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Commonwealth of Massachusetts

NO. BD-2006-016


S.J.C. Order Accepting Resignation as a Disciplinary Sanction entered by Justice Greaney on March 1, 20061


In 1999, the Commission on Judicial Conduct was investigating the respondentís conduct during a zoning board hearing he attended in Gloucester. The respondentís spouse represented one of the parties. The respondent was then the presiding justice of the Gloucester district court.

In the spring of 1999, another judge, who was a social friend of the respondent, met with Gerald Cook, a member of the Commission, whose office was located in the other judgeís judicial district. During the meeting, Cook agreed to furnish the judge with an opinion of the likely outcome of the pending investigation of the respondent.

Later in that spring, Cook met with the respondent at the Gloucester district court. Cook told the respondent that his conduct at the zoning board hearing would probably result in a public reprimand from the Commission. The respondent stated that he would resign from the bench first.

It was then the Commissionís practice to distribute to its members in advance of its meetings an investigative memorandum for each matter that the Commission would consider. On September 7, 1999, Cook received a copy of the investigative memorandum concerning the respondentís conduct at the zoning board hearing.

Cook attended and participated in the Commissionís deliberations on September 14, 1999, including those on the respondentís matter. He did not make any disclosure to the Commission concerning his communications with the respondent or the other judge.

In disciplinary proceedings against Cook, Cook admitted and the board found that Cook met with the other judge at the Malden district court on September 22, 1999. Cook told him about the outcome of the Commissionís deliberations concerning the respondentís matter. During the meeting, Cook delivered to the other judge a copy of the Commissionís confidential memorandum of its investigation of the respondentís conduct at the zoning hearing.

Sometime between September 22 and November 5, 1999, a copy of the Commissionís confidential memorandum of its investigation of the respondent was delivered to the respondent in an envelope from the Malden district court. Rather than returning the memorandum to the Commission, the respondent read it in full and never notified the Commission.

Upon the Commissionís request, the Supreme Judicial Court appointed special counsel to investigate this conduct by the respondent and the other judge. On February 15, 2002, the respondent and the Commission agreed that he would retire from the bench in resolution of the allegations that were pending before the Commission. The respondent admitted that he received, unsolicited, a confidential document of the Commission regarding a separate complaint that was then pending before the Commission against the respondent, thus interfering with a confidential Commission proceeding, and that he read the document rather than returning it to the Commission or notifying the Commission that he had received it. The Commissionís proceedings and documents relating to them are subject to the confidentiality provisions of G.L. c. 211C, ß 6, and Commission Rule 5.

Cook resigned as a member of the Commission on February 12, 2001. He was suspended from the practice of law for three years, effective December 10, 2004. Matter of Cook, 20 Mass. Attíy Disc. R 100 (2004).

On August 25, 2005, bar counsel filed a petition for discipline against the respondent. The petition alleged that the respondent had communicated with Cook, while Cook was a member of the Commission, concerning the Commissionís confidential investigation of the complaint against him, and that the respondent had read and used the information in the memorandum, thus interfering with the Commissionís inquiry and assisting Cook and the other judge in violating the laws protecting the confidentiality of the Commissionís proceedings. The petition alleged that these actions violated Canon One and Canon Two (A) of the Code of Judicial Conduct, and Mass. R. Prof. C. 8.4 (a), (d), (f), and (h).

On February 3, 2006, the respondent filed an affidavit of resignation pursuant to S.J.C. Rule 4:01, ß 15. In the affidavit, the respondent admitted discussing the Commissionís investigation of him with Cook in the spring of 1999 and receiving, reading, and failing to report receipt of a copy of the Commissionís confidential memorandum.

On February 13, 2006, the Board of Bar Overseers voted to recommend to the Supreme Judicial Court that the respondentís affidavit of resignation be accepted as a disciplinary sanction. On March 1, 2006, the Supreme Judicial Court for Suffolk County entered judgment accepting the respondentís affidavit of resignation as a disciplinary sanction.

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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