May 2005
Featured Disciplinary Case
Topic
A ruse investigation created by private practitioners in order to induce a former judicial law clerk into disclosing confidential communications with a judge was improper and warrants a disbarment recommendation.
Summary
Bar Counsel v. Kevin P. Curry, Gary C. Crossen, and Richard K. Donahue, Commonwealth of Massachusetts, Board of Bar Overseers, BBO File Nos. CI-97-0602, CI-97-0589, and CI-97(9)589 (Hearing Officer’s Report, May 11, 2005). This may be the longest report by a finder of fact in any recorded public disciplinary case. The 229-page report recommends the disbarment of several prominent lawyers for engaging in a scheme to discredit former state court judge Maria Lopez. The report issued in the wake of a twenty-five day hearing spanning a year and a half. One hundred and twenty-seven exhibits were admitted into evidence and twenty-one witnesses testified. Each Respondent had an interesting career history. Curry was employed for many years as an Assistant Attorney General and, after leaving government service, entered private practice where he developed an expertise in conducting undercover investigations using pretext and subterfuge because that is “[t]he only way you can get the truth.” Crossen is a former federal and state prosecutor, former chairman of the state Judicial Nominating Commission, and former ethics counsel to Massachusetts Governors Weld and Cellucci. From 1960 through 1963, Dartmouth-college graduate Donahue served as an assistant to President John F. Kennedy. He also was the former chairman of the Board of Bar Overseers. Donahue served on the ABA House of Delegates and Board of Governors. From 1990 through 1995, he was president of NIKE Inc., and presently sits on the Board of Directors of that company. The disciplinary case has its genesis in rancorous litigation over the $1 billion Demoulas supermarket empire that included the Market Basket and Lee Drug chains. Judge Lopez presided over several civil trials that featured internecine warfare between the families of Telemachus Demoulas and his late brother, George, who cofounded the grocery chain. Lopez had ruled in 1997 that George's heirs had been cheated out of hundreds of millions of dollars and she ordered Telemachus’ family to transfer substantial assets. Curry, Crossen, and Donahue all worked at various times for the Telemachus Demoulas clan and they believed that Lopez had demonstrated considerable bias against their clients. In addition, certain defense counsel voiced the opinion to their clients that the judge was “too dumb” to have written the adverse decision. In order to establish this judicial enmity and overturn the judgment, they created an elaborate hoax that targeted the judge’s former law clerk, Paul Walsh, who had worked for the judge during the course of the Demoulas litigation. During the course of the litigation, when his clerkship was ending, Walsh sent out letters soliciting employment from the various law firms that had filed appearances in the cases, but he had received nothing but rejection letters. At the time of the events in question, he was working as a part-time lawyer for a law firm. A private detective, posing as a ‘headhunter’ reached out to Walsh with the promise of a lucrative job opportunity. When the ‘recruiter’ sought a writing sample from Walsh, Walsh provided him with a copy of the opinion entered in the Demoulas case. Walsh allegedly claimed that he had written the opinion. Thereafter, Walsh traveled to Halifax in Nova Scotia to meet with representatives of an alleged multinational insurance company for a ‘job interview.’ Walsh was given airline tickets and $300 in cash. At the ‘job interview’, he met with Curry, who was using the fake name ‘Kevin Concave’. During the course of the session, Concave asked Walsh about the “process for writing a decision,” and eventually Walsh confirmed that he had written the entire Demoulas decision and revealed that the judge merely signed her name to the document. He also allegedly noted that the judge was biased and predisposed to rule a certain way in the case. Later, it was decided that the ruse should be continued and that Walsh should be surreptitiously tape recorded in the hope that he would corroborate the statements that he made in Halifax or that he otherwise be ‘persuaded’ to provide an affidavit or other sworn testimony that could be used to establish the bias of the judge. Another phony interview was set up, this time in New York City. A Mercedes limousine picked up Walsh at the airport and delivered him to the Four Seasons Hotel where the phony job interview was tape recorded without Walsh’s knowledge. Most of the job interview was spent discussing the Demoulas decision. Sometime thereafter, Walsh was invited to the Four Seasons Hotel in Boston in order to get his ‘job offer of a lifetime’. Walsh went out and bought a new suit and tie for the event. Once he got to the session, however, Walsh was informed that the job situation was an elaborate charade that had been created to gather information about the improper conduct of Judge Lopez. He was informed that he, Walsh, was not the “target” of the investigation, but that they wanted him to “tell [them] things about Judge Lopez.” One of the Respondent’s allegedly claimed that Walsh’s statements about the judge’s predisposition to rule against his clients would be eventually revealed in a pleading and told the former clerk:
Mr. Walsh, once its fired it’s a missile that’s out of my control and it’s off and I don’t know where it goes and what it ends up doing, what the media ends up doing with it, what the court ends up doing with it or what facts get developed out of it.”
Walsh eventually went to the FBI and agents persuaded him to wear a wire and secretly tape-record conversations with the lawyers. At the same time, Crossen arranged to have Walsh and Walsh’s wife placed under surveillance by private investigators. The Justice Department investigated the case, but no criminal charges were ever filed. To defend themselves against the disciplinary charges, the Respondents asserted that the phony job ruse was akin to the use of ‘testers’ in discrimination cases. The Hearing Officer rejected the argument noting that the lawyers’ conduct involved deception far exceeding that permitted in tester and infringement cases. In recommending disbarment, the Hearing Officer noted:
Like Bar Counsel, I have found no case anywhere that deals with facts remotely like those at issue in this sordid affair. In that, I suppose, we should take some small comfort. …What I find particularly repellant about the Respondents’ actions, however, is the manner in which they targeted and exploited Paul Walsh…I find their total lack of concern and compassion for how this would affect Walsh, the only human 'victim' in this affair, to be the most powerful factor in aggravation.
Nancy E. Kaufman, First Assistant Bar Counsel, represented the Office of the Bar Counsel of the Massachusetts Board of Bar Overseers in this matter.
