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Judge Lisi censures N.Y. lawyer Scheck in Leisa Young case
However, the judge decides not to penalize Rhode Island lawyer Robert B. Mann
and a Scheck associate for their roles in what she said was a false memorandum.
01:00 AM EST on Thursday, February 12, 2004
BY EDWARD FITZPATRICK
Journal Staff Writer
PROVIDENCE -- U.S. District Judge Mary M. Lisi yesterday publicly censured
O.J. Simpson lawyer Barry C. Scheck for a memorandum he and other lawyers filed
while representing the mother of slain Providence police Sgt. Cornel Young Jr.
But Lisi decided no sanctions were warranted for Rhode Island lawyer Robert
B. Mann or Nick Brustin, Scheck's New York associate.
Lisi concluded that the three lawyers violated a federal rule of civil procedure
by making false statements in a memorandum they filed Oct. 16, while representing
Leisa E. Young in a civil case against the City of Providence.
According to the judge, the memo falsely claimed that Lisi told Young she had
to agree to a stipulation about a diagram of the shooting scene. After the memo
was filed, Lisi booted Scheck and Brustin off the case and vowed to pursue sanctions
against all three lawyers once the case was over.
In yesterday's order, Lisi saved her most blistering language for Scheck.
"The blatancy of the Rule 11 violation and Mr. Scheck's continued insistence
that he has done nothing wrong require action from this court which will address
the violation itself and serve to impress upon Mr. Scheck the need to give more
than lip service to his ethical obligations to his clients, opposing parties
and the courts in which he practices," Lisi wrote.
Scheck, who co-founded the Innocence Project and worked on Simpson's legal
"Dream Team," has been a member of the New York bar since 1975. And
he told the court that in practicing law across the country, he has "never
knowingly made a misrepresentation of fact or law to any court or judge, and
I have not done so in this case."
"What Mr. Scheck fails to appreciate," Lisi wrote, "is that
by signing and filing the memorandum containing the two false statements regarding
the orders of the court, he did make misrepresentations to the court. Mr. Scheck
knew full well that this court never told plaintiff's counsel that plaintiff
'had to agree to defendant's stipulation.' "
While a lawyer must represent his client zealously, the rules also require
candor, Lisi stated. "He may not falsify or fabricate facts to suit his
purpose, no matter how noble the cause," she wrote.
Lisi noted the memorandum was drafted by Brandon Garrett, a young lawyer in
the Cochran Neufeld & Scheck law firm, who she said had no firsthand knowledge
of key facts. "Having done so, Mr. Scheck utterly failed in his obligation
to make sure that his pleadings contained only those factual assertions that
were true to the record," she wrote.
While the memo was written amid the heat and hustle of a trial, Lisi said "it
is just as important during trial to comply with the dictates of the rule since
opposing counsel and the court are also busy attending to other matters and
might not have the time to scrutinize a violative pleading. Unnoticed, such
misrepresentations remain in the public record of the case to mislead the public
and the appellate courts."
The range of possible sanctions included fines, reprimand, censure and admonition.
Lisi concluded that it "would serve no purpose" to sanction Mann,
a Providence lawyer who had received statements of support from former Gov.
Lincoln C. Almond, former U.S. Attorney Margaret E. Curran and others.
"The court is well familiar with Mr. Mann's reputation for honesty, integrity
and professionalism," Lisi wrote. "His only error in this case was
to affix his signature to a document that was poorly drafted by a young associate
whose supervising partner failed to fulfill his professional responsibilities."
Lisi said that after the memo was filed, Mann indicated a corrected memo should
be written, but there wasn't enough time to do it. "This court takes Mr.
Mann's statement as his acknowledgment that the memorandum contained misrepresentations,"
she wrote.
Lisi also concluded that no sanction was necessary to discourage Brustin from
engaging in similar conduct again. "Unlike Mr. Scheck," she stated,
"Mr. Brustin is a relatively young attorney who had 'never tried a case
of this kind before.' It was readily apparent to this court that Mr. Brustin
was taking direction from Mr. Scheck during the course of trial."
While she clashed repeatedly with Scheck during the trial, Lisi said Brustin
"maintained a professional and respectful demeanor" during his appearances
before the court.
Stephen M. Prignano, a lawyer representing Scheck and Brustin, last night said
they will appeal Lisi's decision to the 1st U.S. Circuit Court of Appeals. "We
think the decision is wrong on the law," Prignano said. "There was
no Rule 11 violation here. It's inconsistent with the record." Lynette
Labinger, a lawyer representing Mann, said she had "no comment at this
time."
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