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In Re Friedman



Disciplinary proceeding.


The Review Board of the Attorney Registration and Disciplinary Commission recommended that respondent, Morton E. Friedman, licensed to practice law in Illinois on May 21, 1964, be censured. The two-count complaint filed by the Administrator of the attorney discipline system on May 12, 1976, charged that respondent, while serving as chief of the criminal division of the Cook County State's Attorney's office, was guilty of conduct tending to bring the legal profession into disrepute and violative of four Disciplinary Rules of the Code of Professional Responsibility: Disciplinary Rule 7-102(A)(6) (creation of false evidence), Disciplinary Rule 7-102(A)(4) (knowing use of false evidence), Disciplinary Rule 7-109(B) (secreting of a witness), and Disciplinary Rule 1-102(A)(4). The Hearing Board of the Attorney Registration and Disciplinary Commission found that respondent did not violate the Code of Professional Responsibility and recommended that the complaint be dismissed with prejudice. The Administrator filed exceptions with the Review Board. After consideration of briefs and oral argument, a report signed by three members of the Review Board was filed, recommending that respondent be censured. A second report, signed by two members of the Review Board, recommended that the report of the Hearing Board be affirmed. The three remaining members of the Review Board (one vacancy existed at the time) did not participate. The concurrence of five members of the Review Board is required for a decision (Supreme Court Rule 753(d) (58 Ill.2d R. 753(d))) and the Board granted respondent's motion for reconsideration. On February 28, 1978, the Review Board issued a second report and recommendation in which a five-member majority recommended that respondent be censured while three members, with a written dissent, voted that the complaint be dismissed with prejudice.

The facts are not in dispute and have been stipulated by the parties. The occurrences which gave rise to count I have previously been considered by this court in In re Howard (1977), 69 Ill.2d 343. In March 1973 Charles Graber was arrested by Officer Jerry Maculitis and charged with driving while under the influence of alcohol. Respondent was informed that Officer Maculitis believed he had been solicited to receive a bribe from Graber's attorney, Lee Howard. Respondent met with Officer Maculitis and directed him to follow Howard's instructions even if those instructions included testifying falsely in favor of Graber. Howard told Maculitis that the defense would not be ready to proceed if the breathalyzer operator were present. Maculitis was instructed by respondent to arrange for the absence of the breathalyzer operator, who, however, on the day of the trial, appeared in court to testify. Following respondent's instructions, Maculitis falsely advised the court that the breathalyzer operator was unavailable. The charges against Graber were dismissed. In a washroom adjacent to the courtroom Maculitis was given $50 by Howard, who was later indicted for bribery.

During the first recess of court after the disposition of the Graber case, an assistant State's Attorney, acting upon the respondent's instructions, advised the associate circuit judge of the circumstances surrounding the case.

The charge contained in count II of the Administrator's complaint arose from facts which have also been before this court. (People v. Powell (1978), 72 Ill.2d 50.) Juanita Guevara was arrested by Chicago police officer Jose Martinez and charged with the aggravated battery of Awilda Torres. In July 1973 respondent was told that Martinez had been approached by Guevara's attorney, Paul Powell, and was solicited to receive a bribe. Respondent instructed Martinez to give the appearance of cooperating with Powell. After meeting with Powell, Martinez told respondent that Powell had offered to pay him if he would arrest Ms. Torres and use the threat of prosecution to persuade her to drop the charges. Respondent instructed Martinez to tell Powell that the complaining witness had been persuaded to drop the charges. Martinez was also told that if he were called as a witness at the preliminary hearing, he should advise the court that Torres did not wish to appear. Although Torres and her mother appeared in court ready to testify at the preliminary hearing, they were advised of the pending investigation concerning Powell's conduct and escorted to the State's Attorney's office, where they remained until the preliminary hearing was concluded. The assistant State's Attorney in charge moved that the case be stricken with leave to reinstate. Before ruling on the motion the court asked that Martinez be placed under oath in order to verify the reason for the request, and Martinez testified falsely that he had spoken to Torres and her mother and had been advised that they did not wish to prosecute. The court then granted the State's motion to strike with leave to reinstate. After the preliminary hearing Martinez met Powell in the latter's car and was paid $250. Powell was later indicted and convicted of bribery. Immediately following the preliminary hearing the court was advised of the reasons for Martinez's testimony. The charges against Guevara were later reinstated.

This case presents the questions whether disciplinary action is merited and, if so, the nature of the sanction to be imposed when a prosecutor admittedly engages in conduct violative of the Code of Professional Responsibility for the purpose of developing evidence to be used in a subsequent prosecution. The parties have not cited nor has our research disclosed any analogous cases previously considered by either a court or disciplinary committee.

Analogizing to the court-tolerated deceit employed in narcotics investigations (United States v. Russell (1972), 411 U.S. 423, 36 L.Ed.2d 366, 93 S.Ct. 1637; United States v. Sorrels (1932), 287 U.S. 435, 77 L.Ed. 413, 53 S.Ct. 210), respondent argues that "the courtroom is not immunized by the Code of Professional Responsibility from investigation methods otherwise lawful and ethical" and that perjury and the secreting of witnesses are necessary methods for the successful investigation and prosecution of corrupt attorneys, whose stealth makes less deceptive investigatory techniques ineffective. He contends, too, that motive and intent must be considered in judging the ethics of respondent's conduct, and that respondent's lofty motive negates any technical violation of the Code of Professional Responsibility. Any intent to subvert the judicial processes in the two cases, respondent argues, originated not with him, but with attorneys Howard and Powell.

The Administrator contends that deceit and deception, although permissible in drug investigations, may not be employed to mislead or deceive a court while hearing one matter in order to develop evidence to be used in another proceeding, and that motive is not relevant to the question whether there has been professional misconduct and should be considered only in determining the appropriate sanction to be imposed.

ABA Standards, The Prosecution Function, section 1.1(d) (1971), states that "It is the duty of the prosecutor to know and be guided by the standards of professional conduct as defined in codes and canons of the legal profession, and in this report." It provides, too, that it is "unprofessional conduct for a prosecutor knowingly to offer false evidence, whether by documents, tangible evidence, or the testimony of witnesses." (ABA Standards, The Prosecution Function sec. 5.6(a) (1971).) Although this court has not formally approved the Code of Professional Responsibility adopted by the American Bar Association, it frequently serves as a guide for standards of professional conduct. (See In re Spencer (1977), 68 Ill.2d 496; In re Taylor (1977), 66 Ill.2d 567.) The complaint charged the violation of Disciplinary Rule 1-102(A)(4), which generally proscribes "conduct involving dishonesty, fraud, deceit, or misrepresentation," and violations of Disciplinary Rule 7-102(A)(4), Disciplinary Rule 7-102(A)(6), and Disciplinary Rule 7-109(B), which provide:

"DR 7-102(A) In his representation of a client a lawyer shall not:

(4) Knowingly use perjured testimony or false evidence.

(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false."

"DR 7-109

(B) A lawyer shall not advise or cause a person to secrete himself or to leave the jurisdiction of a tribunal for the purpose of making him unavailable as a witness therein."

That respondent's conduct has deviated from these rules is apparent; respondent himself admits that were it not for his motives he would be in violation. He argues that to impose discipline for his conduct would give more emphasis to the abstract concept of a courtroom's sanctity than to the substances of an honest legal system. While respondent asserts that he is not arguing that the end justifies the means, we so construe his argument and find it unacceptable. The integrity of the courtroom is so vital to the health of our legal system that no violation of that integrity, no matter what its motivation, can be condoned or ignored. Although arising out of a different context, we find apposite the words of Mr. Justice Brandeis in Olmstead v. United States (1928), 277 U.S. 438, 485, 72 L.Ed. 944, 959-60, 48 S.Ct. 564, 575 (dissenting opinion):

"Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face."

Respondent's contention that no alternative methods were available to insure the successful prosecution of corrupt attorneys is also unpersuasive. As the above-quoted language indicates, even if no other ways existed to ferret out bribery, the respondent would still not be privileged to engage in unethical (and perhaps illegal) conduct. Moreover, in the present case alternatives were available to investigate and prosecute the suspected attorneys. They could, for example, have been charged with solicitation of perjury (Ill. Rev. Stat. 1977, ch. 38, pars. 8-1, 32-2) or attempted bribery (Ill. Rev. Stat. 1977, ch. 38, pars. 8-4, 33-1). Respondent maintains that as a practical matter convictions are virtually impossible to obtain unless the crime has been consummated and the money has been paid, that even when these circumstances are present conviction is still very difficult. Such factors cannot, however, justify respondent's conduct.

Because respondent acted without the guidance of precedent or settled opinion and because there is apparently considerable belief (as evidenced by the letters and affidavit supporting respondent) that he acted properly in conducting the investigations, we conclude that no sanction should be imposed. (See In re Luster (1957), 12 Ill.2d 25.) It appears that respondent has otherwise served the public diligently and with integrity and acted in the present matter not out of self-interest, but from a sincere, if ...

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