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In Law's corner

Defending the Cardinal, a leading lawyer must roll with the punches

By Don Aucoin, Globe Staff, 9/5/2002

ne night in the early 1950s, the phone rang in the Milton home of Dr. John and Barbara Todd. Their teenage son Owen ran to answer it.

The voice on the other end asked for Dr. Todd, then the chief of surgery at Carney Hospital. When young Owen asked who was calling, the voice answered: ''Cardinal Cushing.'' Rolling his eyes, the teenager retorted: ''Yeah, and this is the pope. Who's calling?'' From the phone came a burst of laughter. ''It is the cardinal,'' said the voice, unmistakably that of the legendary Cardinal Richard Cushing, apparently calling Dr. Todd for medical advice.

The smart-aleck kid who answered the phone is now 66, but he still winces at the memory. ''I almost passed out,'' he says.

Not much has made J. Owen Todd flinch since then. He has spent four decades as a trial lawyer and four years as a judge, winning considerable respect along the way. When he was named the personal attorney for Cardinal Bernard F. Law four months ago, many Boston lawyers thought Todd could win a settlement of the lawsuits against the cardinal that stemmed from the priest sex-abuse scandal.

That may still happen. But at the moment, Todd is feeling some heat. On Tuesday, he told reporters that ''a tentative agreement'' had been reached in which the Archdiocese of Boston would pay $10 million to 86 plaintiffs who are suing defrocked priest John J. Geoghan. Yesterday morning, Mitchell Garabedian, the lawyer for the plaintiffs, flatly called that ''inaccurate.'' Later in the day, the Rev. Christopher Coyne, an archdiocesan spokesman, also denied it, saying it was ''premature at this point to anounce that there is a settlement ... because

that is not the case.'' By late yesterday afternoon, TV news reports were describing Todd as having ''jumped the gun.''

In an interview late yesterday, Todd did not seem rattled by the day's turn of events. ''We're just taking the position that we'll wait,'' he said. ''If Mitchell Garabedian has more work to do on his end, that's fine. Whenever he's ready, we're ready.''

Todd was asked to join the cardinal's legal defense team in May by Wilson D. Rogers Jr., a longtime attorney for the archdiocese. Yesterday's retreat apparently hasn't diminished Rogers's regard for Todd. ''I am not disappointed that I recommended Owen Todd for this position, to be of help,'' Rogers said yesterday in a rare interview. ''I think he has been of help, and I look forward to continuing working with him.''

Todd has built a double-edged reputation. On the one hand, he is seen as a hard-nosed, aggressive lawyer, the kind you turn to when you're in deep trouble. In court, he has displayed equal parts erudition, preparation, and a certain stage presence that admirers call confidence and detractors call arrogance. For him, Todd says, ''there's something very calming about a courtroom.''

On the other hand, Todd is seen as someone who can appeal to reason in forging settlements between warring parties, in part because of his experience as a Superior Court judge. ''He's someone that I think is going to play a very important role in getting these cases resolved, whether by trial or by settlement,'' says Roderick MacLeish Jr., a lawyer for several plaintiffs suing Law for negligent supervision of the Rev. Paul R. Shanley, who is accused in several child sex abuse cases. ''In terms of the archdiocese's lawyers, I'd put him at the top, in terms of skills and being someone we can talk to - even though we are adversaries.''

As if to underscore the adversary point, Todd vigorously challenged MacLeish in his first appearance on behalf of Law. During the cardinal's pretrial testimony in June, Todd frequently interrupted MacLeish and told him he would do so as often as he deemed it necessary to protect Law's rights. ''We're not sitting here as potted plants,'' Todd told his rival, reprising a remark made by a lawyer for Colonel Oliver L. North at an Iran-Contra hearing.

''When we believe that your questions are repetitive, harassing, and abusing the process, it is our duty to intercede and to protect our client,'' Todd said.

Performances like that may explain why Todd's emergence as part of Law's legal team caused a ripple in the Boston legal community. David Yas, a lawyer who is editor of the Massachusetts Lawyers Weekly, says: ''Nothing against Will Rogers, but when Owen Todd got on the case, a lot of people said: `Well, now you've got a fight on your hands.'''

Fencing with real swords

Sitting in his 31st-floor office downtown, with sweeping views of the city below, Todd answered questions in an unhurried cadence, like a man used to having his say. He cuts an urbane, even judicial, figure. As a former partner at Hale & Dorr and in his present firm, Todd & Weld, he has become known for a dry wit and an old-school courtliness. It is often said of him, according to Yas, that ''he can't walk into a cocktail party without coming out with a client.''

However, he is also reputed to be an aggressive combatant in a courtroom. ''It's like fencing, except with real swords,'' says a veteran defense lawyer, Thomas Hoopes. ''He'd never stab you in the back; you're going to see the sword. But you'd better watch out, because he's going to run you through.''

Todd is clearly at home in the world of ideas - in his spare time he reads biographies and dense tomes on particle physics - but he gets a gleam in his eye when he talks about boxing. The second of three boys, he was taught how to box by his father, beginning at age 4. The son kept at it through St. Sebastian's Country Day School in Newton and at Harvard, where he became a Golden Gloves welterweight. His innate impatience, his need for variety, was satisfied whenever he laced up the gloves. The profession he ended up in, the law, is marked by delay and shades of gray, but inside a boxing ring, life was boiled down to its all-or-nothing essentials.

''When I would get into a ring,'' he said, ''I would think, `Thank God, the waiting is over.'''

At Harvard, Todd loaded up on science courses, preparing to follow his father's footsteps into medicine. After graduating in 1957, he went to work collecting blood samples at the now-defunct Long Island Hospital.

But one day, after listening to the groans of a man who was dying of cancer, Todd realized he wasn't cut out for a medical career. ''I can't spend my life this way,'' he said to himself. He enrolled at Boston College Law School.

In May 1960, fresh out of law school, the 24-year-old Todd filled out an application to the Massachusetts Board of Bar Examiners. Question 19 asked: ''Why do you want to become a lawyer, and what in general are your plans, or hopes, if you should be admitted to the bar?'' Todd's painstakingly printed reply read, in part: ''The law should satisfy my desire for competition, contest, and respect.''

He has sought, and has often found, those qualities ever since. In his first day at Hale & Dorr 40 years ago, Todd looked around the offices and said to himself, ''Everybody in here is smarter than me, but no one can work harder than me.'' His years of working 60-plus hours a week stretched into decades. In his 40th-anniversary report to a Harvard alumni newsletter, Todd said he was starting to ''give some thoughts'' to retirement. Now, in what could be the biggest case of his career, he is no longer giving that much thought. ''Retirement for me would be if I no longer had to work nights and weekends,'' he says.

Although Todd is a Catholic devout enough to say a prayer on his daily walk from his Beacon Street home to his State Street office (''I pray to the Holy Spirit for wisdom, the Virgin Mary for patience,'' he says), he had not met the cardinal until four months ago.

Now, Todd's task is to represent the cardinal's personal legal interests. Law is a defendant, accused of negligence, in the Shanley lawsuits and in two dozen of the lawsuits stemming from the alleged sexual abuse of children by Geoghan.

In other words, the stakes are high. And the issue at the heart of it is not new to Todd. As a Superior Court judge from 1988 to 1992, he presided over a wide array of cases, but the ones he found most troubling involved the sexual abuse of children. Todd says he was struck by how pedophiles were able to ''put up a screen'' that made it ''hard to tell whether they are, or aren't, telling the truth.''

A father of four, with seven grandchildren, Todd admits that ''it was very hard for me to deal with those'' cases. Asked whether those feelings have been an issue in his representation of the cardinal, Todd chooses his words carefully: ''It hasn't to date, and we just haven't gotten down to that level at this point.'' Asked his overall opinion of Law, Todd says: ''I must say, I do like him, from what I've seen of him. He's very bright and has a very high sense of integrity. I think he's very holy.'' When they're not discussing issues relating to the lawsuits, Todd likes to quiz Law on religious subjects, asking him, for instance, how many people were present at the Ascension. He has yet to stump the cardinal, Todd says.

Todd says he agreed to take the case because ''it's an important case in terms of the future of the Archdiocese of Boston. I hoped I could make a difference, that I could bring to the case my mediation skills as well as my trial skills.''

He is often called upon as a mediator by other lawyers; in fact, MacLeish says Todd once ''did a very good job'' in mediating a case in which MacLeish represented a college accused of age bias.

''If you're having the problems the cardinal's having, you want the best person you can get; not just a legal eagle, but someone with good judgment,'' says former governor Michael S. Dukakis, a Democrat who appointed Todd, who's a Republican, to the judgeship in 1988. ''And Owen has that.''

Most of those who have come forward to allege abuse at the hands of priests are adults now. Todd concedes: ''It would be a challenge for me if I had to interrogate a victim who was still young and force that victim to relive that torment.'' But he adds: ''If I felt that it was necessary for the thorough and accurate defense of the case, and I believed it was part of my duty to do so, I would do it.''

Like most people, Todd had been following the case through media accounts. He thought that at times MacLeish and Garabedian, the attorney for alleged victims of Geoghan, were ''too aggressive in trying their case in the press.'' He also came to believe that the lawyers for the archdiocese should ''be more proactive in talking to the press.''

''I like talking to the press, as long as it doesn't entrench on the canons,'' Todd says.

Preferring facts to law

Despite his regard for those ''canons,'' Todd figured out early on that ''the law - a body of law, a code of law - was something I was not interested in.'' What did interest him was the opportunity to walk into a courtroom and argue the facts of a case, using ''every bit of information you had picked up in your life, including the funny papers,'' to win it.

In his 30 years at Hale & Dorr and his decade at Todd & Weld, which he formed with Chris Weld, Todd has had his share of high-profile cases. He has represented former Boston Celtics player Marcus Webb, who pleaded guilty in 1993 to sexually assaulting his former girlfriend; the partners of Boston attorney Morris Goldings, who pleaded guilty in July to stealing $17 million from colleagues and clients; various parties in bitter family court battles involving the DeMoulas grocery chain and Legal Sea Foods; and New Bedford Superior Court Judge Ernest B. Murphy, who is under fire by law enforcement officials who argue he has been too lenient with sex offenders.

Todd has found politics to be a bumpier realm than the law. Two years ago, he acquired a short-lived feather in his cap when he was appointed to the state Ethics Commission by Governor Paul Cellucci. But he quickly resigned after the Globe reported that with Todd's appointment, Cellucci had named one too many Republicans to the panel. (Under state law, only two of the three gubernatorial appointees to the five-member board can come from the same party.)

After Todd resigned, Secretary of State William F. Galvin criticized Cellucci for appointing him, because at the time of his appointment to the commission, Todd was providing legal assistance to a group seeking state and city backing for a new Red Sox stadium. Todd also had a contract from the Cellucci administration to represent the Massachusetts Housing Finance Agency in a lawsuit.

Todd said he saw no conflict, because his work on the stadium proposal consisted solely of consulting on land acquisition issues. If a conflict with his MHFA legal work had arisen while he was on the Ethics Commission, he would have recused himself, he said. State law allows commission members to hold state contracts in some cases. ''For the short time I was there, I found it fascinating,'' he says now. ''I was sorry I wasn't going to be able to continue.''

Even in his accustomed arena of law, Todd is finding that the spotlight can burn. This week, as he has done so often, he might be thinking of the late James D. St. Clair, with whom he worked at Hale & Dorr. St. Clair specialized in pressure-cooker situations. He served as defense counsel to former president Richard M. Nixon when Nixon was threatened with impeachment over the Watergate scandal, he chaired a commission investigating corruption in the Boston Police Department in 1991, and he was, Todd says, ''a personal hero of mine.''

Despite yesterday's setback, Todd still believes a settlement is possible in the cases that have convulsed the archdiocese all year. ''There really is no intelligent alternative,'' he says.

Don Aucoin can be reached at aucoin@globe.com.

This story ran on page E1 of the Boston Globe on 9/5/2002.
© Copyright 2002 Globe Newspaper Company.