Monday, October 30, 2006

The Massachusetts Decision

by Mike Frisch

The decision of The Board of Bar Overseers ("BBO") in the law clerk sting case is quite interesting.  [Ed.:  A PDF file of the final BBO decision can be downloaded from here: Download FinalDecision.pdf.  Mike's earlier post is linked here.]  The BBO was unanimous in recommending disbarment for Kevin Curry. He hatched the scheme and sold it to the desperate client unsolicited. He is the quintessential "guy most likely to be disbarred" that we all remember from law school. Gary Crossen, former assistant district and U.S. attorney, ethics counsel to two governors, and chair of the judicial nominating commission, drew a 7-2 vote for disbarment, with the dissenters favoring a three year suspension. Richard Donahue, former BBO chair, bar association president, and president of NIKE, got a three-year recommendation by a 7-4 vote, with the dissenters all favoring lesser suspensions of varying length. The matter now proceeds to the Supreme Judicial Court for final action.

The BBO rejected the attacks of the lawyers on the fact finding of the hearing officer as well as the suggestion that the rules did not clearly prohibit their deceitful ruse. Each accused lawyer was found to have testified with a "marked lack of candor" at the disciplinary hearing. Donahue was found to have lesser cuplability in the scheme, justifying the lesser sanction.

The BBO notes that there was intense publicity with respect to both the misconduct and the disciplinary process. This may help explain why the process seems to have worked well here. There is no better way to make self-regulation work than to expose its workings to public view. It helps, as here, to have an outstanding hearing officer and fine work by the Bar Counsel.

Note to ethics experts: the BBO squarely rejects the need or even the permissibility of expert testimony on whether a course of conduct violates ethics rules.

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