439 Mass. 324 | Mass. | 2003
A single justice of this court ordered that Steven M. Foley (respondent) be suspended for eighteen months from the practice of law for assisting and encouraging his client in the preparation of a fabricated defense to a criminal complaint. While conceding that his conduct violated the rules of ethical conduct applicable to attorneys, the respondent appeals the punishment imposed as being too harsh and “markedly disparate” from sanctions imposed in similar cases. Because the conduct at issue is pernicious to our legal system, and highly destructive of public confidence in the integrity of the legal profession, we conclude that a suspension of three years is warranted.
1. Background. As part of a broader Federal undercover investigation into alleged corruption at the Boston Municipal Court, a special agent of the Federal Bureau of Investigation
On June 11, 1993, the agent met with the respondent for the first time to discuss the charges and his defense. At this meeting the agent made clear to the respondent that he had owned the gun for some time, and that he knew it was in the vehicle. The respondent indicated that it would be in the agent’s best interest to distance himself from the gun, but that the bullets in his pocket would be problematic. The agent then inquired about testifying falsely with regard to how the gun came to be in his rented vehicle, and the respondent expressed no reservations about his doing so.
During a subsequent telephone conversation on July 6, the
Later on during the July 23 meeting, the agent expressed reservations about going to trial on July 26, and asked if the
Parallel to this line of defense, and based on discovery he received from the prosecutor, the respondent also began to pursue a motion to suppress the gun that did not depend on the agent’s testimony. The motion to suppress was never heard, however, and the case never went to trial, because the charges were nolle pressed when the Suffolk County district attorney learned the true identity of the agent and that his arrest had been part of an undercover investigation.
2. Proceedings before the Board of Bar Overseers. The respondent’s misconduct was reported to the Board of Bar Overseers (board) by the United States Attorney’s office at the conclusion of its investigation. Bar counsel then brought a petition for discipline before a hearing committee of the board. The tape recordings of the agent’s conversations with the respondent were admitted in evidence and played at the committee hearing. The prosecutor and the respondent also testified at the hearing.
3. Standard of review. Our general standard of review when a disciplinary sanction imposed by a single justice is challenged is whether the sanction “is markedly disparate from judgments in comparable cases.” Matter of Finn, 433 Mass. 418, 422-423 (2001). See Matter of Kerlinsky, 428 Mass. 656, 664, cert, denied, 526 U.S. 1160 (1999); Matter of Tobin, 417 Mass. 81, 88 (1994); Matter of Alter, 389 Mass. 153, 156 (1983). But where the case is unique or involves a matter of first impression and is therefore not comparable to previous cases, we “review the decision of the single justice to determine whether it is supported by sufficient evidence, constitutes an abuse of discretion, and is free from any error of law.” Matter of McInerney, 389 Mass. 528, 530 (1983). In either instance, our review of the single justice’s decision is de nova, but tempered with substantial deference to the board’s recommendation. See Matter of Finn, supra at 423; Matter of Tobin, supra.
Fundamentally, however, “[ejach case must be decided on its own merits and every offending attorney must receive the disposition most appropriate in the circumstances.” Matter of the Discipline of an Attorney, 392 Mass. 827, 837 (1984). “The ‘primary factor’ in bar discipline is ‘the effect upon, and perception of, the public and the bar.’ ” Matter of Kerlinsky, supra, quoting Matter of Finnerty, 418 Mass. 821, 829 (1994). “We must consider what measure of discipline is necessary to protect the public and deter other attorneys from the same behavior.” Matter of Concemi, 422 Mass. 326, 329 (1996).
4. Discussion. The board’s findings of facts, supplemented by
In assessing what sanction to impose, the single justice considered what she viewed as similar cases, and imposed an eighteen-month suspension that she concluded was “the maximum sanction consistent with our precedent” appropriate to the respondent’s serious and deliberate misconduct. She did not defer to the board’s recommendation of a six-month suspension because she found it to be based on “unconvincing” findings of mitigating circumstances.
We begin by agreeing that the single justice properly rejected as “mitigating” the circumstances relied on by the board, as well as the board’s recommended sanction that was based on those circumstances. In essence, the board found the following circumstances to mitigate the serious misconduct at issue: (1) the agent induced the respondent’s misconduct by initially broaching the subject of perjury; (2) the respondent’s consideration of using perjured testimony was a brief “flirtation” that he quickly realized was error; (3) the respondent did not actually present the agent’s false testimony in court; and (4) the respondent was not able fully to cross-examine the agent at the hearing on his misconduct. For the reasons set forth below, and to the extent they are even supported in the record, none of these circumstances mitigates the respondent’s misconduct.
Inducement. While the agent initiated the first conversation about the possibility of fabricating a defense (“Well can we think of a way that maybe ... the gun got in the car?”), the respondent had a duty to reject any suggestion that a defense could be devised and presented through false testimony. There is no evidence that the respondent was pressured into the course of action he recommended, and rather than rejecting the suggestion he embraced it as his own. He developed the false story, advised the agent to seek out and make up details to ensure his
Flirtation. The board’s finding that the respondent only “flirted briefly with using perjured testimony . . . but he ‘quickly realized his error’ ” is belied by the clear record in this case. The respondent adopted the strategy of fabricating a defense during his June 11 meeting with the agent; developed it in full detail over the period of one and one-half months; discussed it twice with the prosecutor during this same period of time; met with the agent on July 23 to lay out the false story and to prepare his perjured testimony; advised the agent to visit the location mentioned in the false story so as to identify credible details to embellish it, and to make up the description of one of the false characters in the story; lied to the prosecutor to obtain a continuance of the July 26 trial date when the agent expressed concern about proceeding to trial so soon; and continued to discuss the fabricated defense strategy with the agent through October of that same year. Hardly a brief flirtation, this was a prolonged and close embrace with false testimony. The fact that an additional plausible defense later became apparent and was pursued by the respondent does not mitigate his undisputed misconduct. Nor should the fact that the proceeding ended with a nolle prosequi, making the fabricated defense unnecessary, be mistaken for a change of heart. The apparent, if not unavoidable inference to be drawn from the respondent’s ready willingness to fabricate a defense and prepare false testimony to support it is that this was not an aberration from his normal practice, but business as usual.
False testimony not presented. Had the case proceeded to trial and the respondent presented the false story he had concocted and the false testimony he had developed (which the
Cross-examination. The board’s finding that “[t]he respondent was denied an opportunity to flesh out potential mitigating circumstances” because the agent testified only to authenticate the tape recordings and the respondent’s cross-examination was limited to questions of authentication, cannot serve as a mitigating factor in the absence of any showing of how such cross-examination would have developed specific facts properly considered to be in mitigation of the respondent’s misconduct. In his offer of proof concerning the cross-examination he wished to conduct, the respondent identified nothing that would have helped his defense or mitigated the offenses proven by the tapes.
Finally, in addition to the mitigating circumstances recognized
We next consider whether the eighteen-month suspension imposed by the single justice was disparate with discipline in other cases. We decline to adopt the conclusion of the single justice that the respondent’s summary of the would-be fabricated
In determining that a suspension of eighteen months was appropriate and not disparate, the single justice examined and referenced three disciplinary cases involving what she perceived to be comparable types and degrees of misconduct: Matter of Gross, 435 Mass. 445 (2001) (eighteen-month suspension for soliciting client and alibi witness to engage in impersonation scheme before court); Matter of McCarthy, 416 Mass. 423 (1993) (one-year suspension for eliciting false testimony and presenting false documents in proceeding before rent control board); and Matter of Neitlich, 413 Mass. 416 (1992) (one-year suspension for actively misrepresenting terms of real estate transaction in divorce proceeding). In the context of these cases, the imposition of an eighteen-month suspension for the respondent’s misconduct was clearly warranted. But we do not view the misconduct in these three cases to be comparable to the insidious nature of what has been laid bare in the present case.
The misconduct in both Matter of McCarthy, supra, and Matter of Gross, supra, while serious, lacked the depth and heft of
In reviewing disciplinary cases previously decided by this court, we have found none of this type, short of those in which the sanction of disbarment was imposed, that is comparable. We therefore must establish independently a sanction adequate to address the seriousness of the misconduct, to reassure the bar and the public that such conduct is completely contrary to the oath of office taken by every lawyer, and to underscore that, when it is uncovered, such conduct will be treated with the utmost severity. In our view, that sanction is a three-year suspension.
Conclusion. We vacate the order of the single justice imposing an eighteen-month suspension and remand this matter for entry of a judgment suspending the respondent for a period of three years.
So ordered.
rrhe Boston police were not aware that Thomas Abate was an undercover agent working for the FBI.
The agent made thirty-eight audiotape recordings of conversations with the respondent.
The agent and the respondent engaged in the following pertinent discussion during their meeting on June 11:
The respondent: “See the problem . . . from the technical point of view is somehow distancing you from the gun. Which is why I asked about the car.”
The agent: “It’s a rental car. Hey I was out. . . I, I stopped. I don’t lock a car. What is this, it’s not my fuckin’ car. What am I gonna lock it. ... If I stopped a few places, you know what I’m sayin’?”
The respondent: “Yeah. That’s not a problem. Those things there aren’t the problem. What we have though is a situation where when they do find the gun, it’s unloaded but they find the bullets in your pocket. So all they have to prove is that you knew the gun was there and you had dominion and control over it and that you . . . .”
*326 The agent: “Well can we think of a way that maybe ... the gun got in the car and . . . ?”
The respondent: “And that you didn’t know what to do and were takin’ the bullets out of it so that you could turn it over to the police. Yeah, but you gotta make somebody believe that one.”
The agent: “Well I didn’t say it would be easy.”
The respondent: “The thing is this. The . . . .”
The agent: “See I was gonna bullshit ya when I came in. But I mean, you know, [the court officer] said you’re you know ... a good guy and you can you know . . . handle things like this. And I’m gonna tell ya straight. I mean I coulda said somethin’ like . . . hey my car’s parked in the basement over at the Devonshire . . . unlocked all the time. And I was out and I stopped at a light and BOOM it slides out from under the seat. What do I know from not. I thought it was a toy.”
The respondent: “That’s fine except for the bullets. How do you get the bullets in your pocket?”
The agent: “Ahh ... I was a safe person? (laughter)”
The respondent: “That’s the . . . therein lies the problem.”
The agent: “Mmm.”
The respondent: “That’s . . . that’s the ... if not for the bullets . . . That’s why I’ll see what the police report says. If, if, it weren’t for the bullets, there’d be very little problem. Now they do have . . . there’s an initial problem.”
The agent and the respondent engaged in the following dialogue during their telephone conversation on July 6:
The respondent: “[W]hat I told [the prosecutor] right from the beginning before we even started ... I said I’m not going to get into it now but you won’t believe the, the story behind the story of this case. So he doesn’t know what that is yet, but he does know that there’s something bizarre here.”
The agent: “Okay, good so that’s when we’ll come up with that story right?”
The respondent: “Exactly.”
The agent: “Okay.”
The prosecutor’s notes from that meeting with the respondent do not indicate a date, but they do reflect elements of the fabricated story that the respondent then described in more detail to the agent on July 23. The
The agent and the respondent engaged in the following lengthy conversation on July 23, which included the following pertinent discussion:
The respondent: “Now, the story I have weaved with the district attorney because . . . the bottom line is this, but I . . . you have to make the gun, explain the gun. Now, if it was a rental car, which it was, and you didn’t have the bullets in your pocket that wouldn’t be a problem because the judge could say ‘well how did he know the was gun there?’ The fact that you’ve got five bullets for a five-shot gun in your pocket and those bullets happen to be the same caliber as that gun in the back seat, makes for a rather compelling argument from the prosecutor that you knew the gun was there. There’s no way you can rebut that the gun was there. That you knew it was there. The fact that you knew it was there and that it was there and the car was rented to you . . . .” (Emphasis added.)
The agent: “Are you telling me that we’re going to lose this thing?”
*328 The respondent: “[N]o, no, no leads to the proposition that you have to have some other explanation for the gun being there. They cannot trace the gun to you, correct?”
The agent: “Correct.”
The respondent: “Now the story is going tobe . . . we’re stuck with certain facts. The facts that we cannot change are that your car was parked partially on the sidewalk down at Post Office Square.” (Emphasis added.)
The agent: “Right.”
The respondent: “We have to admit that.”
The agent: “[N]ow am I going to have to testify in this thing.”
The respondent: “You may, that’s why we’ll get to that that’s why I want to go over this with you to see to plot out our strategy to get it done. The fact that the bullets were found in your pocket is incontroversal [sic], you can’t make that go away, they’ve got the bullets. They’re in the police report, they’ll have them on Monday. The fact that they found the gun .... So, those are the things we cannot change. The fact that you were drunk, we’re not contesting that, we’re using that as a defense in essence, in the case. But the only way that you can, can make this . . . have any possibility of having this case go away is to have the judge believe that there was somebody else involved who had a gun. Now, how is that done? You live across the street from Zito’s. Everybody up at that court knows what Zito’s is, they know it’s a bar. That know that the bar is across the street and it’s a nice place, it’s not a dive. You can be in Zito’s drinking the night that you were arrested, the night before you were arrested."
The agent: “Uh hum.”
The respondent: “And you could have met somebody in Zito’s and then decided to drive down to the Zone. You did spend some time, in some part of the Zone?”
The agent: “Yeah.”
The respondent: “Now, you could have observed this person to have had a gun when you got in, when that person got into your car which was parked at the Devonshire. When you see it, you’re smart enough because you been around for awhile, to know that carrying a gun in the Combat Zone is a very dangerous thing to do. You’d also been drinking up until this point in time. Which means that if you’re drinking your judgment isn’t perfect. But, you know you don’t want a guy with a gun who you don’t know to have that gun in the Combat Zone. So what do you do, you say, look, leave the gun in the car. You’re not going to leave a loaded gun in the car that could be dangerous, you take out the bullets."
The agent: “And you’ve already told this to Mr. —”
The respondent: “What? I told him that there was a story, he knows part of it but he doesn’t know all of it.”
The agent: “Okay.”
*329 The respondent: “Okay, so now we’ve got a gun in the car. We understand. We don’t know if there’s anything about the serial numbers being obliterated.”
The agent: “Now, I mean, if they’re going to ask me who’s this other guy, the person.”
The respondent: “Yeah, how are you going to know, you just met that person. So what you have to do is think of somebody to describe.”
The agent: “Just a first name?”
The respondent: “And the name."
The agent: “Just the first name?”
The respondent: “Jerry, Paul, Dave. You met this guy. You don’t have to give a last name. He was in there drinking, I was in there drinking, we started talking and went down to the Zone. He had the gun, I told him to leave the gun in the car, he didn’t want to do it.”
The agent: “Pm catching well see that, that may play out good because you know I don’t know my way around and he said come on, let’s go someplace, and I say where are we going and he said the Zone and I said oh, I heard of that that’s the Combat Zone, right? And he goes yeah. And he said don’t worry I got a gun, and I say no, no hey we don’t need any guns here, we’re big guys, we don’t need any, okay.”
The respondent: “You know enough, I mean you’re street smart enough to know that you don’t bring a gun into an adult entertainment district, it’s dangerous.”
The agent: “Right, right, okay, I’m catching on, alright.”
The respondent: “So, you leave the gun in the car. You’re in the Zone and he goes off, on his merry way. Gets lucky, so to speak, and you then, now [you], you come out of the Zone at some point in time, before 11 o’clock, because you have to get the bottle."
The agent: “Right, okay.”
The respondent: “There’s a package store, there’s gotta be a package store down in the Combat Zone.”
The agent: “Okay.”
The respondent: “But what you gotta be able to do, and this is important, even if this has to be between now and then, know the names of some of the places down there. Have you ever been in any of them?"
The agent: “Ah, you know probably with Timmy, probably, ‘cause I like I said I know some of the —”
The respondent: “Go to someplace between now and Monday so you can describe what it looked like inside. The D.A. is not stupid. He’ll ask you the name of the place, describe what it looked like, what shape was the bar. So you’re gonna have to have an answer, okay?"
The agent: “Alright.”
The respondent: “So that you can say you were in a bar, you came out, you remember buying the bottle of Jack Daniels. Then, what happened after that, you don’t. ... I mean, you really . . . package stores close until 5:00 when*330 you’re picked up.”
The agent: “Right, right.”
The respondent: “Do you have any memory of what you did during that period of time? That we can make go away.”
The agent: “I was with a broad that’s where I was. Yeah.”
The respondent: “Well, you can tell them that. I mean that’s okay. You can explain that. I mean you can explain that, that he took off and he went someplace and you went someplace. You had the car, he didn’t and ah, you know, that’s not a major problem. It’s something that, I guess it’s even better because if the judge sees that you’re a human, that you were, that you were drunk, you screwed up, you made mistakes, then you wind up gettin’, you get stopped.”
The respondent: “The D.A. is trying, he, you know, he’s the one once when I told him, I said ya the bottle of booze, he said where did he get the booze, I said down in the Zone, yeah but that had to be before 11 o’clock.”
The agent: “So he’s already thinking this stuff. Ya, well, not necessarily, I mean hey, I pick a bottle up, I had it sitting in the car, you know I had a bottle up in my apartment, a little bottle up in my apartment, I mean I —”
The respondent: “But then you can’t say that you had it in your apartment, ‘cause then you would have known how to get back to your apartment.”
The agent: “Well from, no, from Zito’s I walked up, you know we were gonna go out cruzin [sic] a little bit, I picked up the thing, went down and got in my car.”
The respondent: “Yeah, but you wouldn’t if you were going to a bar, it’s gotta follow. You know.”
The agent: “Yeah.”
The respondent: “[Wjhen I was telling [the prosecutor] bits, I didn’t tell him the whole story but pieces of it, from the point of leaving the Zone on, he said you know, there’s some (inaudible) spots in there, but being down in the Zone, he understands. He didn’t view it as a, as a totally incredible picture. That helps.”
The agent: “I just want to make sure that I get this in my mind and work it out, you know.”
The respondent: “Well that’s what I want, what I want you to do is get a good look at the —”
The agent: “I’ll take care of that, no problem.”
The respondent: “[A]t the Combat Zone so you’ll understand that. Just have a description of somebody with a gun.”
The respondent: “So, the thing is, I want, before we go in there, we better, the story, the Zone, it all parlays into what we want to do, but what you have to do is know a name of a place so that you can describe it because . . . .”
The agent and the respondent had the following conversation on September 3:
The agent: “Now we’re still gonna, it’s still the same game plan, so to speak.”
The respondent: “Oh ya . . .”
The agent: “[AJbout meeting the guy —”
The respondent: “Oh ya . . .”
The agent: “[OJver at Zito’s —•”
The respondent: “We’ll get the, we’ll get the, the whole story line but now we’ve got a lot more time to do it.”
And on October 20, the agent and the respondent had the-following conversation:
The agent: “[WJhat I was going to ask is are we still gonna go with that same game plan of going to the Combat —”
The respondent: “Oh yeah, we’ll, we’ll plot that in, just before the trial of how we’re gonna go through the testimony and right that there —”
The agent: “Okay.”
The respondent: “We’ll have a, a dress rehearsal here about your testimony and what you’re gonna say.”
The agent was called as a witness by bar counsel for the limited purpose of authenticating the tape recordings he made of his conversations with the respondent. The agent’s testimony in this regard was authorized by the United States attorney for the district of Massachusetts pursuant to 28 C.F.R. §§ 16.21 et seq. On cross-examination, the agent was instructed by an assistant United States attorney not to answer any questions unrelated to authentication because he was not authorized to testify about anything other than authentication. The United States attorney denied the respondent’s subsequent request for authorization to recall the agent for testimony generally concerning the Federal investigation of alleged corruption at the Boston Municipal Court.
Supreme Judicial Court Rule 3:07, Canon 1, DR 1-102 (A) (4) and (6), 382 Mass. 769 (1981), provides, in pertinent part: “A lawyer shall not . . . (4) [ejngage in conduct involving dishonesty, fraud, deceit, or misrepresentation!; or] (6) [e]ngage in any other conduct that adversely reflects on his fitness to practice law.”
Supreme Judicial Court Rule 3:07, Canon 7, DR 7-102 (A) (5) and (7), 382 Mass. 785 (1981), provides, in pertinent part: “In his representation of a client, a lawyer shall not . . . (5) [k]nowingly make a false statement of law or fact[;] (7) [c]ounsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.”
Supreme Judicial Court Rule 3:07, Canon 1, 1-102 (A) (5), 382 Mass. 769 (1982), provides, in pertinent part: “A lawyer shall not . . . [ejngage in conduct that is prejudicial to the administration of justice.”
The recorded conversations also reflect the respondent’s longstanding and easy familiarity with the corrupt practices of the court officer who subsequently pleaded guilty to racketeering.
The respondent parlays the limitation on the agent’s testimony into a claimed due process violation. Attorneys in bar discipline proceedings are entitled to due process rights. See Matter of Eisenhauer, 426 Mass. 448, 453, cert, denied, 524 U.S. 919 (1998); Matter of Tobin, 417 Mass. 92, 101 (1994); Matter of Kenney, 399 Mass. 431, 435 (1987). The right to cross-examine witnesses and the right to present evidence in one’s defense are essential elements of due process. See G. L. c. 30A, § 11 (3). See also Matter of Tobin,
In order to show a violation of due process, the respondent must show that he was prejudiced by his limited cross-examination of the agent. See Commonwealth v. Johnson, 431 Mass. 535, 538 (2000) (defendant complaining of limitations on cross-examination must make “plausible showing” that questioning would have elicited relevant evidence); Commonwealth v. Fordham, 417 Mass. 10, 19-20 (1994) (“defendant must show a reasonable likelihood that, had the cross-examination been permitted to continue without interruption, testimony of more than minimal value to the defendant might have been forthcoming”). The respondent has failed to show that he was prejudiced by his limited cross-examination of the agent. He does not indicate how making the agent available for cross-examination with regard to matters related to more than the authentication of the tapes would have produced any relevant testimony. This is not surprising, given that all of the relevant conversations between the agent and the respondent were tape recorded and introduced in evidence. Once authenticated, the tape recordings speak, literally, for themselves, and any cross-examination of the agent regarding their content would have been superfluous.
Rule 3.3 of the Massachusetts Rules of Professional Conduct, 426 Mass. 1383 (1998), entitled “Candor Toward the Tribunal,” addresses a lawyer’s ethical obligations when making representations to a tribunal. A lawyer’s ethical obligations vis-a-vis opposing counsel are embodied in Mass. R. Prof. C. 3.4, 426 Mass. 1389 (1998), entitled “Fairness to Opposing Party and Counsel.”