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Constitutional Law

Foley Hoag Represented Boston Municipal Jurist for Free in Judicial Independence Case

Posted Jan 8, 2013 2:34 PM CDT
By Martha Neil

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Updated: Last year, a Boston municipal judge fended off an ethics complaint spearheaded by the Suffolk County district attorney's office, which complained that he was biased in favor of criminal defendants, with the help of one of the city's most prominent law firms.

Now the Boston Globe (sub. req.). is reporting that Foley Hoag provided Judge Raymond G. Dougan with at least $85,000 worth of free legal services. The Boston Business Journal and the Global Legal Post have recaps.

Partner Michael Keating, who chairs the litigation department of Foley Hoag and formerly headed the Boston Bar Association, says the law firm did nothing wrong, noting that he and two other lawyers who did work for the judge have not appeared in cases before Dougan.

"As a private lawyer, I decide how much to charge my clients. Over the years, I have done a great deal of legal work pro bono or at reduced rates," Keating told the Globe, pointing out that he has also worked without compensation for the Judicial Conduct Commission, which oversees legal ethics investigations of judges.

"I have often represented individuals, without regard for ability to pay, when I believed that a lawyer could make a difference in vindicating important principles," Keating continued. In Dougan's case, he said, "that principle is judicial independence."

The Foley firm's nearly two-year representation of Dougan resulted in a landmark ruling by the Supreme Judicial Court of Massachusetts that recognized a "judicial deliberative privilege" precluding the JCC from obtaining Dougan's trial notes in the ethics case launched by the Suffolk DA's office.

However, two observers with knowledge of how the Judicial Conduct Commission operates questioned whether it is appropriate for a law firm to represent an individual judge for free. And the Globe points out that state ethics law in Massachusetts prohibits officials from accepting a number of gifts, which could well include free legal services.

Dougan reportedly has declined comment, but Keating pointed out to the newspaper that the judge disclosed the free legal services in ethics reports to both the state supreme court and the state ethics commission and said neither raised any question about the donation.

Relying on information from unidentified "observers," the Globe estimates that the full value of the legal services provided by Foley Hoag to Dougan could be as much as $250,000, including work done in 2012 for which no disclosure reports have yet been filed.

The JCC complaint against Dougan was dismissed Nov. 30, as another Boston Globe article that was published last month details.

In a written statement (PDF) provided to the ABA Journal on Tuesday afternoon, Foley Hoag said the Globe's story "inaccurately" portrays the law firm's pro bono work for Dougan and said the firm applauds Keating for his handling of the case and is proud of having helped win a supreme court ruling on the judge's behalf that vindicates important principles of judicial independence.

"This case concerned an issue vital to the effective functioning of the judiciary: ensuring that judges are able to make decisions free from the threat of excessive intrusion," the firm wrote. "In addition, offering pro bono services to judges before whom Foley Hoag does not appear is not a violation of any ethical rule."

Foley Hoag said no attorney at the firm has appeared in any case before Dougan since Foley Hoag took on the JCC matter in 2010. Meanwhile, its lawyers rarely appear in municipal court at all, except when representing women and children, pro bono, in domestic violence cases.

"Foley Hoag’s representation of Judge Dougan reflects the firm’s long-standing commitment to pro bono service in matters of public importance," the firm said, noting that lawyers at the firm racked up 27,000 hours of pro bono time on various matters last year.

Last updated Jan. 11 to correctly state that Judge Dougan was accused of being biased in favor of criminal defendants.

Additional coverage:

ABA Journal: "Mind Reading: Judges Can Keep Deliberations to Themselves, Mass. Court Says"

ABAJournal.com: "Prosecutor Wants Lenient Judge Ousted From All Criminal Cases"

ABAJournal.com: "Mass. Judge Under Ethics Probe for Alleged Bias Questions Agency’s Power"

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