Wednesday, February 6, 2008

Breaking News

The Massachusetts Supreme Judicial Court today ordered the disbarment of Gary Crossen in the high-profile case where a sham interview was arranged of a judge's former law clerk in order to obtain evidence to overturn the judge's decision and subsequent threats to the clerk if favorable evidence was not provided. Concerning the misconduct, the court finds:

"The record leaves no doubt that Crossen was a willing participant, and at times a driving force, in a web of false, deceptive, and threatening behavior designed to impugn the integrity of a sitting judge in order to obtain a result favorable to his clients. The scope of this misconduct has scant parallel in the disciplinary proceedings of this Commonwealth. This was not conduct on the uncertain border between zealous advocacy and dishonorable tactics, a border about which reasonable minds may differ. It struck at the heart of the lawyer's professional obligations of good faith and honesty. Crossen's conduct was so egregious and extensive that no reasonable attorney could have believed it comported with the solemn ethical obligations of attorneys. It caused harm to the orderly administration of justice, as well as to the law clerk, the judge, and their families, and it harmed public confidence in the legal profession."

The court rejected a variety of contentions and found that disbarment was the appropriate sanction:

"Coaching a witness to lie on the stand is one kind of egregious violation of professional ethics. Another is conduct of the kind perpetrated by Crossen, including attempting to pry through trickery and coercion into the confidential communications between the judge and a law clerk in an ongoing case; doing so at the behest of a client who was a dissatisfied litigant in the case for the purpose of removing the judge from that case and undoing her prior decisions; creating an alternative universe of deception to accomplish these aims; attempting to entrap a third party, the law clerk, who had absolutely nothing to do with creating or inciting the alleged prejudice of the judge; causing extreme distress in the lives of the wife of the law clerk and the judge's family, who had no relationship to the case or to Crossen's client; encouraging his client's pursuit of the judge, and more. Although it did not involve suborning perjury, Crossen's behavior, in its cumulative effect on the administration of justice and the public's perception of our judicial system and on the legal profession, was unarguably damaging.

That there is no blueprint in our prior cases for the facts of this proceeding should come as no surprise, reflecting the unusual scope of the misconduct. The sanction of disbarment we impose is appropriate to ensure that the law clerk episode (or anything like it) remains sui generis."

The court, in a seperate decision, also disbarred Kevin Curry, the attorney who put the plot into motion:

"Curry was not, as he suggests, a noble crusader seeking to root out judicial misconduct by engaging the law clerk in an interview that was a pretext. He had no factual basis for attacking Judge Lopez's integrity. Curry's ultimate goal was to obtain sworn statements from the law clerk, or his cooperation, in the effort to have Judge Lopez recused from the Demoulas litigation, and then have her prior decisions in the litigation overturned. This course of action showed a breathtaking lack of respect for the administration of justice in the Commonwealth, violating DR 1-102(A)(5). See Matter of Cobb, supra at 471, quoting In re Graham, 453 N.W.2d 313 (Minn.), cert. denied sub nom. Graham v. Wernz, 498 U.S. 820 (1990) ("[C]riticism impugning the integrity of judge or legal officer" merits discipline if it "adversely affects the administration of justice and adversely reflects on the accuser's capacity for sound judgment. An attorney who makes critical statements regarding judges and legal officers with reckless disregard as to their truth or falsity ... exhibits a lack of judgment that conflicts with his or her position as an officer of the legal system and a public citizen having special responsibility for the quality of justice" [quotations and citations omitted] )."

The link to the court web page is here. My article about the case (and prediction about the outcome)may be found in the Fall 2007 edition of the Georgetown Journal of Legal Ethics under the title "Zealousness Run Amok." (Mike Frisch)

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Plus the ABA Journal online story, posted after yours, has direct links to the opinions via Massachusetts Lawyers Weekly:

Posted by: Alan Childress | Feb 6, 2008 3:55:53 PM

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