The Boston Globe: SJC blasts 2 lawyers for ethics breach (February 7, 2008)

Disbarment caps long-running case

By John R. Ellement

Globe Staff / February 7, 2008

The state’s highest court ordered the disbarment of two Boston lawyers yesterday for crossing ethical boundaries in the Demoulas supermarket family feud in the 1990s, issuing the harshest possible ruling in what is probably the final chapter of the long-running case.

The SJC said Gary Crossen (left) acted on a hunch of judicial bias and Kevin Curry acted for financial gain.

DISBARRED

In a unanimous ruling, the Supreme Judicial Court said Gary C. Crossen, a prominent lawyer and former adviser to Republican governors, and Kevin P. Curry, a longtime defense attorney, shamed themselves and the legal profession. The two men were trying to prove that the Superior Court judge on the case was biased and committed misconduct.

“This was not conduct on the uncertain border between zealous advocacy and dishonorable tactics,” Chief Justice Margaret H. Marshall wrote for the unanimous court.

The Demoulas case is legendary in Boston legal circles for the large fees collected by lawyers, the estimated $1 billion business at stake among the parties, and for the way it scarred the careers of many of the individuals caught in its web over the years.

“What a tale,” said Harry Manion, a Boston lawyer who has not been scarred by the case but represents Paul Walsh, a onetime law clerk who became an unknowing pawn in the legal fight between two branches of the Demoulas family seeking control of the lucrative supermarket business.

At issue were attempts by Curry and Crossen to find some way of derailing the rulings of Maria Lopez, who was a superior court judge at the time, in the lawsuit between the two branches of the Demoulas family, which owns the Market Basket supermarket chain worth an estimated $1 billion.

“A hunch about judicial misconduct does not justify a reckless and unexamined pursuit of that hunch,” Marshall wrote of Crossen, a former federal prosecutor. “Crossen had an obligation to the principles of justice to keep the investigation within ethical bounds.”

Curry and Crossen lured Walsh, who worked for Lopez as a clerk, to Nova Scotia, New York, and Boston with a sham job offer purported to be from an overseas insurance company. Seeking to find evidence that Lopez was biased against their clients, the lawyers secretly recorded their conversations with Walsh, asked him about Lopez, and threatened to report him to the Board of Bar Overseers for a technical violation if he did not cooperate and back their belief that the judge acted unethically, according to the SJC.

Walsh instead went to Manion, who brought in the FBI. Walsh ended up wearing a wire to record conversations, principally with Crossen. The Justice Department ultimately decided not to prosecute Curry, Crossen, and a third attorney, Richard K. Donahue.

Marshall wrote that Curry “had no credible evidence of any kind to suspect Judge Lopez of a scintilla of bias.” The judge said Curry acted only for personal financial gain.

Crossen said in a phone interview that he continues to believe he acted ethically, but said he was relieved the case is finally over.

“I disagree with the result, but after 10 1/2 years, I am glad that there is finally some end in sight to the process,” Crossen said. “I tried to get to the truth about a very serious allegation of judicial misconduct. That was what we attempted to do.”

Crossen, who has an office in Lexington, said he has become involved in businesses other than the law in recent years and will shift his focus there. He said he will consider appealing to the US Supreme Court.

In addition to being a former federal and Suffolk County prosecutor, Crossen is former chairman of the state Judicial Nominating Commission, and former ethics counsel to Governors William F. Weld and Paul Cellucci.

Both Curry and Crossen can apply for readmission to the bar after eight years, according to the Office of Bar Counsel, which brought the charges against them.

Curry, through a relative, declined to comment. His lawyer, Terry Segal, said Curry had no prior disciplinary record and called his disbarment “a sad day for the legal profession.” Segal said defense experts considered the tactics legal and appropriate.

In December 2006, Donahue, who is 80, accepted a three-year suspension from practicing law. The former chairman of the Board of Bar Overseers, former assistant to President Kennedy, and onetime president of Nike Inc. helped devise the plan but did not interact directly with Walsh.

Lopez, who resigned from the bench in 2003 after a Judicial Conduct Commission hearing into her actions on the bench in unrelated cases, is now a television judge. She declined to comment.

Her husband – Stephen Mindich, who is publisher of the Phoenix – said he was thrilled about the SJC ruling. Mindich and Lopez were also attacked by Crossen for reportedly dining at a Boston restaurant in the 1990s with Robert Gerrard, who represented the winning side.

“It came out right,” Mindich said.

Gerrard pleaded guilty to federal charges of illegally collecting Social Security payments and had his legal license suspended in 2006.

Michael Mone, Lopez’s attorney, said the former jurist feels vindicated by this decision and the four other times the SJC has upheld her rulings in the Demoulas case.

“She knew from the very beginning what they had done was wrong,” said Mone. “The lawyers had done damage to both Paul Walsh and his family and her family.”

Arthur T. Demoulas, who hired Curry and Crossen, did not return a telephone call seeking comment yesterday.

J. Owen Todd, a Boston lawyer who has represented a key member of the winning Demoulas side, said yesterday that since Lopez’s decision, the family has reached an uneasy peace.

“They don’t have much to do with one another,” he said of the two branches. “They are not warm, but they are required to tolerate each other.”

Shelley Murphy of the Globe staff contributed to this report. John Ellement can be reached at ellement@globe.com.