Malone, Matter of

• Decision Date: 03 October 1984
• Citation: 105 A.D.2d 455,480 N.Y.S.2d 603
• Parties: In the Matter of Brian F. MALONE, Attorney, Respondent. Committee On Professional Standards, Third Judicial Department, Petitioner.
• Court: New York Supreme Court — Appellate Division

Page 603

480 N.Y.S.2d 603

105 A.D.2d 455

In the Matter of Brian F. MALONE, Attorney, Respondent Committee On Professional Standards, Third Judicial Department, Petitioner.

Supreme Court, Appellate Division Third Department.

Oct. 3, 1984.

Hinman, Straub, Pigors & Manning, P.C., Albany, (Peter L. Rupert, Albany, of counsel), for respondent.

George B. Burke, Chief Atty., Albany, for petitioner Committee on Professional Standards.

Before MAHONEY, P.J., and MAIN, WEISS, YESAWICH and LEVINE, JJ.

MEMORANDUM DECISION.

Petitioner moves to confirm a referee's report which sustained, in part, a charge of professional misconduct against respondent. Respondent, an attorney admitted in the Second Department on March 16, 1966, cross-moves to disaffirm the report.

The single charge against respondent arises out of his conduct of an investigation, as Inspector General of the New York State Department of Correctional Services, into the alleged brutal beating of an inmate by several correction officers. Specifically, in order to protect the identity of a correction officer who stated he witnessed the incident, and thus protect him from retaliation for having broken the "code of silence" among correction officers, respondent instructed the officer to testify falsely under oath at one point during the investigation.

In December, 1980, Correction Officer Robert Lewis confidentially informed his superiors that he had witnessed an unprovoked assault upon inmate Robert Jackson by several correction officers which occurred on December 13, 1980 at the Downstate Correctional Facility in Dutchess County. Testimony before the Referee, including that of the Commissioner of the Department of Correctional Services, indicated that it is highly unusual for a correction officer to voluntarily inform upon his fellow officers for fear of retaliation for breaking the "code of silence" which exists among correction officers.

Respondent began an investigation into Lewis' allegations. Preliminary interviews of Lewis by respondent and his investigators to ascertain Lewis' version of events and his credibility were conducted at the Dutchess County Airport. The interviews were conducted at the airport as part of a policy decision by respondent, condoned by the commissioner and Lewis, to keep Lewis' identity as an informer secret as long as possible. Some additional information gathered during this period, such as inmate Jackson's statement and his medical records, appear to support Lewis' version of the events surrounding the assault.

Thereafter, on October 21, 1981, at the Downstate Correctional Facility, as part of the ongoing investigation, respondent interviewed under oath the correction officers who had been identified as possibly involved in the alleged beating of inmate Jackson. Six correction officers, including Lewis, were interviewed. The purpose of the interviews was to gather evidence and to have the officers make sworn statements regarding the incident. None of the officers admitted participating in or observing an assault upon the inmate.

Lewis also denied having witnessed the use of undue force. This false testimony was given at respondent's direction. By having Lewis give false testimony exonerating his fellow officers, respondent hoped to avert suspicion away from Lewis as an informer. The ruse was successful.

The day before the interviews, on October 20, 1981, at the Quality Inn in the City of Albany, respondent had taken Lewis' true testimony under oath as to the incident in the presence of a stenographer and investigator. At that time, respondent stated on the record the plan of taking two contradictory statements from Lewis "in order to preserve the confidentiality of his information and his identity". The transcript of Lewis' October 20, 1981 testimony does not reveal Lewis' identity and is entitled "Interview with 'Witness' Correction Officer". After the fact, respondent informed the commissioner and the department's chief legal counsel of Lewis' contradictory statements; both approved of the procedure.

On December 11, 1981, disciplinary charges were brought against three of the correction officers interviewed by respondent on October 21, 1981, alleging the use of undue force and giving false testimony. Negotiations ensued between the department and the officers' union in an effort to settle the charges. During these negotiations, respondent provided the department negotiators with Lewis' October 20, 1981 true statement to use as leverage or a bargaining chip. The negotiations proved unsuccessful, the accused correction officers filed grievances and arbitration was initiated.

On the first day of arbitration, October 4, 1982, Lewis was called as a witness, testified to the use of undue force, and revealed the contradictory nature of his two prior statements and respondent's role with respect thereto. Had the matter never gone to arbitration, Lewis' identity would have remained secret.

On September 22, 1983, petitioner Committee on Professional Standards charged respondent with professional misconduct in violation of DR 1-102 (subd. pars. of the Code of Professional Responsibility and section 487 of the Judiciary Law in that "he counseled and instructed a witness to give contradictory, misleading and inconsistent testimony and attempted to mislead and deceive a party or parties". The charge detailed two specifications, the facts of which were admitted by respondent, which essentially described his role in the taking of Lewis' statements on October 20 and 21, 1981. After a hearing on January 20, 1984 before a referee assigned by this court, the referee found respondent had violated DR 1-102 (subd. par. by engaging in conduct involving deceit and misrepresentation and found respondent's proffered justifications for his action relevant only to the degree of discipline to be imposed.

In support of his cross motion for disaffirmance of the referee's report, respondent first argues that this court is without jurisdiction in this matter because he was not admitted in, does not reside in, and has never practiced law in this department. We reject this contention. This court's disciplinary jurisdiction extends to New York attorneys who have offices in or are employed or transact business in this department (see Judiciary Law, § 90, subd. 2; 22 NYCRR 806.1; Matter of Smith, 68 A.D.2d 52, 53, 416 N.Y.S.2d 608); as Inspector General of the State Department of Correctional Services, respondent has one of his main offices in Albany. Also, the fact that some of the alleged misconduct, such as respondent's direction to Lewis at the Quality Inn in Albany to testify falsely, took place in this department is an additional valid jurisdictional ground (see Matter of Klein, 23 A.D.2d 356, 360, 262 N.Y.S.2d 416, affd. 18 N.Y.2d 598, 272 N.Y.S.2d 372, 219 N.E.2d 194, cert. den. sub nom. Klein v. Klein, 385 U.S. 973, 87 S.Ct. 511, 17 L.Ed.2d 436).

Next, we reject respondent's argument that since he was acting in his role as Inspector General and not as an attorney when he advised Lewis to lie under oath, this court may not discipline him for such misconduct. It is clear that this court's power to discipline an attorney "extends to misconduct other than professional malfeasance when such conduct reflects adversely upon the legal profession and is not in accordance with the high standards imposed upon members of the Bar" (Matter of Nixon, 53 A.D.2d 178, 181-182, 385 N.Y.S.2d 305; see Judiciary Law, § 90, subd. 2; 22 NYCRR 806.2; Matter of Dolphin, 240 N.Y. 89, 93, 147 N.E. 538). Directing a person to give false testimony would normally constitute such misconduct (see Matter of Popper, 193 App.Div. 505, 512, 184 N.Y.S. 406; see, also, Imbler v. Pachtman, 424 U.S. 409, 429, 96 S.Ct. 984, 994, 47 L.Ed.2d 128; Disciplinary Action Against Attorney for Misconduct Related to Performance of Official Duties as Prosecuting Attorney, Ann., 10 A.L.R. 4th 605). Holding a public office, such as Inspector General, is not a shield behind which breaches of professional ethics, otherwise warranting disciplinary action, are permitted. Rather, a lawyer who holds public office must not only fulfill the duties and responsibilities of that office, but must also comply with the Bar's ethical standards.

Respondent argues that, under the circumstances of this case, his direction to Lewis to falsely testify was not a breach of ethical principles because it was in accordance with certain ethical canons, that there is precedent for the proper use of false testimony in the investigative and prosecutorial context, that the motive of protecting Lewis from danger justified the breach, if any, that respondent was under a duty to protect Lewis, that respondent's actions are justifiable under section 35.05 of the Penal Law, and that respondent should enjoy immunity for a good faith discretionary act.

First, we conclude that the ethical canons cited by respondent in support of his conduct, requiring competent and zealous representation of clients, cannot in and of themselves overcome the proscription against directing another to give false testimony. Second, while there is precedent for the proposition that the creation and use of false documents and testimony in the investigative and prosecutorial context may not be so violative of due process and a defendant's fundamental rights as to warrant dismissal of a criminal indictment (see People v. Archer, 68 A.D.2d 441, 417 N.Y.S.2d 507, affd. 49 N.Y.2d 978, 428 N.Y.S.2d 949, 406 N.E.2d 804, cert. den. 449 U.S. 839, 101 S.Ct. 117, 66 L.Ed.2d 46), such conduct may, nevertheless, be unethical (cf. United States v. Archer, 486 F.2d 670; People v. Rao, 73 A.D.2d 88, 425 N.Y.S.2d 122).

Respondent's argument that his conduct was not unethical because it was motivated by a desire to protect Lewis and prompted by his responsibilities as Inspector General is essentially a contention that the end justifies the means. This argument...