In re Foley

Summary

The Massachusetts Supreme Judicial Court reviewed the discipline imposed on Steven M. Foley for fabricating a criminal defense and encouraging his client to provide false testimony. The court rejected proposed mitigating circumstances, concluded that the misconduct was deliberate and seriously threatened public confidence in the legal profession, and increased the sanction from an eighteen-month suspension to a three-year suspension.

Holdings

1. A three-year suspension from the practice of law is warranted for an attorney who deliberately fabricates a criminal defense, presents the fabricated story to the prosecutor, and prepares and encourages the client to give false testimony, even though the testimony is never presented at trial.
2. The court reviews a challenged single-justice disciplinary sanction de novo, ordinarily asking whether it is markedly disparate from sanctions in comparable cases, while giving substantial deference to the Board of Bar Overseers' recommendation.
3. The fact that false testimony was never presented in court is relevant to the severity of the sanction but does not mitigate the misconduct of fabricating the defense and preparing the client to testify falsely.
4. Limiting the respondent's cross-examination of the undercover agent did not violate due process because the respondent failed to make a plausible showing that additional questioning would have produced relevant or materially helpful evidence.
5. A prosecutor is not the equivalent of a judge, and presenting a fabricated defense to a prosecutor is not legally equivalent to presenting that defense to a judge in a judicial proceeding, although the distinction does not lessen the seriousness of the misconduct.

Questions Presented

1. Whether the eighteen-month suspension imposed by the single justice was markedly disparate from sanctions in comparable disciplinary cases or otherwise legally unsupported.
2. Whether the circumstances that the client initiated the idea of fabricated testimony, the testimony was never presented in court, the proceeding ended in a nolle prosequi, and the respondent's cross-examination of the undercover agent was limited constituted mitigating circumstances.
3. Whether limiting the respondent's cross-examination of the undercover agent violated due process.
4. Whether describing the fabricated defense to the prosecutor was equivalent to presenting it to a judge for purposes of sanction.

Disposition

reversed_and_remanded