I. Introduction

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

I. Introduction

In the early 1990s, George and Telemachus Demoulas and their families were locked in bitter litigation in a Massachusetts trial court over their grocery business. When the trial judge ruled against Telemachus Demoulas and the other defendants, they faced financial ruin. They were convinced that the judge was biased against them, a perception fueled by their lawyers' assertions that the judge was too stupid to have written the fateful opinion.¹ One of the defense lawyers, Kevin Curry, hatched an elaborate scheme to gain information for use in overturning the decision by approaching the judge's former law clerk (who had assisted the judge with the Demoulas litigation) with an offer of an exotic in-house legal position at a fictitious company. Investigators working for Curry and Curry himself staged several employment "interviews" with the clerk aimed at learning about the judge's decision and acquiring compromising information about the clerk that could be used to blackmail him.² Another lawyer, Gary Crossen, later joined in the ruse, and he lured the clerk to another job interview intended to confirm the information that Curry claimed to have developed through the earlier interviews.³ Crossen finally confronted the clerk following yet another fake interview in an effort to intimidate the clerk into cooperating with the defendants in attacking the trial judge.⁴ The distraught clerk instead went to the FBI and aided agents in a reverse sting operation against Crossen, which in turn led to a grand jury investigation into Curry's and Crossen's conduct. Although the two lawyers avoided indictment, they could not escape professional discipline. In 2008, the Massachusetts Supreme Judicial Court disbarred both Curry and Crossen for their roles in the outrageous scam.⁵

Several years before Curry and Crossen came to professional ruin and miles to the west in Colorado, William Neal killed several women in gruesome fashion and raped another.⁶ He spoke by phone with a sheriff's deputy shortly thereafter, alternating between threats to kill more people and offering to surrender if he could first talk to a lawyer.⁷ Deputy District Attorney Mark Pautler, who was present during the telephone negotiations, posed as public defender "Mark Palmer" to obtain Neal's peaceful surrender.⁸ Pautler never revealed his deception to anyone outside the District Attorney's office. Neal eventually learned of the deception, and Pautler's tactic allegedly caused Neal to so mistrust the real public defender representing him that he discharged the public defender and forged on pro se.⁹ Neither a lawyer nor a good trial strategist, Neal pled guilty to three first-degree murder charges, represented himself in the subsequent death penalty proceeding, and was sentenced to death. The Colorado Supreme Court punished Pautler for deceiving Neal by suspending him from practice for three months, but stayed the suspension during a year's probation on the condition that he complete 20 hours of ethics CLE and retake the Multistate Professional Responsibility Examination.¹⁰ Better than a death sentence to be sure, but still a significant sanction under the circumstances.

In August 2008, a federal jury in California convicted prominent Los Angeles lawyer Terry Christensen and flamboyant private investigator Anthony Pellicano of conspiring to illegally wiretap Lisa Bonder Kerkorian, the ex-wife of Christensen's client, billionaire Kirk Kerkorian. The Kerkorians were...