United States v. Cooper

United States v. Cooper

Opinion

 [*1]  JOHN R. BROWN, Circuit Judge

Attorney Norman Zalkind (Zalkind), of Boston, Massachusetts is appealing an Order of Reprimand based on the district court's determination that he had violated various provisions of the Code of Professional Responsibility of the Supreme Court of Rhode Island  [**2]  ² while appearing pro hac vice for a client. We reverse the lower court's determination that Attorney Zalkind violated the adopted Rhode Island rules for attorney conduct and vacate the Order of Reprimand.

 Double, double toil and trouble;

Fire burn and cauldron bubble 

The conduct of Attorney Zalkind which we now review occurred in the course of  [*2]  his pro hac vice representation of his client, Jonathan Cooper, in the District of Rhode Island. The events leading up to this appeal have been chronicled in adequate detail in prior published decisions. See In re Cooper, 821 F.2d 833 (1st Cir. 1987), United States v. Cooper, 662 F. Supp. 913 (D.R.I. 1987); United States v. Cooper, 675 F. Supp. 753 (D.R.I. 1987). Therefore, we will repeat only the most basic storyline to provide a framework for review of the issues before us.

In January 1978, Attorney Zalkind's client Cooper filed  [**3]  a pretrial motion to dismiss the drug offense indictment against him, or in the alternative exclude the testimony of a Government witness. Four days of evidentiary hearings were held in which considerable oral testimony including that of 4 attorneys and the witness the defense sought to exclude. On April 10, 1987, Defendant Cooper's motion was denied in an opinion read from the bench. Twenty days after the denial of the motion, Attorney Zalkind filed a motion to recuse the trial court judge grounded in 28 U.S.C. §§ 144 and 455(a). The motion included a supporting memorandum of law and affidavit signed by Attorney Zalkind and other counsel involved in the case. The affidavit stated that the tenor of the judge's opinion denying the motion to dismiss or exclude testimony went beyond proper judicial comment about counsel. More specifically, the affidavit asserted that the judge had "staunchly defended" members of the Rhode Island Bar in a manner suggestive of predetermination to reject evidence presented by out-of-state defense counsel, and had also shown undue animosity toward defense counsel. The trial judge denied the motion to recuse and on June 9, 1987, this Court denied Cooper's  [**4]  writ of mandamus to require the judge to recuse himself. 821 F.2d 833.

The saga does not end here, rather -- for purposes of our review -- a new chapter commences with the trial judge's strong reaction to Mr. Zalkind's supporting affidavit. In a May 19, 1987 order the trial judge concluded that "by his preparation and submission of this unwarranted and unjustified affidavit, Mr. Zalkind has engaged in unethical conduct." 669 F. Supp at 39. Specifically, the trial judge found that Attorney Zalkind had violated the Rhode Island Code of Professional Responsibility by knowingly making false statements of fact including a false accusation against a judge, and by engaging in conduct prejudicial to the administration of justice that casts serious doubt on his fitness to practice law. In finding these to be prima facie violations of the Rhode Island Code, the trial judge evaluated Mr. Zalkind's affidavit as "false in some particulars, totally irrelevant to any § 144 issues, obviously made in bad faith and a scurrilous, scandalous personal attack on the integrity of this Court." 669 F. Supp at 39.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.