## Facts

- In December 1980, correction officer Robert Lewis confidentially reported to superiors that he witnessed several correction officers use undue force against an inmate.
- Testimony in the disciplinary record showed it was highly unusual for a correction officer to inform against colleagues because of fear of retaliation and a “code of silence.”
- Brian Malone, a licensed attorney serving as Inspector General of the New York State Department of Correctional Services, began an internal investigation into the alleged assault.
- Malone and his staff conducted confidential interviews of Lewis, attempting to keep Lewis’s identity secret as long as possible.
- Lewis’s account was corroborated in part by the inmate’s statement and the inmate’s medical records.
- On October 20, 1981, Lewis gave sworn testimony describing the incident. During that session, Malone stated on the record that Lewis would give a false, contradictory sworn statement the next day to protect Lewis’s identity as an informer.
- On October 21, 1981, at the correctional facility, Malone interviewed six correction officers under oath, including Lewis. Each officer denied any assault.
- Lewis also denied witnessing undue force; this denial was false and was given at Malone’s direction as part of a plan to divert suspicion from Lewis and conceal that he had informed.
- Afterward, the department charged three correction officers with using undue force and giving false testimony. The officers, through their union, pursued arbitration.
- During arbitration, Lewis disclosed that Malone had instructed him to give two contradictory sworn statements.
- The Committee on Professional Standards brought a disciplinary charge against Malone based on his direction that Lewis give false sworn testimony. Malone admitted the underlying facts.
- A referee found that Malone committed professional misconduct, and Malone moved in the Appellate Division to disaffirm the referee’s report.

## Issues

1. Whether an attorney commits professional misconduct by directing a witness to give false sworn testimony during an internal investigation, even if the stated purpose is to protect the witness from retaliation.
2. What discipline is appropriate where an attorney in a public investigative role deliberately orchestrates false testimony under oath.

## Decision

- The Appellate Division, Third Department, sustained the referee’s finding that Malone engaged in professional misconduct by directing a witness to give false sworn testimony.
- The court rejected Malone’s attempt to excuse the conduct on the ground that the false testimony was a protective measure intended to conceal a whistleblower’s identity.
- The court imposed attorney discipline in the form of suspension from the practice of law.
- The New York Court of Appeals later affirmed the order for the reasons stated by the Appellate Division.  

## Legal Principles

- An attorney may not instruct, procure, or participate in false sworn testimony; doing so constitutes professional misconduct.
- A lawyer’s claimed good motive—such as protecting an informant from retaliation—does not justify arranging perjury or creating a false sworn record.
- Misconduct is established by the act of directing false testimony under oath, even if the plan is framed as an investigative tactic and even if the tactic temporarily succeeds.
- In setting discipline, the court considers the seriousness of creating false sworn testimony and the respondent’s role and responsibilities, including when the lawyer acts as a government investigator.

## Conclusion

*Matter of Malone* is an attorney discipline case arising from an Inspector General’s investigation into alleged inmate abuse in which the attorney directed a correction officer to give false sworn testimony to conceal that the officer had informed on colleagues. The Appellate Division held that deliberately engineering contradictory sworn statements is professional misconduct regardless of the asserted protective purpose, sustained the charge after the referee’s report, and imposed suspension, with the Court of Appeals affirming on the Appellate Division’s reasoning.


Matter of Malone, 105 A.D.2d 455 (1984)