Long Island attorney Thomas Liotti wasn’t just whistling “Dixie” when he demanded that the U.S. Supreme Court overturn a public admonition he received from a “renegade” Southern federal appeals court “far far from the center of the judicial universe,” but he has been rebuffed by the high court.
The U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., disciplined the Garden City criminal defense attorney in December for what the court viewed as a “troublesome pattern of carelessness” in his defense of a man convicted of identity theft and wire fraud in South Carolina.
Liotti, who insists that he did nothing wrong, appealed, using language he conceded in an interview was “rough” and “tough.”
“In the Fourth Circuit there is a litmus test for survival, namely that one not be a zealous criminal defense lawyer from New York with an ethnic last name. In the Fourth Circuit one is allowed to be good but not too good or disagreeable. Advocacy and free speech are tolerated as long as it does not offend the thin-skinned prosecutors or judges,” Liotti said in his May pro se petition to the Supreme Court for a writ of certiorari.
At another point, he said, “The transparent ruling is an insult not merely to this petitioner but to all lawyers, judges and the judicial process as a whole. It makes for bad law which cannot be sanitized even by this distinguished Bench unless completely repudiated by it. Even that may never be enough to chase away the evil spirits that still exist in what remains of Antebellum South where reconstruction has occurred except in the minds of its jurists and prosecutors. To cancel that, a full judicial exorcism may be required.”
The Supreme Court in June denied Liotti’s petition without comment. It rejected his request for a rehearing in July after he had written to the high court that “it has cost me many thousands of dollars in legal time and expense to defend against this political attack from the Fourth Circuit.”
Liotti said in the interview that he felt it had been his professional responsibility to fight the sanction.
“Attacks like this make advocacy meaningless,” he said. “If the Fourth Circuit can do it to me, they can do it to anyone.”
The circuit’s December 2011 admonishment in Matter of Liotti, 667 F.3d 419, stemmed from Liotti’s representation of Jonathan Giannone, who was accused of identity theft in a Secret Service investigation called “Operation Anglerphish.”
Although Giannone was a Nassau County resident, the confidential informant with whom he was in contact, Brett Johnson, was in South Carolina.
Giannone, 26, maintained he was innocent of selling bank account information, but a jury convicted him in 2007 of three counts of wire fraud and two counts of aggravated identity theft. He was initially given a 65-month prison term. The circuit in January 2010 upheld Giannone’s conviction, but ordered resentencing. He was sentenced to 57 months and released from prison in April 2011.
Liotti, in his petition to the Supreme Court, said his client offered “substantial assistance” to the government. According to reports from Wired magazine, Giannone helped in the apprehension of a hacker who later pleaded guilty to stealing almost 2 million credit card numbers.
The Fourth Circuit’s standing panel on attorney discipline initiated proceedings against Liotti in January 2011.
The panel charged that Liotti had improperly joined separate and unrelated quotations in a brief he filed; falsely accused the trial judge of suppressing evidence—a letter from an informant that actually arrived after the trial, not before; misrepresented facts pertaining to a change of venue motion; misrepresented facts in a declaration that Giannone had conducted a chat with a computer in Liotti’s office that established his innocence, although his client made post-trial admissions he faked the chat; and asserted without support that two of the Secret Service agents involved in the investigation had been fired for misconduct.
According to the circuit, Liotti defended himself against the charges by “essentially admitting their substance, primarily attributing his actions to mistakes and poor judgment, and denying any intentional misconduct.”
Liotti expressed regret, but argued the charges, whether taken separately or together, did not justify discipline.
Before the circuit, Liotti’s attorney, Thomas Vanderbloemen of Gallivan, White & Boyd in Greenville, S.C., called for dismissal or, at most, a private “caution letter.” Vanderbloemen did not respond to a request for comment.
‘Strong Measure of Leniency’
But a three-judge circuit panel in a decision written by Judge Robert King opted for admonishment. He was joined by Judges Diana Gribbon Motz and Allyson Duncan.
King credited Liotti for successfully arguing for a reduction in Giannone’s sentence. He said it was “commendable” that Liotti “now largely recognized and apologized for his misrepresentation.”
The misconduct was “an isolated event” that was “inconsistent with” Liotti’s “otherwise fine career,” King acknowledged.
King wrote that the court had a right to expect more from an attorney as experienced as Liotti than it did from a greener lawyer.
Nevertheless, his lack of prior misconduct mitigated the circumstances, along with the lack of harm to Giannone, the court found.
“The unsettling repetition of Mr. Liotti’s misrepresentations and the need to deter others from engaging in similar conduct militate in favor of public discipline. In light of the various mitigating factors, however, the purposes of discipline will be sufficiently served in this proceeding if we temper our disposition with a strong measure of leniency.”
In his petition to the Supreme Court, Liotti said he “bowed, scraped, cowered and apologized. Instead of accepting these entreaties in good faith, the Circuit sanctimoniously retaliated with a Draconian ruling that might easily have been drafted for Gulliver’s Travels and the Land of Lilliput for all of its tiny, brummagem, shallow analysis.”
Michael Rigsby, a solo practitioner in Richmond who served as prosecuting counsel for the circuit’s standing panel, said his position was that punishment for Liotti “should never be any more than a reprimand.” He said he did not think Liotti was treated unfairly, and recalled the circuit judges being “very attentive and courteous” during arguments.
@|Andrew Keshner can be contacted at email@example.com.