Stellar Record Doesn't Mitigate Attorney Misconduct

If you think that a court will be hesitant to issue sanctions against court-appointed attorneys with stellar records, think again.

The Fourth Circuit Court of Appeals admonished court-appointed attorney Thomas Liotti on Friday for five different charges of attorney misconduct, most relating to factual misrepresentations. Liotti conceded the misrepresentations, but argued that he should not be publicly disciplined because they were unintentional. The court was not persuaded.

The Fourth Circuit asserted that Liotti:

• Improperly joined separate and unrelated quotations in a reply brief to support his contention that the government had failed to prove an offense.
• Falsely accused the trial judge of suppressing evidence, when court records indicated that the judge did not receive the evidence until after the trial concluded.
• Misrepresented facts pertinent to an unsuccessful change of venue motion.
• Made misrepresentations in a sworn Declaration filed in the district court and used on appeal.
• Asserted, without any record support, that two of the Secret Service agents involved in his client's investigation had been fired for misconduct.

Unlike many of the attorney misconduct cases we have reviewed, Liotti didn't argue with the judges or insult the court's integrity in his response affidavit. Instead, he acknowledged that he had made mistakes, apologized, and offered assurances that the mistakes were unintentional. That, however, was not enough to save him from attorney sanctions.

The prosecuting counsel in Liotti's disciplinary hearing acknowledged that there were mitigating factors in the matter, but asserted that Liotti's admissions were sufficient to justify the imposition of discipline. The Fourth Circuit Court of Appeals agreed.

The court concluded that that Liotti's extensive experience - over 30 years of practice - and competence as a lawyer constituted an aggravating factor regarding his misrepresentations or oversights. In mitigation, however, the record failed to show a history of attorney misconduct, the client was not harmed by the misconduct, and Liotti did not appear to have underlying selfish motives.

There are two lessons that attorneys can take from this matter. First, a response that respectfully concedes errors yields a far better outcome for attorneys than a response "peppered with disdainful and unsubstantiated conclusions." While Liotti certainly didn't want to be publicly admonished, the penalty could have been worse. Second, experience and an exemplary record will not prevent attorney sanctions. The Fourth Circuit notes that new attorneys will make mistakes, but experienced attorneys are expected to know better.

Related Resources:

• In re Thomas Liotti (Fourth Circuit Court of Appeals)
• Attorneys and Ostriches: Beware the Wrath of Judge Posner (FindLaw's Seventh Circuit blog)
• Elmore Wins Ineffective Counsel Appeal After 29 Years in Prison (FindLaw's Fourth Circuit blog)
• Attorney Misconduct (LawBrain)