Bucci, In re, 77-284-M

• Citation: 376 A.2d 723,119 R.I. 904
• Decision Date: 22 August 1977
• Docket Number: No. 77-284-M,77-284-M
• Parties: In re Andrew A. BUCCI. P.
• Court: United States State Supreme Court of Rhode Island

Page 723

376 A.2d 723

119 R.I. 904

In re Andrew A. BUCCI.

No. 77-284-M.P.

Supreme Court of Rhode Island.

Aug. 22, 1977.

Andrew A. Bucci, pro se.

ORDER

On March 21, 1975, an indictment was filed by the federal grand jury for the district of Connecticut charging the respondent, Andrew A. Bucci, a member of the bar of this state, in a five-count indictment with the violation of 18 U.S.C. § 241, conspiracy to injure, oppress, threaten and intimidate a citizen of the United States (count 1); the violation of 18 U.S.C. § 1623 and § 2, did wilfully suborn, command, instigate, counsel, induce, procure, aid and abet his client to take an oath and make false declaration before the court (counts 2, 3 and 4); and the violation of 18 U.S.C. § 371, did conspire to have false declarations under oath given to the court (count 5). ¹ On September 3, 1975, the respondent was found not guilty by a jury of count 1. On January 30, 1976, he was found guilty by another jury of counts 2, 3, 4 and 5. Subsequently, the trial justice entered a judgment of acquittal on counts 2, 3 and 4. On April 18, 1976, the respondent received a sentence of 10 days, execution suspended, on count 5.

On February 26, 1976, having learned of such conviction, we issued an order in accordance with the provisions of Sup.Ct.R. 43, ordering respondent to appear before us on Thursday, March 11, 1976 at 9:30 a.m., with counsel if he preferred, to show cause, if any he had, why his admission to the bar should not be revoked or suspended. ²

The defendant appeared and asked that we postpone any action because of a post-trial motion which he had filed. We acquiesced.

On June 3, 1976, in accordance with the provisions of Sup.Ct.R. 43, we again ordered respondent to appear before this court on Thursday, June 10, 1976 at 9:30 a.m., to show cause why his admission to the bar should not be revoked or suspended. The respondent again appeared and informed us that he had filed an appeal which was pending. He again asked us to postpone any action and we agreed.

On April 15, 1977, having learned that respondent's appeal had been denied, in accordance with the provisions of Rule 43, we again ordered respondent to appear before us on April 21, 1977, to show cause why his admission to the bar should not be revoked or suspended.

The respondent appeared and we offered him an opportunity to provide us with any matters in extenuation or mitigation.

In response respondent submitted a written statement urging us to spare him the ignominy of suspension or disbarment and the resultant hardship which would necessarily follow from such action. He pointed to his prior excellent reputation as a member of the bar of this state, to his excellent standing among his fellow citizens, and to the respect he had enjoyed for so many years in the courts of this and other states where he has tried cases for almost 25 years.

He also brought to our attention the statement made by the United States District Judge concerning Marrapese's testimony when he sentenced respondent. The Judge said:

"I tried to caution the jury about attaching any credence to his testimony.

"He certainly painted himself as a man who had no regard for the sanctity of an oath and had frequently lied deliberately to Government authorities for his own advantage.

"I was, throughout that case, sympathetic with the plight of a lawyer who has to try to know all the facts pertaining to his client's defense and is still under an obligation to protect the confidence of his client.

"There is that kind of a knotty problem of what a lawyer's duty is when he knows that his client may be committing perjury or may be going to commit perjury. That's the kind of an ethical problem about where there is difference of opinion as to what the right answer is."

The events which resulted in respondent's conviction are recorded elsewhere and require no repetition here other than to point out that we have examined the record in the federal proceedings with care. It is fair to assume from what the trial judge said, that, even though he accepted the verdict of the jury because it rested on credibility, he did not attach much credence to the testimony of Marrapese, the Government's main witness, and probably would not have found respondent guilty if he had heard the case without a jury.

Notwithstanding the trial judge's assessment of Marrapese's testimony, respondent stands before us as a member of the bar of this state who has been convicted according to law of a serious federal offense. We cannot question the integrity of the judgment entered in the District Court or the action of the Circuit Court in affirming that judgment. The respondent's conduct, as evidenced by the record before us, warrants disciplinary action. The troublesome question involves the extent of the disciplinary action which the nature of the charge of which respondent stands convicted compels us to impose. There is no set formula to guide us in performing our duty, but it is imperative to keep in mind at all times the public interest involved in permitting only persons of integrity to engage in the practice of law. It is true that, by virtue of his conviction in the federal court, respondent's integrity has been severely tarnished.

In evaluating the extent of the disciplinary action we should impose, we are called upon to decide, as it were, whether respondent's integrity has been tarnished beyond repair. In making this judgment we have the benefit of certain comments made by the trial judge. In imposing the 10-day sentence, which he suspended, the trial judge expressly stated that he was satisfied that respondent would never commit this kind of an offense in the future and that he saw no reason for putting him on probation. He also pointed out that so far as the element of retribution or punishment was concerned, respondent would be punished enough by the action that would be taken with respect to his right or privilege to continue to practice law.

Keeping in mind the nature of the charges against the respondent and all of the circumstances surrounding the indictment, trial and conviction, including the comments of the trial judge, we proceed to impose a sanction which we consider appropriate and fair to the public as well as to the respondent. Because we are persuaded that the respondent's integrity has not been damaged beyond repair, we refrain from imposing the sanction of disbarment. Instead, we order that respondent be and he is hereby suspended from engaging in the practice of law beginning one month from the entry of this order and until further order of this court; provided, however, that upon a satisfactory showing of compliance in good faith with this order, he may apply for reinstatement on or after the 22nd day of September 1979, in accordance with the provisions of Rule 42-15 of this Court. ³

KELLEHER, Justice, dissenting.

My Brothers have confused the obligation of the trial court with the responsibilities that are ours. The trial justice, in imposing a 10-day suspended sentence, was dealing with the respondent as a citizen, whereas we are dealing with him as a lawyer. We are not concerned with punishment as such but with our duty, as the sole and exclusive regulator of the practice of law within this jurisdiction, to uphold the highest standards of professional conduct, thereby protecting the public from the unfit or unscrupulous practitioner. An attorney's responsibilities differ from those of persons who are not members of the legal profession. Likewise, this court's duty to the public differs from that of a trial judge who is administering the criminal law.

The underlying issue in a proceeding such as this is to be found in the Lord Mansfield rule promulgated years ago in Ex Parte Bounsall, 2 Cowp. 829 (1778):

"(T)he question is, Whether, after the conduct of this man, it is proper that he should continue a member of a profession which should stand free from all suspicion. . . . It is not by way of punishment; but the court on such cases, exercise their discretion, whether a man whom they have formerly admitted, is a proper person to be continued on the roll or not."

An application of this rule to a recent disciplinary proceeding in which an attorney was disbarred prompted the following comment from the Maryland Court of Appeals:

"It is difficult to conceive of a crime which strikes more at the very fundamentals of our system of justice than that of subornation of perjury." Attorney Grievance Comm'n v. Green, 278 Md. 412, 365 A.2d 39 (1976).

Moreover, in a case remarkably similar to the one before us, the California Supreme Court, in rejecting a lawyer's plea that he not be disbarred for suborning perjury, remarked:

"For an attorney at law to actively procure or knowingly countenance the commission of perjury is utterly reprehensible. It is far more reprehensible within the profession than when committed by one who is not a lawyer. It marks such person as unworthy of the office of attorney. Above all other professions, members of the Bar should be most scrupulous in their honesty; scrupulous in their own conduct and in that which they should not only advise, but exact of their employes, their clients and the witnesses they present to the court." In re Allen, 52 Cal.2d 762, 344 P.2d 609 (1959).

The relevant provisions of our Code of Professional...