dissenting:
The issue in this case is not, as respondent states in his brief, “Whether the courtroom is immunized by the Code of Professional Responsibility from the application of investigatory procedures that are otherwise lawful and ethical?” Nor is the issue, as respondent darkly hints, whether the majority of the Review Board, or for that matter, this court, is willing to give the State’s Attorney the latitude necessary to the successful apprehension and prosecution of corrupt attorneys.1 Rather, as I see it, a candid statement of the questions presented to this court would be as follows:
‘Whether an attorney is guilty of conduct which tends to defeat the administration of justice, where, as an assistant State’s Attorney, he learned of an apparent attempt by a defendant’s attorney to suborn the perjury of a police officer; instructed the officer to commit perjury if necessary to obtain evidence of payment from the attorney; whereupon, the officer falsely informed the court that a key prosecution witness was unavailable; the charges against the defendant were dropped; the attorney paid $50 to the officer, in a washroom adjacent to the courtroom, and another assistant State’s Attorney, pursuant to respondent’s instructions, informed the court. of the foregoing; and where, in a separate incident, respondent learned that an attorney for a defendant charged with aggravated battery had offered a bribe to a police officer, to facilitate the attorney’s strategy (which apparently involved charging the complaining witness with battery); and, through an assistant, directed the officer (A) to inform the attorney that the complaining witness had been persuaded to drop her charges against the defendant, and (B) falsely to inform the court that the complaining witness did not wish to appear and testify; whereupon, when the complaining witness did appear at the courthouse on the day of trial, respondent’s assistant concealed that witness from the court; the officer falsely testified under oath that the complaining witness and her mother did not wish to prosecute; the court granted the State’s motion to strike with leave to reinstate; defendant’s attorney gave the officer $250; respondent’s attorney advised the court of the foregoing circumstances; and the cause was reinstated.”
In my opinion, the answer is yes.
Lawyers who cause or permit lies to be told to judges are guilty of conduct which tends to defeat the administration of justice, regardless of the motive of the lawyer and regardless of the immediate impact of the lie. That the respondent’s sole apparent motive was to obtain evidence which he considered essential to the effective prosecution of corrupt attorneys therefore is not dispositive of the issues raised by this case. It is not within the province of any attorney, including one who represents the State, to determine whether the public interest requires the temporary deception of the court. That no prior case has-addressed the precise form of deception practiced here is hardly exculpatory: If anything, the absence of such authority indicates that prosecutors ordinarily do not consider it within their power to determine whether to deceive judges. Although several distinguished members of the bar have, on behalf of the respondent, sought to explain the necessity and propriety of respondent’s conduct, I seriously doubt whether any of them would have, if faced with the choice, acted as did he, particularly as regards his failure to obtain prior judicial sanction for his conduct. Respondent borders on frivolity in arguing that to have sought such prior sanction would have been improper. At the very least, therefore, I find the respondent guilty of incredibly poor ethical judgment and deserving of censure.
We may assume, for the sake of argument, that the respondent in good faith believed that, to persuade a judge or jury to convict an attorney accused of bribery, attempted bribery, or solicitation of perjury, it was necessary to obtain and present evidence of the payment of money by the attorney to the person allegedly bribed or solicited. (But see, e.g., United States v. Jacobs (2d Cir. 1970), 431 F.2d 754, cert. denied (1971), 402 U.S. 950, 29 L. Ed. 2d 120, 91 S. Ct. 1613, 1634 (attorney convicted without money changing hands). Cf. also, e.g., In re Goldstein (1952), 411 Ill. 360, 366 (difference in standard of proof between criminal and disciplinary proceedings); accord, e.g., Maryland State Bar Association, Inc. v. Frank (1974), 272 Md. 528, 325 A.2d 718 (attorney acquitted but disbarred).) We may further assume, for the sake of argument, that the attorneys in question would have been unwilling to make the payments in question until they saw and heard evidence of the perjury and/or suppression of witnesses they had bargained for.
The question remains, however, why did the respondent not inform the court of the foregoing until his agents had played out their strategy and had lied to the court? Respondent’s answer apparently is that he believed that to have informed the court beforehand would have been “improper” because (1) it would have, somehow, “involved” the court in a law-enforcement function, and (2) it would have constituted an “ex parte” communication in violation of Disciplinary Rule 7 — 110(B) of the Code of Professional Responsibility. I find that answer incredible. To have been informed before, rather than after, the fact of the falsity of testimony to be offered in his courtroom would not have “involved” the court in a law-enforcement function any more than a judge who reviews the adequacy of a search warrant or the voluntariness of a confession is “involved” in a law-enforcement function. (It is not unheard of, however, for law-enforcement personnel involved in the “competitive enterprise of ferreting out crime” (Johnson v. United States (1948), 333 U.S. 10, 14, 92 L. Ed. 436, 440, 68 S. Ct. 367, 369) to prefer to avoid the prior scrutiny of their actions that the warrant requirement mandates, although we do not know whether respondent’s true motive here was to avoid such prior scrutiny.) Especially here, however, where the rights of a criminal defendant (including the right to avoid unnecessary delay and prejudice to witnesses) also were at stake, it was the court’s prerogative to know of this little courtroom drama in advance and to pass upon its propriety. To have made such a determination before the fact would hardly have been anything but a judicial function, i.e., the review of executive decisions in an effort to protect the integrity of the criminal justice process, including the rights of the defendants. The respondent’s contention that he protected the rights of the defendants is an inadmissible misreading of the proper allocation of responsibilities between the executive and the judiciary. (Cf., e.g., United States v. Nixon (1974), 418 U.S. 683, 703-09, 41 L. Ed. 2d 1039, 1061-64, 94 S. Ct. 3090, 3105-08; United States v. United States District Court (1972), 407 U.S. 297, 314-18, 32 L. Ed. 2d 752, 764-67, 92 S. Ct. 2125, 2135-37; Nixon v. Sirica (D.C. Cir. 1973), 487 F.2d 700, 711-18.) It simply was not sufficient for the respondent to confront the court, after the fact, with the completed deception, stating in effect: “I did it. I’m proud of it. What are you going to do about it?” Respondent apparently had no doubt about the integrity of the trial judges he deceived; he has offered the statements of one of them in his defense. Even if he had such doubts, he was not without alternative fora, as I indicate below.
Respondent’s arguments regarding Illinois Code of Professional Responsibility Disciplinary Rule 7 — 110(B) (1970) also are without merit, in my opinion. Disciplinary Rule 7 — 110(B) provides as follows:
“(B) In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending, except:
(1) In the course of official proceedings in the cause.
(2) In writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not represented by a lawyer.
(3) Orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.
(4) As otherwise authorized by law.”
First, I am not persuaded that the communication in question even falls within the letter of the rule, let alone its intent, because I am not persuaded that advising the court of a proposed strategy for apprehending opposing counsel in the act of bribery is “as to the merits of the cause.” Second, paragraph (B)(4) of the rule expressly excepts ex parte communications “[a] s otherwise authorized by law.” Respondent’s statutory duties, which, he so emphatically claims, authorized him temporarily to deceive the court (despite the absence of any such express exemption in Disciplinary Rules 7 — 102(A) and 7 — 109), would have provided substantial authority for the communication in question. It is just inconceivable to me that respondent could in good faith have believed that he could not, consistent with the intent of the Code, tell the court the truth, but he could cause the court to be told a lie. The purpose of Disciplinary Rule 7 — 110(B) is to prevent the “effect or *** the appearance of granting undue advantage to one party” (ABA Code of Professional Responsibility, Ethical Consideration 7 — 35 (1970)). Since respondent apparently concedes the need to inform the court of its deception after the fact, it is hard to see how prior warning would have given even the appearance of undue advantage to the State. If anything, it might have helped to preserve the rights of the defendant. It is not inconceivable that the court, thus warned, would have secretly appointed special counsel to represent the defendant’s interests in this matter in an emergency, in camera hearing. The actions of the respondent effectively foreclosed this possibility too, however.
Finally, even if the respondent had in good faith believed that, for some as yet unarticulated reason, he could not talk to the trial judge, he should not have taken it upon himself to decide whether the temporary deception of the trial judge was appropriate. He should have had the common sense and ethical circumspection to have brought his dilemma to the attention of the presiding judge of the criminal division, or the chief judge of the circuit court, or if the foregoing were for some reason inappropriate, to this court itself, which has supervisory powers over the circuit courts. He did not do so; he thus usurped the role of the courts through deceiving a trial judge, albeit temporarily, and his conduct merits censure.
E.g., at page 31 of respondent’s brief we find the following hyperbole: “The intimation of the Review Board is that Respondent should have done nothing once he learned of the respective schemes of Powell and Howard, or that he should have proceeded with evidence which he knew from past experience would be insufficient to constitute proof of bribery beyond a reasonable doubt. In no other investigative activity would this type of approach be urged upon the prosecutor. This is the approach to corruption on the part of lawyers that suggests that they are being treated more favorably and pursued less diligently than others suspected of criminal activity.” (Footnotes omitted.)