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Does life imitate art or does art imitate life?

A recent disciplinary case against an attorney in the state of Massachusetts involves facts that could have been ripped out of a John Grisham legal thriller.

An attorney hoping to get information about a judge sets up a fake job interview with the judge’s law clerk, secretly records the “job interview”, then tries to blackmail the clerk into saying bad things about the judge. The clerk — wisely — goes to the FBI who busts the attorney.

In The Matter of Gary C. Crossen, 880 N.E.2d 352 (Mass.2008), reads like a legal thriller. (Here’s another link to the Crossen case in case the first doesn’t work.)

The facts of the case read like any great legal novel — except in this case they are true:

On July 24, Reid made reservations for “Peter O’Hara” at the Four Seasons Hotel in Boston for an August 2 meeting with the law clerk. On August 1, Crossen, Curry, Donahue, Arthur T., Rush, Reid, McCain, and Henry met at the offices of Crossen’s law firm to discuss strategy for this upcoming meeting.

The participants knew that Reid had told the law clerk that this meeting would be his final “interview” for the British Pacific job. [FN24]

They decided on a free-form interview that would (1) apprise the law clerk of the ruse, (2) serve to determine whether the law clerk would verify the statements attributed to him in Halifax and parts of his New York interview, and (3) gauge the law clerk’s willingness to cooperate with defendants’ counsel by confirming the statements in an affidavit or otherwise. The group also decided to have the law clerk followed after the meeting in case the law clerk attempted to contact Judge Lopez or the Demoulas plaintiffs’ counsel. McCain and his associates were given the job of surveillance.

e. Confrontation of the law clerk. Soon after the law clerk arrived at the appointed suite in the Four Seasons Hotel in Boston, Rush told the law clerk to listen carefully because he would hear something that would send him on the “roller coaster of [his] life” and elicit a range of emotions and “concern for the future.”

But, Rush added, “if you cooperate with us, it will be okay.”

Rush then laid out for the dumbfounded law clerk the details of the British Pacific ruse. The law clerk almost immediately connected the dupery with the Demoulas decision and with Crossen, whom he had earlier seen in the lobby. Rush explained to the law clerk, who by this time was enraged, who his clients were.

Crossen then entered the room. He and the law clerk had words about the motion to recuse, and the ruse.

The law clerk yelled at Crossen for doing nothing to stop the chicanery, and Crossen replied that, while he was not entirely comfortable with the tape recording, he had “inherited the ruse” and it was not something he could stop. He told the law clerk that the present meeting was not being tape recorded because this was not legal in Massachusetts, but that Halifax and New York were one-party consent jurisdictions.

Crossen did nothing to dispel the impression conveyed by Rush that tape recordings had been made of both the Halifax and New York sham interviews. [FN25] The law clerk angrily denied that he had written the entire Demoulas decision and claimed to have been “puffing” when he previously had proclaimed otherwise. He also refused to answer repeated questions about Judge Lopez’s predisposition, saying that the Demoulas defendants had received a fair trial.

Crossen told the law clerk that he could not control what his clients would do with the information they had; that if the law clerk did not “help him” there would be a “missile” fired “that’s out of my control and it’s off, and I don’t know where it goes and what it ends up doing”; that he, Crossen, needed a “candid conversation” with the law clerk “about what really happened here”; and other statements that the special hearing officer, correctly in our view, characterized as threats.

Donahue told the law clerk that, if he did not cooperate with them, the false letter submitted with his bar application would be made public. [FN26]

The law clerk asked numerous times to hear the “tapes” or read transcripts of the Halifax and New York tape recordings himself, but Crossen refused to permit this. After some forty minutes, the law clerk got up to leave. Crossen told the law clerk to retain a lawyer, talk the matter over with his wife, and to telephone either Donahue or Crossen on Monday.

f. Further threats and surveillance. The law clerk was so visibly shaken and upset when he left the meeting that McCain, who was following him, thought he might be suicidal.

The law clerk went to the offices of his employer where named law partner Robert Sullivan found him alone in a conference room, crying. The law clerk told Sullivan what happened. Sullivan promptly contacted attorney Harry Manion, who agreed to represent the law clerk. The law clerk then went home to see his wife. A delivery person appeared at their door with a pizza the couple had not ordered. The law clerk noticed a man with a mobile telephone sitting on a bench across from his apartment house, the same man who had been there when the law clerk had left for work in the morning.

On Manion’s advice, the law clerk began drafting an affidavit. On August 4, the law clerk met with agents of the Federal Bureau of Investigation (FBI), a meeting Manion had arranged. The law clerk’s affidavit and a supplemental affidavit were given to the FBI and also provided to Judge Lopez and her attorney. The Federal agents told the law clerk that his affidavit did not provide substantial evidence of what had occurred and urged him to agree to wear a recording device to capture Crossen’s statements that he had the “tapes,” as well as Crossen’s threats to the law clerk. After some hesitation, the law clerk agreed to do so.

On August 20, after exchanging several telephone calls, the law clerk and Crossen met at the latter’s office. There they had a lengthy conversation, which was secretly tape recorded by the law clerk for the FBI.

The law clerk repeatedly asked Crossen whether he could listen to the “tapes,” claiming that he did not recall some of the statements attributed to him in the sham interviews, and that listening to the tape recordings would help him determine his next steps.

Crossen adamantly refused, telling him “that is just not going to happen.” Crossen did tell the law clerk that the information about Judge Lopez’s predisposition would “come out one way or the other,” and he again urged the law clerk to have a “candid conversation” with him about Judge Lopez’s predisposition. Crossen told the law clerk that, while he (Crossen) could not guarantee that the false bar application letter would not be made public by other counsel, he would do his best to see that the letter was not introduced in evidence or to minimize the damage if it were. The special hearing officer found that the law clerk understood from Crossen’s comments that “if he helped Crossen, Crossen would not bring up the bar letter.”

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