In Re Attorney Walter F. KELLY
6 Fed. R. Serv. 3d 590, 1986 U.S. App. LEXIS 36463, 808 F.2d. 549 (1986)
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Rule of Law:
An attorney engages in unprofessional conduct by making a statement of positive fact in a sworn court filing without first conducting a reasonable inquiry to ensure there is a solid basis for the statement.
Facts:
- Attorney Walter F. Kelly represented a party in an appeal of a sex-discrimination suit against Marquette University.
- Kelly filed a motion seeking to recuse Judge John L. Coffey from participating in the appeal.
- In a sworn affidavit supporting the motion, Kelly stated as a fact that Judge Coffey "has publicly and actively stated his opposition to abortion."
- Kelly’s basis for this sworn statement was his knowledge that Judge Coffey is a prominent Catholic and a vague recollection of receiving brochures eight and eleven years prior that he believed showed Judge Coffey participating in an event concerning abortion.
- Kelly did not possess the brochures and made no effort to verify his recollection or the nature of the judge's alleged participation before filing the affidavit.
Procedural Posture:
- Attorney Walter F. Kelly filed a motion to recuse Judge John L. Coffey in the U.S. Court of Appeals for the Seventh Circuit, supported by a sworn affidavit.
- A motions panel of the Seventh Circuit issued an order asking Kelly to substantiate a factual allegation made in his affidavit.
- After Kelly's response revealed the weak basis for his allegation, the panel issued an order directing Kelly to show cause why he should not be disciplined for unprofessional conduct.
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Issue:
Does an attorney engage in unprofessional conduct sanctionable by an appellate court by filing a sworn affidavit that states a positive fact based on vague recollections and inferences, without conducting a reasonable inquiry to verify the statement's accuracy?
Opinions:
Majority - Posner, Circuit Judge
Yes. An attorney engages in unprofessional conduct by filing a sworn affidavit asserting a positive fact that is actually just an inference based on vague recollection without conducting a reasonable inquiry. The court reasoned that a statement of positive fact is a representation not only that the fact is true, but also that the person making it has a solid basis for the assertion. Kelly’s statement was a "shot in the dark, a guess," not a verified fact. He had a professional duty to either verify the information before making the sworn statement or, alternatively, to disclose the weak basis of his recollection and let the court draw its own conclusion. While Rule 11 of the Federal Rules of Civil Procedure does not directly apply in appellate courts, its principles help define "conduct unbecoming a member of the bar" under Federal Rule of Appellate Procedure 46(c), which requires lawyers to be scrupulously accurate in their statements to the court, especially when under oath and regarding a judge.
Analysis:
This decision clarifies that the duty of reasonable inquiry, famously required by Rule 11 for trial court filings, extends as a matter of professional conduct to appellate practice under FRAP 46(c). It establishes that attorneys in appellate courts can be disciplined for making unsubstantiated factual allegations, particularly in sworn affidavits concerning a judge's conduct. The case serves as a significant warning that presenting an inference or a guess as a positive fact constitutes a serious misrepresentation to the court. This precedent reinforces an attorney's duty of candor and due diligence, obligating them to verify information before asserting it as fact in any court filing.
