IN THE MATTER OF STEVEN M. FOLEY.

CORDY, J. A single justice of this court ordered that Steven M. Foley (respondent) be suspended for eighteen months from the practice of law for assisting and encouraging his client in the preparation of a fabricated defense to a criminal complaint. While conceding that his conduct violated the rules of ethical conduct applicable to attorneys, the respondent appeals the punishment imposed as being too harsh and "markedly disparate" from sanctions imposed in similar cases. Because the conduct at issue is pernicious to our legal system, and highly destructive of public confidence in the integrity of the legal profession, we conclude that a suspension of three years is warranted.

1. Background. As part of a broader Federal undercover investigation into alleged corruption at the Boston Municipal Court, a special agent of the Federal Bureau of Investigation

Page 325

(FBI), using the pseudonym Thomas Abate, caused himself to be arrested by Boston police for driving while under the influence of alcohol and illegal possession of a handgun. [Note 1] An unloaded .38 caliber handgun was found in the back seat of the agent's rented vehicle, bullets of the same caliber were found in his pocket, and an open and nearly empty bottle of Jack Daniels whiskey was found in the front seat. Following his arraignment on May 25, 1993, in the Boston Municipal Court, the agent hired the respondent to represent him at the suggestion of a court officer who subsequently pleaded guilty in Federal District Court to an indictment charging him with racketeering. The respondent and the agent, now his client, then discussed the case on many occasions during the course of the representation. Those conversations were secretly recorded. [Note 2]

On June 11, 1993, the agent met with the respondent for the first time to discuss the charges and his defense. At this meeting the agent made clear to the respondent that he had owned the gun for some time, and that he knew it was in the vehicle. The respondent indicated that it would be in the agent's best interest to distance himself from the gun, but that the bullets in his pocket would be problematic. The agent then inquired about testifying falsely with regard to how the gun came to be in his rented vehicle, and the respondent expressed no reservations about his doing so. [Note 3]

During a subsequent telephone conversation on July 6, the

Page 326

respondent told the agent that he had planted the seeds for a fabricated defense in his initial conversation with the prosecutor, and that he would convey the details of the story to the prosecutor at a later meeting after they were more fully concocted. [Note 4] Between July 6 and July 23, the respondent proceeded to fabricate a scenario to explain how the gun came to be in the agent's rented vehicle, and met with the prosecutor to present that fabricated scenario to him. [Note 5]

Page 327

On July 23, the respondent met with the agent to prepare for the trial that was scheduled for July 26. He described the false story that he had made up and told to the prosecutor, and instructed the agent on how to give false testimony in support of that story which was essentially as follows: the handgun actually belonged to a man the agent met for the first time at Zito's, a bar in Boston located across the street from the agent's apartment; the two men drove from Zito's to the Combat Zone area of Boston in the agent's rented vehicle; the man left the gun in the vehicle after the agent convinced him it would be unsafe to carry it in the Combat Zone; so as not to leave a loaded gun in the car, the agent put the bullets in his pocket; the men eventually parted ways in the Combat Zone; the agent picked up a bottle of Jack Daniels whiskey at a nearby package store; the agent got lost trying to drive from the Combat Zone back to his apartment; in frustration, the agent stopped his vehicle and rested until the police picked him up. In order to bolster the credibility of the false testimony that the agent was to give at trial, the respondent repeatedly encouraged the agent to familiarize himself with the scene in the Combat Zone and to imagine somebody to describe as the man who owned the gun. [Note 6]

Later on during the July 23 meeting, the agent expressed reservations about going to trial on July 26, and asked if the

Page 328

respondent could get the matter postponed. The respondent, in

Page 329

the agent's presence, then telephoned the prosecutor, told him

Page 330

(falsely) that his client was out of town for a couple of weeks,

Page 331

and negotiated a continuance. The case was thereafter continued further until the agent defaulted on November 29, 1993. Prior to that default, in subsequent meetings between the respondent and the agent on September 3 and October 20, the respondent again discussed the fabricated story and how it would be used when the case went to trial. [Note 7]

Parallel to this line of defense, and based on discovery he received from the prosecutor, the respondent also began to pursue a motion to suppress the gun that did not depend on the agent's testimony. The motion to suppress was never heard, however, and the case never went to trial, because the charges were nolle prossed when the Suffolk County district attorney learned the true identity of the agent and that his arrest had been part of an undercover investigation.

2. Proceedings before the Board of Bar Overseers. The respondent's misconduct was reported to the Board of Bar Overseers (board) by the United States Attorney's office at the conclusion of its investigation. Bar counsel then brought a petition for discipline before a hearing committee of the board. The tape recordings of the agent's conversations with the respondent were admitted in evidence and played at the committee hearing. The prosecutor and the respondent also testified at the hearing.

Page 332

The agent testified, but only for the limited purpose of authenticating the tape recordings. [Note 8] At the conclusion of the evidentiary hearing, the committee found that the respondent had fabricated a false story for the agent's defense, presented the fabricated false story to the prosecutor, and encouraged the agent to testify falsely in keeping with the fabricated story. It further concluded that this conduct violated S.J.C. Rule 3:07, Canon 1, DR 1-102 (A) (4) and (6), 382 Mass. 769 (1981), [Note 9] and S.J.C. Rule 3:07, Canon 7, DR 7-102 (A) (5) and (7), 382 Mass. 785 (1981). [Note 10] Bar counsel requested that the respondent be suspended from the practice of law for three years, but the committee recommended that respondent receive a public reprimand. The committee's findings and recommended sanction were forwarded to the board, which adopted the committee's findings of fact and conclusions of law; concluded that the respondent had also violated DR 1-102 (A) (5) [Note 11]; and recommended that the respondent be suspended for six months. Two members of the board dissented in favor of harsher discipline (eighteen-month suspension) and two members favored a lesser (unstated) discipline.

Page 333

Bar counsel and the respondent both appealed from the board's recommendation to a single justice of this court, seeking, respectively, a suspension of not less than eighteen months and a public reprimand. The single justice imposed an eighteen-month suspension based on her conclusion that such a sanction was appropriate in relation to sanctions imposed in similar cases. She also concluded that an eighteen-month suspension was warranted in this particular case because the respondent's making false statements to the prosecutor was substantially akin to making false statements to a court. The respondent appealed to the full court, claiming the single justice should have deferred to the board's recommended six-month suspension.

3. Standard of review. Our general standard of review when a disciplinary sanction imposed by a single justice is challenged is whether the sanction "is markedly disparate from judgments in comparable cases." Matter of Finn, 433 Mass. 418, 422-423 (2001). See Matter of Kerlinsky, 428 Mass. 656, 664, cert. denied, 526 U.S. 1160 (1999); Matter of Tobin, 417 Mass. 81, 88 (1994); Matter of Alter, 389 Mass. 153, 156 (1983). But where the case is unique or involves a matter of first impression and is therefore not comparable to previous cases, we "review the decision of the single justice to determine whether it is supported by sufficient evidence, constitutes an abuse of discretion, and is free from any error of law." Matter of McInerney, 389 Mass. 528, 530 (1983). In either instance, our review of the single justice's decision is de novo, but tempered with substantial deference to the board's recommendation. See Matter of Finn, supra at 423; Matter of Tobin, supra.

Fundamentally, however, "[e]ach case must be decided on its own merits and every offending attorney must receive the disposition most appropriate in the circumstances." Matter of the Discipline of an Attorney, 392 Mass. 827, 837 (1984). "The 'primary factor' in bar discipline is 'the effect upon, and perception of, the public and the bar.' " Matter of Kerlinsky, supra, quoting Matter of Finnerty, 418 Mass. 821, 829 (1994). "We must consider what measure of discipline is necessary to protect the public and deter other attorneys from the same behavior." Matter of Concemi, 422 Mass. 326, 329 (1996).

4. Discussion. The board's findings of facts, supplemented by

Page 334

the undisputed evidence set forth in the many tape-recorded conversations between the respondent and the agent, leave no doubt as to the serious nature of the misconduct at issue. What is unusual in this case is our ability to perceive with full clarity the depth of that misconduct and the ready ease with which the respondent engaged in it. The respondent's own words repeatedly reflect complete disregard, if not utter contempt, for the fundamental ethical obligations of an officer of the court.

In assessing what sanction to impose, the single justice considered what she viewed as similar cases, and imposed an eighteen-month suspension that she concluded was "the maximum sanction consistent with our precedent" appropriate to the respondent's serious and deliberate misconduct. She did not defer to the board's recommendation of a six-month suspension because she found it to be based on "unconvincing" findings of mitigating circumstances.

We begin by agreeing that the single justice properly rejected as "mitigating" the circumstances relied on by the board, as well as the board's recommended sanction that was based on those circumstances. In essence, the board found the following circumstances to mitigate the serious misconduct at issue: (1) the agent induced the respondent's misconduct by initially broaching the subject of perjury; (2) the respondent's consideration of using perjured testimony was a brief "flirtation" that he quickly realized was error; (3) the respondent did not actually present the agent's false testimony in court; and (4) the respondent was not able fully to cross-examine the agent at the hearing on his misconduct. For the reasons set forth below, and to the extent they are even supported in the record, none of these circumstances mitigates the respondent's misconduct.

Inducement. While the agent initiated the first conversation about the possibility of fabricating a defense ("Well can we think of a way that maybe . . . the gun got in the car?"), the respondent had a duty to reject any suggestion that a defense could be devised and presented through false testimony. There is no evidence that the respondent was pressured into the course of action he recommended, and rather than rejecting the suggestion he embraced it as his own. He developed the false story, advised the agent to seek out and make up details to ensure his

Page 335

false testimony would appear credible, and passed the fabricated story along to the prosecutor in an effort to influence the outcome of the case. That the agent first raised the subject of fabricated testimony cannot be considered a factor mitigating the respondent's utter failure to reject it.

Flirtation. The board's finding that the respondent only "flirted briefly with using perjured testimony . . . but he 'quickly realized his error' " is belied by the clear record in this case. The respondent adopted the strategy of fabricating a defense during his June 11 meeting with the agent; developed it in full detail over the period of one and one-half months; discussed it twice with the prosecutor during this same period of time; met with the agent on July 23 to lay out the false story and to prepare his perjured testimony; advised the agent to visit the location mentioned in the false story so as to identify credible details to embellish it, and to make up the description of one of the false characters in the story; lied to the prosecutor to obtain a continuance of the July 26 trial date when the agent expressed concern about proceeding to trial so soon; and continued to discuss the fabricated defense strategy with the agent through October of that same year. Hardly a brief flirtation, this was a prolonged and close embrace with false testimony. The fact that an additional plausible defense later became apparent and was pursued by the respondent does not mitigate his undisputed misconduct. Nor should the fact that the proceeding ended with a nolle prosequi, making the fabricated defense unnecessary, be mistaken for a change of heart. The apparent, if not unavoidable inference to be drawn from the respondent's ready willingness to fabricate a defense and prepare false testimony to support it is that this was not an aberration from his normal practice, but business as usual. [Note 12] We will not ignore such an inference. Matter of Orfanello, 411 Mass. 551, 556-557 (1992).

False testimony not presented. Had the case proceeded to trial and the respondent presented the false story he had concocted and the false testimony he had developed (which the

Page 336

record suggests he was fully ready to do), the sanction respondent would be facing most assuredly would have been disbarment. See In re Storment, 873 S.W.2d 227 (Mo. 1994) (attorney disbarred for encouraging client to testify falsely at trial and presenting false testimony); Matter of Edson, 108 N.J. 464 (1987) (attorney disbarred for assisting clients in fabrication of false testimony and presenting false testimony at trial); Board of Overseers of the Bar v. Dineen, 481 A.2d 499 (Me. 1984) (attorney disbarred for knowingly eliciting false testimony at trial from client). "There is no room in the profession of the law for those who commit deliberate falsehood in court." Matter of Sleeper, 251 Mass. 6, 20 (1925) (attorney disbarred for committing perjury). The fact that the false testimony was never presented in court, under oath, surely is a factor to be considered in assessing the seriousness of the misconduct -- indeed, it is the very fact by which the respondent avoids disbarment -- but it does not mitigate the misconduct that has been proved. Otherwise stated, the respondent's misconduct is not mitigated by his failure to commit a more severe offense. Matter of Gross, 435 Mass. 445, 452 (2001).

Cross-examination. The board's finding that "[t]he respondent was denied an opportunity to flesh out potential mitigating circumstances" because the agent testified only to authenticate the tape recordings and the respondent's cross-examination was limited to questions of authentication, cannot serve as a mitigating factor in the absence of any showing of how such cross-examination would have developed specific facts properly considered to be in mitigation of the respondent's misconduct. In his offer of proof concerning the cross- examination he wished to conduct, the respondent identified nothing that would have helped his defense or mitigated the offenses proven by the tapes. [Note 13]

Finally, in addition to the mitigating circumstances recognized

Page 337

by the board, the respondent argues that any sanction should be mitigated because no "true harm" was done. Insofar as his client was actually an undercover FBI agent rather than an actual criminal, the respondent argues that the matter was not "real." This argument misperceives the harm that the ethical rules are intended to prevent. While it is true that additional harm might accrue in the context of an actual case, the most significant harm arising from the respondent's conduct is its effect on the profession and the public's confidence in its integrity. Matter of Kerlinsky, 428 Mass. 656, 664 (1999), quoting Matter of Finnerty, 418 Mass. 821, 829 (1994) (" 'primary factor' in bar discipline is 'the effect upon, and perception of, the public and the bar' "). The harm inflicted by the respondent's actions and words was real, damaging, and serious. Undercover investigations, and the fictions they employ, are intended to capture genuine misconduct that might not otherwise be observed, but that nonetheless erodes our public institutions. The respondent's misconduct has now been brought to light, and the method by which that was accomplished does not mitigate the harm done.

We next consider whether the eighteen-month suspension imposed by the single justice was disparate with discipline in other cases. We decline to adopt the conclusion of the single justice that the respondent's summary of the would-be fabricated

Page 338

defense to the prosecutor as an "officer of our government" was the equivalent of presenting such a defense to a judge in a judicial proceeding. While assistant district attorneys are indeed, like other State or county employees, "officers of our government," as lawyers they hold no special status under the code of conduct applicable to all lawyers. Moreover, the rules governing the relationship between lawyers and judges are different from those that govern the relationship between one lawyer and another. [Note 14] Prosecutors are not judges; their roles and responsibilities in our system of justice are very different. Our rejection of the single justice's notion of equivalence does not, however, affect our view of the seriousness of the respondent's misconduct. That view would be the same no matter who the opposing counsel happened to be, and whether the case was criminal or civil.

In determining that a suspension of eighteen months was appropriate and not disparate, the single justice examined and referenced three disciplinary cases involving what she perceived to be comparable types and degrees of misconduct: Matter of Gross, 435 Mass. 445 (2001) (eighteen-month suspension for soliciting client and alibi witness to engage in impersonation scheme before court); Matter of McCarthy, 416 Mass. 423 (1993) (one-year suspension for eliciting false testimony and presenting false documents in proceeding before rent control board); and Matter of Neitlich, 413 Mass. 416 (1992) (one-year suspension for actively misrepresenting terms of real estate transaction in divorce proceeding). In the context of these cases, the imposition of an eighteen-month suspension for the respondent's misconduct was clearly warranted. But we do not view the misconduct in these three cases to be comparable to the insidious nature of what has been laid bare in the present case.

The misconduct in both Matter of McCarthy, supra, and Matter of Gross, supra, while serious, lacked the depth and heft of

Page 339

the respondent's conduct. Both cases concern the actions of lawyers in the heat of proceedings and without the planning, the premeditation, and the level of manipulation present in the respondent's conduct. Their conduct can fairly be categorized as serious errors of judgment, rather than calculated corruption. The respondent's conduct is the latter. In Matter of Neitlich, supra, counsel's misrepresentation of a real estate transaction in the context of a postdivorce proceeding and his repeated failure to produce all of the documentation related to the transaction, while reflecting a measure of premeditation and deliberateness beyond that present in Matter of Gross, supra, and Matter of McCarthy, supra, remains, however, different in kind from the respondent's affirmative fabrication of a defense and the solicitation of false testimony to support it. In addition, there is no indication that counsel engaged his client in misconduct to nearly the extent the respondent did here. Moreover, not present in any of these three matters is the sense that this was the way in which counsel regularly conducted their practice of law.

In reviewing disciplinary cases previously decided by this court, we have found none of this type, short of those in which the sanction of disbarment was imposed, that is comparable. We therefore must establish independently a sanction adequate to address the seriousness of the misconduct, to reassure the bar and the public that such conduct is completely contrary to the oath of office taken by every lawyer, and to underscore that, when it is uncovered, such conduct will be treated with the utmost severity. In our view, that sanction is a three-year suspension.

Conclusion. We vacate the order of the single justice imposing an eighteen-month suspension and remand this matter for entry of a judgment suspending the respondent for a period of three years.

So ordered.