When a lawyer comes to learn that a client has testified falsely, the lawyer has a duty to reveal the fraud to the tribunal at the first opportunity such as a sidebar during a jury trial.
Board of Overseers of the Bar v. Stephen M. Brett, No. 04-324 & 05-090 (Maine January 26, 2006). Brett, who was admitted to the Maine Bar in 2001, received three separate public reprimands from the Grievance Commission.
As to the first reprimand, Brett was attending a judicially-assisted settlement conference with a client. Following a session in open court, the judge agreed to meet with the parties and their lawyers separately in chambers. The party and counsel not meeting with the judge were expected to stay in the courtroom adjacent to the judge’s chambers so that they could readily be found if the judge wanted to speak to them. Brett and his client were alone in the courtroom while the opposing party met with the judge in chambers. While they waited, Brett walked behind the judge’s bench, an area that just happened to be adjacent to the door leading directly to chambers. A court security officer standing in the hallway began to observe through a window in the courtroom door that Brett leaned back within two feet of the door to chambers, cocked his head, and began eavesdropping. Brett’s activity apparently took place over the course of several minutes. Brett later admitted to attempting to listen to the discussion in chambers, but asserted that his actions were innocent. He client had expressed an interest in taking a lunch break and was merely trying to listen in on the judge’s conversation to ascertain how much longer he might need to wait before the client could eat.
As to the second reprimand, Brett taught a bicycle spinning class at a New Hampshire gym, where he became acquainted with a spinning student who was also a Town of York police officer named Jamie. Following one such class, Brett approached Jamie and stated that he was building a house in York, that he had just started up his law practice there, and that he could use more clients. He then asked Jamie to hand out his business card to her “arrestees” and offered to pay her $50 for each person who eventually retained him. This proposal made Jamie uncomfortable. After a second later conversation along similar lines, Jamie stopped attending the spinning class. Her fiancé, who was also a police officer, reported the solicitations to the York Police Department, which precipitated an informal investigation by police authorities. Although Brett denied that the solicitation of Jamie ever occurred, the Grievance Commission concluded that she was credible.
As to the third and final reprimand, Brett represented a man named Keith in a criminal jury trial where the client had been charged with operating a motor vehicle while having a blood-alcohol level of .15. Before trial in that case, Brett appeared with his client at a license suspension hearing at the State of Maine Motor Vehicle Office. At that proceeding, Keith testified that he had driven to a 7-Eleven Store, parked his car, walked to a nearby bar, drank alcohol, and, when he returned to his car, was arrested. He essentially maintained that he had been drinking, but not driving. Plea negotiations failed and the case proceeded to trial. Called by Brett, Keith testified under direct examination that he had been very sick on the day in question, had nothing at all to drink that day, and had driven to the 7-Eleven only to buy cough medicine and cigarettes. The Grievance Commission found that Brett’s questioning during direct “suggests strongly that Mr. Brett was aware of the story about to be told, a story on which Mr. Brett continued to rely obliquely in his closing argument to the jury.” At no time did Brett ever request a sidebar or act in any other way during trial to rectify the client’s testimony. Despite Keith’s testimony, the jury returned a guilty verdict. The presiding judge imposed a rigorous sentence, noting that both he and the jury believed that Keith had lied. After trial, the prosecutor obtained a tape from the license suspension hearing and confirmed that Brett attended that proceeding. Formal charges were eventually filed against Brett alleging that he had allowed his client to deviate materially from known, sworn testimony, effectively allowing a falsehood to be submitted to the Court. He defended himself by stating that Keith’s testimony left him “dumbfounded” and that, because this was his first jury trial, he “didn’t know what to do.” Somewhat at variance with such sentiments, he also insisted that he made no notes during the license proceeding and did not recall his client’s previous testimony. The Grievance Commission rejected all of his arguments, including his relative inexperience, and noted:
…Mr. Brett’s failure to take corrective action during his client’s trial violates Maine Bar Rule §3.6(h)(5). That particular Bar Rule compels each Maine lawyer, when he or she “receives information clearly establishing that a client…has, during the representation, perpetrated a fraud upon any…tribunal” to call upon the client to rectify the fraud on that tribunal….Brett was, or should have been aware, of his client’s divergent, sworn testimony….[His] response should have been obvious. Except where the information is protected…one must use the first opportunity to reveal the fraud to the tribunal, i.e., utilize a sidebar during the jury trial to explain your quandary and ask to be given the opportunity to rectify the fraud. No such effort was made by Mr. Brett.
Brett is also licensed in New Jersey and Massachusetts. Effective May 26, 2006, he was suspended in Maine on a temporary basis until further order of the Court for new misconduct.
N.B. This matter qualifies for the May 2006 Case of the Month because, on May 11, 2006, Brett’s Counsel informed Bar Counsel that “there will be no appeal of the reprimands; we agree they’re final.”