Lawyers who Tarnish Justice
In 1989, Leonard R. Milstein of Woodland Hills, California, was an experienced and capable criminal defense attorney — owing in no small part to his years of experience as a prosecutor.
He had a double-murder case on his hands, nothing terribly unusual for his kind of law practice. His client, Brad Millward, was charged in a San Fernando court with the execution-style murders of two men in Antelope Valley, north of Los Angeles, on July 5, 1987. An eyewitness said he had seen Millward commit the crimes. Millward faced the death penalty.
It was an unpleasant set of facts and circumstances. Milstein’s approach to dealing with the potentially losing hand he was dealt in the case was to simply manufacture the evidence he needed.
Milstein approached county jail inmate Albert Gutierrez and promised to represent him as his lawyer and help free him from jail — if he would lie on the stand for Millward.
Gutierrez upheld his part of the deal, and testified that he had found ammunition in the trunk of the car owned by the key prosecution witness. He also presented fabricated invoices as proof that he had worked on the car as a mechanic.
Jurors in Millward’s case acquitted him on one murder and deadlocked on the other. He later pleaded guilty to a lesser charge and received an eight-year sentence.
But Milstein didn’t keep his end of the bargain. When he shortly stopped showing up for hearings in Gutierrez’s case, Gutierrez decided to tell the tale to the authorities. A second inmate, Charles Haas, came forward and said he was offered $3,500 by Milstein to testify at the Millward trial. Haas stood by his story, but refused to testify for fear of retribution — and was shot to death three weeks after his release.
On June 2, 1995, Milstein was convicted of bribery, perjury and obstruction of justice in Los Angeles Superior Court. He stands as a startling example of extreme lawyer misconduct under the guise of “discharging duties as counsel.” But he also stands for something else — the grim reality that a vast problem of attorney misconduct remains untouched and undeterred.
State bar systems are intended to oversee lawyers and protect the public, yet most state bars are woefully inactive.
“We have a situation where many lawyers are sheltered or ignored when they go bad,” said Abelson. “Again, much of what is done by way of actions against lawyers is motivated by political considerations or, sometimes, revenge.”
In mid- to large-size firms, Abelson noted, there is tremendous pressure to bill high hours to wealthy clients. This leads to perhaps the most widespread form of attorney misconduct: inflated billings. This is nothing less than theft of client funds, but the lawyers in these firms are those least likely to ever face discipline.
“Statistics show that the vast majority of the cases where attorneys are disciplined or prosecuted for wrongdoing involve sole practitioners or lawyers in small firms. Big firm lawyers in particular seem to escape discipline almost uniformly,” said Abelson.
The California bar, which oversees more attorneys than any other state bar, concedes this problem. “There have definitely been few cases involving major or influential law firms,” said Kim McGready of the State Bar Communications office. She also noted that recently appointed chief trial counsel had made it a “key part of her agenda” to deal with the issue of lawyers being able to obtain shelter from discipline.
Abelson noted that the phenomenon of lawyers being sheltered in big firms has not diminished. “I’ve heard that they want to crack down, but the reality of that just hasn’t materialized,” he said.
The types of acts which receive attention from authorities are similarly limited. An analysis of 12 months of California disciplinary reports showed that the vast majority of those charged and disciplined were attorneys who improperly handled client funds (such as embezzlement) or who failed to competently perform services for clients of malpractice-level proportions.
Many of those who were found guilty of improper acts of “personal behavior” (such as personal tax fraud) had their punishments mitigated by attributing it to substance abuse problems and then entering a rehabilitation program for lawyers and judges overseen by the state bar. Such programs are “extremely well populated,” according to an attorney who has represented many who faced disciplinary proceedings.
In fact, Freedom learned from the California state bar that attorneys under its jurisdiction can remain in good standing even if they are being held in jail on felony charges.
Some states, such as New York, have gotten tougher on unethical attorneys — and it has paid off. The New York state bar reported a substantial decrease in complaints following a concerted campaign in recent years to step up discipline and enforce regulatory penalties. In Massachusetts, the Board of Bar Overseers has been consistently vigilant in disciplining attorneys who step outside the bounds of propriety.
But such measures are few. Even the statute which provides for sanctions against bad faith acts by attorneys in federal court, Rule 11 of the Federal Rules of Civil Procedure, was amended in 1993 to make it next to impossible to obtain sanctions for attorney misconduct or a frivolous lawsuit. Rather than allow for an attorney to file a motion for sanctions against another lawyer who files a suit or a motion in bad faith, the attorney must provide the motion to the offending attorney 21 days before filing — and if, in this period, the attorney “corrects” or withdraws the false document, the motion cannot be filed, regardless of any damage which may have been done in the interim.
Back to Basics
“I think people would be shocked if it were truly known how many witnesses lied under oath in a court of law every day. The problem is so pervasive that it has gotten dangerous.” Marvin H. Shoob |
The common thread found in all of these dishonest abuses of the system is obvious: many laws and rules which curb attorney misconduct and perjury exist, but simply are not enforced. If they were, many of the abuses would evaporate.
However, many of the regulations also do not go far enough, and specifically are not sufficiently tough on lawyers and litigants who lie in court.
As a first step, all “protected” or “special privilege” categories which are spared from discipline or prosecution for crimes must be disposed of across the boards. Otherwise, “equal justice” will remain a myth.
Broad reforms on the issue of perjury in the courts are needed. These include requiring that all filings, complaints included, be filed under oath.
Simply treating perjury with a monotone level of punishment — for example, three years in prison for any form of perjury of which the person is found guilty — should be abolished. Instead, adopt and expand concepts of indeterminate sentencing (where each offense is sentenced individually) so penalties for perjury parallel the severity of the lie and the consequences it could have visited upon the victim if it were believed. The penalties for false accusations should be commensurate with the amount of damage that would have been done if the lie had not been caught.
And for the attorneys, perhaps the best solution is simply appointing committees of impartial non-lawyers who can receive, evaluate, investigate and adjudicate complaints without regard to political, financial or any other influence. And those oversight committees should apply standards in the same manner as proposed above.
All such solutions will require strong impetus for change from both the bench and the bar, and real participation from both.
Some have already set a good example for others to follow. When faced with the subversion of the system, there are judges who take action rather than choose to act only as referees or spectators. One such example came in a case before a U.S. District Court judge in New York. The judge, faced with clear evidence of perjury by a defendant acquitted on other charges recommended he be charged for perjury: “Gentlemen, you think you can play games with this court; you cannot. I am referring this record to the United States Attorney for the Southern District of New York with the strong recommendation [the defendant] be indicted for perjury.”
Such an activist approach has found strong support among legal ethics experts. “Judges are seekers of truth and justice, not just referees,” said Professor Geoffrey C. Hazard Jr., director of the American Law Institute in Philadelphia. “This may send the trial attorneys berserk,” he added. “The appellate bench would probably go crazy as well, but we need judges to speak out and say when it is obvious someone is not telling the truth.”
In a flawed system that is filled with many problem areas, that willingness to “call it as it is” would at the very least send a signal of the right kind. The system needs more, of course, but a reverence for truth would be a good place to start.
