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Commonwealth of Massachusetts

NO. BD-2004-053

IN RE: GERALD C.J. COOK

S.J.C. Order of Term Suspension (3 years) entered by Justice Ireland on July 20, 2004, with an effective date of August 19, 2004.1

BOARD MEMORANDUM 2

In the spring of 1999, a court officer in the Malden District Court approached the respondent, Gerald C.J. Cook, and advised him that Judge Paul Cavanaugh, the presiding justice, wished to speak to him. The respondent met with the judge in his lobby. Judge Cavanaugh indicated that a complaint against his friend Judge David Harrison was pending before the Commission on Judicial Conduct. Judge Cavanaugh asked the respondent, who was a member of the Commission, for his opinion as to what action the Commission might take on the complaint. The respondent asked about the facts that gave rise to the complaint. Judge Cavanaugh said he did not know the facts and asked the respondent to call Judge Harrison.

The respondent met with Judge Harrison shortly thereafter. After listening to the judge’s description of the underlying facts, the respondent replied that he would give his opinion after he had reviewed the Commission’s confidential memorandum of its investigation, which would be prepared in advance of a Commission vote.

The respondent received a copy of the confidential memorandum shortly before the Commission’s September 14, 1999 meeting. The memorandum contained the results of interviews conducted by staff with attorneys and members of the public in the community where alleged judicial misconduct occurred, as well as the work product of the staff, including mental impressions and opinions developed during the investigation. At the meeting, without disclosing his prior communications with the two judges, the respondent participated in the Commission’s vote to offer Judge Harrison a private reprimand accompanied by a press release or, if the judge would not agree to that disposition, to issue a formal statement of allegations.

Two days later, the respondent telephoned Judge Harrison and advised him of the Commission’s vote. The judge was displeased. He stated that he would resign before he would agree to such a disposition. When the respondent later telephoned Judge Cavanaugh with the news, Judge Cavanaugh indicated that he, too, felt such a disposition was harsh. The respondent then arranged to meet with Judge Cavanaugh.

Their meeting took place on September 22, 1999. The respondent explained the Commission’s vote and some of the reasons for it. When Judge Cavanaugh again voiced his opinion that the action seemed harsh, the respondent asked him if he knew what Judge Harrison had done. He then gave the judge a copy he had made of the Commission’s confidential memorandum. The respondent did not intend for Judge Cavanaugh to pass the memorandum on to Judge Harrison. Given the sequence of inquiries by the judges and his knowledge that they were friends, however, the respondent should have known that Judge Cavanaugh would deliver a copy of the memorandum to Judge Harrison.

Judge Harrison did receive the memorandum. The Commission’s investigation was ultimately settled by agreement; he received a private reprimand upon the condition that he make public speeches on legal ethics. In the meantime, however, Commission staff began to suspect that confidential information regarding the investigation had been to Judge Harrison or his counsel. Judge Harrison’s counsel had mentioned to a staff member that he had read an investigative memorandum of some sort, and a witness identified in it complained that the judge knew of information the witness had provided to Commission staff. When these suspicions were raised at a Commission meeting, the respondent failed to disclose his role in the matter.

Responding to a formal request made by vote of the Commission in March 2000, the Supreme Judicial Court appointed Robert J. Muldoon as special counsel to investigate whether anyone had improperly disclosed confidential information concerning the investigation of Judge Harrison. The respondent was aware of the vote. As part of his investigation, Mr. Muldoon interviewed Commission members and staff. When he interviewed the respondent, who was not under oath or represented by counsel, the respondent falsely denied having any knowledge regarding the disclosure of confidential information about the investigation.

The respondent became concerned that he might be called upon to testify under oath about the matter. He retained counsel to represent him shortly after the interview. He also advised Judge Cavanaugh that he would not lie under oath. On August 30, 2000, the respondent disclosed to the chair of the Commission that he had given Judge Cavanaugh a copy of the investigative memorandum and had disclosed other confidential information. In February 2001, the respondent resigned from the Commission at the request of the chair, and about a year later, Judges Cavanaugh and Harrison both retired from the bench after admitting having interfered with the Commission’s proceedings through their dealings with the respondent.

The foregoing facts are summarized from the subsidiary findings of a hearing committee assigned to hear evidence on a petition for discipline filed against the respondent. We adopt the committee’s subsidiary findings, which the parties do not contest on appeal.

The hearing committee concluded that the respondent violated Mass. R. Prof. C. 8.4(d) and (h) by furnishing confidential information concerning the Commission's investigation to Judges Harrison and Cavanaugh, in violation of his duties as a member of the Commission, and that he violated Mass. R. Prof. C. 8.4(f) by knowingly assisting the judges in conduct that violated applicable rules of judicial conduct or other law. The committee also concluded that the respondent violated Mass. R. Prof. C. 8.4(c), (d), and (h) by failing to make timely disclosure of his actions to the Commission and its special counsel, and by falsely stating to the special counsel that he had no knowledge of any disclosure of confidential information regarding the Commission's investigation of Judge Harrison. We adopt the hearing committee's conclusions of law.

In mitigation of the respondent’s misconduct, the committee found that he had shown sincere remorse for his actions, had cooperated fully with Bar Counsel, had not been motivated by selfish or personal interests, and had engaged in extensive pro bono and charitable activities. The committee gave no mitigating weight to evidence that the respondent suffered from emotional and physical problems; the committee found that he had not demonstrated a causal nexus between these problems and the misconduct. See Matter of Gustafson, 6 Mass. Att’y Disc. R. 140, 143 (1990).

The hearing committee recommended that the respondent be suspended from the practice of law for one year. The parties have filed cross-appeals. The respondent asks that the term of suspension be shortened to three months. Bar Counsel maintains that the appropriate sanction is a three-year suspension.

We turn first to Bar Counsel’s quarrel with the committee’s ultimate finding that the respondent did not intend to influence the outcome of the Commission’s proceeding. Based on the respondent’s testimony, the committee found that his “primary purpose” in agreeing to Judge Cavanaugh’s request for an opinion on the Commission’s investigation was to accommodate a judge. Despite the respondent’s testimony and the committee’s finding regarding his “primary purpose,” Bar Counsel argues, the committee’s ultimate finding that he did not intend to influence the outcome is inconsistent with and unsupported by the subsidiary findings. Bar Counsel relies on Matter of Orfanello, 411 Mass. 551, 7 Mass. Att’y Disc. R. 220 (1992) (per curiam), for the proposition that we may draw our own inference from the subsidiary findings “[r]egardless of the respondent’s testimony about his intention in delivering his opinion about the complaint against Judge Harrison . . . .” Bar Counsel’s Brief on Appeal at 11. The respondent’s brief does not address this issue.

Matter of Orfanello was before the Court on a stipulation of the parties, however, and the Court drew the inference of intent to influence from agreed facts, not in the teeth of a credibility determination to the contrary. Because the hearing committee is the sole judge of witness credibility, we may not tread on such determinations. See S.J.C. Rule 4:01, § 8(4); Matter of Hachey, 11 Mass. Att¹y Disc. R. 102, 103 (1995) (credibility findings may not be disturbed unless “wholly inconsistent” with other findings).

Orfanello is not authority for disregarding credibility determinations.

With this constraint in mind, we have undertaken a careful review of the record, and we have not found a single instance in which the respondent actually testified that he did not intend to influence the outcome of the Commission’s proceeding. His testimony contains statements from which the committee could rightly infer that his “primary motivation” was to accommodate a judge, but even if every word of his testimony is credited, this would not preclude the inference that he also intended to influence the outcome. We note further that a finding as to his “primary purpose” constitutes an implicit acknowledgement that there may have been a secondary purpose, which the Board may make expressly. See Matter of Wise, 433 Mass. 80, 87, 16 Mass. Att’y Disc. R. 416, 425 (2000). Consequently, we may draw, as Bar Counsel requests, our own inferences as to the respondent’s intent in this regard.

We agree that the subsidiary findings support the inference, which we now draw, that the respondent intended to influence the outcome of the Commission’s investigation. We put to one side the notion that he harbored such an intent in the “corrupt” sense of the phrase—i.e, that he sought to “fix” the proceeding by convincing the Commission to take particular action on the complaint against the judge. There is no evidence that he acted with that species of intent. If there were, the appropriate sanction would likely be greater than the three-year suspension Bar Counsel seeks. See Matter of DeSaulnier, 360 Mass. 782 (1972).

Intent to influence the outcome could nonetheless be found if his actions are viewed as confined to nothing more than urging Judge Harrison to accept what the Commission had voted to offer him, a reprimand that the respondent told the two judges he viewed as a “decent disposition.” In other words, he counseled a party to a proceeding pending before him in his capacity as a member of the Commission to accept the tribunal’s proposed disposition, and in support of that advice he revealed the contents of the confidential information he had obtained in his official position. Such actions evince an intention to influence the outcome of the proceeding.

We are cognizant that it might seem anomalous to some to find an improper intent to influence the outcome of a proceeding in encouraging someone to accept the very disposition the tribunal had voted to offer him. The anomaly is illusory, however, for the respondent was himself a member of the tribunal, and he disclosed confidential information to do so. Further, by giving a copy of the confidential memorandum to Judge Cavanaugh, he also should have known he was supplying Judge Harrison with confidential information by which, should he choose to contest the matter, he and his counsel could assess the strength of the Commission’s case and obtain insights into its staff’s theory and strategy for presenting the case.

Given these circumstances, we agree with Bar Counsel that a one-year suspension is inadequate. This is not the case of a stranger to a proceeding communicating ex parte regarding a matter pending before a judicial officer, as was the case in Orfanello, supra (3-month suspension), Matter of Markey, 427 Mass. 797 (1998) (three-month suspension), and Matter of Ryan, 6 Mass. Att’y Disc. R. 275 (1989) (public reprimand). The respondent was himself the “judicial officer,” and in that capacity he revealed to the target of the investigation confidential information and materials prepared by the agency for use in prosecuting and adjudicating the matter. Such circumstances take this case outside the realm of the short suspensions imposed in Orfanello and Markey. Indeed, we would recommend the three-year suspension Bar Counsel seeks even if we had not found intent to influence the outcome of the proceeding. The grievous and offensive character of the respondent’s conduct lies in the betrayal of his duties as a member of the Commission. He secretly met with the target of the Commission’s investigation; he disclosed to the target’s friend a copy of the staff’s highly sensitive report, which he should have known would end up in the target’s hands, thereby compromising the confidentiality afforded witnesses; and he continued throughout to participate as a decision maker in the proceeding against Judge Harrison without revealing his activities or the judges’ overtures to him.

We must also take into account the respondent’s misconduct in failing to disclose his actions when the Commission began to investigate whether a leak had occurred, thus necessitating the appointment of special counsel. Worse, he later made deliberate misrepresentations when questioned by special counsel appointed by the Supreme Judicial Court, and only owned up to his behavior when he realized he might have to repeat his lies under oath.

The respondent’s defense that he was just trying to accommodate a judge bespeaks a complete misunderstanding of his role as a member of the Commission, whose function most assuredly is not to “accommodate” judges, but to examine and resolve complaints against judges in accordance with procedures designed to provide due process to judges and accountability to the public. After failing to say “no” to Judge Cavanaugh when first approached, the respondent launched upon a wholly improper and worsening course of conduct, which entailed participating in conversations that further compromised the judges themselves, concealing information from the Commission, forcing the Supreme Judicial Court to appoint special counsel, and making misrepresentations to counsel it appointed—all as he continued to deliberate as a member of the Commission on the very matter on which he was acting improperly. Such conduct should shock even the most hardened observer.

Against this, the respondent has offered little by way of mitigation. The medical evidence lacked a causal nexus to the misconduct, and the other factors cited by the hearing committee are the kind of “typical” mitigating circumstances identified by the Court as having little force where suspension is called for. See Matter of Alter, 389 Mass. 153, 156, 3 Mass. Att’y Disc. R. 3, 7 (1983); Matter of Anderson, 416 Mass. 521, 9 Mass. Att’y Disc. R. 6 (1993).

Finally, we cannot overlook the extent to which the respondent’s misconduct undermined the integrity and reputation of the Commission. Because judges must make difficult and often unpopular decisions, our state constitution affords them the protection of life tenure. Not only is the integrity of the Commission on Judicial Conduct, the body created to police the judiciary, besmirched by insider activities like those described in the hearing committee’s report, but the integrity of the entire judicial system is called into question. Since the primary concern of bar discipline is the protection of the public and standing of the bar, a one-year suspension for such conduct would be inadequate.

We agree with Bar Counsel that a three-year suspension is warranted.

Conclusion

For all of the foregoing reasons, we adopt the hearing committee’s subsidiary findings of fact and conclusions of law, find additionally that the respondent intended to influence the outcome of the proceedings of the Commission on Judicial Conduct, and modify the suggested disposition. An Information shall be filed with the Supreme Judicial Court recommending that the respondent, Gerald C.J. Cook, be suspended from the practice of law for three years.

Respectfully submitted,
THE BOARD OF BAR OVERSEERS

Alan D. Rose
Secretary

Approved: May 10, 2004

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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