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Classified 5707267
Kevin Sean Sullivan Accused of premeditated perjury BBO #547306 ready now

Chapter 268: CRIMES AGAINST PUBLIC JUSTICE

Kevin Sean Sullivan Accused of premeditated perjury BBO #547306

Fletcher Street Professional Center, 9 Fletcher St A, Chelmsford, MA 01824

Section 1: Perjury

Section 1. Whoever, being lawfully required to depose the truth in a judicial proceeding or in a proceeding in a course of justice, wilfully swears or affirms falsely in a matter material to the issue or point in question, or whoever, being required by law to take an oath or affirmation, wilfully swears or affirms falsely in a matter relative to which such oath or affirmation is required, shall be guilty of perjury. 

Section 1A: Statements containing declaration relative to penalties of perjury; verification; false statements

Whoever signs and issues such a written statement containing or verified by such a written declaration shall be guilty of perjury and subject to the penalties thereof if such statement is wilfully false in a material matter.



Perjury B

Dereliction of duty

1) that the affiant knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood in applying for a warrant; and (2) that such statements or omissions are material, or necessary, to the finding of probable cause." Sherwood, 113 F.3d at 400. Put another way,

Plaintiff must show 1st the affidavit consists of "intentionally or recklessly false statements"; & 2nd the affidavit "purged of its falsities" would be inadequate for ....

Statement(s) in his affidavit were/are false As such should be rendered invalid, the requisite claims of "deliberate falsehood or reckless disregard for the truth" in the affidavit "must be accompanied


But surely it is to be "truthful" in the sense that the information put forth is believed or appropriately accepted by the affiant as true." Sullivan disregarded the truth.


within Wanner's personal knowledge

To succeed on a claim of intentional infliction of emotional distress, plaintiff must allege defendant's conduct is "so extreme and outrageous as to cause plaintiff emotional distress." Bougher v. Univ. of Pittsburgh, 882 F. 2d 74, 80 (3d Cir. 1989). Although the Pennsylvania Supreme Court has "never expressly recognized a cause of action for intentional infliction of emotional distress," the Court has cited § 46 of the Restatement (Second) of Torts as "setting forth the minimum elements necessary to sustain a cause of action." Taylor v. Albert Einstein Med. Ctr., 562 Pa. 176, 181 (Pa. 2000). There are four requisite elements that a plaintiff must prove to prevail on this claim under § 46: "(1) the defendant engaged in conduct that was extreme or outrageous; (2) it must have been intentional or reckless; (3) it must cause emotional distress; and (4) that distress must be severe." Olender v. Township of Bethlehem, 32 F.Supp. 2d 775, 791-792 (E.D. Pa. 1999), citing Hoy v. Angelone, 554 Pa. 134, 151 (Pa. 1998). Furthermore, under Pennsylvania law, in order to prove this claim, the conduct alleged must be "so outrageous in character, & so extreme in degree, as to go beyond all possible bounds of decency, & to be regarded as atrocious & utterly intolerable in a civilized society."

Due to this stringent standard, courts have reserved recovery for claims of intentional infliction of emotional distress for only "the most clearly desperate & ultra extreme conduct." Id at 152

.....

The legal profession is vital to the maintenance, preservation, and well-being of society. Attorneys cannot contribute to the preservation of society if legal professionals are not held to an extremely high ethical standard. Failure to disclose another attorney’s unethical behavior may be one’s own ethical failure.

...

Adam Roberts may be reached at "aroberts@enterprisenews.com" addressed.

508-427-4038 email a letter to the editor of up to 200 words to: letters@enterprisenews.com.

http://www.enterprisenews.com/article/20141001/News/141009269

By Staff Reporter

Posted Oct 1, 2014 at 10:12 PMUpdated Oct 2, 2014 at 9:


......

keV dad Attorney Robert P. Sullivan
keV granddad Harry A. and Delia (O'Connor) Sullivan. He graduated from Boston College High School

 Kevin S. Sullivan and Patricia Sullivan, all of Chelmsford, attorney Timothy C. Sullivan of Amherst, N.H., Dr. Ann-Catherine Sullivan of University Center, Mich., attorney Peter M. Sullivan and Stephanie Sullivan of Salem, Mass.

Sullivan family
In addition to his parents, Eric is survived by his brother, Sean Sullivan and his wife, Kayla Sullivan of Salem, MA. Eric is survived by his grandparents, Christian W. and Jeanne G. de Marcken of West Boylston, MA; and was the grandson of the late Attorney Robert P. Sullivan and Jeanne S. Sullivan of Chelmsford, MA.

Aunts Uncles, Joan Sullivan of Wareham, MA, Sheila Dempsey and her husband, Eugene of Bedford, NH, Brian Sullivan and his wife, Annette of Chelmsford, MA, Timothy Sullivan and his wife, Katherine Mariaca-Sullivan of Amherst, NH, Ann-Catherine Sullivan and her partner, Rebecca Berkowitz of Westerville, Ohio, Peter Sullivan and his wife, Stephanie of Marblehead, MA, Neil Sullivan and his wife, Cheryl of Petaluma, CA, Allen de Marcken and his wife, Kris of Palm City, FL, Myriam Husmann and her husband, Harlan of Fargo, ND, Diana Kent and her husband, James of West Boylston, MA, and Christina Suchocki and her husband, Denis of Rutland, MA.

COUSINS, Kelly McGurn, Adam Boegel, Jason Boegel, Brendan Dempsey, Jordan Dempsey, Megan Garrett, Erin Sullivan, Connor Sullivan, Kathleen Sullivan, Quinn Sullivan, Rowan Sullivan, Emily Sullivan, Tim de Marcken, Diana Husmann, Natalie Husmann, Carl Husmann, Sonjya Kent, Christian Kent, Michael Suchocki, Peter Suchocki, and Tyler Suchocki.

What Is Perjury in Massachusetts?
FL 3/26/17 Perjury Michael Haber https://youtu.be/U2Xzgt5ixtw (305) 381-8686 mistake spacing error; cell 305-798-
2220.

The crime of perjury in MA is set out in G.L. c. 268 §1.

Prosecution must prove beyond a reasonable doubt your answers were willfully, deliberately & intentionally false & related to a “material issue.”

Knowingly & intentionally swearing to false information that is material...

Commonwealth bears the burden of proving knowing falsity, as well as “materiality,” beyond a reasonable doubt.  

To “perjure” yourself is to knowingly make false or misleading statements under oath or to sign a legal document you know to be false or misleading.

Perjury

Perjury, criminalized at 18 U.S.C. § 1621, is perhaps the most recognizable law against lying. The statute makes it a crime to “willfully & contrary to [an] oath state or subscribe any MATERIAL MATTER believed to be true.”

Must show not only material misstatement of fact, but also it was done so willfully—that the person knew it was false when they said it.
.....

False Statements

By far the broadest federal statute criminalizing lying is 18 U.S.C. § 1001, which makes it a crime to “knowingly & willfully . . . make any materially false, fictitious, or fraudulent statement or representation” in the course of “any matter within the jurisdiction judicial branch”

The statement must be “material” but materiality means only that the statement is “predictably capable of affecting . . . [an] official decision.”

Obstruction of Justice

An accompanying code section, 18 U.S.C. § 1515(b), defines “corruptly” as “acting with an improper purpose, personally ...  including making a false or misleading statement,  If you knowingly & willfully make false statement of material fact in a federal government proceeding, you’ve potentially violated § 1001.

There are numerous justifications for criminalizing lying: lies frustrate investigations, waste time & resources & threaten incorrect results. .....

Perjury is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding.

CRIMINAL CULPABILITY Attaches the instant the DECLARANT falsely asserts the truth of statementS which are MATERIAL TO THE OUTCOME OF THE PROCEEDING. Perjury is considered a serious offense as it can usurp power of the courts, resulting in miscarriages of justice. Intent to deceive.

In common law to be convicted of perjury one must have had INTENTION (mens rea) to commit the act & to have ACTUALLY COMMITTED the act (actus reus). 

The ACTUS reus of perjury might be considered to be the making of a statement, whether true or false, on oath in a judicial proceeding, where the person knows the statement to be false OR BELIEVES IT TO BE FALSE.

Perjury as "a crime committed when a lawful oath is administered, in some judicial proceeding, to a person who swears willfully, absolutely & falsely, in a matter material to the issue or point in question."

Main Perjury tenets mens rea, lawful oath, occurring during a judicial proceeding, a false testimony

More generally, the STATEMENT must have OCCURRED in "course of justice," ...

Distinction between false statement under oath & merely misstating a fact ACCIDENTALLY...

Precedents.

.... Sullivan engaged in egregious misconduct

constitutional rights had been violated.

violated the criminal false statements law. 

Constitute obstruction of justice. .....

Other party knew the statement was false & said it intentionally.

If false statements harm you(r case) you may have an additional claim against the person in civil court.

Outcome of a perjury case impacts the reputation & integrity of the legal system.

You must find evidence the party making the statement knew it was false & s/he intended to mislead others by saying it.

The statement also must concern a KEY FACT.

GENERALLY, THE STATEMENT MUST HAVE BEEN MADE TO ALTER THE OUTCOME OF THE CASE IN THE PERSON'S FAVOR. PROVING INTENT MAKES PERJURY SO DIFFICULT TO PROVE. .....

4 FACTS prosecutor must prove:
1) Deliberate / Willful statement
2) Knowing Statement was False,
3) you were under oath to tell the truth @ the time you made the statement & 4) Statement was (or related to) a "material" fact.

California Perjury Law Penal Code 118 PC

You are subject to prosecution for perjury if you WILLFULLY give false information in a signed affidavit.

Penalty for committing perjury Typical perjury defense False statement was MISTAKEN, RATHER THAN KNOWINGLY FALSE.

1. The Definition of Perjury in California Law In California law, the legal definition of perjury can be broken down into 4 facts the prosecutor must prove (otherwise known as "elements of the crime"):

-Deliberate or willful statement
-knowing that the statement was false -under oath via affidavit
-statement was (or related to) a "material" fact.

Let's take a closer look at each of these 4 elements...

You made a deliberate or willful statement Intentionally made statement conveyed to another w/INTENT it be taken as true. This is an important point -- you must ACTUALLY >>>> CONVEY <<<<< the false statement. 

Knowing statement was false
You must KNOWINGLY MAKE AN UNEQUIVOCALLY FALSE STATEMENT.
(1) Providing false info. in docs;
(2) delivering docs to another, w/
(3) the INTENT your statement be received as true constitutes perjury.

a statement is material if, at the time it was made, it was used to affect the outcome of the proceeding in which it was made, OR HAD THE PROBABILITY OF INFLUENCING THE OUTCOME OF THE PROCEEDING FOR WHICH IT WAS MADE.

Mistake or misunderstanding.

Malicious intent. Actual malice.
Sullivan's conduct was intended to create a false impression in the mind of another & not only reasonably likely to lead but has in fact already led in a materially different / wrong direction than would have been if Sullivan didn't commit perjury.
..................

It is imperative that a party’s sworn submission
be sufficient in execution and substance, as well as consistent with
prior assertions, to ensure the
integrity of the process.

move to strike any
that do not meet the clear standards
set forth for admissible affidavits
and sworn statements.


Perhaps most
critical to the evaluation of the sufficiency of a party’s submission is
the court’s consideration of whether
the affiant provided the statement
with a true understanding of the
significance of his submission.
Tishcon Corp. v. Soundview
Communications, Inc., 2005 WL
6038743, at *4 (N.D. Ga. 2005);
United States v. Bueno-Vargas, 383
F.3d 1104, 1111 (9th Cir. 2004). In
Tishcon, the plaintiff submitted a
statement in which he incorporated
the phrase, “hereby declares under
penalties of perjury the following,”
but neglected to declare his state-
ment “true and correct.” Id. The
court held that of greatest impor-
tance in its evaluation of the state-
ment is whether the person “sig-
nal[s] that he understands the legal
significance of his statements and
the potential for punishment if he
lies.”

Affidavits submitted by a party
must be made on personal knowl-
edge and MUST SET FORTH FACTS that
would be admissible in evidence.
Rule 56(e)(1), FRCP.

reveal intentional deceit. As notaries
abound in South Carolina, it is not
unusual for clients to deliver a

Cothran v. Brown, 357 S.C. 210, 218,
592 S.E.2d 629, 633 (S.C. 2004) (cit-
ing Pittman v. Atl. Realty Co., 754
A.2d 1030, 1042 (Md. 2000)). Where
a party submits a competing affidavit that attempts to create an issue
of fact, the court may properly disre-
gard the party’s subsequent conflict-
ing affidavit or sworn statement.
Practitioners should avoid losing
sight of their role as officers of the
court, allowing it to be subsumed by
their role as advocates for their
clients, by submitting contradictory
and competing sworn statements.

...........


"knowingly committing Perjury by False Affidavit caselaw"

Perjury is defined by statute & case law as a false statement knowingly made in a proceeding in a court of competent jurisdiction or concerning a matter wherein an affiant is required by law to be sworn as to some matter material to the issue or point in question.

..........


MARCH 7 2007 2:46 PM

How Many Ways Can You Say "Lie"?

The difference between perjury, false statements and obstruction of justice.

By Daniel Engber
2 counts of perjury, 1 count of making false statements & 1 count of obstruction of justice.



The perjury counts allege Libby "knowingly made a false declaration" to the grand jury when asked about conversations he'd had with Tim Russert, Matthew Cooper, and other reporters.

The false-statements & obstruction counts say he "did knowingly and willfully" make "materially false, fictitious, and fraudulent" statements to the clerk judge other attorneys firms in this case for public consumption

Used against people who file false documents with government agencies.

Charged w)breaking 18 U.S.C. § 1623—or, the "false declarations" law—

18 U.S.C. § 1621, aka the perjury law.

For one thing, perjury convictions must be based on evidence from at least TWO WITNESSES; false declarations can be proved without any witnesses. Prosecutors can show that Libby made "false declarations" simply by showing that his statements to the grand jury were inconsistent. (As w/perjury, false declarations must be knowingly made & about an important issue.)

What about obstruction of justice? You're guilty of obstruction if you do anything that hampers an ongoing case

As w/the other charges, prosecutors must show an act of obstruction has significant bearing on the proceeding. According to the Supreme Court, it must have the "natural & probable effect" of interfering w/the case.

When a witness lies under oath about an important topic, it almost always interferes w/a prosecutor's case. That's why CHARGES OF PERJURY (or false declarations) OFTEN COME W/CHARGES OF OBSTRUCTION.

False Statement
The crime of false statement involves knowingly & willfully making a false statement to a government official (such as an investigator) about a material fact, or falsifying or covering up a material fact. This latter point includes knowingly omitting information that is material. The key point is the speaker's intent: that the speaker has knowingly made the false statement, or omitted relevant information.
.............
However, an assertion purporting to be on the lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation. 

Florida caselaw prohibits lawyers from presenting false testimony or evidence. Kneale v. Williams, 30 So. 2d 284 (Fla. 1947), states perpetration of a fraud is outside the scope of the professional duty....

Dodd v. The Florida Bar, 118 So. 2d 17 (Fla. 1960), reminds us that "courts are dependent on members of the bar to present the true facts of each cause to enable the judge or the jury to [decide the facts] to which the law may be applied. When an attorney allows false testimony [the attorney] makes it impossible for the scales [of justice] to balance." See The Fla. Bar v. Agar, 394 So. 2d 405 (Fla. 1981), and The Fla. Bar v. Simons, 391 So. 2d 684 (Fla. 1980). Dad Said Hold On.

IN THE MATTER OF TOBIN 

COURT: SUPREME JUDICIAL COURT OF MASSACHUSETTS. SUFFOLK.

DATE: 16 FEB 1994
...single justice imposed a two-year suspension on an attorney who filed a false affidavit

UNITED STATES COURT OF APPEALS, SECOND CIRCUIT.
DATE: 02 FEB 1995
...counting. Regardless of whether the defendants in this case were successful in their efforts to obstruct justice, the fact remains that they used a false affidavit in an effort to derail...

Executing a false affidavit is a serious breach of ethics, which directly affects ...

MATTER OF JACOBSON 
COURT: APPELLATE DIVISION OF THE SUPREME COURT OF NEW YORK, FIRST DEPARTMENT. DATE: 27 FEB 1942

...respondent was charged w/knowingly submitting a false affidavit to the Committee on Character & Fitness for the purpose of deceiving that committee & the Appellate Division in an effort to assist.

REYNOLDS v. U.S COURT: UNITED STATES COURT OF APPEALS, SEVENTH CIRCUIT.

DATE: 09 DEC 2008

...knowingly false affidavit to the Marion County prosecutor &, ultimately, the state court in an "effort to corrupt the fairness of the prosecution."


U.S. v. HERNANDEZ-RAMIREZ 

COURT: UNITED STATES COURT OF APPEALS, NINTH CIRCUIT.

DATE: 20 JUN 2001

submission of the false affidavit to a magistrate judge...form warns that: "A false or dishonest answer to a question in this affidavit may be punishable by fine or imprisonment, or both."

IN RE SEALED APPELLANT 

COURT: UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT.

DATE: 11 NOV 1999

Executing a false affidavit is a serious breach of ethics, which directly affects the practice of law.

Affidavit was knowingly & intentionally false or made w/reckless disregard for the truth &...

We start w/the fact that from Weniger's perspective, the affidavit was filed in good faith & accurately reflected the facts as he understood them... affidavit is materially misleading, ...  the magistrate may have been intentionally misled into believing
.......

Brondhaver's affidavit had misled the Municipal Judge because it did not include J.T.'s exculpatory statement, 

not objectively reasonable for the defendant to submit an affidavit that contained materially false statements

Submitting an affidavit containing material statements he KNEW to be false. 

Affidavit was so materially false that defendant manifested reckless disregard for the truth in submitting it.

.......
Postie v. Frederick 
COURT: UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

DATE: 23 NOV 2015
by having full knowledge that the Affidavit contained false information
...........

affidavit contained reckless falsehoods or deliberate lies, 

...........

IN THE MATTER OF PALMER 

COURT: SUPREME JUDICIAL COURT OF MASSACHUSETTS. SUFFOLK.

DATE: 08 JUL 1992

guardian's account knowing that the account misrepresented a material fact); Matter of Aronson, 3 Mass. Att'y Discipline Rep. 12 (1982) (two-year suspension for filing false affidavit in order
..........

Sullivan knowingly & intentionally filed this false affidavit into the court records. This action caused actual harm to plaintiff('s).

............

affidavit contains material false statements are

............

Respondent knew this information to be false at the time he notarized the affidavit.
...............
14th amendment?
..........
***>>>>>
07 JUL 1998  |   SUPREME JUDICIAL COURT OF MASSACHUSETTS. SUFFOLK

Attorney at Law, Disciplinary proceeding, Deceit, Suspension.

In a bar discipline proceeding, the appropriate sanction to be imposed on an attorney, who made false statements under oath, filed a false affidavit in court proceedings, and issued false and misleading opinion letters signed under oath to which he forged the notarization of another attorney, was a suspension from the practice of law for a period of two years. [768-770]

A single justice of this court ordered the respondent be suspended from the practice of law for a period of 1 year.

S.J.C. Rule 3:07, Canon 1, DR 1-102 (A) (4) and (5), as appearing in 382 Mass. 769 (1981) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, and misrepresentation, or in conduct that is prejudicial to the administration of justice), and S.J.C. Rule 3:07, Canon 7, DR 7-102 (A) (4), (5), and (6), as appearing in 382 Mass. 785 (1981) (in his representation of a client, a lawyer shall not knowingly use perjured testimony or false evidence, knowingly make a false statement of law or fact, or participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false). 
 
affirming a judgment of disbarment under our reciprocal discipline provision, S.J.C. Rule 4:01, § 16, as amended, 402 Mass. 1302 (1988), we stated that an attorney who lies under oath engages in "qualitatively different" misconduct from an attorney who makes false statements and presents false evidence. Matter of Budnitz, 425 Mass. 1018, 1019 (1997), and cases cited. 

The whole picture depicts the respondent as an attorney who, when it serves his advantage, is willing to violate clear norms of professional responsibility and to engage in purposeful deceit which harms others. We agree with bar counsel that a suspension of one year is inadequate in this case to protect the public & the integrity of the bar.


supported by substantial evidence. See S.J.C. Rule 4:01, § 8 (4), as appearing in 425 Mass. 1302 (1997). The board was not required to apply criminal standards of proof which would be relevant to a criminal prosecution for perjury to a case like this involving false statements under oath.

............

The word 'affidavit' refers to a document you sign under oath, verifying information provided is true. You then file it w/the court. IF YOU INTENTIONALLY LIE ON AN AFFIDAVIT, THE LIE CAN BE CONSIDERED PERJURY, which is a serious crime. Since you are confirming the truth of everything recited in the document, even an unintentional mistake can affect you and your case. deliberately withheld information, even simple mistakes can make you look less than truthful when revealed.

At the far end of the spectrum, you could be criminally prosecuted for perjury for intentional lies, which might mean jail time. Which end of the range you fall into depends on your state, judge and factors specific to your case.
............

A FALSE AFFIDAVIT CAN ALSO LEAD TO A CRIMINAL CHARGE OF PERJURY OR OBSTRUCTION OF JUSTICE.

In another case, SG was charged W/swearing a false affidavit & w/obstructing justice by swearing a false affidavit.
..................

The court of appeal ordered a new trial because the trial judge had misconstrued the evidence. 

In other words, .
>>>> Sullivan's intent was to be paid for creating & submitting the false affidavit profiting directly and or IBNLT personally from the false information he provided to all parties including the court.

Looking at the punishment this Court has imposed for the intentional creation of false documents to deceive a court & harm another party


Among the most important ethical requirements for lawyers is the duty of candor to the courts in which they appear, as set forth in Rules of Professional Conduct, holds [a] lawyer shall not knowingly offer evidence that the lawyer knows to be false.”

Lawyers' obligation not to pollute our tribunals w/false evidence is strong.

Lawyers owe a similar duty of fairness to opposing parties & their counsel, which specifically includes the obligation not to “falsify evidence.” This is one of the prohibitions that secures “[f]air competition in the adversary system.”

Misconduct harmed her adversary, the justice system and the legal profession and did harm there client. However, I consider it an aggravating factor that Manning-Wallace did not submit the fabricated documents in a misguided effort to help someone else (a client), but rather with the intent to profit directly because she was the plaintiff in the lawsuit.

More fundamentally, to say that “the public was not harmed” when a lawyer (or anyone else) knowingly presented false evidence during a trial cannot be squared with the truth-seeking function that is the heart of the public's justice system. It is remarkable that the State Bar, which has as a principal function the protection of the public from the misconduct of its members, would assert otherwise.

It is also worth noting there is no indication Manning-Wallace's misconduct was related to the type of problems that this Court and the State Bar often deem mitigating of otherwise egregious violations, such as substance abuse, mental or physical disabilities, or other major problems in the lawyer's personal life or practice.

proving by clear and convincing evidence Sullivan has engaged in misconduct.

Second, the State Bar acts as though a violation of Rule 3.3(a)(4) requires proof that the lawyer “created” the falsified evidence. Instead, Rule 3.3(a)(4) plainly and rightly prohibits a lawyer from knowingly offering false evidence to a court, regardless of who created it. Disciplinary proceedings are primarily focused on protecting the public from unprofessional conduct, but they are also focused on maintaining the public's confidence in the legal profession. See In THE MATTER OF SKANDALAKIS, 279 GA. 865, 866 (621 S.E.2d 750) (2005). Attorneys who knowingly offer false evidence in a court of law have engaged not only in the worst kind of professional misconduct but also in conduct that severely undermines the public's confidence in our profession. It diminishes the protection offered to the public and the profession.


The evidence in the current record clearly & convincingly establish Sullivan knew the affidavit presented were falsified, which warrants the imposition of serious discipline. This is not the typical situation where a lawyer has no personal knowledge of the facts at issue & has to accept documents provided by a client or someone else at face value. 

4) requires actual knowledge for a violation; to be liable at all, the lawyer must “knowingly offer [to the tribunal] evidence that the lawyer knows to be false.” (Emphasis added.) Sullivan's misconduct was knowing, which under the circumstances would also make it intentional.


413 Mass. 416597 N.E.2d 425 

IN THE MATTER OF NEITLICH
CaseIQTM

14 AUG 1992  |   SUPREME JUDICIAL COURT OF MASSACHUSETTS. SUFFOLK.

Further, to the extent that the respondent argues that the seriousness of his misconduct is diminished by the fact that he was faced with a "conflicting" duty to his client and to the court, this argument is without merit. AS AN OFFICER OF THE COURT, AN ATTORNEY IS A "KEY component of a system of justice," Nix v. Whiteside, 475 U.S. 157, 174 (1986), AND IS BOUND TO UPHOLD THE integrity of that system by being TRUTHFUL TO THE COURT AND opposing counsel. Where this duty is in seeming conflict with the client's interest in zealous representation, the latter's interest must yield. Were we to condone any action to the contrary, the integrity of the judicial process would be vitiated. See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246 (1944) (fraud on the court is a "wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society"). As stated by Justice Quirico, "[T]he courts have emphasized an attorney's duty of candor, stemming from his role as an officer of the court . . . The more persuasive judicial decisions require an attorney to bring material facts to the attention of the court when ignorance by the court is likely to produce an erroneous decision and not just when his opponent is and will remain ignorant." Matter of Mahlowitz, 1 Mass. Att'y Discipline Rep. 189, 193-195 (1979). <<<<<<<<<<





constituted "knowing concealment" and were "deliberate, planned attempts . . . The committee rejected bar counsel's recommendation of a one-year suspension, however, concluding that public censure was the more appropriate sanction. 

The provisions of these rules are: "CANON 1 — A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal Profession. 
". . . 
"DR 1-102. Misconduct. 
"(A) A lawyer shall not: 
". . . 
"(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. 
"(5) Engage in conduct that is prejudicial to the administration of justice. 
"(6) Engage in any other conduct that adversely reflects on his fitness to practice law." 
"CANON 7 — A Lawyer Should Represent a Client Zealously Within the Bounds of the Law. 
". . . 
"DR 7-102. Representing a Client Within the Bounds of the Law. 
"(A) In his representation of a client, a lawyer shall not: 
". . . 
"(5) Knowingly make a false statement of law or fact. 


As an officer of the court, an attorney is a "key component of a system of justice," Nix v. Whiteside, 475 U.S. 157, 174 (1986), and is bound to uphold the integrity of that system by being truthful to the court and opposing counsel. 

See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246 (1944) (fraud on the court is a "wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society"). As stated by Justice Quirico, "[T]he courts have emphasized an attorney's duty of candor, stemming from his role as an officer of the court . . . The more persuasive judicial decisions require an attorney to bring material facts to the attention of the court when ignorance by the court is likely to produce an erroneous decision and not just when his opponent is and will remain ignorant." Matter of Mahlowitz, 1 Mass. Att'y Discipline Rep. 189, 193-195 (1979).

ABA Standards for Imposing Lawyer Sanctions recommend the even more serious sanction of disbarment where an attorney, with intent to deceive a court, makes a false statement or "improperly withholds material information." ABA Standards for Imposing Lawyer Sanctions § 6.11 (1986).


the "author" of the fraud on the court.


That the respondent has no record of prior discipline is a typical mitigating circumstance which carries "little or no weight." Matter of Pike, 408 Mass. 740, 745 (1990).

.......

427 Mass. 764696 N.E.2d 126 

IN THE MATTER OF SHAW

07 JUL 1998  |   SUPREME JUDICIAL COURT OF MASSACHUSETTS. SUFFOLK.


1. In reviewing the sanction imposed by the single justice, we inquire whether the sanction is "`markedly disparate' from the judgments in comparable cases." Matter of Neitlich, 413 Mass. 416, 421 (1992), and cases cited. While this standard is relatively simple to state, it is one which is not always easy to apply because of factual nuances that distinguish cases from each other. That difficulty is exemplified in this case where the hearing panel & the board focused on the same decisions to arrive at different sanctions for the respondent's misconduct.

Attorney at Law, Disciplinary proceeding, Deceit, Suspension.

In a bar discipline proceeding, the appropriate sanction to be imposed on an attorney, who made false statements under oath, filed a false affidavit in court proceedings & issued false & misleading opinion letters signed under oath to which he forged the notarization of another attorney, was a suspension from the practice of law for a period of two years. [768-770]

GREANEY, J.


Sullivan intentionally made misrepresentations in court via a sworn affidavit submitted in a civil action in the Superior Court, thereby violating S.J.C. Rule 3:07, Canon 1, DR 1-102 (A) (4) & (5), as appearing in 382 Mass. 769 (1981) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, and misrepresentation, or in conduct that is prejudicial to the administration of justice), and S.J.C. Rule 3:07, Canon 7, DR 7-102 (A) (4), (5), and (6), as appearing in 382 Mass. 785 (1981) (in his representation of a client, a lawyer shall not knowingly use perjured testimony or false evidence, knowingly make a false statement of law or fact, or participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false). 

clear and convincing evidence


evidence in the current record clearly & convincingly establish Sullivan knew the document(s) presented were falsified, which warrants the imposition of serious discipline.

This is not the typical situation where a lawyer has no personal knowledge of the facts at issue and h

See In the Matter of Dogan, 282 Ga. 783 (653 S.E.2d 690) (2007) (involving a lawyer who falsified paycheck stubs to benefit himself in a child support proceeding, stating that “disbarment is the appropriate sanction where a lawyer, with the intent to deceive and to harm another party, falsifies documents and RELIES UPON THOSE DOCUMENTS IN A COURT PROCEEDING”).


The attorney disciplinary process must protect the public from attorney misconduct & promote public confidence in the legal profession. See Skandalakis, 279 Ga. at 866

............

Defendant contends that the affidavit contained a material omission that rendered the affidavit false, and warrants a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). If Defendant presents evidence to show that the affidavit contained a falsestatement made "knowingly and intentionally, or with reckless disregard for the truth," and that "the allegedly false statement [was] necessary to the finding of probable cause," he is entitled to a hearing on his Franks claim. Id. at 155-56.

"At the hearing, the defendant must ultimately prove by a preponderance of the evidence that: (1) that the affiant knowingly and deliberately, or w/a reckless disregard for the truth, made falsestatements or omissions that create a falsehood in applying for a warrant; and (2) that such statements or omissions were material, or necessary, to the probable cause determination." United States v. Yusuf, 461 F.3d 374, 383 (3d Cir. 2006) (citing Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997); Franks, 438 U.S. at 171-72).

 must first make a "'substantial preliminary showing' the affidavit contained a false statement, which was made knowingly or w/ reckless disregard for the truth, which is material to the finding of probable cause." Yusuf, 461 F.3d at 383 (citing Franks, 438 U.S. at 171).

Defendant has not met his burden of making a "substantial preliminary showing" that the affidavit contained a material false statement, which was made knowingly or with reckless disregard for the truth,

Franks violation requires a showing of "deliberate falsehood" or "reckless disregard for the truth").


[O]missions are made w/reckless disregard for the truth when an officer recklessly omits facts that any reasonable person would know that a judge would want to know . . . ." Wilson, 212 F.3d at 783

"In order to make a showing that an affiant knowingly or recklessly made falsestatements, a defendant must CHALLENGE THE AFFIANT'S STATE OF Mind as well as the truthfulness of the affidavit." United States v. Harrison, 400 F. Supp. 2d 780, 786 (E.D. Pa. 2005) (citing United States v. Brown, 3 F.3d 673, 676-78 (3d Cir. 1993)).

alleges material omissions

Defendant argues omitting this information from the affidavit deprived the magistrate of the opportunity to "mak[e] an objective determination regarding the reliability" of Sabatino's statement

 The Supreme Court made clear throughout Franks that a substantial preliminary showing of intentional or 
reckless falsity on the part of the affiant


the analysis here turns on the state of mind of the warrant affiant, and whether the affiant made statements (or material omissions) intentionally or recklessly with knowledge of their falsity. 

 the affiants acted as part of an intentional scheme to deceive the magistrate. 


affidavit in this case contains intentionally misleading information designed to conceal certain facts from the magistrate.

As a result, the affidavit in this case was made w/an intent to deceive the magistrate, & made w/a reckless disregard for the truth. 


If you have any questions about the sham affidavit rule, contact Brian A. Howie at 602-229-5405 / brian.howie@quarles.com or Lauren Elliott Stine at 602-229-5474 / lauren.stine@quarles.com.

.......

Sullivan intentionally misrepresented the truth & acted w/reckless disregard for the truth...

The hearing committee concluded respondent had violated S.J.C. Rule 3:07, Canon 1, DR 1-101 (A), as appearing in 382 Mass. 769 (1981) (making materially false statement in, or deliberately failing to disclose material fact requested in connection with, application to bar); S.J.C. Rule 3:07, Canon 1, DR 1-102 (A) (4), as appearing in 382 Mass. 770 (1981) (conduct involving dishonesty, fraud, deceit, or misrepresentation); S.J.C. Rule 3:07, Canon 1, DR 1-102 (A) (5), as appearing in 382 Mass. 770 (1981) (conduct prejudicial to the administration of justice); S.J.C. Rule 3:07, Canon 1, DR 1-102 (A) (6), as appearing in 382 Mass. 770 (1981) (conduct adversely reflecting on fitness to practice)

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Actions have consequences
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PEOPLE V. GRIFFINI, (1998) 65 CAL.APP. 4TH 581 ("...for purposes of defining perjury, the making of a ... affidavit or certificate is deemed to be complete ... from the time when it is delivered by the accused to any other person, w/ intent it be uttered or published as true.'").

PEOPLE V. FEINBERG, (1997) 51 Cal.App.4th 1566 ("The test for whether a statement is material in a perjury prosecution ([California] Pen. Code 118) is whether the statement or testimony might have been used to affect the proceeding in or for which it was made, or whether the statement could probably have influenced the outcome of the proceedings.").

PEOPLE V. DARCY, (1943) 59 Cal.App.2d 342 - overruled on other grounds ("The test in a perjury charge is not that injury actually occurred as a result of the false statements, but that the falsehoods could have influenced or changed the status of the subject of the statement to the benefit of the falsifier or the detriment of others.") <<<<<<<


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