In re Curry

• Citation: 450 Mass. 503,880 N.E.2d 388
• Decision Date: 06 February 2008
• Docket Number: SJC-09904.
• Parties: In the Matter of Kevin P. CURRY.
• Court: United States State Supreme Judicial Court of Massachusetts

880 N.E.2d 388

450 Mass. 503

In the Matter of Kevin P. CURRY.

SJC-09904.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued October 4, 2007.

Decided February 6, 2008.

Terry Philip Segal, Boston, for the respondent.

Nancy E. Kaufman, Assistant Bar Counsel.

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

MARSHALL, C.J.

Attorney. Kevin P. Curry contests an information filed in the county court by the Board of Bar Overseers (board) that unanimously recommends his disbarment for violating S.J.C. Rule 3:07, Canon 1, DR 1-102(A)(2) and (4)-(6), as appearing in 382 Mass. 769 (1981), and "S.J.C. Rule 3:07, Canon 7, DR 7-102(A)(5) and (7), as appearing in 382 Mass. 785 (1981).¹ The disciplinary proceedings against him arose from Curry's role in a scheme to impugn the integrity of a Superior Court judge in an ongoing matter by invading the confidential communications between the judge and her former law clerk in an attempt to affect the outcome of the case. The matter was tried before a special hearing officer appointed by the board. With one minor exception, which we address below, the board adopted in full the extensive findings and conclusions, of the special hearing officer concerning Curry's conduct. It recommended disbarment.² The case is before us on reservation and report of the single justice. We accept the board's recommendation and remand the case to the county court where a judgment of disbarment shall enter.

As we describe more fully below, Curry engaged in egregious, multiple, and prolonged violations of the disciplinary rules prohibiting attorneys from acts of deceit and dishonesty in their professional dealings and from acting in a manner prejudicial to the administration of justice. With no motive other than his own financial gain, and with no evidence, Curry persuaded a group of dissatisfied litigants (with whom he had no prior dealings) in a bitterly-contested, high-stakes civil matter that a Superior Court judge had "fixed" their case, so that it was "over before it began." Curry then developed and participated in an elaborate subterfuge whose purpose was to induce or coerce the judge's former law clerk into, making statements that the law clerk otherwise would not have made about the judge and her deliberative process, which Curry intended to use to remove the judge from the still ongoing case, and to require reversal of her prior rulings against the litigants Curry solicited.

Although unsuccessful, the ruse, which we describe below, caused needless embarrassment to a judge, an attorney, and their respective families; mocked the foundations of good-faith dealings and respect for the orderly administration of justice on which the legal profession stands; and damaged the public's perception of our legal system. Curry points to nothing that mitigates his actions or justifies a sanction short of disbarment.

We turn now to the background of this case, whose factual complexity requires a lengthy summary.

1. Background. We draw our recitation of facts from those found by the special hearing officer and adopted by the board, reserving recitation of certain facts for later discussion, as appropriate, and noting discrepancies where they occur. See Matter of Hilson, 448 Mass. 603, 604, 863 N.E.2d 483 (2007). We focus on the facts most relevant to the information filed against Curry. For further details of the findings of the special hearing, officer, see Matter of Crossen, 450 Mass 5$3, 880 N.E.2d 352 (2008) (Crossen).

a. Demoulas litigation. This bar disciplinary proceeding has its origins in the protracted legal warfare between the family of George Demoulas and the family of Telemachus Demoulas over interests in the family supermarket business. See Demoulas v. Demoulas, 432 Mass. 43, 44, 732 N.E.2d 875 (2000) (recounting history of intrafamily litigation); Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 504-509, 677 N.E.2d 159 (1997) (recounting substance of dispute). See also Demoulas v. Demoulas, 428 Mass. 555, 703 N.E.2d 1149 (1998). Here we summarize only the most salient facts, beginning in 1990. By that time, Demoulas Super Markets, Inc. (DSM), and other entities jointly owned by the families of brothers George and Telemachus Demoulas were estimated to be worth approximately $1 billion.³ Two law suits filed in Superior Court in 1990 by George's family⁴ against Telemachus and his family would eventually determine ownership and control of the bulk of the Demoulas fortune. The first lawsuit alleged that the Telemachus Demoulas defendants had fraudulently transferred stock from George's family to themselves, and that Telemachus's children had fraudulently received 400 shares of DSM stock belonging to George's family (stock transfer case). The second suit, brought by Arthur S. Demoulas, George's son, while the first case was pending, alleged that the Telemachus branch of the family had diverted corporate opportunities from DSM to entities the defendants separately controlled (shareholder derivative case). Superior Court Judge Maria Lopez presided over both cases.

The stock transfer case was tried before a jury. Judge Lopez directed verdicts for Telemachus's children on certain counts. Subsequently, in May, 1994, the jury returned verdicts in favor of George's family against Telemachus and his family for breach of duty related to the fraudulent transfer of stock and other interests belonging to the plaintiffs. Judge Lopez reserved the issue of damages.

The shareholder derivative case was tried before Judge Lopez without a jury from December 12, 1994, through May 15, 1995. Her decision was entered on August 3, 1995. Judge Lopez's law clerk for the trial was then in his second year of clerkship for the Superior Court; he worked on the case from the fall of 1994 until the end of August, 1995, when his clerkship ended.

Both the stock transfer case and the shareholder derivative case took fateful turns in three decisions issued by Judge Lopez in August, 1995. First, as just noted, on August 3, 1995, judgment entered in the shareholder derivative case. Judge Lopez found that the defendants had improperly diverted corporate opportunities of DSM, and ordered the rescission of certain transactions, disgorgement of improperly obtained gains, and payment of attorney's fees, all in favor of George's family. The next day, on August, 4, 1995, Judge Lopez, responding to a request by the plaintiffs, vacated the directed verdict for Telemachus's children that she had issued in the stock transfer case. Her new order directed that the disputed 400 shares of DSM stock be held in constructive trust by Telemachus's children for members of George's family. Finally, on August 29, 1995, Judge Lopez amended the judgment in the shareholder derivative case to provide, among other things, for the repayment to DSM of certain cash distributions and sale proceeds, the cancellation of all promissory notes issued by DSM to shareholders, the transfer of all assets and liabilities of DSM and affiliated real estate entities to an entity held equally by George's and Telemachus's families, and payment of the plaintiffs' legal fees and expenses.⁵ We upheld that judgment in major part and remanded the case to the Superior Court for additional findings and the issuance of orders implementing relief. See Demoulas v. Demoulas, 428 Mass. 555, 557-558, 591-592, 703 N.E.2d 1149 (1998).

With our decision affirming Judge Lopez, it was settled that Telemachus's branch of the family would lose much of their control of the Demoulas businesses and fortune. Not surprisingly, the Telemachus Demoulas defendants were alarmed at this prospect. They were disappointed in the group of attorneys and law firms to whom they had paid millions of dollars in legal fees, and they were convinced that Judge Lopez was biased against them.⁶ Their suspicions of Judge Lopez were heightened by some of these attorneys, who assured them that Judge Lopez was "too dumb" to have written the Demoulas decision.

We turn now to the events germane to this disciplinary proceeding. At the time of the conduct at issue in this matter, approximately August, 1995, through August, 1997, the Demoulas litigations were still ongoing. The dockets in the. Superior Court reflect numerous motions and other proceedings, and there were ongoing proceedings in both the Appeals Court and this court for several years after the events that we shall describe. See, e.g., Demoulas v. Demoulas Super Mkts., Inc., 428 Mass. 543, 703 N.E.2d 1141 (1998).

b. The initial meeting with the Demoulas family. In 1995 Curry was a member in good standing of the Massachusetts bar, having gained admission in 1968. Early in his career he spent five and one-half years as an assistant attorney general in the office of the Massachusetts Attorney General. Curry then entered private practice.

In August, 1995, approximately two weeks after Judge Lopez issued tin Demoulas decision, Curry and Ernest Reid, a private investigator who had worked with Curry in the past, sent a letter to Telemachus proposing to meet with him concerning "a matter of importance and confidence."⁷, ⁸ As a result of this communication Curry, Reid, and members of the Demoulas family, including Telemachus and his son, Arthur T. Demoulas "(Arthur T.), met at, DSM headquarters in Tewksbury in early September, 1995.⁹ Curry told his hosts what they were apparently eager to hear: Judge Lopez had decided the shareholder derivative case against them before opening statements in the case. Specifically, he told them, among other things, that the case was "over before it began." He proceeded to make salacious' and disparaging remarks about Judge Lopez's character on and Off the bench, and also about the character of the plaintiffs' attorneys. Curry told Telemachus and the others that Judge Lopez had previously done "a big favor" for another individual in "a big case." Curry told them that their case was "fixed." ...