Occasionally, I hear of antics that are a depressing reminder that truth is, indeed, stranger than fiction. Too often, the most fantastic, outrageous fiction plot pales in comparison to sordid reality.
Take, for example the recent disbarments of a pair of Massachusetts attorneys, who went to truly extraordinary lengths to find evidence of bias by a trial court judge. See the decisions In the Matter of Kevin P. Curry, No. SJC-09904 (Mass.), In the Matter of Gary C. Crossen, No. SJC-09905 (Mass.)here and here
The attorneys were convinced that the trial judge in certain stock transfer and shareholder derivative actions was biased in favor of one family of shareholders. This belief appears to have been based, at least in part, on the opinion that the judge was “too dumb” to have written the decision personally, a conclusion they shared with their clients.
Now - let me stop here and point out that there are, in this world, no doubt many judges who are less skilled at writing and analysis than their clerks or staff counsel. That might suggest the judge is lucky; it does not suggest the judge is corrupt.
However, certain of wrongdoing, these attorneys sought out proof. Among various efforts to dig up dirt, they engaged in an elaborate scheme to convince the trial judge’s clerk that he was being considered for a lucrative position as in-house counsel of a fictitious corporation. The clerk was flown to interviews with private investigators - and the attorneys themselves- masquerading as headhunters, at which interviews – surreptitiously tape recorded—he purportedly made statements suggesting the judge was predisposed to find in favor of the plaintiffs in the case. Note, however, that the statements were rather equivocal at first, so the attorneys “tried to browbeat the law clerk into confirming in sworn testimony their own suspicions.” Disciplinary counsel called the conduct “border[ing] on outright extortion.” The Massachusetts Supreme Court held that this was not an overstatement.
Remarkably, Crossen argued that “the sanction of disbarment is markedly disparate from sanctions for similar conduct.” The Court’s response is no surprise:
That there is no blueprint in our prior cases for the facts of this proceeding should come as no surprise, reflecting the unusual scope of the misconduct. The sanction of disbarment we impose is appropriate to ensure that the law clerk episode (or anything like it) remains sui generis.
Now seriously – could any writer of legal thrillers have conceived of this little episode?
Hat tip to Law.com
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