In the Matter of Thomas Liotti

Citations: 667 F.3d 419; 2011 U.S. App. LEXIS 23958; 2011 WL 6008979Docket: 10-9504

Court: Court of Appeals for the Fourth Circuit; December 2, 2011; Federal Appellate Court

Original Court Document: View Document

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The United States Court of Appeals for the Fourth Circuit publicly admonished Thomas F. Liotti, Esq., following disciplinary proceedings initiated by a Notice to Show Cause issued on January 5, 2011. Liotti, an attorney licensed in New York and the Fourth Circuit, faced five charges for violations of professional conduct rules stemming from his representation of Jonathan Giannone during his appeal. The court found that Liotti acknowledged some misrepresentations but claimed they were unintentional and not deserving of discipline, a stance the court rejected.

The charges outlined include: 

1. **First Charge**: Liotti improperly combined unrelated quotations in Giannone's reply brief, misleadingly presenting them as a single exchange, which misrepresented the timeline and supported his argument about the government's failure to prove its case.

2. **Second Charge**: Liotti falsely accused the trial judge of suppressing evidence by alleging that she withheld a letter from an informant, claiming it was received before the trial began. The court clarified that the letter was received after the trial concluded, contradicting Liotti's assertion that the judge had the letter during the trial.

The court concluded that Liotti's conduct constituted violations of professional conduct rules, resulting in a public admonishment.

The Third Charge alleges that Mr. Liotti misrepresented facts regarding a failed change of venue motion in the Giannone case. He claimed the government exaggerated the expected trial length to prevent a venue transfer to New York, asserting a two-week duration, while the government estimated it would last "3-4 days." The government revealed this misstatement in its response brief, to which Liotti responded disrespectfully.

The Fourth Charge concerns Liotti's sworn Declaration filed in district court, claiming that an internet chat held in his office before the trial proved Giannone's innocence. However, Giannone later admitted to a government agent that he had fabricated the chat, a fact Liotti did not disclose on appeal.

The Fifth Charge involves Liotti's unsupported assertion in the Giannone reply brief that two Secret Service agents had been fired for misconduct. During oral arguments, he attempted to minimize the lack of evidence for this claim, suggesting the government should provide the information.

The Notice instructed Mr. Liotti to explain why disciplinary measures should not be imposed under the Local Rules of Appellate Procedure, which permit discipline for conduct violating professional conduct rules in the attorney's jurisdiction. The New York Rules of Professional Conduct prohibit dishonesty, misrepresentation, and false statements to a tribunal, as well as undignified conduct. They also prevent a lawyer from acting as an advocate in a case where they may be a witness.

In response to the Notice, Mr. Liotti submitted an affidavit addressing the charges, along with supporting letters and a response brief, with the admissions in his affidavit indicating grounds for disciplinary action.

Thomas F. Liotti, an attorney with New York admission since 1977, affirms his unblemished legal record and outlines his role in representing Jonathan Giannone, whose family sought his assistance for an appeal after Giannone's conviction in South Carolina. Liotti acknowledges his prior experience as appointed counsel under the Criminal Justice Act and expresses his intention to clarify issues raised in the Notice to Show Cause. 

He accepts responsibility for combining excerpts in his reply brief without adequate qualification, clarifies that he did not aim to undermine the district court's credibility, and admits to a misunderstanding regarding trial estimates. Liotti states he was unaware of any manipulation of internet chat by Giannone and concedes the lack of direct evidence regarding the termination of Secret Service agents linked to the investigation, acknowledging his arguments should have been better framed.

Liotti emphasizes that he did not knowingly violate his obligations as an attorney or submit false evidence. He submitted letters from colleagues affirming his character and professional competence, although some letters note concerns about his conduct in the current proceedings, including one from attorney Michael Kelly who suggests Liotti exceeded appropriate bounds in this case.

Mr. Liotti, a seasoned attorney with over thirty-three years of experience and an "AV rating" from Martindale-Hubbell, acknowledges the substance of the charges against him, attributing his actions to mistakes and poor judgment rather than intentional misconduct. He expresses regret and argues that the charges do not warrant disciplinary action. 

In addressing the First Charge, he clarifies that combining trial transcript excerpts was intended to support two separate arguments, though he admits this was improperly executed. For the Second Charge, Liotti contends he was justified in questioning the district judge's finding regarding an informant's letter. Regarding the Third Charge, he believed the prosecutor had estimated the trial duration, which he now recognizes as mistaken. In response to the Fourth Charge, he claims his Declaration was a permissible proffer of evidence, which went unobjected to by either the government or the district court. He argues that failure to correct inaccuracies in the Declaration was due to unclear post-trial admissions by Giannone, asserting that corrections would have been immaterial. For the Fifth Charge, Liotti maintains he believed government agents had been dismissed for misconduct based on allegations and their absence from the Secret Service, despite acknowledging the Giannone record does not support this belief.

During a hearing on October 27, 2011, Liotti's lawyer attributed the charges to mistake and poor judgment, arguing that the informal discipline already faced by Liotti suffices as punishment. Counsel requested dismissal of the proceedings or private discipline, suggesting that attorneys are rarely held accountable for missteps in appellate processes. The prosecuting counsel countered that the cumulative nature of the charges suggests significant misconduct, arguing that Liotti's experience does not mitigate his culpability but rather makes it less forgivable.

Experienced attorneys bear a heightened responsibility to understand and follow professional conduct rules, as asserted by the prosecuting counsel. Despite acknowledging mitigating factors, counsel argued that Liotti's admissions in his Affidavit warrant disciplinary action, emphasizing the necessity of public disclosure for deterrence purposes. The appropriate standard of proof for rule violations is "clear and convincing evidence," as endorsed by the American Bar Association Standards for Imposing Lawyer Sanctions. Possible sanctions for misconduct include disbarment, suspension, fines, and reprimands, requiring consideration of both aggravating and mitigating factors.

The charges against Mr. Liotti are analyzed in order of severity. The First Charge concerns Liotti's improper quoting of the trial transcript in the Giannone reply brief, where he combined distinct parts of the transcript misleadingly. He accepted responsibility for this error, though the citations were accurate, suggesting some mitigation since a diligent reader could verify the sources. The Third Charge involves a significant misrepresentation by Liotti regarding the government's estimate of Giannone's trial duration, which he later acknowledged as mistaken. His defensive response to the government's correction indicated a lack of professionalism.

Regarding the Fifth Charge, Liotti incorrectly stated that two investigating agents were fired for misconduct, a claim stemming from information from an informant and his client. Although it was confirmed that the agents were no longer with the Secret Service, there was no evidence of disciplinary action against them. Liotti admitted in his Affidavit that he should have framed his argument more accurately based on the evidence available. Overall, Liotti's actions in the First, Third, and Fifth Charges reflect misrepresentations to the Court.

Liotti's unsupported allegation regarding the firing of Secret Service agents for misconduct is deemed improper, as he should have recognized the lack of supporting evidence. Regarding the Fourth Charge, Liotti argues he did not violate Rule 3.7 of the New York Rules of Professional Conduct, which prohibits a lawyer from acting as an advocate in a matter where they may be a witness. His Declaration states that his associate, Drummond Smith, witnessed an internet chat involving Giannone, indicating Liotti likely would not be allowed to testify about it. Furthermore, the government did not call Liotti as a witness or seek his disqualification, which absolves him from violating Rule 3.7. However, Liotti failed to disclose that Giannone had admitted to the government that the chat was fabricated, relying on a dialogue he did not witness and lacking computer proficiency. This omission constituted a failure to correct a material misrepresentation. Despite claiming ignorance of the chat's authenticity, Liotti should have known the statements in his Declaration were unfounded due to Smith's knowledge of Giannone's admission.

The most serious charge against Liotti involves his false accusation that the district judge suppressed an informant's letter, which misrepresents the record and undermines the judge's character. Liotti initially contended that the judge's finding regarding the receipt date of the letter was erroneous but later acknowledged that his arguments should have been framed to avoid attacking the court's credibility. His assertions about the trial judge, along with the way they were presented, were unfounded and violated professional conduct rules.

Factual allegations in the Notice indicate that Mr. Liotti made misrepresentations to the Court, violating Rule 8.4 of the New York Rules, which prohibits conduct involving misrepresentation by lawyers. Specific misrepresentations include: presenting disconnected trial transcripts as a cohesive conversation, falsely claiming the government overstated the trial's duration, alleging without evidence that two agents were fired for misconduct, failing to disclose Giannone's admission of fabricating an internet chat, relying on a Declaration for a chat he had no knowledge of, and asserting without support that the presiding judge suppressed evidence. These actions also violate the Local Rules.

The integrity of the adversary system relies on truth and candor, with the obligation to present facts accurately being paramount for appellate lawyers. Historical references underscore the importance of factual accuracy and the dangers of deceit within the judicial process. Liotti’s response acknowledges the dual obligations of lawyers to their clients and the justice system, emphasizing the need for disciplined adherence to professional conduct standards.

While Liotti's conduct demonstrates a concerning pattern of carelessness, it was largely uncovered by the Court and opposing counsel before the appeal's resolution, resulting in no prejudice to either party. His extensive experience and competence are viewed as aggravating factors in assessing discipline, though the absence of a misconduct history and lack of client harm serve as mitigating factors. No evidence suggests a selfish motive behind Liotti's actions.

Mr. Liotti successfully handled Giannone’s appeal as a court-appointed attorney, earning recognition for his capability and zealous advocacy. His misconduct in the appeal is deemed an isolated incident, inconsistent with his otherwise commendable career. Liotti has acknowledged and apologized for his misrepresentations, attributing them to mistakes and poor judgment. Despite these mitigating factors, his cumulative conduct necessitates some form of discipline. While more severe penalties like disbarment or suspension are generally reserved for serious misconduct, Liotti’s violations cannot be overlooked. According to ABA Standards, an admonition is appropriate for isolated instances of neglect with minimal actual or potential harm. The discipline aims to protect the public and maintain the integrity of the legal system. Given the mitigating circumstances, a public admonition is considered a fitting response. Consequently, Mr. Liotti is publicly admonished. The commendable representation by both Liotti’s and the prosecution's counsel is also acknowledged.