Heffernan v. Hunter

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

8-26-1999

Heffernan v. Hunter

Precedential or Non-Precedential:

Docket 98-1749

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Filed August 26, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-1749

JOHN J. HEFFERNAN,

Appellant

v.

ROBERT W. HUNTER, Prisoner #CV9408;

BOCHETTO & LENTZ, P.C.; GEORGE BOCHETTO, ESQ.

APPEAL FROM THE UNITED STATES

DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civ. No. 97-cv-06041)

District Judge: Honorable Norma L. Shapiro

Argued: April 27, 1999

Before: MANSMANN, WEIS, and GIBSON,*

Circuit Judges.

(Filed: August 26, 1999)

_________________________________________________________________

* The Honorable John R. Gibson, United States Circuit Judge for the

United States Court of Appeals for the Eighth Circuit, sitting by

designation.

Alan B. Epstein, Esquire

(ARGUED)

Thomas Rapp, Esquire

Jablon Epstein, A Professional

Corporation

The Bellevue, Ninth Floor

Broad Street at Walnut

Philadelphia, PA 19102-3803

Attorneys for Appellant

Andrew Teitelman, Esquire

Suite 210

3993 Huntingdon Pike

Huntingdon Valley, PA 19006

Attorney for Appellee Hunter

H. Robert Fiebach, Esquire

Thomas G. Wilkinson, Jr.,

Esquire (ARGUED)

Christopher D. McDemus, Esquire

Cozen and O'Connor, P.C.

The Atrium

1900 Market Street

Philadelphia, PA 19103

Attorneys for Appellees

Bochetto & Lentz and Bochetto

OPINION OF THE COURT

WEIS, Circuit Judge.

In this case, defendants sought to intimidate plaintiff, a

potential witness in federal court, by filing an allegedly

frivolous lawsuit against him and using it to generate

unfavorable publicity. We hold that plaintiff has standing to

seek damages for that conduct under the anti-conspiracy

sections of the Civil Rights Act of 1871. However, we also

hold that because defendants acted within the attorney-

client relationship, they cannot be considered conspirators.

On that basis, we will affirm the dismissal by the District

Court.

2

Plaintiff John J. Heffernan, an official with the Securities

and Exchange Commission, was assigned in January 1994

to investigate possible insider trading violations growing out

of a proposed bank merger. Defendant Robert W. Hunter

came under scrutiny for the stock transactions he

conducted during the relevant time.

In January 1994, Hunter's five-year relationship with his

paramour Joanne Kelly ended when she discovered that he

had molested her eleven year-old daughter. The following

month, criminal charges were lodged against Hunter in

state court.

On February 7, 1994, Kelly advised a county detective

that she had information about Hunter's insider trading

activities. The detective introduced her to Heffernan on

February 24, 1994, who then interviewed her in connection

with the SEC investigation. In the following months, Kelly

and Heffernan began an intimate relationship, and were

married in May 1995. Recognizing the conflict between his

personal situation and his official duties, in August 1994

Heffernan requested to be relieved from his assignment to

the Hunter investigation. The SEC then transferred the

case to a different regional office.

Some weeks after bringing criminal charges against

Hunter, Kelly and her daughter filed a civil suit in state

court for damages caused by the molestation. The Kellys'

lawyers demanded $2 million from Hunter to settle the suit.

In preparation for his defense, Hunter and his attorney

hired a detective who reported evidence of Heffernan's and

Kelly's intimate relationship during July of 1994. The

surveillance produced a videotape showing Heffernan and

Kelly kissing, his car parked overnight in her garage, and

Kelly leaving and meeting Heffernan at the train station.

On August 29, 1994, defendant George Bochetto and his

law firm, defendant Bochetto & Lentz, filed suit on Hunter's

behalf in the United States District Court for the Eastern

District of Pennsylvania. The complaint alleged that

Heffernan had caused Kelly to leave Hunter and to falsely

accuse him of child molestation in an attempt to extort

money through a civil suit. Moreover, Hunter alleged that

Heffernan had supplied Kelly with financial information

3

obtained from the SEC investigation to enhance her

prospects for a large settlement in her civil suit. Hunter

also sought to halt the SEC investigation.

The very next day, a local television station broadcasted

portions of the surveillance videotape and interviewed

Bochetto. He said of Heffernan, "[r]ather than take her

[Kelly's] statement and go on with the investigation, he

[Heffernan] took her statement and decided he wanted to

stay for the night . . . It's literally the equivalent of the law

enforcement agent jumping into your wife's bed, and

prosecuting you from it . . . He starts sharing with her

information which we believe she is now using to demand

two million dollars of Mr. Hunter to settle an alleged

molestation case in Montgomery County."

Defendants also hired a publicist who prepared and

distributed press releases describing the material in

Hunter's complaint. This prompted newspaper coverage

with lurid descriptions such as "sex and million dollar

business scandal" (The Reporter (N. Penn.), Sept. 1, 1994),

"a bizarre sex-and-business plot worthy of novelist

Raymond Chandler" (Phil. Inq., Aug. 31, 1994), and others.1

The District Court entered summary judgment in

Hunter's case in favor of Heffernan on September 26, 1996,

following the previous entry of a similar order in favor of

the other defendants SEC, and Heffernan's supervisors. See

Hunter v. Heffernan, Civ. A. 94-5340, 1996 WL 694237

(E.D. Pa. Sept. 26, 1996); Hunter v. Heffernan, 879 F. Supp.

494 (E.D. Pa. 1995).

Heffernan then turned around and sued Hunter,

Bochetto and Bochetto's law firm on September 25, 1997 in

the District Court for the Eastern District of Pennsylvania.

Heffernan's complaint included claims under 42 U.S.C.

SS 1985(1), 1985(2), and 1986, as well as a state law count.

It is this action that presently concerns us.

_________________________________________________________________

1. Some months later, on June 9, 1995, Hunter was convicted of

molestation and sentenced to eight to fourteen years imprisonment. In

May 1998, he pleaded guilty on several insider trading charges, and in

April 1999, was sentenced to a term of incarceration. That conviction is

presently on appeal.

4

The section 1985(2) count asserted that Hunter and

Bochetto had conspired to file a frivolous lawsuit and

disseminate defamatory information to the media to

intimidate and punish Heffernan so as to affect his

attendance and testimony as a witness against Hunter in

federal court proceedings. The section 1985(1) claim cited

the same acts as part of a conspiracy to impede Heffernan

in the discharge of his duties as an officer of the United

States, and to injure him in his person and property

through harassment. Heffernan also asserted a violation of

42 U.S.C. S 1986 arising from the conspirators' failure to

prevent the section 1985 violations. Finally, the complaint

advanced a state statutory claim based on wrongful use of

civil proceedings.

The District Court dismissed the complaint via two orders

pursuant to Fed R. Civ. P. 12(b)(6). In the first, it held that

witnesses did not have standing to bring an action under

section 1985(2). Because the statute's remedy provision

refers only to "the party so injured," reasoned the Court, a

witness such as Heffernan had no right to sue under

section 1985(2). As to the section 1985(1) count, the Court

held that Hunter's filing of the lawsuit against Heffernan

could not amount to "force, intimidation or threat."

However, Heffernan was granted leave to amend the section

1985(1) claim with respect to the publicity campaign.

Heffernan amended but, in the second order, the Court

dismissed the 1985(1) count because, under the

circumstances, there could be no conspiracy between

attorney and client. Bochetto and his firm, according to the

Court, were acting on behalf of Hunter in defense of the

SEC charges as well as the other criminal and civil matters

pending against him at the time they launched the publicity

campaign. Having failed to establish a predicate section

1985 claim, Heffernan's section 1986 claim failed as well.

Finally, declining to exercise discretionary supplemental

jurisdiction, the Court dismissed the remaining state-law

claim without prejudice.

The plaintiff's appeal is limited to the District Court's

alleged errors in: first, finding a lack of standing under 42

U.S.C. S 1985(2), and second, refusing to treat lawyer and

client as conspirators.

5

A dismissal with prejudice under Rule 12(b)(6) produces

a final order appealable under 28 U.S.C. S 1291, and one

subject to plenary review. Malia v. General Elec. Co., 23

F.3d 828, 830 (3d Cir. 1994). All well-pleaded facts in the

complaint and reasonable inferences are accepted as true.

See id. The dismissal will be affirmed "only if it is certain

that no relief can be granted under any set of facts which

could be proved." Steamfitters Local Union No. 420 Welfare

Fund v. Philip Morris, Inc., 171 F.3d 912, 919 (3d Cir. 1999)

(internal quotations removed).

I.

Heffernan was not a party to the prospective SEC

prosecution, but he was a potential and likely witness in

those proceedings, both before a grand jury, and later in

federal court. The issue is whether he, as a potential

witness, has a right of action under the Civil Rights

conspiracy statute.

The relevant portion of 42 U.S.C. S 1985(2),first part,

along with the remedial provision in 42 U.S.C. S 1985(3),

reads: "If two or more persons . . . conspire to deter, by

force, intimidation, or threat, any party or witness in any

court of the United States from attending such court, or

from testifying to any matter pending therein . . . or to

injure such party or witness . . . or to influence. . . or to

injure such juror . . . on account of any verdict,

presentment, or indictment . . . the party so injured or

deprived may have an action for the recovery of damages."

Although section 1985(2) speaks to threats and deterrents

against "any party or witness," the remedial language in

section 1985(3) granting an action for damages refers only

to "the party."2

_________________________________________________________________

2. 42 U.S.C. S 1985(2) and the remedial portion of 42 U.S.C. S 1985(3)

state in full:

(2) Obstructing justice; intimidating party, witness, or juror

If two or more persons in any State or Territory conspire to

deter, by force, intimidation, or threat, any party or witness in

any court of the United States from attending such court, or

from testifying to any matter pending therein, freely, fully, and

6

Section 1985 derives mostly from the Civil Rights Act of

1871, ch. 22, S 2, 17 Stat. 13, and in lesser part not

relevant to this appeal, from the Conspiracy Act of 1861,

ch. 33, 12 Stat. 284. Almost Kantian in length and

complexity, the revision that eventually became section

1985 is a paradigm of poor draftsmanship. In Brawer v.

Horowitz, 535 F.2d 830, 837 (3d Cir. 1976), Judge Aldisert

referred to "the perfidious syntax of S 1985(2)." In somewhat

less colorful terms, the Supreme Court acknowledged that

the "length and style" of the 1871 Act "make it somewhat

difficult to parse." Kush v. Rutledge, 460 U.S. 719, 724

(1983).

The 1871 Act was codified pursuant to the Act of June

20, 1874, ch. 333, 18 Stat. 113-14, which charged

Secretary of State Hamilton Fish with preparing the Revised

Statutes of the United States. Brawer, 535 F.3d at 837-38

& n.16. Codified as R.S. S 1980, the statute now appears

unchanged in Title 42. Id. at 837-38. A number of

_________________________________________________________________

truthfully, or to injure such party or witness in his person or

property on account of his having so attended or testified, or to

influence the verdict, presentment, or indictment of any grand or

petit juror in any such court, or to injure such juror in his

person or property on account of any verdict, presentment, or

indictment lawfully assented to by him, or of his being or having

been such juror; or if two or more persons conspire for the

purpose of impeding, hindering, obstructing, or defeating, in any

manner, the due course of justice in any State or Territory, with

intent to deny to any citizen the equal protection of the laws, or

to injure him or his property for lawfully enforcing, or attempting

to enforce, the right of any person, or class of persons, to the

equal protection of the laws;

(3) Depriving persons of rights or privileges

. . . . in any case of conspiracy set forth in this section, if one

or more persons engaged therein do, or cause to be done, any

act in furtherance of the object of such conspiracy, whereby

another is injured in his person or property, or deprived of

having and exercising any right or privilege of a citizen of the

United States, the party so injured or deprived may have an

action for the recovery of damages, occasioned by such injury or

deprivation, against any one or more of the conspirators.

7

modifications were made to the statute during the

codification process, but the Supreme Court,

acknowledging these alterations, has concluded that"[t]he

reclassification was not intended to change the substantive

meaning of the 1871 Act." Kush, 460 U.S. at 724 & n.6.

To properly interpret section 1985, it is necessary to

compare the original and codified texts. Both proscribe

conspiracies to deter "any party or witness. " (emphasis

added). However, codification brought unsettling changes to

the remedy section, which now states that "the party so

injured . . . may have an action for the recovery of

damages." (emphasis added). Defendants argue that this

language limits recovery to "parties" involved in litigation

despite the fact that the original text was not so limited. It

read that "the person so injured . . . may have and

maintain an action for the recovery of damages." (emphasis

added).

Not surprisingly, courts have differed as to whether a

remedy is limited to parties, or extends to witnesses and

jurors as well. The Supreme Court has taken a "firm"

position on this issue, stating "We express no opinion

regarding respondents' argument . . . that only litigants,

and not witnesses, may bring S 1985(2) claims. We leave

[that] issue[ ] for the courts below to resolve on remand."

Haddle v. Garrison, 119 S. Ct. 489, 491 n.3 (1998).

By focusing on the codified language in isolation, two

Courts of Appeals have concluded that relief is not available

for "a mere witness." Rylewicz v. Beaton Services, Ltd., 888

F.2d 1175, 1180 (7th Cir. 1989); David v. United States,

820 F.2d 1038, 1040 (9th Cir. 1987).

On the other hand, in Brever v. Rockwell International

Corp., 40 F.3d 1119 (10th Cir. 1994), the Court of Appeals

for the Tenth Circuit refused to read the term " `party' so

literally as to mean `named party to an action.' " Id. at 1125

n.7. To conclude otherwise would "emasculate" the statute,

which specifically designates witnesses as " `protected

persons.' " Id. at 1125-26 n.7. The Court was especially

troubled by the fact that under an excessively literal

reading in cases involving federal grand juries, only the

United States would have standing. Id. at 1126 n.7.

8

We noted the split of authority on witness standing in

Rode v. Dellarciprete, 845 F.2d 1195, 1206-07 (3d Cir.

1988), but did not rule on the issue because the plaintiff in

that case was "neither a witness nor a litigant." Id. at 1207.

This appeal, however, places the issue squarely before us.

As have other courts, we confess some perplexity with the

convoluted, rambling and largely unstructured language of

the 1871 Act and its 1874 codification. But after patient

parsing of the text, it is clear enough that Congress' intent

was to extend protection to witnesses and jurors as well as

to parties. The word "persons" as used in the 1871 version

accomplished that result and the codified text need not be

read as inconsistent with the original. The word"party"

may well have been, in the codifiers' minds, simply a

synonym for "person" or "individual."

We reach the same conclusion even if we do not look to

the original text. The codified remedy section states that if

one or more conspirators "do . . . any act in furtherance of

the . . . conspiracy, whereby another is injured in his

person or property, . . ., the party so injured or deprived

may have an action for the recovery of damages." 42 U.S.C.

S 1985(3) (emphasis added). In this clause,"the party so

injured" refers back to the phrase "whereby another is

injured." The phrasing and context persuade us that the

term "party" is not meant to limit the more general term

"another." Thus, the meaning of "another" in the section

1985(2) context is not defined by section 1985(3)'s reference

to "party," but rather by section 1985(2)'s reference to

parties, witnesses, and jurors. See Brever, 40 F.3d at 1125-

26 n.7. This reading is in accord with our caution in

Brawer that "it could hardly be argued that Congress gave

[the codifiers] a carte blanche right of amendment." 535

F.2d at 838 n.16.

We therefore find ourselves in accord with Brever and

hold that a witness or juror may be a "party" entitled to

maintain an action under section 1985(2). The fact that

Heffernan, at the time of the alleged conspiracy, had

neither appeared as a witness, nor been subpoenaed, does

not affect his standing. It is enough that he was a potential

and obviously important witness. See Malley-Duff & Assoc.,

Inc. v. Crown Life Ins. Co., 792 F.2d 341, 355 & n. 11 (3d

9

Cir. 1986) (" `Deterrence or intimidation of a potential

witness can be just as harmful to a litigant as threats to a

witness who has begun to testify.' ") (quoting Chahal v.

Paine Webber, Inc., 725 F.2d 20, 24 (2d Cir. 1984)), aff'd,

483 U.S. 143 (1987).

Whether Hunter was aware at the time he filed his suit

that Heffernan had already been removed from the SEC

investigation does not appear in the record. In any event,

naming Heffernan as a defendant appears to have been, in

part, a ploy to affect his credibility as a witness in federal

court proceedings growing out of the insider trading

investigation.

Accordingly, we conclude that Heffernan has standing to

bring a section 1985(2) claim. That, however, does not

mean that he can successfully establish a right to recovery

here.

II.

In addition to alleging a violation of section 1985(2),

Heffernan charged defendants under section 1985(1) with

conspiring to impede the performance of his duties by filing

a frivolous lawsuit and disseminating false and libelous

information about him to the media. In contrast to the

preceding discussion, there is no dispute over Heffernan's

standing to bring suit as a government agent under section

1985(1). See Windsor v. The Tennessean, 719 F.2d 155,

161 (6th Cir. 1983).

Section 1985(1) states in relevant part that if"two or

more persons . . . conspire to prevent, by force,

intimidation, or threat, . . . [an officer of the United States]

from discharging any duties thereof; . . . or to injure him in

his person or property on account of his lawful discharge of

the duties of his office, or while engaged in the lawful

discharge thereof," then a cause of action exists.3

_________________________________________________________________

3. 42 U.S.C. S 1985(1) states in full:

(1) Preventing officer from performing duties.

If two or more persons in any State or Territory conspire to

prevent, by force, intimidation, or threat, any person from

10

Both the section 1985(1) and 1985(2) claims require a

conspiracy. Whether Heffernan has set out actionable

conspiracies is therefore a threshold issue and one that we

find dispositive.4

Looking to state law, the District Court concluded that no

conspiracy can exist where an attorney's advice or advocacy

is for the benefit of his client rather than for the attorney's

"sole personal benefit." The Court found this principle

consistent with federal law that perceives no conspiracy in

the concerted activity of an employee and a corporation,

usually termed the "intracorporate conspiracy doctrine."

There are few cases in the Courts of Appeals discussing

attorney-client conspiracies in the section 1985 context,

but two opinions do provide some guidance. In Doherty v.

American Motors Corp., 728 F.2d 334 (6th Cir. 1984), the

plaintiff alleged a conspiracy under section 1985(2) between

a corporation and its inside, as well as its outside, counsel.

Citing the general rule that a corporation cannot conspire

with its agents, the Court found that no conspiracy existed,

remarking, "it is clear from the record that the actions of

the [the corporation's] attorneys were motivated not by

personal concerns but by concerns for their clients." Id. at

339-40.

The other case, Travis v. Gary Community Mental Health

Center, Inc., 921 F.2d 108 (7th Cir. 1990), included a claim

_________________________________________________________________

accepting or holding any office, trust, or place of confidence

under the United States, or from discharging any duties thereof;

or to induce by like means any officer of the United States to

leave any State, district, or place, where his duties as an officer

are required to be performed, or to injure him in his person or

property on account of his lawful discharge of the duties of his

office, or while engaged in the lawful discharge thereof, or to

injure his property so as to molest, interrupt, hinder, or impede

him in the discharge of his official duties[, then a cause of

action

exists under section 1985(3)].

4. Accordingly, we need not determine whether the defendants' activities

amounted to "force, intimidation, or threat," or whether plaintiff has

suffered damages within the terms of the statute. Nor do we reach the

defendants' arguments raising the statute of limitations, qualified

immunity, causation, or the First Amendment.

11

under section 1985(2) by an employee who alleged a

retaliatory discharge by the defendant's employees. The

Court concluded that joint conduct by employees did not

amount to a conspiracy. Id. at 110. Of particular relevance

is the Court's discussion about the defendant's

consultation with its outside counsel. Holding that this too

was not a conspiracy, the Court reasoned that "[t]reating

involvement of a lawyer as the key unlocking S 1985 would

discourage corporations from obtaining legal advice before

acting, hardly a sound step to take." Id. at 111.

In cases not necessarily involving attorney-client

conspiracies, the Courts of Appeals are divided on the

applicability of the intracorporate conspiracy doctrine in the

section 1985 context. See McAndrew v. Lockheed Martin

Corp., 177 F.3d 1310, 1312 (11th Cir. 1999) (listing the

Second, Fourth, Fifth, Sixth, Seventh and Eighth Circuits

as ascribing to the doctrine, but choosing to follow the

First, Third, and Tenth, which had taken the opposite

position.).5

We have addressed this issue in several opinions. In

Novotny v. Great American Federal Savings & Loan Ass'n,

584 F.2d 1235 (3d Cir. 1978) (en banc), vacated on other

gds., 442 U.S. 366 (1979), the plaintiff's complaint did not

allege that the corporate defendant conspired with its

officers and directors, but rather that a conspiracy existed

between the individual officers. Therefore, the issue was

whether concerted actions by officers and employees of a

corporation could be the basis of a claim under section

1985(3). We held that it could. Id. at 1257.

Subsequently, in Robison v. Canterbury Village, Inc., 848

F.2d 424 (3d Cir. 1988), we pointed out that Novotny did

_________________________________________________________________

5. The doctrine has also been carried over to alleged conspiracies

involving govenmental entities. See Wright v. Illinois Dep't of Children &

Family Services, 40 F.3d 1492, 1507-09 (7th Cir. 1994) (no conspiracy

by state agency and co-employees under section 1985(2) for retaliatory

disciplinary action against case workers); Hull v. Cuyahoga Valley Joint

Voc. Sch. Dist. Bd. of Educ., 926 F.2d 505, 509-10 (6th Cir. 1991) (agents

and employees of a public school board did not form a conspiracy under

section 1985); Runs After v. United States, 766 F.2d 347, 354 (8th Cir.

1985) (no conspiracy involving members of Indian tribal council).

12

not "evaluate the force of the proposition that a corporation

cannot conspire with itself." Id. at 431 (internal quotation

marks omitted). Robison held that a corporation and its

president cannot form a conspiracy under section 1985(3).

Id. (citing, inter alia, Doherty, 728 F.2d at 339-40;

Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir. 1972)).

We noted, however, that a conspiracy may exist between a

corporation and an officer "if the officer is acting in a

personal, as opposed to official, capacity." Id.

Along these lines, courts that have followed the doctrine

allow an exception when the employees have acted for their

sole personal benefit and thus outside the course and scope

of their employment.6 That exception is based on the

proposition that since the employer would not be subject to

liability under respondeat superior, it would not be a

conspirator. See Johnson v. Hills & Dales General Hosp., 40

F.3d 837, 841 (6th Cir. 1994). Similar conclusions have

been reached in state-court cases involving civil

conspiracies. See, e.g., Fraidin v. Weitzman, 611 A.2d 1046,

1077-80 (Md. Ct. Spec. App. 1992) (no conspiracy when

attorneys act within scope of employment unless they act

for their "sole personal benefit").

Although the case law on intracorporate conspiracies

provides a convenient analogy for the attorney-client

situation, there are important differences between the

agency relationships involved in private corporate activities

and those arising in the practice of law. The right of a

litigant to independent and zealous counsel is at the heart

of our adversary system and, indeed, invokes constitutional

concerns. Counsels' conduct within the scope of

representation is regulated and enforced by disciplinary

bodies established by the courts. Abuses in litigation are

_________________________________________________________________

6. Some -- but not all -- courts have found exceptions to the doctrine

where there were numerous acts constituting a broad pattern of

discrimination. See Douglas G. Smith, Comment, The Intracorporate

Conspiracy Doctrine and 42 U.S.C. S 1985(3): The Original Intent, 90 Nw.

U. L. Rev. 1125, 1159-63 (1996). Furthermore, if an entity were

established for the purpose of violating civil rights, different

considerations might also apply. Id. at 1163-65. These exceptions are

not implicated in this appeal and we therefore need not discuss them.

13

punishable by sanctions administered by the courts in

which the litigation occurs.7

This regulatory framework provides third parties with

protection that is lacking in the corporate field. Despite the

absence of such safeguards in the business setting, most

courts nevertheless apply the intracorporate conspiracy

ban. That being so, it follows all the more that we should

enforce the ban on conspiracies in the attorney-client

context where even more compelling policy concerns exist.

It is, of course, axiomatic that if the challenged conduct

occurs outside the scope of representation, no reason for

immunity exists and the attorney and the client, as

individuals, could form a conspiracy. See Johnson, 40 F.3d

at 840-41; Doherty, 728 F.2d at 339-40. However, the mere

fact that attorneys have "mixed motives," such as

"enhancing" their reputation by aggressive representation,

does not remove their conduct from the scope of the

agency. See Los Angeles Airways, Inc. v. Davis, 687 F.2d

321, 328 (9th Cir. 1982).

The challenged activity may violate the canons of ethics,

but so long as it is within the scope of representation, it

does not eliminate the exemption from a conspiracy charge

under section 1985. "[S]imply because a lawyer's conduct

may violate the rules of ethics does not mean that the

conduct is actionable, in damages or for injunctive relief."

Maritrans GP, Inc. v. Pepper, Hamilton & Scheetz, 602 A.2d

1277, 1284 (Pa. 1992). The offended third party has a

remedy under state law through court imposed sanctions or

reference to state disciplinary bodies.

The statements that Bochetto made on camera and the

information in the press releases about Heffernan's conduct

with Kelly were obviously aimed at discrediting him as a

_________________________________________________________________

7. See 28 U.S.C. S 1927; Fed. R. Civ. P. 11(c). Courts have the inherent

power to sanction attorneys for bad-faith conduct that is not otherwise

covered by Rule 11 or section 1927. See Chambers v. NASCO, Inc., 501

U.S. 32 (1991).

Other remedies might be available to plaintiffs. Indeed, in this case,

Heffernan has renewed his claim for wrongful use of civil proceedings

under 42 Pa.C.S.A. S 8351 in state court.

14

witness against Hunter. As such, the attorney was acting

within the scope of his representation. Whether the chosen

means were ethical or appropriate is a separate issue.

Attorneys might use unethical tactics in representing

clients and yet remain squarely within the scope of their

agency.

We cannot say that the activities of Bochetto and his firm

were beyond the scope of the attorney-client relationship so

as to make them susceptible to characterization as a

conspiracy under section 1985. Therefore, because

Heffernan has failed to establish a conspiracy under either

section 1985(1) or (2), we must affirm the dismissal of this

case in its entirety.8

Because the record does not provide the complete

background of the defendants' decision to embark on this

publicity campaign, we hesitate to be too specific in

criticizing their conduct. However, on the facts alleged, we

do not wish to leave the impression that we condone the

lawyer's tactics or find them worthy of anything but

extreme disapproval.

Pennsylvania Rules of Professional Conduct 3.6(c)

permits a lawyer to "state without elaboration . . .(2) the

information contained in a public record." This, of course,

reflects the general privilege applied to court proceedings.

We know that the privilege is sometimes abused by

practitioners who maliciously insert inflammatory material

into court documents hoping for public dissemination. We

note, however, that the privilege is qualified and leaves

open the possibility of a defamation suit. See Computer Aid,

Inc. v. Hewlett-Packard Co., Nos. Civ. A. 96-CV-4150, Civ.

A. 97-CV-0284, 1999 WL 458151, at *5-*7 (E.D. Pa. June

15, 1999); see also Williams v. Williams, 246 N.E.2d 333

(N.Y. 1969); Sciandra v. Lynett, 187 A.2d 586, 588-89 (Pa.

1963).

_________________________________________________________________

8. Because the predicate 1985 claims cannot stand, dismissal was

appropriate for the section 1986 claim. Robison, 848 F.2d at 431 n.10.

The District Court also acted within its discretion in dismissing the

plaintiff's remaining state law claim without prejudice. See 28 U.S.C.

S 1367(c)(3).

15

In the case before us, there is some question whether the

publicity generated by the attorneys went beyond the

"without elaboration" qualification of Rule 3.6(c). We are not

so naive as to believe that there is no exception to the

admonition that lawyers are to try their cases only in the

courtroom. There may be circumstances where

conscientious lawyers must act to defend against adverse

publicity where their clients have been tried and convicted

by the media long before trial, or where the opposing

litigants -- government or private -- have blanketed the

community with damaging publicity. See Gentile v. State

Bar of Nevada, 501 U.S. 1030, 1042-43 (1991) (plurality);

Jonathan M. Moses, Note, Legal Spin Control: Ethics and

Advocacy in the Court of Public Opinion, 95 Col. L. Rev.

1811 (1995).

The record before us, however, is silent as to whether

there was any such provocation or justification for the

publicity campaign. We say no more other than to echo the

lament expressed by Judge Gawthrop in Doe v. Kohn Nast

& Graf, P.C., 866 F. Supp. 190, 195 n.1 (E.D. Pa. 1994):

"I find it a source of some regret that in this day and

age, the vogue appears to be that lawyers seem to be

unable to resist corralling a press conference . . . to

trumpet the alleged virtues of their case before the jury

has been impaneled. Too many lawyers are trying to try

their cases in that arena rather than the proper forum

for getting to the truth, within the bounds of due

process and fair play. . . . Rule . . . 3.6(a) . . . seems to

be more and more honored in the breach, treated as a

canonical dead letter, than genuinely adhered to by

trial lawyers, either in letter or in spirit."

The judgment of the District Court will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

16