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SCOW disciplines lawyer for “offering,” and then failing to correct, witness’s false testimony

OLR v. John Kenyatta Riley, 2016 WI 70, 7/15/16; case activity (including briefs)

Leaving us with another splintered decision as the current term comes to its end, a majority of the supreme court votes to publicly reprimand an attorney for “offering” false testimony from his client and then failing to take reasonable measures to correct the testimony. The precedential value of the opinion is uncertain, and perhaps nil, as there’s no majority rationale for the decision and it involves a previous version of the relevant ethical rule; nonetheless, every lawyer who calls witnesses should be aware of it and contemplate what it might portend.

The lead opinion (from Gableman, Roggensack, and Ziegler) offers a lengthy description of the case (¶¶5-35), which boils down to this: Riley worked at a law firm where a lawyer named Polk was also working. Polk wasn’t supposed to be doing legal work because his license was administratively suspended. Polk petitioned to reinstate his license, and Riley was directed by a partner at the firm to represent Polk at the OLR hearing on Polk’s petition. At the hearing Riley asked Polk about his employment since being suspended in order to show Polk hadn’t been making much money and therefore had been unable to pay various outstanding civil judgments, an issue relevant to the reinstatement decision. Polk’s answers didn’t mention his work for the law firm, and Riley didn’t seek to elicit from Polk that he worked at the firm.

OLR learned later about Polk’s employment at the firm and moved to discipline Riley for (1) offering false material evidence and then not correcting the evidence, in violation of former SCR 20:3.3(a)(4) [set out at ¶¶23 n.7 and 137]; (2) assisting a witness to testify falsely, in violation of SCR 20:3.4(b); and (3) engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of SCR 20:8.4(c). Riley insisted he didn’t know Polk was doing legal work at the firm, and thought he was engaged in non-legal work, but Polk testified he told Riley he was concerned about not disclosing his employment with the firm. The referee believed Polk, not Riley.

The lead opinion adopts the referee’s conclusions as to the first and third allegations:

¶86     …[W]e conclude that Attorney Riley “offered” false testimony to the reinstatement referee under former SCR 20:3.3(a)(4) when his client gave false and misleading answers to a question that he posed and to questions posed by opposing counsel. We further conclude, based on the referee’s factual findings, that Attorney Riley knew this testimony was false at the time it was given. Attorney Polk’s false testimony was material to the reinstatement proceeding in which it was given because it related to his claimed inability to pay the outstanding civil judgments against him, which was one of the topics expressly identified in our order referring the reinstatement matter to the referee. Because Attorney Riley did not take any reasonable measures to remediate the false testimony given by Attorney Polk and therefore offered by Attorney Riley, he violated former SCR 20:3.3(a)(4). Given his failure to take remedial measures and his continuing to argue in the reinstatement proceeding that the jobs Attorney Polk had held during his administrative suspension did not provide enough income for him to have made payments toward the outstanding civil judgments, Attorney Riley also violated SCR 20:8.4(c).

The lead opinion rejects the referee’s conclusion that Riley violated SCR 20:3.4(b):

¶69     We agree with Attorney Riley that the language of the rule (“counsel or assist a witness”) indicates that some action by the lawyer prior to or at the time of the witness’s false testimony is required. In our view, failing to take action in the face of another’s decision to give false testimony is different from “assisting” another person to give false testimony….

Because the record doesn’t show Riley “counsel[ed] or assist[ed]” Polk to testify falsely, there’s no evidence he violated that rule. (¶70).

Two justices (Abrahamson and A.W. Bradley) concur in the result but do not join the lead opinion because it is “overly lengthy, and gratuitously addresses too many issues that have not been fully briefed or carefully studied. The issues are difficult and of the utmost importance to attorneys and disciplinary proceedings. The issues need more consideration.” (¶97).

Immediately after calling for “more consideration,” though, the concurrence decries how long the case has been pending—the conduct dates back to 2006, OLR filed its complaint in 2010, and it’s taken almost four years since oral argument to issue a decision. (¶¶100-01).

Finally, one justice (Prosser) dissents because: neither Polk nor the partner who directed Riley to represent him were disciplined for their roles (though Polk never got his license back) (¶¶114, 118-35); the lead opinion says little about how a lawyer is supposed to correct false testimony (¶¶115, 137-44); “the lead opinion is a little light in discussion about the serious tension between privileged information, confidentiality, and loyalty to a client, on the one hand, and an attorney’s obligation to the court, on the other” (¶¶116; 145-58); and the lead opinion took 50 pages to resolve close legal questions but basically suggests Riley should have resolved the same questions “without much difficulty.” (¶117).

As the dissent says: “We ought to ask: Has the court provided sufficient guidance for the Wisconsin bar to avoid in the future the same pitfalls that the attorney faced in this case?” (¶117). This is a rhetorical question, which the dissent, fairly enough, answers “no.” The lead opinion tries to ameliorate the non-guiding, uncertain result in this case by opining about the substance of the pertinent language in the new version of SCR 20:3.3(a):

¶87     While two of our colleagues who concur in the mandate of the court are not willing to sign on to this opinion, the outcome of this case should still serve as a reminder to attorneys in this state that under the current version of the rule, SCR 20:3.3(a)(3), they have a duty to take reasonable remedial measures whenever they have actual knowledge that material testimony given by a client or another witness called by the attorney is false, either because of an affirmatively untrue statement or an omission that makes the statement false, regardless of whether the attorney asked the question that led to the false testimony. That standard was met by the particular facts of this case with respect to false testimony given by Attorney Riley’s client. This rule, in either its former or current form, however, does not make an attorney the guarantor of the factual accuracy of everything that is said by a client or other witness called by the attorney. The attorney’s obligation arises only when the attorney has actual knowledge of the falsity and only when the false testimony is material to the proceeding. When those conditions are present, however, the lawyer may not just sit silently and allow the false testimony to mislead the opposing party and the tribunal. The lawyer is not just a zealous advocate on behalf of a client, but also an officer of the court, who bears obligations to assist the court in its search for the truth. (Emphasis added.)

This passage fails to fill in the omissions noted by the dissent and elides the tension between the lawyer’s duty of candor and duties of confidentiality and zealous advocacy. It also fails to acknowledge that SCR 20:3.3(a)(3) addresses the special situation of the criminal defense lawyer by saying that “[a] lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter[,] that the lawyer reasonably believes is false.” That part of the rule must be read in light of State v. McDowell, 2004 WI 70, 272 Wis. 2d 488, 681 N.W.2d 500, which created a stringent test for when criminal defense counsel “knows” the defendant is providing false testimony: “Absent the most extraordinary circumstances, such knowledge must be based on the client’s expressed admission of intent to testify untruthfully. While we recognize that the defendant’s admission need not be phrased in ‘magic words,’ it must be unambiguous and directly made to the attorney.” Id., ¶43. (For more on this topic, see Nathan M. Crystal, False Testimony by Criminal Defendants: Still Unanswered Ethical and Constitutional Questions, 2003 Ill. L. Rev. 1529.) It looks like clarification of SCR 20:3.3(a)(3) will have to wait for another day.

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