In re Curry, 450 Mass. 503 (2008); In re Crossen, 450 Mass. 533 (2008)

Brief Summary
Attorneys conducted fake job interviews with a former judicial clerk and then threatened the clerk. Their elaborate and deceitful scheme violated numerous ethical rules and led to their disbarment.

Complete Summary
Attorneys Curry and Crossen worked for Arthur T. Demoulas (“Arthur”). Feuding factions of the very wealthy Demoulas family had been embroiled in a shareholder derivative suit regarding the family business since 1990. Arthur was convinced that the trial court judge, Maria Lopez, had been biased in her ruling against him and was concerned that because of a remand from the Supreme Court, he would be forced to face her again. In an attempt to discredit Judge Lopez, Arthur directed Curry, and later Crossen, to elicit damaging information from Judge Lopez’s former judicial clerk who worked on the trial.

Curry contacted the clerk and set up a meeting under the guise of a job interview. To make the interview seem legitimate, Curry devised an elaborate story using false identities and a fake company. During the “interview,” Curry learned that the clerk had received a letter of recommendation for admission to the Massachusetts bar from an attorney who did not know the clerk. (This information was later used by Crossen in an effort to pry information from the clerk. See Crossen, 450 Mass. at 562 (conduct was “border[ing] on outright extortion”).) Later in the interview, Curry asked the clerk about Judge Lopez’s opinion and this conversation naturally segued into the topic of Judge Lopez’s potential bias. Curry claimed that the clerk expressly revealed the Judge’s bias.

Arthur relayed this information to Crossen, and Crossen set out to perform another fake interview. Unlike the first interview, the second interview was to be taped. Unfortunately for Crossen, the clerk was equivocal during the second interview and revealed very little about Lopez. Crossen then decided to confront the clerk and reveal the ruse. Crossen threatened to expose the clerk’s faulty bar application if he did not cooperate. The clerk contacted the FBI.

The court held that Curry’s conduct violated DR 1-102(A)(4) (dishonesty, fraud, deceit, or misrepresentation), and DR 7-102(A)(5) (knowingly making a false statement of law or fact). These rules are not limited to the courtroom and are not limited to client communications. Curry violated these rules primarily by conducting the fake interview. Curry’s conduct was not on the boundaries of ethical conduct, it was a clear violation.

Curry’s scheme was distinguished from investigations designed to reproduce patterns of conduct (e.g. posing as a potential renter to uncover landlord discrimination). While both situations involve deception, “Curry created an artificial situation designed to cause the law clerk to make statements about Judge Lopez and the Demoulas decision that he would not have made absent such inducements.” Curry, 450 Mass. at 524.

Curry’s conduct was prejudicial to the administration of justice in violation of DR 1-102(A)(5). Although he had no credible information of Judge Lopez’s bias, he sought compensation from Arthur for offering to discredit and disqualify her. Second, he improperly “pierce[d] the communications of a former law clerk and a judge in a pending matter to benefit one of the litigants.” Curry, 450 Mass. at 526. These actions also violated DR 1-102(A)(6) (conduct adversely reflecting on fitness to practice law). Finally, to the extent that Curry operated through his client or through third parties to achieve his ends, he violated DR 7-102(A)(7) and DR 1-102(A)(2).

In determining Curry’s sanction, the court found no mitigating factors and found his role as instigator of the ruse a significant aggravating factor.

The court held that Crossen’s fake interview violated DR 1-102(A)(4) (dishonesty, fraud, deceit, or misrepresentation), and DR 7-102(A)(5) and (7) (false statements and fraudulent conduct).

Crossen’s threats to the clerk, combined with the purpose of those threats (to discredit Lopez), were prejudicial to the administration of justice (DR 1-102(A)(5)) and adversely reflected on Crossen’s fitness to practice law (DR 1-102(A)(6)). Crossen challenged the former rule as an overbroad violation of due process. The Massachusetts Supreme Court, however, had already upheld DR 1-102(A)(5) in Matter of Discipline of Two Attorneys, 421 Mass. 619, 629 (1996).

Crossen argued that his conduct was justified as zealous representation. In response, the court found that “Crossen studiously kept himself unenlightened about the ethical propriety of his conduct and misled others, all in an effort to elevate the wishes of the client above the ‘integrity of the judicial process.’” Crossen, 450 Mass. at 565 (quoting Matter of Neitlich, 413 Mass. 416, 423 (1992)). Crossen also argued that he was the victim of selective prosecution. Without deciding whether this defense could ever be asserted in a bar disciplinary proceeding, the court dismissed Crossen’s argument because he did not prove a discriminatory intent or purpose.

Crossen further argued that the delay in proceedings (five years after the events at issue) was a mitigating factor because during this time he had experienced public opprobrium. This argument failed because he did not establish that the delay caused the opprobrium.

In determining Crossen’s sanction, the court noted the unprecedented nature of his conduct. Even though other cases had involved severe deception, none had involved such widespread impact. An important aggravating factor was the impact Crossen’s conduct had on innocent third parties—not only the clerk but also his wife as well as the family of Judge Lopez. (This aggravating factor was briefly mentioned in the Curry opinion.) The court also found significant Crossen’s lack of compassion for the clerk. The court also found that both attorneys showed a “marked lack of candor” (an aggravating factor) during disciplinary proceedings. Curry 450 Mass. at 532;  Crossen, 450 Mass. at 580.

Significance of Opinion
In case we needed reminding, this case is a good example that whatever it means, zealous representation must be within the bounds of the law.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.

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May 15, 2008: Third Party Claims for Lawyers: Is There Life After Stoneridge

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Third Party Claims for Lawyers: Is There Life After Stoneridge

May 15, 2008, Noon-1:30 pm EST

Speakers
Rebecca Lambreth, Partner, Duane Morris LLP
Anthony Davis, Partner, Lawyers for the Profession® Practice Group, Hinshaw & Culbertson LLP

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One of the most important (and disturbing) developments in law firm risk management in recent years has been the increased willingness of plaintiff’s lawyers, government agencies, and courts to hold lawyers and law firms culpable for the actions or omissions of their clients. We have seen these so-called “third party claims” in a wide variety of contexts, from securities fraud cases to abusive tax shelter claims to cases involving circumstances of deepening insolvency. In January, the Supreme Court handed down its decision in Stoneridge Investment Partners v. Scientific-Atlanta, a case that affirms the limited ability of plaintiffs in securities fraud cases to reach lawyers and other providers of services to defendant companies.

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Impaired and Poorly Behaving Partners: Managing the Risks

July 16, 2008, Noon-1:30 pm EST

Speakers
Thomas L. Browne, Lawyers for the Profession® Practice Group, Hinshaw & Culbertson LLP
Tom H. Luetkemeyer, Lawyers for the Profession® Practice Group, Hinshaw & Culbertson LLP
Dr. Larry R. Richard, Vice President and Head of the Leadership & Organization Development Practice Group, Hildebrandt International

Program Overview
Dealing with “problem” partners has always been a challenge for law firm leaders. In recent years, however, it has also become a serious area of risk exposure as state bars, regulatory agencies, clients, and plaintiff’s lawyers have been increasingly willing to charge firms with accountability for the “lack of supervision” often evidenced in such behaviors. In this virtual seminar, you will hear three experts ― two professional responsibility lawyers and one lawyer/psychologist ― describe the nature of these risks and offer some practical advice on dealing with these problems.

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