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Commonwealth of Massachusetts

NO. BD-2002-0052

IN RE: GEORGE K. KURKER

S.J.C. Order of Term Suspension (1 year and 1 day) entered by Justice Spina on October 24, 20021

MEMORANDUM OF DECISION2

The Board of Bar Overseers filed an Information recommending that the respondent, George K. Kurker, be suspended from the practice of law for one year and one day. The board adopted the findings of fact made by the hearing committee, and it concluded that the respondent violated the Massachusetts Rules of Professional Conduct, in particular, rule 3.1, as appearing in 426 Mass. 1381 (1998) (a lawyer shall not bring a proceeding or assert an issue therein unless there is a basis for doing so that is not frivolous), rule 8.2, as appearing in 426 Mass. 1428 (1998) (a lawyer shall not make a statement he knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge), rule 8.4(d), as appearing in 426 Mass. 1429 (1998) (a lawyer shall not engage in conduct that is prejudicial to the administration ofjustice), and rule 8.4(h), as appearing in 426 Mass. 1429 (1998) (a lawyer shall not engage in any other conduct that adversely reflects on his fitness to practice law).

The findings of the hearing committee are summarized as follows. The respondent was admitted to practice in 1966. In 1986 he became embroiled in a bitter dispute involving a water heater business owned by his family. The dispute generated five lawsuits and twelve appeals in courts of the Commonwealth, all of which (ultimately) were resolved against him. He attributed his misfortune to an alleged conspiracy involving members of an opposing law firm and twelve trial and appellate judges who had found, ruled, or held against him, or who acted as intermediaries in obtaining the adverse decisions. The premise of his conspiracy theory was that the judges were indebted to a partner of the opposing law firm because he had been chairman of the Judicial Nominating Council to the Governor who had appointed them. The respondent began to raise his conspiracy theory in 1996, advancing it in the Superior Court in three counties, and in both appellate courts of the Commonwealth. At every juncture it was deemed unsubstantiated.

The respondent subsequently filed two civil actions in the United States District Court for the District of Massachusetts in which he named as defendants opposing counsel, opposing counsel's law firm, and the family defendants. He did not name the State court judges as defendants but he did allege that opposing counsel had conspired with thejudges to deprive him of his rights without due process of law. The defendants filed motions to strike the allegations. A judge in the Federal District Court ordered the allegations of judicial conspiracy stricken from the complaints, and then ordered both cases dismissed with prejudice. Thejudge said in his decision that the respondent's “obsession with this litigation odyssey has undermined his judgment to the point that a reasonable person might conclude that he is unfit to be licensed to practice law. That decision, however, lies properly with the Board of Bar Overseers, and not with this court.” The respondent attempted to appeal the rulings, but his notice of appeal was not timely filed and his motion to file appeal late was denied.

Bar counsel conducted an investigation in which he asked the respondent to describe the factual basis for his allegations of judicial misconduct. The respondent replied that the basis was the factual allegations in his complaints, and that he expected to “flesh out the circumstantial evidence alleged by way of discovery.” At the hearing before the hearing committee the respondent gave substantially the same response, and produced no evidence to support his allegations. At the time he filed his complaints in the Federal District Court the respondent had not contacted any potential witnesses or otherwise undertook any investigation into the basis for his allegations of conspiratorial misconduct, and he had no evidence or personal knowledge to provide a reasonable basis for making any of the allegations of misconduct against the judges or the attorneys. The hearing committee found that “the respondent, with reckless disregard for the truth, unreasonably impugned the integrity of the Massachusetts judicial system and that of specifically named judges. His accusations of judicial corruption and bias were frivolous, unwarranted, and without good grounds.”

The findings of the board are supported by the record, and those findings, in turn, support the conclusions that the respondent violated the rules as set forth above. The conduct that constitutes a violation of rule 8.2, namely, that the respondent made statements that he knew were false, or with reckless disregard for their truth or falsity concerning the integrity of judges, also serves as part of the basis for the violation of rule 8.4(d). Rule 8.4(d) proscribes conduct that is prejudicial to the administration of justice, and is considered to apply only to the most flagrant misconduct “which undermines the legitimacy of the judicial process.” In the Matter of the Discipline of Two Attorneys, 421 Mass. 619, 628 (1996), quoting Polk v. State Bar of Texas, 374 F. Supp. 784, 788 (N.D. Tex. 1974). Such conduct has been shown to exist in this case.

The respondent made his statements in the course of judicial proceedings, as the basis for a claim upon which he sought relief. In the context of rule 11 of the Federal Rules of Civil Procedure, the respondent's signature to the two complaints filed in the Federal court could only serve to lend an aura of legitimacy to otherwise groundless accusations of judicial corruption, accusations which several of the State's courts previously had determined were unsubstantiated. Such conduct by an attorney can only promote public disrespect for the administration of justice and the rule of law. As the hearing committee observed, "Accusations that named judges are co-conspirators with lawyers and defendants in a plan to deny a fair trial diminish public confidence in lawyers, the legal profession, and the judiciary." The respondent's unsubstantiated accusations, made by an officer of the court in a judicial proceeding, were prejudicial to the administration of justice, and constitute a violation of rule 8.4(d). The conduct is comparable to that which we have held in other decisions to constitute a violation of earlier versions of rule 8.4(d). See In the Matter of Cohen, 435 Mass. 7 (2001); In the Matter of Tobin, 417 Mass. 92 (1994).

The sanction recommended by the board is comparable to sanctions imposed for comparable violations. See In the Matter of Cohen, supra; In the Matter of Tobin, supra.

The respondent is hereby suspended from the practice of law for one year and one day. A judgment shall enter in accordance with this memorandum of decision.

By the Court,

Francis X. Spina
Associate Justice
Supreme Judicial Court

ENTERED: October 24, 2002

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

2 Compiled by the Board of Bar Overseers based on the record before the Court.



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