Gopman, In re
| Decision Date | 06 May 1976 |
| Docket Number | No. 75--1560,75--1560 |
| Parties | 92 L.R.R.M. (BNA) 2476, 78 Lab.Cas. P 11,415 In re Matter of Seymour A. GOPMAN. UNITED STATES of America, Plaintiff-Appellee, v. Seymour A. GOPMAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William T. Coleman, Jr., North Miami Beach, Fla., Michael J. Osman, Miami, Fla., for defendant-appellant.
Robert W. Rust, U.S. Atty., Miami, Fla., Martin L. Steinberg, U.S. Sp. Atty., U.S. Dept. of Justice, Miami, Fla., Robert H. Plaxico, Dept. of Justice, Criminal Div., Washington, D.C., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before MORGAN, CLARK and TJOFLAT, Circuit Judges.
The issue in this appeal is whether the trial judge erred when he disqualified Seymour A. Gopman, Esq., from simultaneously representing certain labor unions and three officials of these unions who had appeared as witnesses before a grand jury. We find no error, and affirm the order of disqualification entered below.
This case arose in the context of a federal grand jury investigation of union activities in the Miami, Florida area. The general emphasis of this investigation was upon possible violations of the Labor-Management Reporting and Disclosure Act (Landrum-Griffin Act), 29 U.S.C. § 401 et seq. At the time of the events which led to Gopman's disqualification, the grand jury was considering evidence of alleged embezzlement by union officials, alleged failures by union officials to maintain required records, and the alleged destruction of union records by such officials. 1 There was at that time only one announced 'target' of the grand jury investigation. In connection with their probe of the 'target' official, the grand jury issued subpoenas to three other union officers ordering them to bring certain records for examination. The three prospective witnesses consulted Gopman, who was their unions' retained counsel, concerning what response should be made to the subpoenas.
It was the practice of Gopman's firm to cease advising union officials once they had become 'targets' of a grand jury investigation. In fact, the firm had represented the 'target' official himself in the past, but had instructed him to retain separate counsel once he was named as a 'target'. However, since these three officers were not 'targets', Gopman concluded that he could properly advise them as to their appearance before the grand jury. After studying the case, Gopman realized that the officials could be subject to criminal penalties under 29 U.S.C. § 439 if they had not maintained the records sought by the grand jury or if they had maintained these records improperly. 2 After being advised by Gopman of these possibilities, and of their right against self-incrimination, all three witnesses elected to invoke the Fifth Amendment before the grand jury; they refused to produce the records or to answer any questions concerning them. The government then contended that Gopman's dual representation of the unions and the individual witnesses was creating a conflict of interest. A motion for disqualification was filed December 13, 1974, and was granted by the court on January 7, 1975. After a dispute arose over the scope of the Court's order, an amended order of disqualification was filed February 6, 1975. The trial judge ordered Gopman to cease representing the three union officials before the grand jury, and to instruct the witnesses that they should obtain new counsel. Gopman's appeal followed.
It is argued that the government lacked standing to challenge the alleged conflict of interest, and that the trial judge had no jurisdiction to entertain the government's motion for disqualification. We reject these contentions. The substance of the government's motion was that appellant had violated the ethical canons of the American Bar Association, which prohibit a lawyer from representing parties with adverse interests. 3 These ethical canons had been explicitly adopted by the local rules of the district court in which this action arose. 4 When an attorney discovers a possible ethical violation concerning a matter before a court, he is not only authorized but is in fact obligated to bring the problem to that court's attention. See Estates Theatres, Inc. v. Columbia Pictures Industries, Inc.,345 F.Supp. 93, 98 (S.D.N.Y.1972). Nor is there any reason why this duty should not operate when, as in the present case, a lawyer is directing the court's attention to the conduct of opposing counsel. In fact, a lawyer's adversary will often be in the best position to discover unethical behavior. We also conclude that the trial judge had jurisdiction to act upon this claim of unethical conduct. Local rules whose validity is not challenged expressly incorporate the American Bar Association's ethical canons and expressly give the district court the power to fashion sanctions. 5 Furthermore, it is beyond dispute that lawyers are officers of the court and that the courts have the inherent authority to regulate their professional conduct. See Ceramco, Inc. v. Lee Pharmaceuticals, 510 F.2d 268, 270--71 (2d Cir. 1975); Saier v. State Bar of Michigan, 293 F.2d 756, 760 (6th Cir.), cert. denied, 368 U.S. 947, 82 S.Ct. 388, 7 L.Ed.2d 343 (1961). Appellant has failed to persuade us that different rules of standing and jurisdiction should apply when criminal proceedings are in the grand jury stage. A grand jury must exercise its powers under the authority and supervision of the court. See United States v. Stevens, 510 F.2d 1101, 1106 (5th Cir. 1975). We hold that, as an incident of this supervisory power, a court has jurisdiction to discipline an attorney whose unethical conduct relates to a grand jury proceeding within that court's control. From this conclusion, it naturally follows that an attorney's standing to report ethical problems to the appropriate court extends to the grand jury stage as well.
We are told that the order of disqualification exceeded the trial court's power to regulate the conduct of attorneys practicing before it. The proper standard for our review of a disqualification order is whether the trial judge abused his discretion. See Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975). We also must remember that the court's discretion permits it 'to nip any potential conflict of interest in the bud', Tucker v. Shaw,378 F.2d 304, 307 (2d Cir. 1967). On the record before this Court, it is clear that the possibility of a conflict had become great enough for the trial court to exercise its discretion. The grand jury was investigating possible breaches by union officials of certain fiduciary duties imposed by the Landrum-Griffin Act. As this Court has held, one chief purpose of the Act is to protect union members against possible overreaching by union officials. See Smith v. Local No. 25, Sheet Metal Workers Int'l Ass'n., 500 F.2d 741, 750 (5th Cir. 1974). To further this purpose, Congress adopted several specific means, including the reporting requirements of the Act and the penalties for embezzlement. The former are designed to provide union members as well as the Department of Labor with the information necessary for them to scrutinize the affairs of labor organizations. See Antal v. District 5, United Mine Workers of America, 451 F.2d 1187, 1189 (3d Cir. 1971). The latter are intended to protect union members from financial corruption on the part of union officials and employees. See United States v. Sullivan, 498 F.2d 146, 150 (1st Cir.), cert. denied, 419 U.S. 993, 95 S.Ct. 303, 42 L.Ed.2d 265 (1974). Therefore, when possible violations of these statutes are under investigation, it is evident that the affected unions' interest will generally be in the fullest possible disclosure of pertinent records. Only if such disclosure is made can the unions be certain that possible problems affecting their rights under the Act are being thoroughly examined. For the same reason, in a normal case union counsel with his clients' interests at heart would tend to favor a complete disclosure of such records. The trial court concluded that appellant could not aggressively and diligently pursue this goal while advising the unions' own officials on whether to produce the records and what testimony, if any, to give regarding them. This conclusion seems entirely reasonable to us, and we find no abuse of discretion on these facts.
In appellant's view, the district court's action was in retaliation for the three witnesses' use of the Fifth Amendment. We are urged to admonish the trial judge that it is improper to infer guilt from the assertion of Fifth Amendment rights. After the most careful scrutiny of the record in this case, we simply cannot accept appellant's characterization of the decision below. We would not hesitate to reverse if the trial judge had in fact (a) concluded, solely from the officers' invocation of the Fifth Amendment, that they had breached their fiduciary duties to the union, (b) held that the officers whose guilt had been thus established were in an adversary posture towards the unions which they were victimizing, and (c) disqualified appellant because he was representing both perpetrator and victim. It is well settled that no such inference of wrongdoing can be made from a witness' assertion of his rights under the Fifth Amendment. See Grunewald v. United States, 353 U.S. 391, 421--23, 77 S.Ct. 963, 982--83, 1 L.Ed.2d 931, 952--54 (1957). However, the conflict which the trial judge perceived in this case was of a different sort, and the Fifth Amendment's involvement was purely incidental. As we have shown in the preceding section of this opinion, the conflict arose when, on the one hand, the interests of appellant's union clients pointed towards disclosure, but, on the other hand, appellant was advising the individual witnesses as to whether disclosure should be made. 6 At that time,...
To continue reading
Request your trial
-
In re Kelton Motors, Inc.
... ... Cermaco, Inc. v. Lee Pharmaceuticals, 510 F.2d 268, 270-71 (2d.Cir.1975). See, United States v. Gopman (In re Gopman), 531 F.2d 262 (5th Cir.1976). Our responsibility requires that we maintain public confidence in the legal profession. See, Richardson v. Hamilton International Corporation, 469 F.2d 1382, 1385 (3d.Cir.1972), cert. denied, 411 U.S. 986, 93 S.Ct. 2271, 36 L.Ed.2d 964 (1973) ... ...
-
U.S. v. Adamo
... ... Georgia, 370 U.S. 375, at 390, 82 S.Ct. 1364, at 1373, 8 L.Ed.2d 569 (1962), and In re Gopman, 531 F.2d 262 (5th Cir.1976), do not support this contention ... The first case cited arose out of claims made to the district court that government officials leaked prejudicial grand jury information to the media and that the government unlawfully prevented a witness favorable ... ...
-
Taylor, In re
... ... Erlbaum as his attorney. The purpose of the Government's motion to disqualify Mr. Erlbaum is not to protect appellant's right to counsel, but rather to promote the public's interest in an effective, thorough grand jury investigation. See In re Gopman, 531 F.2d 262 (5th Cir. 1976); Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896 (1975), appeal dismissed and cert. denied, 423 U.S. 1083, 96 S.Ct. 873, 47 L.Ed.2d 94 (1976); cf. Matter of Grand Jury Empaneled January 21, 1975, 536 F.2d 1009 (3rd Cir. 1976). It contends, therefore, that judicial ... ...
-
U.S. v. Denson
... ... at 1338 (note omitted). See Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See also Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); Matter of Special February 1977 Grand Jury, 581 F.2d 1262, 1263 (7th Cir. 1978), Citing In re Gopman, 531 F.2d 262 (5th Cir. 1976). The Supreme Court emphasized the rareness of such orders. Carroll v. United States, 354 U.S. at 403, 77 S.Ct. 1332. The order appealed from must be severable from, and collateral to, the main case; the right involved must be so important that to deny review would ... ...
-
Everybody's Doing It-but Who Should Be? Standing to Make a Disqualification Motion Based on an Attorney's Representation of a Client With Interests Adverse to Those of a Former Client
...F. Supp. 40, 44 (E.D. Pa. 1980). 7. Brown and Williamson Tobacco Corp. v. Daniel Int'l Corp., 563 F.2d 671 (5th Cir. 1977); In re Gopman, 531 F.2d 262 (5th Cir. 1976); Krebs v. Johns-Manville Corp., 496 F. Supp. 40 (E.D. Pa. 1980); Black v. Missouri, 492 F. Supp. 848 (W.D. Mo. 1980); Altsch......