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Commonwealth of Massachusetts

NO: SJC-BD-2002-033

IN RE: STEPHEN M. FOLEY

S.J.C. Order of Term Suspension (18 months) entered by Justice Cowin on August 28, 2002.

MEMORANDUM OF DECISION

This matter came before me on an information and record of proceedings and a vote and memorandum of the Board of Bar Overseers. The matter was initiated by bar counsel's petition for discipline brought before a hearing committee of the board. The petition alleged that Stephen M. Foley (respondent) violated S.J.C. Rule 3:07, Canon 1, DR 1-102(A) (4), (5) and (6)1, and S.J.C. Rule 3:07, Canon 7, DR 7-102 (A) (5), (6) and (7)2, by assisting a criminal client in the fabrication of a false defense, encouraging his client to testify falsely and presenting the false defense to the prosecuting attorney. In his answer to the petition, the respondent denied intentionally making misrepresentations to the prosecutor, but admitted that he discussed with the client the possibility of testifying falsely, and admitted that this conduct could constitute violations of DR 1-102 (A)(4),(5) and (6). The hearing committee found that the respondent violated all disciplinary rules cited by the petition except for DR 1-102 (A)(5) (conduct prejudicial to the administration of justice), and recommended that the respondent receive a public reprimand. Both Bar Counsel and the respondent appealed to the board.

The board adopted the hearing committee's findings of fact and conclusions of law, but concluded that respondent's conduct also violated DR 1-102 (A)(5). The board recommended that the respondent be suspended for six months. However, the recommendation of the board was not unanimous: two members favored a lesser (unstated) sanction, while two members favored a longer eighteen-month suspension. Both parties seek modification of the discipline recommendation of the board: bar counsel urges a suspension of not less than eighteen months; the respondent requests a reduction to a public reprimand.

I. Facts: I summarize the facts from the hearing committee's findings of fact, which were adopted by the board. The genesis of the bizarre circumstances involved herein was an FBI investigation into alleged corruption at the Boston Municipal Court (BMC). An FBI agent, using the name Thomas Abate, caused himself to be arrested by the Boston Police for driving under the influence and illegal possession of a handgun.3 After his arraignment at the BMC on these charges, Abate hired the respondent to represent him. During all meetings with the respondent, Abate wore a hidden tape recording device.

Abate first met with the respondent on June 11, 1993. In this meeting, Abate told the respondent that the gun found in his car belonged to him, but suggested that he testify falsely about how the gun came into his possession. During a subsequent meeting on July 23rd, the respondent and Abate discussed the possibility that Abate would testify falsely at trial. The respondent concocted a detailed story for Abate in which Abate would testify that the handgun belonged to a man he had met the night of the arrest at a bar in Boston. According to the fabricated story, Abate suggested that the man leave the gun in the car because it was not safe to carry a gun in the Combat Zone section of Boston. The story continued that Abate removed the bullets so that there would not be a loaded gun in the car. The respondent repeatedly encouraged Abate to become familiar with the Combat Zone to bolster his testimony at trial, and to "think of somebody to describe" as the other person with the gun.

At some point, the respondent discussed the case with the assistant district attorney and presented the fabricated story as Abate's defense to the handgun charge.4 The hearing committee credited the respondent's testimony that, after the July 23 meeting, he did nothing to advance the false story. From this time forward, he pursued appropriate tactics in defending Abate, including the preparation of a motion to suppress the gun. Eventually, the charges against Abate were nolle prossed when the Suffolk County district attorney learned that Abate, when he was arrested, was an FBI agent acting on assignment.

At the respondent's disciplinary hearing, Abate appeared as a witness to authenticate the tapes, but an assistant United States attorney present at the hearing instructed Abate not to answer any questions that went beyond the scope of authentication.5

II. The appropriate sanction. Both bar counsel and the respondent challenge the board's recommendation of a six-month suspension. The respondent argues that, because his misconduct was a brief and isolated lapse of judgment, the sanction imposed by the board is unduly punitive. In addition, he asserts that the hearing committee was correct in refusing to find a violation of DR 1-102(A)(5) because he never actually presented the false testimony before a tribunal. Conversely, bar counsel argues that a six-month suspension is too lenient, as the respondent's actions “raise serious doubts about his honesty or integrity, whether or not the actual circumstances in which he acted were a fiction created by the Justice Department.” I agree with bar counsel that an eighteen-month suspension is warranted.

In deciding whether the sanction imposed by the board is appropriate, I must determine whether the Board's recommendation “is ‘markedly disparate’ from the sanction imposed in other similar cases.” Matter of Alter, 389 Mass. 153, 156 (1983). I also recognize that we must decide each case “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). I therefore examine the nature of the respondent's conduct, the sanction recommended by board compared to the sanction imposed in analogous cases and mitigating factors with respect to the respondent's conduct.

A public reprimand, as recommended by the hearing committee, is inconsistent with previous cases involving similar conduct. Discipline for misrepresentations before a tribunal and eliciting false testimony have resulted in suspensions ranging from one year to eighteen months. Matter of Frank H. 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); Matter of Neitlich, 413 Mass. 416 (1992) (one year suspension for actively misrepresenting terms of real estate transaction in divorce proceeding).

The respondent cites cases in which attorneys received lesser sanctions for misrepresentations before the court and suggests that his violation is less serious than those in comparable cases because he never actually presented the false testimony to a court, and thus did not violate DR 1-102 (A) (5). Matter of Finn, 433 Mass. 418 (2001) (three-month suspension for intentional material misrepresentations on Georgia bar application and engaging in unauthorized practice of law in Georgia); Matter of Finnertv, 418 Mass. 821 (1994) (six-month suspension for intentional misrepresentation of his financial worth to his attorney and court in his own divorce proceeding); Matter of Long, 16 Mass. Att'y. Disc R. 252 (2000) (three-month suspension where attorney misrepresented to court reasons for needing continuance). Whether respondent's conduct constituted a violation of DR 1-102(A)(5) is irrelevant. Even without a violation of DR 1-102(A)(5), the respondent's behavior constitutes the violation of several other ethical rules. Nor does the fact that the respondent never had the opportunity to present the fabricated story to the court diminish the severity of his misconduct. The respondent actively assisted his client in the concoction of a false story, and the presentation of the fabricated story to the assistant district attorney is the equivalent of presenting the testimony before a tribunal. Although an assistant district attorney does not fulfill the same role in our judicial system as a judge, an assistant district attorney, like a judge, is an officer of our government. The respondent attempted to use the assistant district attorney to affect the outcome of Abate's criminal proceedings. The subtle difference between presenting a falsehood to a judge and to an assistant district attorney is not significant in terms of the appropriate penalty in this case.

The respondent also maintains that “no harm was done” nor could “possibly be done” because the “client” was an undercover FBI agent. That no harm was done is irrelevant; at least at some point the respondent intended harm. The respondent misperceives the role of the attorney and the solemnity of the process in which he is involved as an officer of the court. See Matter of Neitlich, 413 Mass. 416, 423 (1992) The attorney “is bound to uphold the integrity of [the] system by being truthful to the court and opposing counsel. Where this duty is in seeming conflict with the client's interest in zealous representation, the latter's interest must yield. Were we to condone any action to the contrary, the integrity of the judicial process would be vitiated.” Id.

The board found that a six-month suspension was sufficient because the respondent's conduct was mitigated by the fact that an undercover agent “induce[d]” him to violate the disciplinary rules, the respondent did not have the ability to cross-examine fully the undercover agent and the respondent has no prior disciplinary record. I find these reasons for mitigation unconvincing.

Respondent seeks solace in the fact that Abate enticed him. Enticement is irrelevant because, even if Abate did encourage the respondent to engage in unethical behavior, this is no defense in this situation. Attorneys can be expected occasionally to face clients seeking help in producing a false story. The tapes demonstrate that Abate did nothing more than suggest false testimony; a lawyer's duty is to refuse such a suggestion. See Matter of Neitlich, supra at 423.

Even if enticement had been relevant, no harm was done by the restriction on Abate's cross examination. Although the cross examination was limited to the authentication of the tapes, the respondent is unable to point to one relevant piece of information that might have resulted from an unrestricted cross-examination. Although the respondent claims that he could have shown that the agent enticed him to violate the ethical rules, any relevant information on this point can be found in the tapes, which are complete records of all conversations between Abate and respondent. When asked at oral argument to state the best possible testimony Abate could have given in favor of the respondent, counsel could produce none.

An eighteen-month suspension appears to be the maximum sanction consistent with our precedent and is the appropriate sanction here. The respondent's conduct was a serious and deliberate violation. He willingly participated in the fabrication of testimony; suggested a precise false scenario and ways of making the false story appear realistic; and relayed his fabrication to the assistant district attorney assigned to the case. This is precisely the type of dishonesty and deceit that causes the public to doubt the integrity of the legal profession. Matter of Kerlinsky, 428 Mass. 656, 664 (1999) (“The ‘primary factor’ in bar discipline is ‘the effect upon and perception of, the public and the bar.”)

A judgment shall be entered suspending the respondent from practice of law for eighteen months.

By the Court

Judith A. Cowin
Associate Justice

Entered: August 28, 2002


FOOTNOTES

1 DR 1-102(A) (4) - (6) provides, in pertinent part: “A lawyer shall not . . . (4) [e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation[;] (5) [e]ngage in conduct that is prejudicial to the administration of justice [;] (6) [e]ngage in any other conduct that adversely reflects on his fitness to practice law.”

2 DR 7-102(A) (5) - (7) 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[;] (6) [p]articipate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false[;] (7) [c]ounsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.”

3 In response to questioning at oral argument, bar counsel represented that no State or local official was aware that the arrest was staged at the time that process issued by the Boston Municipal Court.

4 The hearing committee and the board found that the respondent's conversation with the Assistant District Attorney occurred on or before July 23rd. Although it is unclear from the record why the hearing committee drew this conclusion, it is irrelevant to our discussion here; the respondent's transmission of a false story to the assistant district attorney is egregious, regardless of whether it occurred before or after the July 23rd meeting with Abate.

5 This fact appears in the hearing committee's consideration of factors in mitigation, but not in its findings of fact.



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