
evidence or argument, misrepresented the record, or
made false accusations warranting discipline.
FURTHER AFFIANT SAYETH NAUGHT.
J.A. 269-71.5
2.
In further response to the Notice, Mr. Liotti submitted sev-
eral supporting letters from his bar colleagues attesting to his
good character. The authors of these letters vouch for Liotti’s
legal ability and professional competence, but, for the most
part, do not discuss the details of these disciplinary proceedings.6
The letters from Liotti’s colleagues also describe him as a
passionate and zealous advocate for his clients. Included are
5
Citations herein to "J.A. ___" refer to the contents of the joint appendix
filed by the parties in this disciplinary proceeding.
6
One exception set forth the remarks of attorney Michael Kelly of New
York, who acknowledges that "as much as I respect and like Tom [Liotti]
he seems to have gone overboard in the case at issue here and I certainly
do not condone what occurred here." J.A. 325.
10 IN THE MATTER OF LIOTTI
letters from two district judges who declined to provide char-
acter evidence in the absence of a subpoena or court order. A
third district judge advised that Liotti had appeared before
him in a number of matters and had always conducted himself
appropriately and professionally.
3.
In Mr. Liotti’s response brief in this proceeding, he empha-
sizes that he is an experienced and respected member of the
New York bar, having practiced law for more than thirty-three
years and attaining an "AV rating" (the "highest possible rat-
ing") from Martindale-Hubbell. Br. of Resp’t 47. His brief,
like his Affidavit, addresses each of the charges, essentially
admitting their substance, primarily attributing his actions to
mistakes and poor judgment, and denying any intentional mis-
conduct. Liotti expresses regret for his actions and contends
that the charges, considered either separately or collectively,
fail to justify any disciplinary measures.
As to the First Charge, the response brief explains that, in
combining two portions of the trial transcript in the Giannone
reply brief, Mr. Liotti was actually seeking to make two dis-
tinct arguments, but now recognizes that he should not have
combined the excerpts without proper qualification or expla-
nation. With respect to the Second Charge, Liotti’s response
brief maintains that he was reasonably permitted to call into
question the district judge’s finding that the informant’s letter
was not received until after Giannone’s trial. Concerning the
Third Charge, the brief urges that Liotti was under the incor-
rect impression that it was the prosecutor, rather than he, who
estimated the trial would last two weeks.
Addressing the Fourth Charge, the response brief asserts
that Mr. Liotti’s Declaration was merely a proffer of what the
evidence would show, and that the Declaration was implicitly
(i.e., without objection from the government or the district
court) sanctioned by the court. Regarding his failure to correct
IN THE MATTER OF LIOTTI 11
the inaccuracies of the Declaration, Liotti suggests that Gian-
none’s post-trial admissions were unclear and later recanted,
and that such corrections would have been immaterial in any
event. With respect to the Fifth Charge, the response brief
argues that Liotti believed that the government agents had
been fired for misconduct. This contention was apparently
based on Giannone’s and an informant’s allegations, coupled
with evidence that the agents were no longer employed with
the Secret Service. Liotti admits that the Giannone record
does not confirm his personal belief, but contends that there
is no direct evidence that he was wrong.
B.
On October 27, 2011, Mr. Liotti, his lawyer, and the prose-
cuting counsel appeared in this Court for hearing and argument.7
Liotti’s lawyer attributed each charge to mistake, poor judg-
ment, or Liotti getting "carried away" in his arguments, stead-
fastly maintaining that none of the charges warrants formal
discipline. His lawyer proposed that the informal discipline
that Liotti has already endured — for example, responding to
the Notice and making pleas to colleagues and judges for sup-
porting letters — constitutes sufficient punishment for any
perceived transgressions. Emphasizing that Liotti’s miscon-
duct falls short of justifying discipline, counsel entreated us
to either dismiss the proceedings or impose a private disci-
pline.
Mr. Liotti’s lawyer argued that attorneys frequently make
mistakes or misrepresentations during the appellate process,
for which they are rarely required to answer. For that reason,
counsel suggested, Liotti may have lacked proper notice that
his conduct could lead to disciplinary proceedings. Finally,
counsel proposed that we consider issuing Liotti a "caution
7
Rule 46(g) of the Local Rules provides that when, as here, a respondent
in disciplinary proceedings requests a hearing, the matter shall be heard by
the Standing Panel on Attorney Discipline. See Local R. App. P. 46(g)(9).
12 IN THE MATTER OF LIOTTI
letter," a confidential type of discipline used in New York
when a lawyer’s behavior warrants comment by a court but
does not rise to the level of publicly sanctionable misconduct.8
The prosecuting counsel responded that the cumulative
effect of the five charges against Mr. Liotti brings this case
well within the disciplinary compass. Refuting Liotti’s asser-
tion that his experience and competence make him less culpa-
ble, the prosecuting counsel maintained that those factors
render his misconduct less forgivable. According to the prose-
cuting counsel, experienced attorneys have a greater obliga-
tion than their younger and greener colleagues to know and
adhere to the rules of professional conduct. Although counsel
acknowledged the presence of mitigating factors that we must
assess, he asserted that the admissions made in Liotti’s Affi-
davit are alone sufficient to justify the imposition of disci-
pline. And, counsel argued, because an important purpose of
attorney discipline is the deterrence of other members of the
bar from engaging in similar conduct, any such discipline
should be publicly disclosed.
III.
We agree with the American Bar Association Standards for
Imposing Lawyer Sanctions (the "ABA Standards") that the
proper standard of proof for violations of the relevant rules of
professional conduct is "clear and convincing evidence." See
ABA Standards § 1.3. The panoply of available sanctions for
attorney misconduct includes disbarment, suspension, fine,
public reprimand, and private reprimand. Id. §§ 2.2 – 2.10.
When such misconduct has been proven by clear and convinc-
ing evidence, we are obliged in formulating the appropriate
discipline to consider both aggravating and mitigating factors,
8
For a discussion of New York caution letters, see "Report Concerning
Letters of Caution and Admonition," Supreme Court of the State of New
York Appellate Division, Attorney Grievance Committees, available at
http://www.nycourts.gov/courts/ad4/AG/AG-caution.htm.
IN THE MATTER OF LIOTTI 13
as well as the "potential or actual injury" resulting from the
misconduct. Id. § 3.0.
A.
1.
Turning to the merits of the charges against Mr. Liotti, we
examine them in ascending order of seriousness. First, we
assess Liotti’s erroneous quoting of the trial transcript in the
Giannone reply brief (First Charge) and his incorrect claim on
appeal that the government had estimated Giannone’s trial
would last two weeks (Third Charge). On the First Charge,
combining two separate parts of the trial transcript — thereby
creating the look of a fluid conversation — was clearly inap-
propriate. Liotti now states that he is "not sure how this over-
sight occurred but [takes] responsibility for it and regrets that
it occurred." Aff. ¶ 5. Nevertheless, Liotti accurately cited the
transcript pages for the quotations, revealing — if the record
were consulted — that the questions and answers recited in
the Giannone reply brief were actually obtained from differ-
ent parts of the transcript. Thus, Liotti’s conduct underlying
the First Charge is arguably mitigated because a careful
reader could access the accurate origins of the misquoted evi-
dence.
With respect to the Third Charge, Liotti’s statement in the
Giannone appeal concerning the government’s position on the
potential duration of Giannone’s trial was patently wrong, and
no one was in a better position to know that than Liotti. When
the government corrected Liotti on this point in its response
brief, Liotti became antagonistic, asserting in reply:
With respect to the government’s strenuous postur-
ing regarding questions about the ultimate length of
trial, this Court may now take judicial notice of the
government’s playground-like tattle-tale approach in
14 IN THE MATTER OF LIOTTI
this case. If the government lawyers want to be right
on this single point, so be it.
J.A. 240. Put simply, Liotti’s initial statement of the parties’
positions, set forth in the Giannone opening brief, was a mis-
representation of the record. Liotti’s concession in the reply
brief, though inartfully made, may have partially corrected the
misrepresentation. In his Affidavit, however, Liotti frankly
admits that he "was mistaken about who made an estimate for
a two-week trial." Aff. ¶ 7. In sum, Liotti’s actions in connec-
tion with the First and Third Charges constitute misrepresen-
tations to the Court.
2.
As to the Fifth Charge, Mr. Liotti’s statement in the Gian-
none reply brief that two of the investigating agents had been
fired for misconduct was apparently based on information
from an informant and Liotti’s own client, coupled with the
undisputed fact that the agents were no longer employed by
the Secret Service. Confirmation of that fact came from a
post-trial declaration of the Service’s Deputy Director, which
was obtained by Giannone through an FOIA request in
another case. The declaration does not, however, discuss or
reveal anything about discipline against the agents. In his
Affidavit, Liotti admits that, in making the contention that the
agents had been fired for misconduct, he "should have
couched [his] argument more in terms of which the evidence
in the record established." Aff. ¶ 9. The absence of evidence
disproving Liotti’s allegation that the agents were fired for
misconduct, however, does little to ameliorate the impropriety
of his unsupported statements. In the circumstances, Liotti
should have known that the record did not support his asser-
tion that the Secret Service agents had been fired for miscon-
duct.
3.
On the Fourth Charge, relating to the Declaration of Mr.
Liotti concerning the internet chat between Giannone and
IN THE MATTER OF LIOTTI 15
another individual, Liotti maintains that he has not contra-
vened Rule 3.7 of the New York Rules, which provides that
"a lawyer shall not act as advocate before a tribunal in a mat-
ter in which the lawyer is likely to be a witness on a signifi-
cant issue of fact unless . . . the testimony is authorized by the
tribunal." New York courts have interpreted Rule 3.7 to
require the disqualification of counsel upon the movant’s
showing that the attorney’s testimony is necessary and that
there is a substantial likelihood of prejudice if the attorney
continues to act as an advocate. See Capponi v. Murphy, 772
F. Supp. 2d 457, 471-72 (S.D.N.Y. 2009).
Mr. Liotti’s Declaration states that it was his associate, law-
yer Drummond Smith — not Liotti himself — who witnessed
the internet chat involving Giannone and another person.
Because Smith was the witness to the chat, Liotti probably
would not have been permitted to testify to what Smith saw.
Moreover, evidence regarding the internet chat was otherwise
available to the parties at trial, and the government never
sought to call Liotti as a witness or urge his disqualification
as counsel. As a result, this aspect of the Declaration does not
give rise to a violation of Rule 3.7.
Nevertheless, in using the Declaration and the internet chat
to support his appellate contentions, Mr. Liotti neglected to
inform this Court that Giannone had already admitted to the
government in a post-trial interview that he had faked the
internet chat. Liotti apparently made the Declaration on the
basis of an internet dialogue that took place in his office but
outside his presence, and his Affidavit and brief admit that he
is not proficient with computers. See Br. of Resp’t 37 ("Liotti
is not knowledgeable in the way of computers"); Aff. ¶ 8.
Liotti’s failure to reveal in the Giannone appeal that his client
had already admitted to the government that the internet chat
was a fake constituted a failure to correct a prior misrepresen-
tation of material fact. Liotti maintains, however, that he did
not know that the internet chat was a fake — even though
Giannone had admitted that fact to the government —
16 IN THE MATTER OF LIOTTI
because Giannone later denied making the admission.9 Gian-
none’s recantation carries little weight, however, inasmuch as
Smith had witnessed Giannone’s post-trial admission to the
government. Consequently, Liotti should have known that the
statements in his Declaration with respect to the internet chat
were unfounded. And he should have clarified those facts to
the Court. See N.Y. Rules Prof’l Conduct R. 3.3(a)(1).
4.
The most serious of the charges lodged against Mr. Liotti
is the Second Charge — Liotti’s false accusation that the dis-
trict judge suppressed the informant’s letter. Those assertions
constitute an unwarranted misrepresentation of the record and
an unsupported impugnment of the judge’s character. Never-
theless, it appears from his present contentions that Liotti was
seeking to argue in the Giannone appeal that, because the
informant’s letter was dated March 1, 2007, the judge’s find-
ing of fact concerning her receipt of the letter on March 13,
2007, was clearly erroneous.10 In any event, Liotti now argues
that the judge’s finding with respect to the date she received
the letter was not conclusive. That is not, however, how he
posited the proposition in Giannone’s appeal.
In his Affidavit, Liotti recognizes "that [his] arguments on
this point should have been handled differently so as to avoid
the appearance that [he] was attacking the court’s credibility
or integrity[.]" Aff. ¶ 6. Regardless of whether Liotti thought
he was entitled to present a good faith challenge to the court’s
9
In his reply to the government’s response to his pro se motion for a
new trial, filed in the district court on August 11, 2008, Giannone denied
admitting to a government agent that he faked the internet chat in Liotti’s
office. See J.A. 85-86.
10
In her findings, the district judge perceived the postmark on the enve-
lope containing the informant’s letter to be March 12, 2007, and she spe-
cifically found that the letter was not received by the court until March 13,
2007. The envelope was stamped "Postage Due 48c," and reflects "Item
X-Rayed by USMS DM 3/13."
IN THE MATTER OF LIOTTI 17
findings of fact, his assertions about the trial judge in the
Giannone appeal, together with the manner in which he pre-
sented them, constituted unfounded accusations against the
judge and contravened the applicable rules.
B.
Consistent with the foregoing, we are satisfied that the fac-
tual allegations in the Notice regarding misrepresentations to
the Court are supported by clear and convincing evidence.
More specifically, Mr. Liotti made misrepresentations to the
Court, in contravention of Rule 8.4 of the New York Rules,
which provides, in pertinent part, that a lawyer shall not "en-
gage in conduct involving . . . misrepresentation[s]." Liotti’s
misrepresentations in the Giannone appeal encompass the fol-
lowing:
• Presenting two unrelated portions of a trial tran-
script as a single conversation;
• Incorrectly contending that the government had
purposefully overestimated the length of Gian-
none’s trial;
• Inappropriately alleging, without factual support,
that two agents involved in Giannone’s investiga-
tion had been fired for misconduct;
• Failing to disclose to the court Giannone’s admis-
sion that the internet chat had been faked;
• Relying on the Declaration to support the legiti-
macy of an internet chat of which he had no per-
sonal knowledge; and
• Alleging, without factual support, that the presid-
18 IN THE MATTER OF LIOTTI
ing judge had suppressed evidence relating to
Giannone’s trial.11
Because Mr. Liotti’s conduct during the Giannone appeal vio-
lated the New York Rules, it also contravened the Local
Rules. See Local Rules App. P. 46(g)(1)(c).
IV.
As we have heretofore recognized, "our adversary system
depends on a most jealous safeguarding of truth and candor."
United States v. Shaffer Equip. Co., 11 F.3d 450, 463 (4th Cir.
1993). One of the most important aspects of the work of an
appellate lawyer is the obligation to provide the court with a
fair and accurate presentation of the relevant facts. Indeed,
many of our colleagues on the bench would characterize that
obligation as paramount, and there is no valid reason for any
lawyer to do otherwise. As John Adams explained in his suc-
cessful defense of the British soldiers charged in the Boston
Massacre, "facts are stubborn things; and whatever may be
our wishes, our inclinations, or the dictates of our passion,
they cannot alter the state of facts and evidence." David
McCullough, John Adams 52 (Simon & Schuster 2001). Our
good colleague Judge Niemeyer, writing for the Court in
Shaffer Equipment, emphasized the importance of an accurate
presentation of the pertinent facts, aptly relating:
Our adversary system for the resolution of disputes
rests on the unshakable foundation that truth is the
object of the system’s process which is designed for
the purpose of dispensing justice. . . . Even the sligh-
11
We deem it unnecessary to resolve any issue concerning whether Mr.
Liotti’s conduct contravened any other provision of the New York Rules.
As a result, we dispose of this proceeding solely on the basis of our Rule
8.4 findings. In so doing, we confirm that we agree with the prosecuting
counsel that the admissions made in Liotti’s Affidavit are alone sufficient
to justify the imposition of discipline.
IN THE MATTER OF LIOTTI 19
test accommodation of deceit or a lack of candor in
any material respect quickly erodes the validity of
the process.
11 F.3d at 457. Misrepresentations of fact by an officer of the
court will, if ignored, cast a menacing shadow on a judicial
system that is designed to illuminate truth and promote fair-
ness.
As Mr. Liotti’s response brief acknowledges, a lawyer is
charged with the challenging role of advocating zealously for
his client and at the same time observing the applicable rules
of professional conduct. Sustaining a lawyer’s "dual obliga-
tions to clients and to the system of justice" is a far from tri-
fling responsibility. In re Snyder,
472 U.S. 634, 644 (1985).
As a result, the privilege of bar membership must be jealously
guarded, and loose footing on the high standards of profes-
sional conduct must find its purchase in balanced discipline.
Although Mr. Liotti’s conduct reflects, at best, a trouble-
some pattern of carelessness, his misrepresentations appear to
have been largely discovered by the Court, through its own
diligence and the opposing counsel’s efforts, prior to the
Giannone appeal being resolved. As a result, there was no
resulting prejudice to either party. We agree with the prose-
cuting counsel that Liotti’s extensive experience and compe-
tence as a lawyer constitutes an aggravating factor — rather
than a mitigating one — in our evaluation of the discipline
issues. In mitigation, however, the record fails to show a his-
tory of misconduct on the part of Liotti, and his client was not
harmed by his transgressions here. There also does not appear
to have been any selfish motive underlying Liotti’s actions.
To his credit, Mr. Liotti handled Giannone’s appeal on a
court-appointed basis and achieved success for his client on
the sentencing issues. Furthermore, we readily accept the
proposition that Liotti is a capable attorney and that, as a trial
lawyer, he possesses a fine reputation for being a zealous
20 IN THE MATTER OF LIOTTI
advocate for his clients.12 Thus, Liotti’s misconduct in the
underlying appeal appears as an isolated event, and it is
inconsistent with his otherwise fine career. And it is com-
mendable that Liotti has now largely recognized and apolo-
gized for his misrepresentations, acknowledging that several
of his actions resulted from mistakes and poor judgment.
Notwithstanding the foregoing considerations in mitigation,
we are constrained to conclude that Mr. Liotti’s cumulative
conduct warrants some measure of discipline. Our assessment
of the pertinent legal principles and authorities reveals that
potential disciplines such as disbarment, suspension, or fine
generally apply to more serious misconduct than that found
here.13 Nevertheless, Liotti’s violations of the applicable rules
should not be ignored. According to the ABA Standards,
another type of discipline, known as an admonition, may
appropriately be utilized
when a lawyer [has engaged] in . . . isolated
instance[s] of neglect in determining whether sub-
12
We are satisfied to reject Liotti’s counsel’s oral argument suggestion,
however, that he was without notice that the misconduct identified herein
could warrant the imposition of discipline. By virtue of Liotti’s member-
ship in the New York bar and the bar of this Court, he was plainly on
notice that conduct violating the applicable rules could result in discipline.
13
See, e.g., In re Roman, 601 F.3d 189 (2d Cir. 2010) (attorney sus-
pended for seven months for misrepresenting evidence and signing his
name to briefs that his staff wrote without reviewing them); Williams v.
Leach,
938 F.2d 769 (7th Cir. 1991) (attorney fined $1000 when she failed
to obtain proper service on defendants, failed to follow court rules in liti-
gating claim, failed to address legal issues in her brief, and recited facts
without foundation in record); DCD Programs, Ltd. v. Leighton,
846 F.2d
526 (9th Cir. 1988) (suspension imposed when attorney made false state-
ments to court and misrepresentations went to heart of appeal); In re
Grimes,
364 F.2d 654 (10th Cir. 1966) (attorney disbarred for making
unsubstantiated claims that judge accepted bribes). But cf. Holland v.
Washington Homes, Inc.,
487 F.3d 208 (4th Cir. 2007) (declining to
impose Rule 46(g) sanctions on counsel for allegedly misrepresenting
record).
IN THE MATTER OF LIOTTI 21
mitted statements . . . are false or in failing to dis-
close material information upon learning of its
falsity, and causes little or no actual or potential
injury to a party, or causes little or no adverse or
potentially adverse effect on the legal proceeding.
ABA Standards § 6.14.
The ABA Standards advise that the purpose of lawyer dis-
cipline is to "protect the public and the administration of jus-
tice from lawyers who have not discharged . . . their
professional duties to clients, the public, the legal system, and
the legal profession." ABA Standards § 1.1. The unsettling
repetition of Mr. Liotti’s misrepresentations and the need to
deter others from engaging in similar conduct militate in favor
of public discipline. In light of the various mitigating factors,
however, the purposes of discipline will be sufficiently served
in this proceeding if we temper our disposition with a strong
measure of leniency. As a result, the appropriate disposition
is the imposition of one of the less severe disciplines available
— a public admonition.14
Pursuant to the foregoing, Mr. Liotti is hereby
PUBLICLY ADMONISHED.
14
The result of this proceeding is, in part, a testament to the skills of
Liotti’s lawyer, who has ably represented him. It is worth noting that we
are equally pleased with the prosecuting counsel’s handling of his impor-
tant duties. The efforts of both of these lawyers are commended.
