Appeal from order of the United States District Court for the District of Connecticut (T.F. Gilroy Daly, Chief Judge) suspending an attorney from practicing before the United States District Court for the District of Connecticut after finding that the attorney violated Disciplinary Rule 7-102(B)(2) of the Code of Professional Responsibility. Reversed. Judge Van Graafeiland concurs in a separate opinion.
Van Graafeiland, Winter and Altimari, Circuit Judges.
Appellant John Doe, an attorney appearing before the district court pro hac vice, appeals from an order of the United States District Court for the District of Connecticut (T.F. Gilroy Daly, Chief Judge) which suspended Doe from practicing before any court in the District for a period of six months after finding that Doe violated Disciplinary Rule 7-l02(B)(2) ("DR 7-l02(B)(2)") of the Code of Professional Responsibility*fn1 (the "Code"). The district court's conclusion, that Doe violated the Code, was based upon evidence that Doe suspected that a witness lied at a deposition and Doe did not disclose the witness's alleged perjury to the court. Because we conclude that Doe lacked information clearly establishing the existence of a fraud on the court, we reverse.
The conduct which formed the basis for the district court's disciplinary decision arose during the discovery phase of an action pending before Judge Zampano in the District of Connecticut. On two occasions, Doe had conversations with his client, the plaintiff in the underlying action ("client"), concerning possible perjury by a deposition witness and subornation of perjury by attorneys representing the defendant. These conversations occurred immediately before and some time after the witness, who was an employee of defendant, testified at a deposition taken by Doe. During the first conversation between Doe and client ("conversation one") which occurred just prior to the deposition, client related to Doe a conversation client had with the deposition witness. According to client, the witness told him that defendant's attorneys had instructed him "to change his story when responding to certain questions at [his] deposition." A few months after the deposition, Doe had a subsequent conversation with client ("conversation two") where client related another conversation he engaged in with witness. During this second conversation, witness told client that he had "followed the instructions [of defendant's attorneys] and had lied in response to [those] questions [at the deposition]." Witness also told client that he nevertheless would testify truthfully at trial.
Approximately one year after witness's deposition, the substance of Doe's conversations with client was brought to the attention of Judge Zampano. After this information was received, Judge Zampano indicated to the parties that he would hold a hearing to investigate possible misconduct during discovery in the action in connection with the Doe/client conversations as well as other matters.*fn2 Pending resolution of the misconduct allegations, Judge Zampano stayed further proceedings in the underlying action. On December 18, 1984, a closed hearing was held during which client, witness and Doe testified. Client testified that he did in fact have two conversations with witness (as summarized above) and that he had reported those conversations to Doe during conversations one and two. Witness's testimony at the hearing completely contradicted client's. He stated that he never had any conversations with client regarding his deposition testimony. He also denied that he had been instructed to lie or had in fact lied at his deposition.
Finally, Doe testified at the hearing that client related his conversations with witness (in substantially the manner set forth above) and that he believed that client had those conversations with witness. With respect to the first conversation, Doe explained, however, that he gave little credence to witness's suggestion that defendant's attorneys had instructed him to lie at the deposition, primarily because he doubted that defendant's attorneys would engage in subornation of perjury and also because he felt that witness's statements to client reflected nothing more than a "layperson's [mis]interpretation of deposition preparation." With respect to conversation two, Doe stated that he had personally suspected that witness had not told the truth at his deposition, but he explained that it did not occur to him that he had an ethical obligation to report to the court this information. In fact, he believed just the opposite. Doe thought that he was ethically obligated not to reveal the information since it constituted privileged client confidences and/or secrets. Doe explained, however, that he would disclose the information regarding witness's possible perjury at trial, presumably to impeach witness's testimony.
Judge Zampano subsequently issued an opinion in September 1985 in which he found, inter alia, that, as between client and witness, "one of the two is a perjurer." Judge Zampano concluded, however, that "the special hearing was not the appropriate forum in which to resolve the conflict." Rather, he decided that "[j]udgment on the credibility of these witnesses must be left to the usual and customary processes available to test the truthfulness of individuals' pretrial and trial statements given under oath." Thus, Judge Zampano left the question of whether perjury has been committed and by whom for determination at trial.
Despite the fact that Judge Zampano decided that the special hearing was not the "appropriate forum" for determining whether witness, or client, had engaged in perjury, he nevertheless ordered that questions regarding Doe's involvement in this matter be referred to a Grievance Committee for an investigation and recommendation as to appropriate action concerning possible ethical misconduct. Judge Zampano observed that Doe may have violated his duty under DR 7-102(B)(2) when he did not disclose to the court the information he possessed concerning witness's potential perjury and defendant's attorneys' alleged subornation of perjury.
In January 1986, a hearing was held before the Grievance Committee which was comprised of practitioners from the District of Connecticut. According to the reference from Judge Zampano, the Grievance Committee was to determine whether Doe violated DR 7-102(B)(2). Thus, the Committee necessarily had to determine whether Doe had "information clearly establishing . . . a fraud on the tribunal" as a result of 1) his conversations with client and 2) his own independent information regarding evidence in the underlying action. The Grievance Committee also had to determine whether, since most of the information Doe had concerning witness's alleged perjury came from client, Doe was obligated under the Code not to reveal that information since it constituted privileged client confidences and/or secrets. See DR 4-101(B).
During Doe's testimony before the Grievance Committee, he again explained that, after he had conversation one with client, he doubted that any wrongdoing had occurred. He stated, however, that after conversation two (which occurred after Doe had taken witness's deposition), he believed that witness had lied at the deposition. Doe explained, however, that the basis for this belief did not originate from his conversations with client, but rather was the product of his own independent conclusions drawn from his knowledge of the case:
Well, it didn't really relate to the message that [client] related to me. I mean, as I was taking [witness's] deposition, based on other evidence in the case, either documents or testimony of dealers or [defendants' other] witnesses, there were inconsistencies. There were situations in which there was evidence that [witness] was involved in something which he was denying that he was involved--a meeting or a course of action in which [others] had testified or other [defendants'] employees testified that he was involved in which he was either not recalling or denying. So, I didn't think he was telling the truth.
Doe also stated that he felt that most of defendant's other witnesses were not telling the ...