IN THE MATTER OF THE DISCIPLINE OF AN ATTORNEY.

MARSHALL, C.J. The principal issue in this case is whether an attorney's conduct that the Board of Bar Overseers (board) concluded neither "flagrantly violat[ed] . . . accepted professional norms" nor "undermine[d] the legitimacy of the judicial process," Matter of the Discipline of Two Attorneys, 421 Mass. 619, 628, 629 (1996), may be sanctionable conduct "prejudicial to the administration of justice" under S.J.C. Rule 3:07, Canon

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1, DR 1-102 (A) (5), as appearing in 382 Mass. 769 (1981), [Note 1] even though the conduct violated no other disciplinary rule. Eleven members of the board voted unanimously that it may not. For the reasons discussed below, we affirm the board's decision. We also consider whether an attorney may invoke G. L. c. 231, § 59H (commonly referred to as the "anti-SLAPP" statute [Note 2]), to recover attorney's fees and costs in disciplinary proceedings. We conclude that, in the circumstances of this case, the attorney may not. [Note 3]

1. Background. The resolution of this case turns on specific facts, which we review in some detail. [Note 4] We begin by describing the respondent's practice and experience.

The respondent has been a member of the Massachusetts bar for over thirty years. He maintains a national practice defending gas and electric utility companies in tort litigation. The respondent has never been disciplined, either in Massachusetts or in any other jurisdiction.

In the early 1980's, the respondent began representing a gas utility company doing business in Massachusetts (client). He has been the client's primary outside litigation counsel ever since, handling over one hundred of its cases. In addition to litigating on the client's behalf, the respondent has advised both the client and its investigators how to respond to claims and

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potential claims resulting from fires or explosions. Among other things, he has helped the client develop and implement protocols for gathering and preserving evidence. The respondent has had and continues to have an interest in protecting the long-term interests of the client.

The respondent's actions at issue here began in 1995. At that time, the respondent represented the client in litigation as a result of a fire in the basement garage of a home. [Note 5] A State trooper assigned by the Commonwealth's fire marshal's office to investigate the fire had written a report concerning the source of ignition that was potentially harmful to the client. [Note 6] In connection with the litigation, the respondent took part in the trooper's deposition, the relevant portions of which occurred on two days, three months apart, when the trooper was unrepresented by counsel. During the course of the deposition, the respondent elicited evidence tending to show that the trooper had little specialized training and little understanding of subjects integral to investigating causes of fires or gas explosions, such as the identities of varying chemical compositions, properties, and explosive limits of gasoline, propane, and natural gas, and the items capable of creating sparks sufficient to ignite gasoline. The respondent also elicited testimony that the trooper did not know how to operate scientific instruments used in fire investigations, such as a gas chromatograph, mass spectrometer, split wire anemometer, and piezometer.

During the second day of testimony, the trooper stated to the respondent, "I request that this hearing be postponed. . . . I

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object to the form of questioning, I object to the argumentative nature of the questions, and I wish advice of counsel. So I request a postponement." [Note 7] The deposition then adjourned over the respondent's objection. The respondent testified to the hearing committee that, when he tried to talk to the trooper, the trooper called him a "jerk," walked out of the room, and called the respondent a highly insulting expletive.

The hearing committee found that, based on the testimony elicited at the trooper's deposition, the respondent believed that the trooper was "incompetent" [Note 8] and "hostile"; he felt the trooper's incompetence and hostility "might adversely impact" his client's "long-standing working relationship with the [f]ire [m]arshal's [o]ffice," "as well as [the client's] legitimate concerns in other fire and explosion investigations." The respondent also, in the hearing committee's words, "thought it would be in [the client's] best interest to have [the trooper] removed from such investigations." Additionally, the hearing committee found that the respondent was not concerned about the effect of the trooper's testimony in the case at hand because he "believed [the trooper's] credibility at trial would be undercut by effective cross-examination."

Two days after the trooper suspended his deposition, the respondent contacted the private fire investigator with whom he was working on the case and asked the investigator to forward a complete copy of the trooper's deposition transcript to the trooper's supervisor in the fire marshal's office, with whom the investigator had a long-standing working relationship. On July

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24, 1995, the investigator arranged to meet with the supervisor so he could personally deliver the transcripts. During the meeting, the investigator told the supervisor that the respondent thought the trooper incompetent to investigate fires. The trooper then joined the meeting at his supervisor's suggestion, whereupon the investigator repeated the respondent's charge of incompetence. [Note 9]

We now summarize the history of the disciplinary proceedings resulting from the challenged conduct.

2. Disciplinary proceedings. The only conduct ever challenged by bar counsel is the respondent's sending of the deposition transcript to the fire marshal's office. On December 2, 1996, an attorney from the office of bar counsel wrote to the respondent notifying him that he had initiated an investigation into that conduct. The respondent, through counsel, vigorously denied any wrongdoing and requested that the inquiry summarily be closed. Almost three years later, on November 15, 1999, bar counsel filed a petition for discipline against the respondent. [Note 10]

Bar counsel charged that by forwarding the deposition transcript to the supervisor, the respondent had attempted to "harass or maliciously injure" the trooper and to "intimidate [the trooper] and/or to influence his testimony." Such conduct, bar counsel charged, violated S.J.C. Rule 3:07, Canon 1, DR 1- 102 (A) (5) and DR 1-102 (A) (6), as appearing in 382 Mass. 769 (1981) [Note 11]; S.J.C Rule 3:07, Canon 7, DR 7-102 (A) (1), [Note 12] as

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appearing in 382 Mass. 785 (1981); and S.J.C. Rule 3:07, Canon 7, DR 7- 106 (C) (7), as appearing in 382 Mass. 787 (1981). [Note 13] On March 20, 2000, the respondent filed an answer denying any misconduct. He claimed that he contacted the fire marshal's office, not to influence the trooper's testimony, but to protect his client's legitimate interests and to protect the general public. The respondent simultaneously moved for an expedited dismissal, which bar counsel opposed. On May 8, 2000, the motion was denied. The respondent's subsequent motions to dismiss the matter at the initial stages also failed. On June 16, 2000, the investigation was referred to a three-member hearing committee for further consideration. The hearing committee held a prehearing conference on June 28, 2000, and hearings on July 31, September 6, and October 31, 2000. [Note 14]

On July 24, 2001, the hearing committee issued its report. The committee members agreed with the respondent that his conduct in forwarding the trooper's deposition transcript was driven, at least in part, by his desire to protect his client's "legitimate concerns in other fire and explosion matters." It also found that the respondent expected that the supervisor, after reading the transcript, would remove the trooper from further fire investigation work and require him to obtain special training, a development the respondent freely acknowledged that he knew "would not help the credibility" of the trooper in the underlying litigation. The hearing committee found no basis for concluding that the respondent's conduct violated

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DR 1-102 (A) (6), DR 7-102 (A) (1), or DR 7-106 (C) (7). However, it concluded that the respondent did violate DR 1-102 (A) (5), because he "attempt[ed] and intend[ed] thereby to improperly influence [the trooper's] testimony." Concluding that the respondent "is an able and experienced advocate, who demonstrated concern for the case-specific as well as the more global interests of his client" and that his "actions were the result of a failure to reflect adequately on the ethical and procedural issues involved rather than an indication of a deliberate intention to violate a rule of ethical practice," the hearing committee recommended that the respondent receive an admonition.

Both parties appealed to the full board. See S.J.C. Rule 4:01, § 8 (4), as appearing in 425 Mass. 1309 (1997). On appeal, bar counsel sought only to increase the sanction for the violation of DR 1-102 (A) (5) to a public reprimand. He did not challenge the hearing committee's factual findings or conclusions of law. [Note 15] In contrast, the respondent challenged many of the hearing committee's findings of fact as unfounded, inconsistent, incomplete, or based on inadmissible evidence. He also argued that the conclusions of law did not reflect "a true and complete reading of the entire facts and record." The respondent sought dismissal of the petition.

On February 11, 2002, eleven members of the board present unanimously voted to do just that. The board adopted the hearing committee's findings of fact. However, they concluded that where, as here, DR 1-102 (A) (5) is the sole basis for imposing discipline, the conduct at issue must be "conduct whose seriousness is beyond question" and that is "flagrantly violative of accepted professional norms." Matter of the Discipline of Two Attorneys, 421 Mass. 619, 628 (1996). The board concluded that, although the respondent's conduct was in some respects "troubling" and not "in the finest tradition of the bar," it was not sufficiently acute to merit sanction under DR 1-102 (A) (5).

At bar counsel's request, the board filed an information in the county court for review of the board's decision. See S.J.C.

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Rule 4:01, § 8 (4). [Note 16] On October 7, 2002, the respondent filed a special motion to dismiss pursuant to G. L. c. 231, § 59H, seeking a stay of the proceedings, expeditious dismissal, and costs and attorney's fees. A single justice reserved and reported the matter to the full court without decision.

3. Discussion. The standard of review for appeals of bar discipline cases is well established. "[A]lthough not binding on this court, the findings and recommendations of the board are entitled to great weight." Matter of Fordham, 423 Mass. 481, 487 (1996), citing Matter of Hiss, 368 Mass. 447, 461 (1975). "[S]ubsidiary facts found by the Board and contained in its report filed with the information shall be upheld if supported by substantial evidence, upon consideration of the record." S.J.C. Rule 4:01, § 8 (4). We, however, "review the board's findings and reach our own conclusion." Matter of Fordham, supra, citing Matter of Anderson, 416 Mass. 521, 525 (1993).

The board correctly identified Matter of the Discipline of Two Attorneys, supra at 628, as our leading case on the reach of DR 1-102 (A) (5), where the rule forms the sole basis for attorney discipline. [Note 17] There we noted that the broad language of the rule "presents the risk of vagueness and arbitrary application," id. at 628-629, and we acknowledged the need to curtail that risk by adopting a narrowing construction. See id. at 629. Finding no controlling precedent, we sought guidance from analogous decisions

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of other State courts. We noted with approval the Florida Supreme Court's conclusion that vagueness and arbitrariness concerns were best answered by construing DR 1-102 (A) (5) to be "not so broad as to include all conduct which is illegal but rather those activities [such as bribery, perjury, misrepresentations to a court] 'which undermine[] the legitimacy of the judicial processes.' " Florida Bar v. Pettie, 424 So. 2d 734, 737-738 (Fla. 1983), quoting Polk v. State Bar of Tex., 374 F. Supp. 784, 788 (N.D. Tex. 1974). We also quoted the New Jersey Supreme Court's statement that "on those few occasions when the rule has served as the sole basis for discipline, it has been applied only in situations involving conduct flagrantly violative of accepted professional norms." Matter of Hinds, 90 N.J. 604, 632 (1982). We concluded that conduct that does not violate any other disciplinary rule cannot violate DR 1-102 (A) (5) unless it is so "egregious" and "flagrantly violative of accepted professional norms" as to "undermine the legitimacy of the judicial process." Matter of the Discipline of Two Attorneys, supra at 628, 629. Accord In re Gadbois, 173 Vt. 59, 67-68 (2001) (adopting "conduct flagrantly violative of accepted professional norms" test).

Bar counsel reads Matter of the Discipline of Two Attorneys, supra, as permitting sanctions under DR 1-102 (A) (5) for any behavior that "by-pass[es]" judicial oversight. We disagree. The open-ended rule that bar counsel urges conflicts with our holding in Matter of the Discipline of Two Attorneys, supra. Moreover, it is so vague as to raise serious due process concerns. The construction of DR 1-102 (A) (5) that bar counsel advances would render potentially sanctionable any attorney communication with any third party during the course of litigation. Due process requires that attorneys, like anyone else, not be subject to laws and rules of potential random application or unclear meaning. See, e.g., In re Ruffalo, 390 U.S. 544, 554-556 (1968) (White, J., concurring) ("an attorney [may not be deprived] of the opportunity to practice his profession on the basis of a determination after the fact that conduct is unethical if responsible attorneys would differ in appraising the propriety of that conduct").

We are cognizant of the view that broad, codified language

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such as that contained in DR 1-102 (A) (5) can never satisfy due process concerns. See, e.g., Restatement (Third) of the Law Governing Lawyers § 5 comment c (2000) (discussing "risk that a charge using only such language would fail to give fair warning of the nature of the charges to a lawyer respondent . . . and that subjective and idiosyncratic considerations could influence a hearing panel or reviewing court in resolving a charge based only on it"); Comment to Rule 8.4 of the Alaska Rules of Professional Conduct (2003) ("Paragraph [d] of the ABA Rules [the successor to DR 1-102 (A) (5)] was omitted because it is too vague"). [Note 18] More persuasive to us is the reasoning of States that have rejected due process challenges of general disciplinary rules on the ground that these ethical rules of the profession "written by and for lawyers . . . need not meet the precise standards of clarity that might be required of rules of conduct for laymen." Matter of Keiler, 380 A.2d 119, 126 (D.C. 1977). See Matter of West, 805 P.2d 351, 355 (Alaska 1991); Matter of Anderson, 247 Kan. 208, 212 (1990), cert. denied, 498 U.S. 1095 (1991); Charges of Unprofessional Conduct against N.P., 361 N.W.2d 386, 394-395 (Minn.), appeal dismissed, 474 U.S. 976 (1985); In re Discipline of Stuhff, 108 Nev. 629, 636-637 (1992); Matter of Holtzman, 78 N.Y.2d 184, 190-191, cert. denied, 502 U.S. 1009 (1991). Having adopted a cabining construction of DR 1-102 (A) (5) to protect the due process rights of attorneys charged with conduct "prejudicial to the administration of justice," we decline to jettison the rule altogether. [Note 19]

Turning to the merits, we conclude that the board correctly

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declined to find a violation of DR 1-102 (A) (5) in the circumstances of this case. Notably, the board did not find that the respondent made any effort to influence the trooper to testify untruthfully or to affect the admissibility of an opinion on which any party to the case was relying. It found that although the respondent realized that his actions were likely to redound to his client's favor at trial, he was motivated at least in part by concerns beyond gaining an immediate tactical advantage. The respondent had a firm conviction, buttressed by his long experience in utilities tort defense, that the trooper was incompetent, and that the trooper's incompetence jeopardized his client's interests. The board found, and no party disputes, that the respondent was particularly concerned that the same "incompetent and hostile" trooper could be assigned to investigate a future incident involving the client, an incident that could well occur sooner rather than later. Like the board, we cannot conclude that the respondent's conduct, however mixed in motive, amounted to the kind of "egregious" interference with the administration of justice inherent in activities that unquestionably violate DR 1-102 (A) (5), "such as bribery, perjury, [or] misrepresentations to a court." Matter of the Discipline of Two Attorneys, 421 Mass. 619, 628 (1996). [Note 20]

Nor can we say that the respondent's conduct violated accepted ethical norms of the profession. Id. "[W]e must balance the . . . obligation to protect the processes of orderly trial with the attorney's obligation zealously to protect the client's interest. In determining whether [punishment] is justified, we must give due weight to the importance of vigorous advocacy. To do otherwise would chill the less courageous attorney in his efforts to represent his client effectively." Sussman v. Commonwealth, 374 Mass. 692, 696 (1978) (concerning criminal contempt during criminal trial). Attorneys communicate their clients' legitimate concerns to third parties all the time. That such communication may also reap strategic benefits for the client while

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disadvantaging the legitimate interests of others at trial does not, in itself, flagrantly transgress professional norms by tainting the administration of justice. Indeed, zealous representation often demands an assertive and adversary approach to the client's legitimate global interests. [Note 21] More generally, we would be loath to punish an attorney who communicates to others nonprivileged information obtained in litigation that the attorney believes will be used to correct a hazardous, illegal, or otherwise improper situation. [Note 22] Here, the respondent's conduct violated no specific statute, rule, order, regulation, or established norm of professional conduct. It did not bear on the outcome of the hard-fought underlying civil litigation. [Note 23] It was a one-time occurrence. It did not involve bribery, corruption, or an attempt to induce false testimony. Viewed in its entirety, the respondent's act of sending the trooper's deposition transcript to the fire marshal's office did not "undermine[] the legitimacy of the judicial processes" in the manner contemplated by DR 1-102 (A) (5). Matter of the Discipline of Two Attorneys, supra at 628, quoting Florida Bar v. Pettie, 424 So. 2d 734, 737-738 (Fla. 1983).

This is not to say that we condone all aspects of the respondent's course of action. We do not. While the respondent had a legitimate basis for bringing his concerns to the immediate attention of the trooper's supervisor, the manner of that communication could have -- and should have -- been handled in a more prudent fashion. As the respondent himself acknowledges,

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he should have communicated his urgent concerns about the trooper's temperament and competence in writing to the fire marshal's office, rather than through the investigator's conversation with the supervisor. He should have informed counsel for the other parties both that he had done so and why, which could have been accomplished by the simple expedient of providing counsel with a copy of the written communication. The letter could have made it abundantly clear that the respondent was acting to preserve his client's longer-term interests and not to affect the litigation improperly. But, where careful lawyering would have counselled openness and specificity, the respondent opted to proceed in an indirect manner that left his motives open to interpretation. The result was nearly one decade of disruptive and costly disputation with bar counsel. [Note 24]

There is a suggestion in the hearing committee's report that the respondent should have availed himself of judicial process to address his concerns once the deposition had concluded. But the respondent's concerns for his client were grave and immediate, and existed apart from the litigation. In this case, the record indicates that the trooper's deposition in the underlying litigation did not resume until almost two years after it was suspended, a period during which the trooper could have been assigned to investigate other matters concerning the client. We do not deny that the respondent might have availed himself of the court's protection to counter the trooper's testimony at the trial level, as the hearing committee concluded. But as the hearing

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committee concluded, the respondent's legitimate concerns went beyond those of the case at hand.

4. G. L. c. 231, § 59H. [Note 25] Lastly, we consider the respondent's motion to dismiss under the anti-SLAPP statute. As we noted in Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 164 (1998), where we examined the legislative history of G. L. c. 231, § 59H, "SLAPPs are by definition meritless suits." Id., quoting Barker, Common Law and Statutory Solutions to the Problems of SLAPPs, 26 Loy. L.A. L. Rev. 395, 399 (1993). "The objective of SLAPP suits is not to win them, but to use litigation to intimidate opponents' exercise of rights of petitioning and speech." Duracraft Corp. v. Holmes Prods. Corp., supra at 161, citing Wilcox v. Superior Court, 27 Cal. App. 4th 809, 816-817 (1994). However, we recognize that, because the Massachusetts anti-SLAPP statute "makes no provision for a plaintiff to show that its own claims are not frivolous," Duracraft Corp. v. Holmes Prods. Corp., supra at 165, the statute could be misused to allow motions for expedited dismissal of nonfrivolous claims in contravention of the Legislature's intent. To address this concern, we adopted a construction of the statute that would prevent dismissal of suits raising "meritorious claims with a substantial basis other than or in addition to the petitioning activities implicated." Id. at 167.

Assuming without deciding both that the respondent's conduct was protected petitioning activity within the meaning of the statute, [Note 26] and that the anti-SLAPP statute applies to bar

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discipline cases, [Note 27] we nevertheless conclude that the respondent has failed to show that bar counsel lacked a "substantial basis other than or in addition to the petitioning activit[y]" for bringing this action. Id. Indeed, bar counsel sought to sanction the respondent for "conduct that is prejudicial to the administration of justice," an undoubtedly meritorious charge if a witness had been influenced by improper means. Bar counsel's objective was not "to intimidate [the respondent's] exercise of rights of petitioning and speech," [Note 28] id. at 161, but to discipline the respondent for what bar counsel saw as an inappropriate attempt to influence a witness's testimony. As discussed above, the less than careful means of communication employed by the respondent left his conduct at least open to the interpretation urged by bar counsel, and bar counsel thus had a "substantial basis" for bringing the disciplinary action. For this reason, we hold that the anti-SLAPP statute does not apply to the actions in this case, and we deny the respondent's request for attorney's fees and costs. [Note 29]

A judgment shall be entered in the county court affirming the decision of the board and denying the respondent's special motion to dismiss.

So ordered.