In re Crossen

• Decision Date: 06 February 2008
• Docket Number: SJC-09905.
• Parties: In the Matter of Gary C. CROSSEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

880 N.E.2d 352

450 Mass. 533

In the Matter of Gary C. CROSSEN.

SJC-09905.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued October 4, 2007.

Decided February 6, 2008.

Thomas R. Kiley, Quincy, for the respondent.

Nancy E. Kaufman, Assistant Bar Counsel.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & BOTSFORD, JJ.

MARSHALL, C.J.

Attorney Gary C. Crossen contests an information filed in the county court by the Board of Bar Overseers (board) recommending that Crossen be disbarred for his part in an intricate plan to discredit a Superior Court judge presiding in an ongoing matter in which he represented some of the litigants. The aim of the plan was to influence the outcome of the litigation by forcing the judge's recusal and obtaining reversal of her prior rulings against Crossen's clients. In furtherance of the scheme, Crossen, with his own investigators posing as corporate executives, set up and secretly made a tape recording of a sham job interview for a former law clerk of the judge, during which the law clerk repeatedly was questioned about the judge's personal and professional character and her decision-making process in the ongoing matter involving Crossen's clients. Although the "interview" with the law clerk did not yield the information Crossen had hoped, Crossen did not change course. He redoubled his efforts to malign the judge for the benefit of his clients by using a tape recording of the interview to coax and then threaten the law clerk into providing sworn statements damaging to the judge, which the law clerk otherwise would not have made.

Bar counsel alleged that Crossen's conduct violated S.J.C. Rule 3:07, Canon 1, DR 1-102(A)(2) and (4)-(6), as appearing in 382 Mass. 769 (1981),¹ and Canon 7, DR 7-102(A)(5) and (7), as appearing in 382 Mass. 785 (1981).² The matter was tried to a special hearing officer appointed by the board. The board adopted, with minor exceptions, the special hearing officer's extensive findings and conclusions, as well as her recommendation that Crossen be disbarred. A single justice reserved and reported the matter to the full court.

We adopt the board's recommendation. 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.

We reject Crossen's argument that the prevailing ethical standards at the time were at best ambiguous about the propriety of attorney participation in the kind of "sting" operation at the center of this case. Nor do we credit Crossen's contentions that the special hearing officer was obligated to accept the testimony of Crossen's expert on legal ethics; that Crossen was improperly singled out for disciplinary action; that he was otherwise deprived of due process of law; or that the sanction of disbarment is markedly disparate from sanctions for similar conduct. We remand the case to the county court where a judgment of disbarment shall enter.

We turn now to the background of this case. Our recitation of the facts is necessarily lengthy because of the range of the respondent's claims and the severity of the sanction we impose. 1. Background.³ Crossen was admitted to the Massachusetts bar in 1977 and soon thereafter became an assistant district attorney in the Suffolk County district attorney's office, serving primarily in the organized crime division. Among his duties in the division was to supervise undercover investigations and serve as a "point person" for court-authorized wiretaps of alleged organized crime figures. In 1983, Crossen joined the newlycreated New England Organized Crime Drug Enforcement Task Force in the Boston office of the United States Attorney, becoming in turn chief of the General Crimes Unit and of the Criminal Division. At the United States Attorney's office, Crossen handled criminal cases, supervised undercover investigations, court-ordered wiretaps and one-party consent tape recordings, and participated in decisions to immunize, witnesses. Crossen left government service in 1988 to join a large Boston law firm, starting as "counsel" and becoming a partner specializing in criminal and civil litigation.

a. Demoulas family litigation. As with its companion case, Matter of Curry, 450 Mass. 503, 506, 880 N.E.2d 388 (2008) (Curry), this disciplinary proceeding is one more offspring of a family dispute among members of the Demoulas family, recounted at length in Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501, 504-509, 677 N.E.2d 159 (1997), and Demoulas v. Demoulas, 432 Mass. 43, 732 N.E.2d 875 (2000). See also Demoulas v. Demoulas, 428 Mass. 555, 703 N.E.2d 1149 (1998). For a summary of the issues in these family disputes, see Curry, supra.

The background to this disciplinary proceeding begins in 1994, when Crossen filed an appearance for Frances Kettenbach, daughter of Telemachus Demoulas, in the shareholder derivative suit filed against Telemachus, his wife, and their children⁴ by members of the George Demoulas branch of the family. See Curry, supra at 507, 880 N.E.2d 388. One of Crossen's first actions as counsel in that case was to file an "emergency motion" for recusal of Superior Court Judge Maria Lopez, or in the alternative, for an evidentiary hearing on the recusal motion before another judge. The essence of the emergency motion was that Judge Lopez's actions in a former case involving the Demoulas family dispute had demonstrated bias against Crossen's clients. See Demoulas v. Demoulas, 432 Mass. 43, 45, 732 N.E.2d 875 (2000). The emergency motion was denied.

The suspicion of bias on the part of Judge Lopez did not end there. In 1996, Crossen hired a private investigating firm to investigate a rumor that Judge Lopez had been seen dining with the lead counsel for the George Demoulas branch of the family at the Charles Restaurant, a business owned by Judge Lopez's husband (Charles Restaurant investigation). By late spring of 1997, when the events in this case began to unfold, Crossen was contemplating whether to file a second motion to recuse Judge Lopez from the shareholder derivative case based on the Charles Restaurant allegations. The matter was urgent. This court had upheld Judge Lopez's decision in the shareholder derivative matter, as well as her denial of the "emergency motion" to recuse, and had remanded the case to the Superior Court where Judge Lopez would preside over further proceedings.⁵ See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 503-504, 677 N.E.2d 159 (1997). Looming were accountings and a merger of assets that would deprive Telemachus's family group of much of their control of the family businesses and fortune, this despite millions of dollars in legal fees that had been paid by that group to prominent Boston law firms and attorneys.⁶ The contemplated second recusal motion was an attempt to stop, or at least slow, the merger of assets and its attendant divestment of a substantial portion of Crossen's clients' assets by disqualifying Judge Lopez and, ultimately, having her previous findings and orders set aside.

We turn now to the key events in this disciplinary proceeding against Crossen.

b. Preparations for a sham interview. On June 8, 1997,⁷ a Sunday, Crossen met with Arthur T. Demoulas (Arthur T at the latter's request at the Demoulas corporate offices in Tewksbury. There Crossen learned for the first time that, in 1995, Arthur T. had hired attorney Kevin Curry and two investigators, Ernest Reid and Richard LaBonte, to conduct a "pretext investigation ... to figure out who wrote the Demoulas decision."⁸ Arthur T. told Crossen that Curry and LaBonte, using assumed identities, had met with a former law clerk of Judge Lopez (law clerk) in Halifax, Nova Scotia, under the pretext of interviewing the law clerk for a position as in-house counsel for a sham multinational corporation. Arthur T. reported that the law clerk claimed to have written the entire Demoulas decision, and that Judge Lopez had signed the decision without reading it. More significantly, Arthur T. told Crossen that the law clerk had said that Judge Lopez had told him (the law clerk) who the winners and losers, the "good guys" and the "bad guys," were going to be before the shareholder derivative suit began. Crossen dismissed as "not that big a deal" the information concerning authorship of the Demoulas decision, but he was troubled by the information that Judge Lopez had prejudged his clients' case.

That same day Crossen met with Arthur T. and another attorney for the defendants, Richard K. Donahue,⁹ to discuss the import of the Halifax interview. Crossen testified before the special hearing officer that he considered his only options at the time to be ignoring the information, incorporating it into a motion or pleading or complaint, or investigating further to determine the truth. At the time, Crossen testified, he did not "give[] a whole lot of thought to the issue of the propriety" of Curry's communications with the law clerk.

Some time after the June 8 meetings, Crossen received a signed affidavit from Curry in which the latter averred that during the Halifax "interview," the law clerk on four separate occasions...