ELR Citation: ELR 20706
No(s). s. 92-2024 et al (4th Cir. Dec 9, 1993)

The court holds that misconduct by attorneys for the United States in concealing a material witness' misrepresentations regarding his academic credentials did not warrant a district court's dismissal of the government's cost recovery suit under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The government attorneys learned in September 1991 that the witness, who was the U.S. Environmental Protection Agency's (EPA's) on-scene coordinator for a cleanup at the defendants' site, had falsely claimed to EPA and in deposition that he was a college graduate. The government attorneys, however, continued to object to the defendants' questions regarding the witness' credentials, did not supplement relevant interrogatories, and did not inform the district court of their discovery until January 1992. The district court found that the government attorneys had violated West Virginia Rule of Professional Conduct 3.3, relating to attorneys' duty of candor to the court, and dismissed the case as a sanction, awarding attorneys fees to the defendants.

The court first holds that there is a broad duty of candor that imposes a continuing duty to inform the court of any development that may conceivably affect the outcome of the litigation, and that the government attorneys violated this general duty. The court next holds that the attorneys also violated Rule 3.3, which mandates that a lawyer shall not knowingly fail to disclose a material fact when disclosure is necessary to avoid assisting a fraudulent act by the client. The government had actual knowledge of the witness' fraud in September. The witness' credentials, capability, and credibility are material because the integrity of the administrative record that he developed is relevant to inquiries about the propriety of costs and the response selection. Nearly $1,000,000 of the costs sought to be recovered resulted from an unsuccessful cleanup method recommended by the witness. Also, since the witness was involved in the case as an important agent of EPA, and his misrepresentation was made in the course of his employment, his fraud is fairly characterized as an act of the client.

The court holds, however, that although it is within the court's power to dismiss a case as a sanction for attorney misconduct, the district court did not adequately address the policy of deciding cases on the merits where the orderly administration of justice and the integrity of the process have not been permanently frustrated. Through dismissal, the defendants received a total release from their obligations under the environmental laws: Relief far beyond the harm caused by the government attorneys' improper conduct. Thus, the court reverses the dismissal and remands for the imposition of a sanction short of dismissal.

Counsel for Plaintiff
John A. Bryson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
John H. Tinney
Spilman, Thomas & Battle
United Ctr., 500 Virginia St. E., Ste. 1200, P.O. Box 273, Charleston WV 25321
(304) 340-3800

Before ERVIN, Chief Judge, and PHILLIPS and NIEMEYER, Circuit Judges.