In a recent decision, the U.S. Court of Appeals for the Seventh Circuit reaffirmed that “witness tampering is among the most grave abuses of the judicial process, and as such it warrants a substantial sanction,” and addressed counsel’s duty of candor to the tribunal where evidence of witness tampering arises. Ramirez v. T&H Lemont, Inc., 845 F.3d 772 (7th Cir. 2016).
In Ramirez, where the plaintiff sued his employer for discrimination, the Seventh Circuit affirmed the district court’s dismissal with prejudice of the action because the plaintiff paid witnesses to testify in his favor at deposition. While the district court did not specify whether it issued the dismissal sanction under Rule 37 of the Federal Rules of Civil Procedure or the court’s inherent authority, the Seventh Circuit found that either would have supported the district court’s decision.
The Seventh Circuit also addressed the proper standard that district courts must apply in issuing a dismissal sanction for misconduct. Prior Seventh Circuit precedent required that the willfulness, bad faith, or fault of the accused party be supported by clear and convincing evidence to warrant a dismissal of the case. Ramirez, however, holds that in civil cases, a district court's decision to sanction misconduct by dismissing the action or entering a default judgment need only be established by a preponderance of the evidence. This burden, the court noted, is consistent with the Supreme Court's presumption in favor of the less onerous preponderance-of-evidence standard in federal civil cases.
However, a district court may require that a dismissal sanction for a plaintiff’s misconduct be supported by clear and convincing evidence—rather than by a preponderance of the evidence—if the plaintiff seeks equitable relief or the interests implicated by the suit’s dismissal are sufficiently important. The Seventh Circuit noted that in Ramirez, the plaintiff sought only monetary damages. And while the court acknowledged that a plaintiff’s opportunity to vindicate his rights in a Title VII discrimination case is highly important, “the loss of the opportunity to vindicate those rights in a civil suit against one's employer is not of the same constitutional magnitude as the liberty interests at stake in proceedings involving the termination of parental rights or involuntary commitment to an institution for psychiatric care, for example.”
The Seventh Circuit also noted that plaintiff’s counsel’s conduct upon learning of his client’s misconduct was particularly commendable. Counsel first learned of his client’s potential misconduct when he was contacted by a witness asking how much money the witness would receive when the case was resolved. Plaintiff’s counsel immediately reported the communication to defense counsel, consistent with attorneys’ ethical obligations under ABA Model Rule of Professional Conduct 3.4, which promotes fairness to opposing parties and counsel.
In an evidentiary hearing, the district court also acknowledged plaintiff’s counsel’s actions by stating that “[t]hroughout the evidentiary hearing, counsel for Plaintiff has been forthcoming and cooperative—I am convinced that he played no role in Plaintiff's misconduct. Because I have found clear and convincing evidence of witness tampering, I am dismissing this case with prejudice to sanction Plaintiff.” Counsel’s truthfulness and candor regarding his client’s conduct was consistent with ABA Model Rule of Professional Conduct 3.3, which prohibits attorneys from offering evidence that the attorney knows to be false, and requires attorneys to take reasonable remedial measures, including disclosure to the tribunal, where the attorney knows that a client has engaged in criminal or fraudulent conduct. And counsel’s candor regarding his client’s conduct likely avoided any violation of ABA Model Rule of Professional Conduct 8.4, which prohibits attorneys from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
The lessons of Ramirez: If you discover evidence that your client has or may have engaged in, or will engage in, misconduct, you should review the ethics rules in your state to determine the appropriate action you should take to correct the situation. Where there has been witness tampering, it is not unreasonable to expect a dismissal sanction, and you should advise your client of that possibility. Also review the precedents in your jurisdiction for the standard that district courts must apply to the facts underlying a dismissal sanction. If you find yourself in the debate over whether a clear and convincing or preponderance of the evidence standard applies, consider whether the case concerns equitable relief and whether a dismissal sanction will implicate important interests to justify applying the higher, clear-and-convincing standard.
Michael L. Huggins is deputy attorney general with the California Office of the Attorney General.