COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT
THE
TRIAL COURT
SUFFOLK, SS.:
THOMAS MOORMAN,
)
Plaintiff, ) C.A. No. 93-7220-D
)
v. )
PHILLIP CAMPBELL, individually, and )
as Commissioner of the Department of Mental )
Retardation, et al. )
Defendants.
)
PLAINTIFF'S MEMORANDUM IN SUPPORT OF ITS MOTION
TO COMPEL DISCLOSURE OF STATEMENTS OVER
DEFENDANTS' CLAIM OF ATTORNEY-CLIENT PRIVILEGE
Nature of the Motion
This is an action against the Department of Mental Retardation (the "Department" or "DMR") and certain of its employees who engaged in a longstanding and coordinated effort to retaliate against plaintiff, and others(1), for publicly speaking out against certain DMR policies. DMR has a policy of censoring internal investigations and reports to avoid embarrassing the Department and to conceal its own negligence. Pursuant to its policy, DMR and its employees have restricted both internal and public statements by DMR employees which reflect negatively on the Department, even when such statements are required by statute or regulation. Additionally, DMR has punished individuals who violate this policy of concealment and engaged in a widespread pattern of threats, intimidation and coercion.
DMR and its employees have retaliated against plaintiff and others for their basic beliefs and and their communications to: the Office of the Inspector General of the Commonwealth of Massachusetts (the "IG"), the Office of the Attorney General of the Commonwealth of Massachusetts (the "AG"), the Disabled Persons Protection Commission of the Commonwealth of Massachusetts (the "DPPC"), members of the legislature of the Commonwealth of Massachusetts, and the press. This retaliation violated their rights under the First and Fourteenth Amendments to the United States Constitution, Articles 16 and 19 of the Declaration of Rights and G.L c. 149, Sec.185.
The Plaintiff wishes to depose attorney-defendants Kim Murdock and Alfred Gray as to their planning and execution of a plan to stifle the rights of of the plaintiff, and to retaliate against him for his exercise of protected speech. Plantiff also wishes to propound questions to the non-lawyer defendants as to conversations with and in the presence of the lawyer defendants.
The defendant-lawyers have played a pivotal role in choreographing and implementing this retaliation.(2) They assert attorney client privilege to place a veil of secrecy over the smoking guns of their planning and execution of their conspiracy.(3) They assert attorney-client privilege as to conversations with the other defendants, as well as conversations between the other defendants which took place in their presence. The lawyer-defendants were not legal advisors, but active Department managers, decisionmakers and implementers of Department policy.
Statement of the Facts
Tom Moorman has been employed by the Department and its predecessor agency for almost 25 years. Presently, he is employed as a Quality Enhancement Specialist, in region II of DMR. Exhibit B.
Defendants Murdock and Gray are General Counsel and Deputy General Counsel of DMR. They have been active participants in the coordinated effort to silence criticism and to punish and retaliate against the Plaintiff for his protected speech.(4)
Since 1987, Moorman has been certified by the Office of Affirmative Action, as a handicapped person. This was as a result of certain neurological problems in his neck and back. To relieve the pain and to avoid exacerbating the condition, he is required to perform mid-day exercises around the lunch hour, on a regular basis.
Since 1987, Moorman's medical condition has been known to DMR. And DMR has made a reasonable accommodation to allow for his need for regular physical therapy. Any time that he missed, as a result of a prolonged lunch hour, was made up by working compensatory time. This reasonable accommodation had been made during his tenure as Director of MR Services, then as Investigations Coordinator in Region 2, and Region 4.
However, there was a dramatic shift after he spoke out about the wrongful acts of his superiors in covering up substantial cases of abuse by DMR and its employees. His speaking out caused two of his superiors to leave their jobs, and others to suffer punitive transfers or suspensions. The reports in the newspapers and other media caused widespread embarrassment at DMR.
Since that time he has been functionally demoted from his job as Investigations Coordinator with wide ranging responsibilities for supervising investigative work in central Massachusetts and for training that Region's Investigators, to the entry level position of Quality Enhancement Specialist, where he has no supervisory responsibilities. There had been an erosion of his ability to have time for mid-day physical therapy sessions. This had resulted in a deterioration of his physical condition, producing chronic nerve pain. He had attempted to resolve this with his supervisor without success.
On August 19, 1994, Judge White granted a motion herein for a preliminary injuction sought to prevent the defendants from retaliating against Moorman by denying him the medical leave recommended by his doctors. Exhibit C. Moorman was suffering from spinal nerve injuries agravated by stress and severe depression. The injunction was made necessary because when Moorman sought medical leave, DMR denied his request, and informed him that he could not return to work without medical certification that he was fit for work, but that he could not be on medical leave, because the defendants of this then pending suit were not satisfied that he was ill. He was put on unpaid, unauthorized medical leave, and told that if he did not satisfy the defendants that he was sufficiently ill or satisfy them that he was sufficiently well within a short period of time, he would be subject to dismissal. Apparantly,Judge White was sufficiently satisfied that he had presented a prima facie case, a probobility of success on the merits of retaliation, to justify the injunction.
The decision to deny medical leave and this implementation of particulary venal effort at retaliation was with the advice and actual assistance of the attorney-defendants.
Q And did Aimee Munnings confer with you with respect to this request for medical leave by Tom Moorman?
A No.
Q What, if anything did you do upon receipt of this note from the doctor that was provided to you by her?
A Filed.
Q Did you at any time discuss the issue of Tom Moorman's request for medical leave with anyone other than Aimee Munnings?
MR. HOLMES: Obviously I'm going to caution you not to say anything in terms of comments or conversations that you had with Al [defendant Gray] and myself concerning this issue.
A No.
Q I would specifically ask you whether you had any discussions with Al Gray?
A Yes.
Q --regarding this issue.
***
Mr. Maxwell: Are you directing your client not to answer with respect to any discussions she may have had with Al Gray?
Mr. Holmes: Yes, concerning the--Al Gray at the time was first assistant general counsel serving primarily in the labor category. Labor dispute area.
***
Mr. Maxwell: Okay. I think these are -- this is part of a series of issues we will have to reserve for Court resolution.
Mr. Holmes: That's fine. I assumed that we would.
Mr. Maxwell: No argument. May I presume any questions I have with respect to discussions Ms. Cerreto would have had with Kim Murdock would similarly be subject to the same direction and objection?
Mr. Holmes: Absolutely, considering she's the general counsel. Yes. [ Exhibit
D, Deposition of defendant Cerreto, pages 79 to 81.]
In her deposition, defendant Cerreto goes on to explain that the chain of command went from Plaintiff Moorman, through Aimee Munings, through Gail Grossman to her. She futher testified that all discusions between her and her subordinates regarding Moorman's request for medical leave were had with and in the presence of attorney-defendants Gray or Murdock. Kim Murdock directly participated in this attempted retaliation. Exhibit D, Cerreto deposition, Exhibit 7 therein. Attorney-defendant Gray confirms that that the conversations had with respect to the determination to deny Moorman medical leave were had in the presence of himself and attorney defendant Murdock, and that the attorney-defendants were part of the decision making process. Exhibit E, Gray deposition pages 13- 18. It is also worth noting that part of the reason Moorman was denied medical leave, allegedly, was that his claim should have been filed as a workers' compensation claim.(5)
Previously, the defendants had attempted to use both corrupt inducements and harrasments and threats in an effort to silence employees. As part of the conspiracy, in an effort to silence public criticism by former plaintiff, David DeBatto, attorney-defendant Gray prepared a draft settlement stipulation, offering to place DeBatto on leave, while he would receive 60% of his salary. In return for these payments DeBatto was to agree not to provide information to the media concerning his employment with DMR, and in particular, his beliefs concerning investigations or the investigations division of DMR. Additionally, the draft stipulation provided that if DeBatto should become employed by any employer, governmental or private, he would not conduct any investigations against DMR, its vendors or its providers. Exhibit E,Gray Deposition, page 9, line4 - page 11, line 3, and exhibit 2 thereof. Gray candidly admits that after speaking with defendant Campbell about what Gray should do, Gray oferred DeBatto money if he would refrain from expressing his beliefs about unlawful activity at DMR, and refrain from any future investigations of the Department. He then goes on to assert attorney-client privilege as to his conversations with his coconspirator, defendant Campbell.(6)
Gray also asserts the attorney-client privilege as to all discussions he has had with the defendants herein as to past and present plans to "discipline" or terminate Moorman. Exhibit E, Gray deposition pages 18 - 19. Discussions among the DMR defendants have been and continue to be ongoing as to whether he should be fired or otherwise sanctioned for criticisms he has made of DMR policies to the public and to legislative hearings.
Mr. Maxwell: No, I'm specifically asking, has he [Moorman] in the past done anything that in her [defendant Cerreto] belief would subject him to either an oral warning or any disciplinary proceeding?
Mr. Holmes: My objection stands. Answer if you can Mary.
A. Yes.
Q. And what such statements do you believe fall within that category?
A. Those -- the discussion of those statements, right now I'm going to claim
attorney-client privilege because they are under discussion with Al Gray.
[Exhibit D, Cerreto deposition, page 45]
So it would seem all efforts to harrass, coerce, intimidate or retaliate against Moorman, including ongoing efforts, and including the denial of his medical leave, resulting in the preliminary injunction, are done under the cloak of attorney-client privilege.
In the affidavit of Michael Landry, a former defendant herein, he tells us of a secret file that supervisory staff had compiled on Moorman. Exhibit F, para. 2. No such file has been produced in discovery.
On November 2, 1992 Morman had a meeting with defendants Misilo and Cerreto. Exhibits B and G. This meeting was one of many wherein DMR informed Mooorman that if he avoided any controvercy he would be rewarded, but that if he engaged in protected speech or further reporting of corruption and unlawful conduct at DMR, he would suffer the consequences.
On October n21, 1994, Mr. Moorman wrote a memorandum to defendant Murdock describing what he thought to be an illegal and dangerous situation, requesting legal advice. Exhibit H. In the memorandum, he requested that the communication be held in confidence because of prior retaliations. What ensued was the release of his memo to his superiors (Exhibit I), and further retaliatory action. Exhibit J.
In their answer to the Amended complaint, the defendants represented by the Office of the Attorney General, concede that Landry participated in secretly altering a sexual abuse investigation report of Moorman's, at the direction of his supervisors, and that they attempted to prevent and punish Moorman for trying to bring the facts to light. The fact that the suppression of first amendment freedoms took place, and that punishments were meted out for the exercise of free speech, is beyond controversy.(7) The issues for trial are: what was the scope of the conspiracy? Who merely looked away, and who actively participated? The assertion of attorney-client privilege in this case, is nothing more than an effort to place blame for all outrageous conduct on lower level employees, and to insulate the policy level defendants from the consequences of their policies.(8)
Argument
I. There Is No Attorney-Client Privilege for DMR Attorneys.
It is still an open issue as to whether public clients have an attorney-client privilege. District Attorney, Plymouth Dist. v. Middleborough, 395 Mass. 629, n. 4 (1985). In that case, the Court held that the board of selectmen could not meet privately with an attorney for legal advice on the effects of a proposed contract for rubbish disposal without violating the open meeting law. In essence, government information, that is otherwise available, does not become unavailable because it is said to an attorney for the purpose of legal advice.
In many jurisdictions, and on the federal level, there exists a "governmental privilege" or executive privilege to protect the candid unconstrained communication and exchange of ideas between executive policy makers and their advisors. In this Commonwealth, no such privilege exists. Babets v. Secretary of Human Services, 403 Mass. 230 (1988). The Babets Court balanced the need for private communcations amongst governmental employees with a plaintiff's very real need to prosecute an action for the vindication of his constitutional and statutory rights allegedly violated by the defendants, and declined to recognize the privilege.
There are two important distinctions to be made. Plaintiff does not seek discovery of conversations or material made with the Attorney General's Office in defending this suit, nor does he seek discovery of anything in which anyone was consulting an attorney, as a private citizen, for personal legal advice. These types of attorney-client information are not in issue here. The materials sought are the communications between and amongst DMR personnel for the purpose of formulating and executing policy. This is the precise material the Babets Court held not to be privileged. Defendants assert attorney-client privilege exists purely because these policy advisors happen to be attorneys.
The fact that the Midleborough selectmen consulted an attorney did not abrogate the open meeting law, and the fact that some of the instant defendants are attorneys, does not sheild their actions from discovery. See, Proposed Mass. R.Evid. 502 (d) (6) which lists as an exception to attorney-client privilege:
Public officer or agency. As to communications between a public officer or
agency and its lawyers unless the communication concerns a pending investigation,
claim, or action and the court determines that disclosure
will seriously impair the ability of the public officer or agency to process
the claim or conduct a pending investigation, litigation, or proceeding in
the public interest. [Emphasis supplied.]
II. The Crime-fraud Exception to the Attorney-Client Privilege Applies.
The doctrine of attorney-client privilege has long been recognized by the common law. "Whatever facts, therefore are communicated by a client to a counsel solely on account of that relation, such counsel are not at liberty, even if they wish, to disclose; and the law holds their testimony incompetant." Alexander v. U.S., 11 S. Ct. 350 (1891), citing Chirac v. Reinicker, 11 Wheat 280, 294. However, the Alexander Court also recognized the doctrine that, where a communication is made to counsel in furtherance of a scheme to commit a crime(9), the client is not entitled to the privilege, citing Queen v. Cox, 14 Q.B. Div 153. Proposed Mass R. Evid 502(d)(1) provides:
There is no privilege under this rule:
(1) Furtherance of crime or fraud. If the services of the lawyer were sought
or obtained to enable or aid anyone to commit or plan to commit what the
client knew or reasonably should have known to be a crime or fraud.
Moreover, an attorney engaged in the practice of law in the Commonwealth , may not counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent. S.J.C. Rule 3:07, Cannon 7, DR 7-102 (A) (7).
The complaint herein, and specifically the exhibits to the instant motion, detail the concerted efforts of the defendant-lawyers acting in concert with the other defendants to silence, and then to punish and retaliate against the plaintiff and others for their efforts to report widespread illegality, corruption and abuse of mentally retarded citizens, and their other protected speech. Specifically, the defendant-attorneys engaged in an offer of the payment of money in return for silence on the widespread coruption in the investigation of abuse within DMR, participated directly in an effort to harras and terminate Moorman, when he requested medical leave, and in ongoing efforts to terminate Moorman for his protected speech. Moorman's beliefs as to illegality, and the need to report a condition involving prostitution and drugs to the Disabled Persons Protection Commision, through his seeking the legal advice of DMR General Counsel, resulted in him being temporarily, removed from work responsibilities.
It is enough to defeat the claim of attorney-client privilege, when a party makes a prima facie showing that the conversations alleged to be privileged related to an intended or ongoing illegality, that the conspiracy might inure to the benifit of the person invoking the privilege, and that he might be a participant. Matter of Doe, 551 F.2d 899, 901 (2d Cir. 1977). Moorman has made a prima facie showing that the conversations alleged to be protected by the attorney-client privilege related to an intended and ongoing illegality, and that the parties invoking the privilege were involved. The reason for the distinction between past and ongoing or future wrongdoing is that the privilege is designed to encourage those who may have committed a prior wrong to seek protection of their rights; the attorney-client privilege is not designed to encourage those planning to commit a wrong to obtain legal assistance in their endeavor. Munn v. Bristol Bay Housing Authority, 777 P.2d 188 (Alaska 1989). To overcome a claim of privilege, a party need only make a prima facie showing of a violation sufficiently serious to defeat the privilege, and establish some relationship between the communications at issue and the prima facie violation. In Re Sealed Case, 754 F.2d 395, 399 (D.C. Cir. 1985). Here, there is no question but that there has been intended, future and ongoing activities involving the supression of and retaliation for protected speech. There has also been established a great deal more than "some relationship" between the communications with and in the presence of defendants Murdock and Gray and the underlying conspiracy as alleged in the complaint.
An attorney may reveal ... Confidences or secrets when ... required by law or court oder. S.J.C. Rule 3:07, DR 4-101 (C)(2). Therefore the defendant-attorneys and the other defendants herein, should be denied the protections of the attorney-client privilege with respect to Murdock and Gray.
Respectfully submitted,
THOMAS MOORMAN,
By his attorney,
Eric S. Maxwell
BBO# 557787
ACLU Foundation of Massachusetts 99 Chauncy Street
Suite 310
Boston, MA 02111
(617) 482-3170
Dated: November 20, 1995
1. Initially, this suit was filed on behalf of three plaintiffs, Tom Moorman, Kate Hamilton and David DeBatto. The three fell victim to the same conspiracy. The claims of Hamilton and DeBatto have been settled, and their participation in this lawsuit as plaintiffs has ceased. But their allegations of the conspiracy by the defendants and the numerous acts by the defendants in furtherance of this conspiracy remain as a nececessary part of Moorman's proof of the underlying conspiracy, its participants, and their acts in furtherance of the conspiracy.
2. Plaintiff submits that there is no attorney-client privilege, applicable to DMR attornies. See, District Attorney, Plymouth Dist. v. Middleborough, 395 Mass. 629 (1985). Moreover, even if there were, the instant facts fall within the crime-fraud exception. In the Matter of John Doe Grand Jury Investigation, 408 Mass. 480 (1990)
3. This fantastic allegation is not unprecidented. On October 6, 1995, in Behavior Research Institute, Inc. Inc. v. Campbell, Docket No. 86E0018-GI, Justice LaStaiti found that high ranking DMR officials were deliberately untruthful on the witness stand, had expended public funds to pursue baseless allegations, had authorized unfounded ethical attacks, and launched investigations on Court personnel, all of which constituted pervasive public corruption. Exhibit A-2, Conclusions of Law, page 17. DMR's counsel acted with intransigence and defiance with respect to court orders,and asserted attorney-client privilege, when there was no basis in fact or law, in a transparent effort to prevent discovery of material harmful DMR's case. Exhibit A-1, Findings of Fact, page 85 . The Court also found that lawyer-defendant Murdock willfully perpetrated a fraud upon the court, which finding was forwarded to the Board of Bar Overseers. Exhibit A1, pages 82 - 87. Additionally, Judge LaStaiti ruled that where discovery sought may shed light on government malfeasance, the attorney-client privilege should be denied. Exhibit A-2, Conclusions of Law, page 15.
4. The Amended and Supplemental Complaint in this case consists of 34 pages and 176 allegations relating to this conspiracy. This memorandum will detail a few of the more compelling and undisputed acts of the defendant-attorneys, in executing and obstucting any investigation of this unlawful retaliation.
5. This is indeed a strange argument. He is denied medical leave because it may be covered by workers' compensation. His claim would be covered by workers' compensation if its cause was work related. If it was not work related, workers' compensation would not have provided for it, but he would still be entitled to medical leave. Moorman was not obligated to assert his rights under workers' compensation, if he elected to take medical leave utilyzing time he had accrued as sick, personal and vacation days, under his contract. This was yet another frivolous legal argument concocted by defendant Murdock, to punish Moorman for his protected speech.
6. These acts were and remain part of the allegations of this complaint. They establish that an effort to silence dissent existed, who the persons were who were involved in this effort, what acts were done in furtherance of the effort, and the scope and purpose of the effort.
7. "I can only speak from personal experience with regard to the white-out incident that has, that was termed the commissioner's investigation that I was envolved in. And it was clear to me that management had exerted improper authority over the Moorman investigation report through the actions of Lynne Chapman and Ellen Bikelman and Michael Landry." Exhibit K, Misilo deposition, 2-38.
8. See Exhibit L,Settlement Agreement between Kate Hamilton and DMR, para. 6, wherein DMR agrees to clear her name and personel files, and achnowledges "that certain mistakes were made by Department personel regarding handling some of the matters put in issue by this lawsuit and regrets that these mistakes were made. By this settlement Agreement, the Department affirms the principles set forth in G.L. c. 149, Sec 185, the 'Whistleblower Statute'."
9. Because this is not a criminal proceeding, each crime is not specifically catalogued and every element thereof established. It is enough to provide evidence of the common law crime of conspiracy to commit an unlawful act. Commonwealth v. Dyer, 243 Mass. 472 (1922) cert. Den. 262 U.S. 751 (1923). See, Commonwealth v. Gill 5 Mass. App. Ct. 337, 341 (1977)(confirmed the continued vitality of the Dyer rule where A)the execution of the plan by group action will cause such significant harm to an individual or to the general public as to be seriously contrary to the public interest, and B) where the unlawfulness of objective or contemplated means is substantial and clear).