Heffernan v. Hunter ( 1999 )

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit
8-26-1999
Heffernan v. Hunter
Precedential or Non-Precedential:
Docket 98-1749
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"Heffernan v. Hunter" (1999). 1999 Decisions. Paper 238.
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Filed August 26, 1999
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 98-1749
JOHN J. HEFFERNAN,
Appellant
v.
ROBERT W. HUNTER, Prisoner #CV9408;
BOCHETTO & LENTZ, P.C.; GEORGE BOCHETTO, ESQ.
APPEAL FROM THE UNITED STATES
DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 97-cv-06041)
District Judge: Honorable Norma L. Shapiro
Argued: April 27, 1999
Before: MANSMANN, WEIS, and GIBSON,*
Circuit Judges.
(Filed: August 26, 1999)
_________________________________________________________________
* The Honorable John R. Gibson, United States Circuit Judge for the
United States Court of Appeals for the Eighth Circuit, sitting by
designation.
Alan B. Epstein, Esquire
(ARGUED)
Thomas Rapp, Esquire
Jablon Epstein, A Professional
Corporation
The Bellevue, Ninth Floor
Broad Street at Walnut
Philadelphia, PA 19102-3803
Attorneys for Appellant
Andrew Teitelman, Esquire
Suite 210
3993 Huntingdon Pike
Huntingdon Valley, PA 19006
Attorney for Appellee Hunter
H. Robert Fiebach, Esquire
Thomas G. Wilkinson, Jr.,
Esquire (ARGUED)
Christopher D. McDemus, Esquire
Cozen and O'Connor, P.C.
The Atrium
1900 Market Street
Philadelphia, PA 19103
Attorneys for Appellees
Bochetto & Lentz and Bochetto
OPINION OF THE COURT
WEIS, Circuit Judge.
In this case, defendants sought to intimidate plaintiff, a
potential witness in federal court, by filing an allegedly
frivolous lawsuit against him and using it to generate
unfavorable publicity. We hold that plaintiff has standing to
seek damages for that conduct under the anti-conspiracy
sections of the Civil Rights Act of 1871. However, we also
hold that because defendants acted within the attorney-
client relationship, they cannot be considered conspirators.
On that basis, we will affirm the dismissal by the District
Court.
2
Plaintiff John J. Heffernan, an official with the Securities
and Exchange Commission, was assigned in January 1994
to investigate possible insider trading violations growing out
of a proposed bank merger. Defendant Robert W. Hunter
came under scrutiny for the stock transactions he
conducted during the relevant time.
In January 1994, Hunter's five-year relationship with his
paramour Joanne Kelly ended when she discovered that he
had molested her eleven year-old daughter. The following
month, criminal charges were lodged against Hunter in
state court.
On February 7, 1994, Kelly advised a county detective
that she had information about Hunter's insider trading
activities. The detective introduced her to Heffernan on
February 24, 1994, who then interviewed her in connection
with the SEC investigation. In the following months, Kelly
and Heffernan began an intimate relationship, and were
married in May 1995. Recognizing the conflict between his
personal situation and his official duties, in August 1994
Heffernan requested to be relieved from his assignment to
the Hunter investigation. The SEC then transferred the
case to a different regional office.
Some weeks after bringing criminal charges against
Hunter, Kelly and her daughter filed a civil suit in state
court for damages caused by the molestation. The Kellys'
lawyers demanded $2 million from Hunter to settle the suit.
In preparation for his defense, Hunter and his attorney
hired a detective who reported evidence of Heffernan's and
Kelly's intimate relationship during July of 1994. The
surveillance produced a videotape showing Heffernan and
Kelly kissing, his car parked overnight in her garage, and
Kelly leaving and meeting Heffernan at the train station.
On August 29, 1994, defendant George Bochetto and his
law firm, defendant Bochetto & Lentz, filed suit on Hunter's
behalf in the United States District Court for the Eastern
District of Pennsylvania. The complaint alleged that
Heffernan had caused Kelly to leave Hunter and to falsely
accuse him of child molestation in an attempt to extort
money through a civil suit. Moreover, Hunter alleged that
Heffernan had supplied Kelly with financial information
3
obtained from the SEC investigation to enhance her
prospects for a large settlement in her civil suit. Hunter
also sought to halt the SEC investigation.
The very next day, a local television station broadcasted
portions of the surveillance videotape and interviewed
Bochetto. He said of Heffernan, "[r]ather than take her
[Kelly's] statement and go on with the investigation, he
[Heffernan] took her statement and decided he wanted to
stay for the night . . . It's literally the equivalent of the law
enforcement agent jumping into your wife's bed, and
prosecuting you from it . . . He starts sharing with her
information which we believe she is now using to demand
two million dollars of Mr. Hunter to settle an alleged
molestation case in Montgomery County."
Defendants also hired a publicist who prepared and
distributed press releases describing the material in
Hunter's complaint. This prompted newspaper coverage
with lurid descriptions such as "sex and million dollar
business scandal" (The Reporter (N. Penn.), Sept. 1, 1994),
"a bizarre sex-and-business plot worthy of novelist
Raymond Chandler" (Phil. Inq., Aug. 31, 1994), and others.1
The District Court entered summary judgment in
Hunter's case in favor of Heffernan on September 26, 1996,
following the previous entry of a similar order in favor of
the other defendants SEC, and Heffernan's supervisors. See
Hunter v. Heffernan, Civ. A. 94-5340, 1996 WL 694237
(E.D. Pa. Sept. 26, 1996); Hunter v. Heffernan, 879 F. Supp.
494 (E.D. Pa. 1995).
Heffernan then turned around and sued Hunter,
Bochetto and Bochetto's law firm on September 25, 1997 in
the District Court for the Eastern District of Pennsylvania.
Heffernan's complaint included claims under 42 U.S.C.
SS 1985(1), 1985(2), and 1986, as well as a state law count.
It is this action that presently concerns us.
_________________________________________________________________
1. Some months later, on June 9, 1995, Hunter was convicted of
molestation and sentenced to eight to fourteen years imprisonment. In
May 1998, he pleaded guilty on several insider trading charges, and in
April 1999, was sentenced to a term of incarceration. That conviction is
presently on appeal.
4
The section 1985(2) count asserted that Hunter and
Bochetto had conspired to file a frivolous lawsuit and
disseminate defamatory information to the media to
intimidate and punish Heffernan so as to affect his
attendance and testimony as a witness against Hunter in
federal court proceedings. The section 1985(1) claim cited
the same acts as part of a conspiracy to impede Heffernan
in the discharge of his duties as an officer of the United
States, and to injure him in his person and property
through harassment. Heffernan also asserted a violation of
42 U.S.C. S 1986 arising from the conspirators' failure to
prevent the section 1985 violations. Finally, the complaint
advanced a state statutory claim based on wrongful use of
civil proceedings.
The District Court dismissed the complaint via two orders
pursuant to Fed R. Civ. P. 12(b)(6). In the first, it held that
witnesses did not have standing to bring an action under
section 1985(2). Because the statute's remedy provision
refers only to "the party so injured," reasoned the Court, a
witness such as Heffernan had no right to sue under
section 1985(2). As to the section 1985(1) count, the Court
held that Hunter's filing of the lawsuit against Heffernan
could not amount to "force, intimidation or threat."
However, Heffernan was granted leave to amend the section
1985(1) claim with respect to the publicity campaign.
Heffernan amended but, in the second order, the Court
dismissed the 1985(1) count because, under the
circumstances, there could be no conspiracy between
attorney and client. Bochetto and his firm, according to the
Court, were acting on behalf of Hunter in defense of the
SEC charges as well as the other criminal and civil matters
pending against him at the time they launched the publicity
campaign. Having failed to establish a predicate section
1985 claim, Heffernan's section 1986 claim failed as well.
Finally, declining to exercise discretionary supplemental
jurisdiction, the Court dismissed the remaining state-law
claim without prejudice.
The plaintiff's appeal is limited to the District Court's
alleged errors in: first, finding a lack of standing under 42
U.S.C. S 1985(2), and second, refusing to treat lawyer and
client as conspirators.
5
A dismissal with prejudice under Rule 12(b)(6) produces
a final order appealable under 28 U.S.C. S 1291, and one
subject to plenary review. Malia v. General Elec. Co., 23
F.3d 828, 830 (3d Cir. 1994). All well-pleaded facts in the
complaint and reasonable inferences are accepted as true.
See id. The dismissal will be affirmed "only if it is certain
that no relief can be granted under any set of facts which
could be proved." Steamfitters Local Union No. 420 Welfare
Fund v. Philip Morris, Inc., 171 F.3d 912, 919 (3d Cir. 1999)
(internal quotations removed).
I.
Heffernan was not a party to the prospective SEC
prosecution, but he was a potential and likely witness in
those proceedings, both before a grand jury, and later in
federal court. The issue is whether he, as a potential
witness, has a right of action under the Civil Rights
conspiracy statute.
The relevant portion of 42 U.S.C. S 1985(2),first part,
along with the remedial provision in 42 U.S.C. S 1985(3),
reads: "If two or more persons . . . conspire to deter, by
force, intimidation, or threat, any party or witness in any
court of the United States from attending such court, or
from testifying to any matter pending therein . . . or to
injure such party or witness . . . or to influence. . . or to
injure such juror . . . on account of any verdict,
presentment, or indictment . . . the party so injured or
deprived may have an action for the recovery of damages."
Although section 1985(2) speaks to threats and deterrents
against "any party or witness," the remedial language in
section 1985(3) granting an action for damages refers only
to "the party."2
_________________________________________________________________
2. 42 U.S.C. S 1985(2) and the remedial portion of 42 U.S.C. S 1985(3)
state in full:
(2) Obstructing justice; intimidating party, witness, or juror
If two or more persons in any State or Territory conspire to
deter, by force, intimidation, or threat, any party or witness in
any court of the United States from attending such court, or
from testifying to any matter pending therein, freely, fully, and
6
Section 1985 derives mostly from the Civil Rights Act of
1871, ch. 22, S 2, 17 Stat. 13, and in lesser part not
relevant to this appeal, from the Conspiracy Act of 1861,
ch. 33, 12 Stat. 284. Almost Kantian in length and
complexity, the revision that eventually became section
1985 is a paradigm of poor draftsmanship. In Brawer v.
Horowitz, 535 F.2d 830, 837 (3d Cir. 1976), Judge Aldisert
referred to "the perfidious syntax of S 1985(2)." In somewhat
less colorful terms, the Supreme Court acknowledged that
the "length and style" of the 1871 Act "make it somewhat
difficult to parse." Kush v. Rutledge, 460 U.S. 719, 724
(1983).
The 1871 Act was codified pursuant to the Act of June
20, 1874, ch. 333, 18 Stat. 113-14, which charged
Secretary of State Hamilton Fish with preparing the Revised
Statutes of the United States. Brawer, 535 F.3d at 837-38
& n.16. Codified as R.S. S 1980, the statute now appears
unchanged in Title 42. Id. at 837-38. A number of
_________________________________________________________________
truthfully, or to injure such party or witness in his person or
property on account of his having so attended or testified, or to
influence the verdict, presentment, or indictment of any grand or
petit juror in any such court, or to injure such juror in his
person or property on account of any verdict, presentment, or
indictment lawfully assented to by him, or of his being or having
been such juror; or if two or more persons conspire for the
purpose of impeding, hindering, obstructing, or defeating, in any
manner, the due course of justice in any State or Territory, with
intent to deny to any citizen the equal protection of the laws, or
to injure him or his property for lawfully enforcing, or attempting
to enforce, the right of any person, or class of persons, to the
equal protection of the laws;
(3) Depriving persons of rights or privileges
. . . . in any case of conspiracy set forth in this section, if one
or more persons engaged therein do, or cause to be done, any
act in furtherance of the object of such conspiracy, whereby
another is injured in his person or property, or deprived of
having and exercising any right or privilege of a citizen of the
United States, the party so injured or deprived may have an
action for the recovery of damages, occasioned by such injury or
deprivation, against any one or more of the conspirators.
7
modifications were made to the statute during the
codification process, but the Supreme Court,
acknowledging these alterations, has concluded that"[t]he
reclassification was not intended to change the substantive
meaning of the 1871 Act." Kush, 460 U.S. at 724 & n.6.
To properly interpret section 1985, it is necessary to
compare the original and codified texts. Both proscribe
conspiracies to deter "any party or witness. " (emphasis
added). However, codification brought unsettling changes to
the remedy section, which now states that "the party so
injured . . . may have an action for the recovery of
damages." (emphasis added). Defendants argue that this
language limits recovery to "parties" involved in litigation
despite the fact that the original text was not so limited. It
read that "the person so injured . . . may have and
maintain an action for the recovery of damages." (emphasis
added).
Not surprisingly, courts have differed as to whether a
remedy is limited to parties, or extends to witnesses and
jurors as well. The Supreme Court has taken a "firm"
position on this issue, stating "We express no opinion
regarding respondents' argument . . . that only litigants,
and not witnesses, may bring S 1985(2) claims. We leave
[that] issue[ ] for the courts below to resolve on remand."
Haddle v. Garrison, 119 S. Ct. 489, 491 n.3 (1998).
By focusing on the codified language in isolation, two
Courts of Appeals have concluded that relief is not available
for "a mere witness." Rylewicz v. Beaton Services, Ltd., 888
F.2d 1175, 1180 (7th Cir. 1989); David v. United States,
820 F.2d 1038, 1040 (9th Cir. 1987).
On the other hand, in Brever v. Rockwell International
Corp., 40 F.3d 1119 (10th Cir. 1994), the Court of Appeals
for the Tenth Circuit refused to read the term " ``party' so
literally as to mean ``named party to an action.' " Id. at 1125
n.7. To conclude otherwise would "emasculate" the statute,
which specifically designates witnesses as " ``protected
persons.' " Id. at 1125-26 n.7. The Court was especially
troubled by the fact that under an excessively literal
reading in cases involving federal grand juries, only the
United States would have standing. Id. at 1126 n.7.
8
We noted the split of authority on witness standing in
Rode v. Dellarciprete, 845 F.2d 1195, 1206-07 (3d Cir.
1988), but did not rule on the issue because the plaintiff in
that case was "neither a witness nor a litigant." Id. at 1207.
This appeal, however, places the issue squarely before us.
As have other courts, we confess some perplexity with the
convoluted, rambling and largely unstructured language of
the 1871 Act and its 1874 codification. But after patient
parsing of the text, it is clear enough that Congress' intent
was to extend protection to witnesses and jurors as well as
to parties. The word "persons" as used in the 1871 version
accomplished that result and the codified text need not be
read as inconsistent with the original. The word"party"
may well have been, in the codifiers' minds, simply a
synonym for "person" or "individual."
We reach the same conclusion even if we do not look to
the original text. The codified remedy section states that if
one or more conspirators "do . . . any act in furtherance of
the . . . conspiracy, whereby another is injured in his
person or property, . . ., the party so injured or deprived
may have an action for the recovery of damages." 42 U.S.C.
S 1985(3) (emphasis added). In this clause,"the party so
injured" refers back to the phrase "whereby another is
injured." The phrasing and context persuade us that the
term "party" is not meant to limit the more general term
"another." Thus, the meaning of "another" in the section
1985(2) context is not defined by section 1985(3)'s reference
to "party," but rather by section 1985(2)'s reference to
parties, witnesses, and jurors. See Brever, 40 F.3d at 1125-
26 n.7. This reading is in accord with our caution in
Brawer that "it could hardly be argued that Congress gave
[the codifiers] a carte blanche right of amendment." 535
F.2d at 838 n.16.
We therefore find ourselves in accord with Brever and
hold that a witness or juror may be a "party" entitled to
maintain an action under section 1985(2). The fact that
Heffernan, at the time of the alleged conspiracy, had
neither appeared as a witness, nor been subpoenaed, does
not affect his standing. It is enough that he was a potential
and obviously important witness. See Malley-Duff & Assoc.,
Inc. v. Crown Life Ins. Co., 792 F.2d 341, 355 & n. 11 (3d
9
Cir. 1986) (" ``Deterrence or intimidation of a potential
witness can be just as harmful to a litigant as threats to a
witness who has begun to testify.' ") (quoting Chahal v.
Paine Webber, Inc., 725 F.2d 20, 24 (2d Cir. 1984)), aff'd,
483 U.S. 143 (1987).
Whether Hunter was aware at the time he filed his suit
that Heffernan had already been removed from the SEC
investigation does not appear in the record. In any event,
naming Heffernan as a defendant appears to have been, in
part, a ploy to affect his credibility as a witness in federal
court proceedings growing out of the insider trading
investigation.
Accordingly, we conclude that Heffernan has standing to
bring a section 1985(2) claim. That, however, does not
mean that he can successfully establish a right to recovery
here.
II.
In addition to alleging a violation of section 1985(2),
Heffernan charged defendants under section 1985(1) with
conspiring to impede the performance of his duties by filing
a frivolous lawsuit and disseminating false and libelous
information about him to the media. In contrast to the
preceding discussion, there is no dispute over Heffernan's
standing to bring suit as a government agent under section
1985(1). See Windsor v. The Tennessean, 719 F.2d 155,
161 (6th Cir. 1983).
Section 1985(1) states in relevant part that if"two or
more persons . . . conspire to prevent, by force,
intimidation, or threat, . . . [an officer of the United States]
from discharging any duties thereof; . . . or to injure him in
his person or property on account of his lawful discharge of
the duties of his office, or while engaged in the lawful
discharge thereof," then a cause of action exists.3
_________________________________________________________________
3. 42 U.S.C. S 1985(1) states in full:
(1) Preventing officer from performing duties.
If two or more persons in any State or Territory conspire to
prevent, by force, intimidation, or threat, any person from
10
Both the section 1985(1) and 1985(2) claims require a
conspiracy. Whether Heffernan has set out actionable
conspiracies is therefore a threshold issue and one that we
find dispositive.4
Looking to state law, the District Court concluded that no
conspiracy can exist where an attorney's advice or advocacy
is for the benefit of his client rather than for the attorney's
"sole personal benefit." The Court found this principle
consistent with federal law that perceives no conspiracy in
the concerted activity of an employee and a corporation,
usually termed the "intracorporate conspiracy doctrine."
There are few cases in the Courts of Appeals discussing
attorney-client conspiracies in the section 1985 context,
but two opinions do provide some guidance. In Doherty v.
American Motors Corp., 728 F.2d 334 (6th Cir. 1984), the
plaintiff alleged a conspiracy under section 1985(2) between
a corporation and its inside, as well as its outside, counsel.
Citing the general rule that a corporation cannot conspire
with its agents, the Court found that no conspiracy existed,
remarking, "it is clear from the record that the actions of
the [the corporation's] attorneys were motivated not by
personal concerns but by concerns for their clients." Id. at
339-40.
The other case, Travis v. Gary Community Mental Health
Center, Inc., 921 F.2d 108 (7th Cir. 1990), included a claim
_________________________________________________________________
accepting or holding any office, trust, or place of confidence
under the United States, or from discharging any duties thereof;
or to induce by like means any officer of the United States to
leave any State, district, or place, where his duties as an officer
are required to be performed, or to injure him in his person or
property on account of his lawful discharge of the duties of his
office, or while engaged in the lawful discharge thereof, or to
injure his property so as to molest, interrupt, hinder, or impede
him in the discharge of his official duties[, then a cause of
action
exists under section 1985(3)].
4. Accordingly, we need not determine whether the defendants' activities
amounted to "force, intimidation, or threat," or whether plaintiff has
suffered damages within the terms of the statute. Nor do we reach the
defendants' arguments raising the statute of limitations, qualified
immunity, causation, or the First Amendment.
11
under section 1985(2) by an employee who alleged a
retaliatory discharge by the defendant's employees. The
Court concluded that joint conduct by employees did not
amount to a conspiracy. Id. at 110. Of particular relevance
is the Court's discussion about the defendant's
consultation with its outside counsel. Holding that this too
was not a conspiracy, the Court reasoned that "[t]reating
involvement of a lawyer as the key unlocking S 1985 would
discourage corporations from obtaining legal advice before
acting, hardly a sound step to take." Id. at 111.
In cases not necessarily involving attorney-client
conspiracies, the Courts of Appeals are divided on the
applicability of the intracorporate conspiracy doctrine in the
section 1985 context. See McAndrew v. Lockheed Martin
Corp., 177 F.3d 1310, 1312 (11th Cir. 1999) (listing the
Second, Fourth, Fifth, Sixth, Seventh and Eighth Circuits
as ascribing to the doctrine, but choosing to follow the
First, Third, and Tenth, which had taken the opposite
position.).5
We have addressed this issue in several opinions. In
Novotny v. Great American Federal Savings & Loan Ass'n,
584 F.2d 1235 (3d Cir. 1978) (en banc), vacated on other
gds., 442 U.S. 366 (1979), the plaintiff's complaint did not
allege that the corporate defendant conspired with its
officers and directors, but rather that a conspiracy existed
between the individual officers. Therefore, the issue was
whether concerted actions by officers and employees of a
corporation could be the basis of a claim under section
1985(3). We held that it could. Id. at 1257.
Subsequently, in Robison v. Canterbury Village, Inc., 848
F.2d 424 (3d Cir. 1988), we pointed out that Novotny did
_________________________________________________________________
5. The doctrine has also been carried over to alleged conspiracies
involving govenmental entities. See Wright v. Illinois Dep't of Children &
Family Services, 40 F.3d 1492, 1507-09 (7th Cir. 1994) (no conspiracy
by state agency and co-employees under section 1985(2) for retaliatory
disciplinary action against case workers); Hull v. Cuyahoga Valley Joint
Voc. Sch. Dist. Bd. of Educ., 926 F.2d 505, 509-10 (6th Cir. 1991) (agents
and employees of a public school board did not form a conspiracy under
section 1985); Runs After v. United States, 766 F.2d 347, 354 (8th Cir.
1985) (no conspiracy involving members of Indian tribal council).
12
not "evaluate the force of the proposition that a corporation
cannot conspire with itself." Id. at 431 (internal quotation
marks omitted). Robison held that a corporation and its
president cannot form a conspiracy under section 1985(3).
Id. (citing, inter alia, Doherty, 728 F.2d at 339-40;
Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir. 1972)).
We noted, however, that a conspiracy may exist between a
corporation and an officer "if the officer is acting in a
personal, as opposed to official, capacity." Id.
Along these lines, courts that have followed the doctrine
allow an exception when the employees have acted for their
sole personal benefit and thus outside the course and scope
of their employment.6 That exception is based on the
proposition that since the employer would not be subject to
liability under respondeat superior, it would not be a
conspirator. See Johnson v. Hills & Dales General Hosp., 40
F.3d 837, 841 (6th Cir. 1994). Similar conclusions have
been reached in state-court cases involving civil
conspiracies. See, e.g., Fraidin v. Weitzman, 611 A.2d 1046,
1077-80 (Md. Ct. Spec. App. 1992) (no conspiracy when
attorneys act within scope of employment unless they act
for their "sole personal benefit").
Although the case law on intracorporate conspiracies
provides a convenient analogy for the attorney-client
situation, there are important differences between the
agency relationships involved in private corporate activities
and those arising in the practice of law. The right of a
litigant to independent and zealous counsel is at the heart
of our adversary system and, indeed, invokes constitutional
concerns. Counsels' conduct within the scope of
representation is regulated and enforced by disciplinary
bodies established by the courts. Abuses in litigation are
_________________________________________________________________
6. Some -- but not all -- courts have found exceptions to the doctrine
where there were numerous acts constituting a broad pattern of
discrimination. See Douglas G. Smith, Comment, The Intracorporate
Conspiracy Doctrine and 42 U.S.C. S 1985(3): The Original Intent, 90 Nw.
U. L. Rev. 1125, 1159-63 (1996). Furthermore, if an entity were
established for the purpose of violating civil rights, different
considerations might also apply. Id. at 1163-65. These exceptions are
not implicated in this appeal and we therefore need not discuss them.
13
punishable by sanctions administered by the courts in
which the litigation occurs.7
This regulatory framework provides third parties with
protection that is lacking in the corporate field. Despite the
absence of such safeguards in the business setting, most
courts nevertheless apply the intracorporate conspiracy
ban. That being so, it follows all the more that we should
enforce the ban on conspiracies in the attorney-client
context where even more compelling policy concerns exist.
It is, of course, axiomatic that if the challenged conduct
occurs outside the scope of representation, no reason for
immunity exists and the attorney and the client, as
individuals, could form a conspiracy. See Johnson, 40 F.3d
at 840-41; Doherty, 728 F.2d at 339-40. However, the mere
fact that attorneys have "mixed motives," such as
"enhancing" their reputation by aggressive representation,
does not remove their conduct from the scope of the
agency. See Los Angeles Airways, Inc. v. Davis, 687 F.2d
321, 328 (9th Cir. 1982).
The challenged activity may violate the canons of ethics,
but so long as it is within the scope of representation, it
does not eliminate the exemption from a conspiracy charge
under section 1985. "[S]imply because a lawyer's conduct
may violate the rules of ethics does not mean that the
conduct is actionable, in damages or for injunctive relief."
Maritrans GP, Inc. v. Pepper, Hamilton & Scheetz, 602 A.2d
1277, 1284 (Pa. 1992). The offended third party has a
remedy under state law through court imposed sanctions or
reference to state disciplinary bodies.
The statements that Bochetto made on camera and the
information in the press releases about Heffernan's conduct
with Kelly were obviously aimed at discrediting him as a
_________________________________________________________________
7. See 28 U.S.C. S 1927; Fed. R. Civ. P. 11(c). Courts have the inherent
power to sanction attorneys for bad-faith conduct that is not otherwise
covered by Rule 11 or section 1927. See Chambers v. NASCO, Inc., 501
U.S. 32 (1991).
Other remedies might be available to plaintiffs. Indeed, in this case,
Heffernan has renewed his claim for wrongful use of civil proceedings
under 42 Pa.C.S.A. S 8351 in state court.
14
witness against Hunter. As such, the attorney was acting
within the scope of his representation. Whether the chosen
means were ethical or appropriate is a separate issue.
Attorneys might use unethical tactics in representing
clients and yet remain squarely within the scope of their
agency.
We cannot say that the activities of Bochetto and his firm
were beyond the scope of the attorney-client relationship so
as to make them susceptible to characterization as a
conspiracy under section 1985. Therefore, because
Heffernan has failed to establish a conspiracy under either
section 1985(1) or (2), we must affirm the dismissal of this
case in its entirety.8
Because the record does not provide the complete
background of the defendants' decision to embark on this
publicity campaign, we hesitate to be too specific in
criticizing their conduct. However, on the facts alleged, we
do not wish to leave the impression that we condone the
lawyer's tactics or find them worthy of anything but
extreme disapproval.
Pennsylvania Rules of Professional Conduct 3.6(c)
permits a lawyer to "state without elaboration . . .(2) the
information contained in a public record." This, of course,
reflects the general privilege applied to court proceedings.
We know that the privilege is sometimes abused by
practitioners who maliciously insert inflammatory material
into court documents hoping for public dissemination. We
note, however, that the privilege is qualified and leaves
open the possibility of a defamation suit. See Computer Aid,
Inc. v. Hewlett-Packard Co., Nos. Civ. A. 96-CV-4150, Civ.
A. 97-CV-0284, 1999 WL 458151, at *5-*7 (E.D. Pa. June
15, 1999); see also Williams v. Williams, 246 N.E.2d 333
(N.Y. 1969); Sciandra v. Lynett, 187 A.2d 586, 588-89 (Pa.
1963).
_________________________________________________________________
8. Because the predicate 1985 claims cannot stand, dismissal was
appropriate for the section 1986 claim. Robison, 848 F.2d at 431 n.10.
The District Court also acted within its discretion in dismissing the
plaintiff's remaining state law claim without prejudice. See 28 U.S.C.
S 1367(c)(3).
15
In the case before us, there is some question whether the
publicity generated by the attorneys went beyond the
"without elaboration" qualification of Rule 3.6(c). We are not
so naive as to believe that there is no exception to the
admonition that lawyers are to try their cases only in the
courtroom. There may be circumstances where
conscientious lawyers must act to defend against adverse
publicity where their clients have been tried and convicted
by the media long before trial, or where the opposing
litigants -- government or private -- have blanketed the
community with damaging publicity. See Gentile v. State
Bar of Nevada, 501 U.S. 1030, 1042-43 (1991) (plurality);
Jonathan M. Moses, Note, Legal Spin Control: Ethics and
Advocacy in the Court of Public Opinion, 95 Col. L. Rev.
1811 (1995).
The record before us, however, is silent as to whether
there was any such provocation or justification for the
publicity campaign. We say no more other than to echo the
lament expressed by Judge Gawthrop in Doe v. Kohn Nast
& Graf, P.C., 866 F. Supp. 190, 195 n.1 (E.D. Pa. 1994):
"I find it a source of some regret that in this day and
age, the vogue appears to be that lawyers seem to be
unable to resist corralling a press conference . . . to
trumpet the alleged virtues of their case before the jury
has been impaneled. Too many lawyers are trying to try
their cases in that arena rather than the proper forum
for getting to the truth, within the bounds of due
process and fair play. . . . Rule . . . 3.6(a) . . . seems to
be more and more honored in the breach, treated as a
canonical dead letter, than genuinely adhered to by
trial lawyers, either in letter or in spirit."
The judgment of the District Court will be affirmed.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
16