In Re Matter of Seymour A. Gopman. United States of America v. Seymour A. Gopman

531 F.2d 262, 92 L.R.R.M. (BNA) 2476, 1976 U.S. App. LEXIS 11471
Court of Appeals for the Fifth Circuit·Decided May 6, 1976·No. 75--1560·Published·Cited by 98 cases

Opinions

TJOFLAT, Circuit Judge.

The issue in this appeal is whether the trial judge erred when he disqualified Seymour A. Gopman, Esq., from simultaneously representing certain labor unions and three officials of these unions who had appeared as witnesses before a grand jury. We find no error, and affirm the order of disqualification entered below.

I.

This case arose in the context of a federal grand jury investigation of union activities in the Miami, Florida area. The general emphasis of this investigation was upon possible violations of the Labor-Management Reporting and Disclosure Act (Land-rum-Griffin Act), 29 U.S.C. § 401 et seq. At the time of the events which led to Gopman’s disqualification, the grand jury was considering evidence of alleged embezzlement by union officials, alleged failures by union officials to maintain required records, and the alleged destruction of union records by such officials.1 There was at that time only one announced “target” of the grand jury investigation. In connection with their probe of the “target” official, the grand jury issued subpoenas to three other union officers ordering them to bring certain records for examination. The three prospective witnesses consulted Gopman, who was their unions’ retained counsel, concerning what response should be made to the subpoenas.

It was the practice of Gopman’s firm to cease advising union officials once they had become “targets” of a grand jury investigation. In fact, the firm had represented the “target” official himself in the past, but had instructed him to retain separate counsel once he was named as a “target”. However, since these three officers were not “targets”, Gopman concluded that he could properly advise them as to their appearance before the grand jury. After studying the case, Gopman realized that the officials could be subject to criminal penalties under 29 U.S.C. § 439 if they had not maintained the records sought by the grand jury or if they had maintained these records improperly.2 After being advised by Gopman of these possibilities, and of their right against self-incrimination, all three witnesses elected to invoke the Fifth Amendment before the grand jury; they refused to produce the records or to answer any questions concern-[265] mg them. The government then contended that Gopman’s dual representation of the unions and the individual witnesses was creating a conflict of interest. A motion for disqualification was filed December 13, 1974, and was granted by the court on January 7,1975. After a dispute arose over the scope of the Court’s order, an amended order of disqualification was filed February 6,1975. The trial judge ordered Gopman to cease representing the three union officials before the grand jury, and to instruct the witnesses that they should obtain new counsel. Gopman’s appeal followed.

II.

It is argued that the government lacked standing to challenge the alleged conflict of interest, and that the trial judge had no jurisdiction to entertain the government’s motion for disqualification. We reject these contentions. The substance of the government’s motion was that appellant had violated the ethical canons of the American Bar Association, which prohibit a lawyer from representing parties with adverse interests.3 These ethical canons had been explicitly adopted by the local rules of the district court in which this action arose.4 When an attorney discovers a possible ethical violation concerning a matter before a court, he is not only authorized but is in fact obligated to bring the problem to that court’s attention. See Estates Theatres, Inc. v. Columbia Pictures Industries, Inc., 345 F.Supp. 93, 98 (S.D.N.Y.1972). Nor is there any reason why this duty should not operate when, as in the present case, a [266] lawyer is directing the court’s attention to the conduct of opposing counsel. In fact, a lawyer’s adversary will often be in the best position to discover unethical behavior. We also conclude that the trial judge had jurisdiction to act upon this claim of unethical conduct. Local .rules whose validity is not challenged expressly incorporate the American Bar Association’s ethical canons and expressly give the district court the power to fashion sanctions.5 Furthermore, it is beyond dispute that lawyers are officers of the court and that the courts have the inherent authority to regulate their professional conduct. See Ceramco, Inc. v. Lee Pharmaceuticals, 510 F.2d 268, 270-71 (2d Cir. 1975); Saier v. State Bar of Michigan, 293 F.2d 756, 760 (6th Cir.), cert. denied, 368 U.S. 947, 82 S.Ct. 388, 7 L.Ed.2d 343 (1961). Appellant has failed to persuade us that different rules of standing and jurisdiction should apply when criminal proceedings are in the grand jury stage. A grand jury must exercise its powers under the authority and supervision of the court. See United States v. Stevens, 510 F.2d 1101, 1106 (5th Cir. 1975). We hold that, as an incident of this supervisory power, a court has jurisdiction to discipline an attorney whose unethical conduct relates to a grand jury proceeding within that court’s control. From this conclusion, it naturally follows that an attorney’s standing to report ethical problems to the appropriate court extends to the grand jury stage as well.

III.

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In Re Matter of Seymour A. Gopman. United States of America v. Seymour A. Gopman, 531 F.2d 262, 92 L.R.R.M. (BNA) 2476, 1976 U.S. App. LEXIS 11471 (5th Cir. 1976).

531 F.2d 262 (In Re Matter of Seymour A. Gopman. United States of America v. Seymour A. Gopman) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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