In re Crossen
450 Mass. 533, 2008 Mass. LEXIS 26, 880 NE2d 352 (2008)
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Rule of Law:
Attorneys violate the Rules of Professional Conduct, including prohibitions against dishonesty, fraud, deceit, misrepresentation, and conduct prejudicial to the administration of justice, when they orchestrate elaborate, deceitful operations, surreptitiously record individuals, and employ threats and coercion to obtain sworn testimony aimed at discrediting a sitting judge in an ongoing matter.
Facts:
- Attorney Gary C. Crossen represented members of the Demoulas family in a contentious shareholder derivative suit over which Superior Court Judge Maria Lopez presided.
- Crossen and his clients suspected Judge Lopez of bias, partly due to a rumor (which Crossen investigated) that she had been seen dining with opposing counsel at a restaurant owned by her husband.
- On June 8, 1997, client Arthur T. Demoulas informed Crossen about a prior "pretext investigation" where Judge Lopez's former law clerk allegedly claimed the judge had prejudged the Demoulas case.
- To investigate these allegations, Crossen orchestrated a sham job interview for the law clerk in New York, where two investigators posed as corporate executives of a phantom company and secretly tape-recorded the law clerk, hoping he would repeat the damaging claims about Judge Lopez.
- When the New York interview yielded equivocal statements, Crossen and his team arranged a follow-up meeting in Boston, where they revealed the ruse to the law clerk and threatened to publicly expose damaging personal information (including a false letter submitted with his bar application) if he did not provide sworn statements against Judge Lopez.
- Crossen subsequently engaged in further coercive communications with the law clerk, including implying the existence of more damning tape recordings and maintaining surveillance on the law clerk and his family, to compel the desired testimony.
Procedural Posture:
- Bar counsel filed a three-count petition for discipline against Crossen, Curry, and Donahue in the county court, recommending Crossen's disbarment.
- The matter was tried to a special hearing officer appointed by the Board of Bar Overseers, who made extensive findings of fact, conclusions, and recommendations.
- The Board of Bar Overseers adopted, with minor exceptions, the special hearing officer’s findings, conclusions, and recommendation that Crossen be disbarred.
- A single justice reserved and reported the matter to the full court (Supreme Judicial Court of Massachusetts).
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Issue:
Does an attorney's orchestration of a sham job interview, secret tape recording, and subsequent threats to coerce a judge's former law clerk into providing sworn statements aimed at discrediting the judge in an ongoing case violate ethical rules against dishonesty, fraud, deceit, misrepresentation, and conduct prejudicial to the administration of justice?
Opinions:
Majority - Marshall, C.J.
Yes, attorney Gary C. Crossen's conduct, involving a sham job interview, secret tape recording, and subsequent threats to coerce testimony from a judge's former law clerk, violated multiple disciplinary rules prohibiting dishonesty, fraud, deceit, misrepresentation, and conduct prejudicial to the administration of justice. The court affirmed that Crossen's actions constituted 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." This conduct went far beyond zealous advocacy and struck at the core of professional obligations of good faith and honesty. The sham interview, with its false pretenses and surreptitious recording, was inherently dishonest and deceitful, violating DR 1-102(A)(4) and DR 7-102(A)(5). The court emphasized that the legality of the tape recording in New York did not "mask its improper purpose" when integrally embedded in a scheme to coerce or manufacture testimony. Crossen's subsequent threats to the law clerk, including disclosing personal information if he did not cooperate, were "prejudicial to the administration of justice" (DR 1-102(A)(5)) and reflected adversely on his fitness to practice law (DR 1-102(A)(6)). The court rejected Crossen's defense that ethical standards were ambiguous or that his actions were permissible as an investigation, distinguishing between legitimate investigatory methods and the "trickery and deception" employed to pry into confidential judicial deliberations. It further clarified that private attorneys do not possess the same investigative leeway as government prosecutors, who are subject to robust constitutional and supervisory oversight. Crossen's "marked" lack of candor during disciplinary proceedings and exploitation of a vulnerable victim were strong aggravating factors outweighing any minor mitigating circumstances.
Analysis:
This case significantly reinforces the ethical boundaries of attorney advocacy, establishing that "zealous representation" does not excuse deceitful, fraudulent, or coercive tactics, even when investigating allegations of judicial misconduct. It draws a clear distinction between the investigative powers of government attorneys, bound by constitutional and supervisory constraints, and those of private counsel, affirming that lawyers cannot use surrogates to achieve through deceit what they are forbidden to do directly. The ruling underscores the paramount importance of maintaining the integrity of the judicial process and public trust in the legal profession, particularly in matters involving judges and court personnel. It serves as a strong deterrent against misconduct that undermines the administration of justice and highlights the severe consequences, including disbarment, for cumulative ethical violations, especially when coupled with a lack of candor during disciplinary proceedings and exploitation of vulnerable individuals.
