In Re Friedman

MR. JUSTICE UNDERWOOD,

concurring in the decision:

Of the 11 members of the hearing panel and Review Board who have expressed opinions on the stipulated facts before us, six (the entire hearing panel and three members of the Review Board) have considered that respondent’s conduct violated no ethical proscriptions. I agree, and while I do not join in the finding of impropriety contained in the Chief Justice’s opinion, I do join in discharging respondent, rather than dismissing the complaint, so that we may have the constitutionally required concurrence of four members in the action to be taken (Ill. Const. 1970, art. VI, sec. 3).

The Administrator’s case against respondent consisted solely of a statement of facts stipulated to by respondent. In contrast, respondent, after testifying fully and candidly that he accepted full responsibility for the conduct now alleged to be improper, introduced the expert testimony of James B. Zagel, the then chief of the criminal justice division in the office of the Attorney General of this State, and some 35 affidavits, statements and letters from both Federal and State judges and prosecutors, the Governor of Illinois, a law school dean and professors, criminal defense attorneys, and others. Many of these, in addition to attesting to respondent’s excellent character and impeccable integrity, viewed the undisputed facts as involving no professional impropriety. Notable among them is Monroe H. Freedman, formerly dean of, and currently professor at, Hofstra University Law School, a former faculty assistant at Harvard Law School and professor of law at George Washington University. Professor Freedman specializes in the field of lawyers’ ethics and has written extensively on the subject. His book Lawyers’ Ethics in an Adversary System has been characterized as the best in the field of legal ethics. Professor Freedman, who was serving as chairman of the Committee on Professional Responsibility of the Society of American Law Teachers, has also served or is serving in many other positions of responsibility in the professional ethics field. He indicated that “[m] otive is, of course, a primary consideration in making judgments regarding the ethical quality of conduct.” (M. Freedman, Lawyers’ Ethics in an Adversary System 83 (1975).) In his statement in this case, submitted in affidavit form, he indicates his opinion that the proper construction of the ABA-approved Code of Professional Responsibility Rules proscribing the knowing use of false evidence, deceit and misrepresentation restricts the application of those rules to situations in which the responsible attorney engages in such conduct with the intent not to reveal the fraud and deception to the affected person or tribunal. In Dean Freedman’s opinion, the complaint in this case should be dismissed for respondent was carrying out his express ethical obligation as a prosecutor to “improve the administration of criminal justice.” ABA Standards, The Prosecution Function sec. I. 4 (1971).

The former assistant chief counsel of the Senate Select Committee on Presidential Campaign Activities (the Senate Watergate Committee), after reviewing the stipulated facts in these charges, characterized respondent’s conduct as not only devoid of any basis for disciplinary action but as “in the highest traditions of law enforcement.”

Professor James B. Haddad of Northwestern University’s School of Law, a former first assistant in the Cook County State’s Attorney’s office during a part of the period respondent served as chief of the criminal division in that office, who is also experienced in the defense of criminal cases, submitted a statement detailing his observations regarding the handling of criminal cases in Cook County courts during respondent’s tenure as chief of the criminal division in the State’s Attorney’s office. Without extending this opinion by including the details related in that statement, it is apparent that the pernicious activities of some police officers and some court personnel were either eliminated or substantially reduced by procedural changes suggested by, or inaugurated by, respondent.

Based upon the evidence before it, a unanimous hearing panel found:

“1. Respondent did not entrap or attempt to entrap attorneys Powell and Howard. On the contrary, attorneys Powell and Howard initiated and were responsible for the brib ery sch em es.
2. The Respondent did not intend to deceive the court, the defendant in the pending cases, or the People, and did not intend to violate the Code of Professional Responsibility. The Respondent’s sole motive was to obtain evidence against two attorneys who had initiated attempts to bribe police officers.
3. A responsible attorney in the States Attorney’s office supervised the gathering of the evidence against attorneys Powell and Howard. No free rein was given to police officers or laymen to determine what testimony would be given in court, what witnesses would be' made unavailable, or what other steps would be taken in court in order to gather evidence against attorneys Howard and Powell.
4. There was no practical alternative method available to the States Attorney’s office to obtain the type of evidence (the payment of money) which experience had shown was indispensable in order to successfully prove the guilt of corrupt attorneys. A failure to prosecute and convict such attorneys will have a bad effect on the morale and willingness of police officers to expose future corrupt solicitations to the States Attorney’s office.
5. Respondent’s conduct did not deceive, prejudice or injure the Court, the People, or the defendants in the two cases. The respective courts were not deceived because of the prompt action taken by Respondent set forth in paragraph 6.
6. The Respondent made a prompt disclosure of the true facts to the court after the dismissal of each case, and thus allowed the judge to act promptly in the event the judge felt that the Respondent’s conduct had been contemptuous or that any other action should be taken under the circumstances.
7. No civil rights of any third person were violated by the procedures followed by the Respondent. For example, the Respondent refused to permit the complaining witness in the Guevara case to be falsely arrested in order to complete the attempted bribery.
8. Sophisticated and cautious corrupt attorneys carefully frame their solicitations in ambiguous language and not in the presence of other witnesses, so that a prosecution based simply on the testimony of the police officer against that of the attorney is virtually impossible as a practical matter. Such attorneys do not, as a rule, pay the bribe until they have accomplished the purpose for which they are giving the money.
We conclude that the Code of Professional Responsibility does not impose absolute liability, but requires an intent on the part of the attorney to do a wrongful act in order to constitute a violation.
We further conclude under the facts of this case, and particularly those facts set forth in paragraphs numbered 1-7 of the Findings of Fact, that the Respondent did not create false evidence, use perjured testimony or secret witnesses in violation of the Illinois Code of Professional Responsibility DR 7 — 102(A)(4) and (6) and DR 7 — 109(B). The conduct of the Respondent was not prejudicial to the administration of justice in violation of DR 1 —102(A)(4), and his conduct was not unethical, unprofessional, nor did it tend to bring the Bar into disrepute.”

In the amicus brief filed in his individual capacity by Thomas P. Sullivan, an able lawyer who formerly argued both criminal and civil cases in this court and now serves the Northern District of Illinois as United States District Attorney, Mr. Sullivan succinctly portrays the difficulty faced by law-enforcement personnel in cases like these. He states:

“From time to time, prosecutors receive what appear to be reliable allegations that defense attorneys in criminal cases are engaged in suborning perjury, or bribing witnesses, bailiffs, clerks, prosecutors or judges, or the like. The prosecutor to whom such allegations are made has a duty to investigate, and to prosecute those found to be corrupting the criminal process.
Usually, the hard evidence to prove these crimes is the payment of money by the defense lawyer to the witness, policeman, prosecutor, clerk, bailiff, or judge.
Usually, to obtain the hard evidence of payment, it is necessary to have one or more of the participants in the case pretend to abet the scheme. Payment usually occurs after the policeman, witness, prosecutor, clerk or judge has done whatever he is supposed to do; usually, the payment is made after the defendant is acquitted, the evidence is suppressed, the case is dismissed, or the like.
The Hearing Board’s ruling recognizes the practical problems faced by the prosecutor who wishes to investigate these kinds of allegations. Contrariwise, the ruling of the majority of the Review Board, if sustained by this Court, will seriously impair investigations in cases of this kind in Illinois. The unfortunate result may well be cessation of meaningful investigations of corrupt conduct by defense lawyers, witnesses, clerks, bailiffs, and judges in Illinois.
It is respectfully submitted that this Court should not hold an Illinois prosecutor guilty of unethical conduct when, in good faith, he carefully seeks evidence to ferret out and prosecute lawyers who are engaged in corrupting the criminal process. Surely Mr. Friedman should not be censured for doing that which he honestly believed to be a proper and ethical exercise of his sworn duty.”

In an attempt to answer, my colleagues suggest that respondent had alternatives available — the suspect lawyers could have been charged with solicitation of perjury or attempted bribery. The weakness of that naive answer lies in the demonstrated fact that a prosecution of either of those charges, based upon the testimony of a single, uncorroborated witness as to the ambiguous language in which such offers are customarily made, will rarely succeed against the lawyer’s vigorous denial of any criminal intent. (See In re Howard (1977), 69 Ill. 2d 343, where the lawyer was acquitted of bribery despite evidence of payment.)

The situation before us is analogous to that visualized by section 7 — 13 of the Criminal Code of 1961.

“Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.” Ill. Rev. Stat. 1973, ch. 38, par. 7-13.

Certainly respondent was without blame in connection with the original bribe offers, and there is no doubt he believed his own conduct necessary to avoid a greater injury — the continued corruption of the judicial process by the two attorneys. That belief was, in my judgment, not only reasonable — it was correct. The fact is that no one, other than the dishonest lawyers, was injured by respondent’s conduct. The courts were promptly informed. One case was reinstated, and the other could have been. And respondent created a substantial and obviously needed deterrent to similar misconduct by other attorneys.

I should make clear that I abhor the thought of intentionally deceiving a judge — even temporarily — by the presentation of false testimony. But I abhor even more those members of my profession who seek to prostitute our courts. Since corrupt lawyers will not make payment of the bribe until that which they seek has been done, and payment is, in my judgment, a practical necessity to conviction of the lawyer, some form of misrepresentation to the judge is required if the evidence of payment is to be secured. What was done here, much as I dislike it, seems to me preferable to informing the judge in advance, thereby making him a participant, or immunizing the corrupt lawyer from investigation and prosecution which, I fear, will inevitably result if respondent’s conduct is held ethically impermissible.

In short, it is undisputed that respondent was a conscientious prosecutor dedicated to improving the administration of criminal justice. Both defendants and prosecutors benefited from his efforts as Professor Haddad’s statement illustrates. At no time did respondent intend to permanently deceive anyone, and the necessary, temporary deception practiced upon the court was corrected immediately after it had served its purpose. No authority is cited by my colleagues indicating that the proscriptions in the disciplinary rules of fraud, misrepresentation, deceit and the use of false evidence were intended to embrace the factual situation involved here, and I agree with Dean Freedman and the hearing panel that they were not so intended.

While I believe respondent’s conduct, motivated and circumscribed as it was, did not breach the disciplinary rules, for the reasons earlier noted I concur in respondent’s discharge.

MR. JUSTICE RYAN joins in this concurrence.

MR. JUSTICE WARD took no part in the consideration or decision of this case.