In re Liotti, No. 10-9504

Decided Dec. 2, 2011

Thomas Liotti had several charges for professional misconduct levied against him for his involvement in a in an appeal from a criminal conviction of his client before the District of South Carolina. Mr. Liotti rearranged a number of quotes in his Reply Brief in such a way as to misrepresent that the statements were sequential and went to show that the prosecution did not prove its case. In fact, they were separated and involved different subjects altogether. Mr. Liotti alleged in his Opening Brief that the trial court “sat on” evidence that tended to call the government’s informant into question. In reality, the court did not receive this evidence until after the trial was over. Mr. Liotti also alleged in his Opening Brief that the government overestimated how long the trial would last (saying it would take about two weeks) in an attempt to defeat a motion for a change of venue. Actually, it was Mr. Liotti himself that overestimated the trial length by guessing two weeks; the government disagreed on record and suggested it would last three or four days. Additionally, Mr. Liotti initially argued before the trial court that his client engaged in an internet conversation that proved his innocence. Though he later admitted the conversation was a fake, he reasserted the argument on appeal. Finally, Mr. Liotti alleged in his Reply Brief that two of the Secret Service agents responsible for the case against his client were subsequently discharged for misconduct. There was no evidence of the agents being terminated and when pressed to present some during oral argument, Mr. Liotti backed away from the assertion.

The New York Rules of Professional Conduct—Liotti’s office is located in New York—prohibit, among other things, conduct involving “dishonesty, fraud, deceit or misrepresentation,” making false statements or “fail[ing] to correct a false statement of material fact,” offering evidence “that the lawyer knows to be false,” or making false statements questioning the integrity of a judge.

When presented with the violations, Mr. Liotti essentially admitted to the substance but maintained that his actions were a mistake and not the result of intentional misconduct. He maintained that his poor judgment was inappropriate but not subject to disciplinary procedures (or, at most, a private admonishment).

The Fourth Circuit found that public admonishment was the appropriate sanction. Recognizing that the proper standard for attorney sanctions—following the ABA guidelines—is “clear and convincing evidence,” the court found that Mr. Liotti’s conduct amounted to clear misrepresentations in violation of the New York Rules and therefore the Fourth Circuit’s Local Rules App. P. 46(g)(1)(c) allowing the court to discipline attorneys for violations of the professional conduct rules where the attorney maintains his or her primary office.

Full Opinion

-C. Alexander Cable

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