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Confidentiality, large settlements are questioned

By Sacha Pfeiffer, Globe Staff, 6/3/2002

o many of his clients, Roderick MacLeish Jr., who estimates he has represented 400 alleged victims of sexual abuse by priests in the past decade, is nothing less than a hero.

His work on their behalf, they say, has given them a voice after years of painful silence, and has brought them a measure of long-sought justice. His public criticism of Cardinal Bernard F. Law's handling of the Boston Archdiocese's sex abuse crisis has made him one of the country's best-known clergy sex abuse plaintiff lawyers. And his newfound celebrity has resulted in dozens of new clients. But MacLeish's work and that of other attorneys who handle church molestation cases have also come under public criticism.

In the view of their detractors, MacLeish and other lawyers who now condemn church officials for covering up the crisis have contributed to that coverup by signing secret settlements that prevented the scandal from erupting into public view sooner.

In the process, they often won sizable sums of money for their clients -- and themselves, because they routinely took between 30 and 40 percent of those payments. And their financial successes have spurred copycat lawyers eager to try their hand at what has grown to become a lucrative litigation niche.

"Plaintiff lawyers settle cases confidentially all the time," said Paul J. Martinek, editor and publisher of Lawyers Weekly USA, a professional journal. "But if you know your client's been raped by a priest and you settle the case confidentially, knowing that the priest could go out and do it again, your hands aren't entirely clean."

Middlesex District Attorney Martha Coakley has also had harsh words for some attorneys who represent victims of priests, saying in an interview that "the plaintiff lawyers bear some responsibility" for keeping abuse by priests out of the public eye by settling cases confidentially.

Looking back, silence has become hard to take

Boston attorney Laurence E. Hardoon, who took on his first clergy sex abuse client in 1992 and has since handled between 20 and 30 such cases, reflected on his role in this ugly chapter with a twinge of regret.

"If we had any inkling whatsoever of the magnitude of harm that was out there, maybe we, as a joint group of plaintiff lawyers, would have tried to encourage our clients to be outspoken in many cases," said Hardoon, who formerly served as a Middlesex assistant district attorney. "It's hard not to look back and say the greater good would really have been served by the lack of secrecy earlier on."

Jeffrey A. Newman, of the Boston firm Newman & Ponsetto, has represented scores of alleged clergy sex abuse victims, and voiced a public mea culpa over his involvement in a handful of earlier cases that he settled secretly.

"Had I been more astute, I probably could have recognized the problems better," Newman said. "I just never took the time to examine them closely enough."

But MacLeish, Hardoon, Newman, and other plaintiff lawyers also say they were hamstrung by restrictive state laws that limited their ability to press charges against alleged offenders. They also blame legislators for failing, until recently, to require church officials to report suspected abuse. They and others have also pointed a finger at judges, prosecutors, and the press for being too deferential to the church over a long period of time.

They argue they were torn between their obligation to zealously represent their damaged clients, few of whom wanted their personal lives exposed in a courtroom, and the church's reluctance to settle cases without confidentiality clauses. As a result, some legal experts say, secrecy was often the only option.

"If you can get $100,000 or $500,000 for your client and the price of that is silence, the lawyer's sort of in a bind," said Andrew L. Kaufman, who teaches ethics at Harvard Law School and sits on ethics committees for the Massachusetts Bar Association and Supreme Judicial Court.

"Ultimately, it's the client who instructs the lawyer on whether to accept the offer," Kaufman said. "And as long as a confidential settlement is lawful, sometimes a lawyer's got no choice but to accept it."

The widespread use of confidential settlements has prevented the public from learning the extent of other serious problems as well, such as in cases involving product liability. It has sparked a debate in the legal profession about whether the public interest is served by such secrecy.

Because many clergy sex abuse victims struggle with substance abuse, depression, and suicidal thoughts, "it's hard to fault an attorney for settling a case in that circumstance," said David Clohessy, national director of the Survivors Network of those Abused by Priests. Clohessy wondered if some of the hostility felt toward plaintiff lawyers is an inevitable outgrowth of the anger and sense of betrayal stirred by the crisis.

"It's so horrific to think that literally dozens and dozens of priests molested hundreds and hundreds of kids, and that the princes of the church allowed this, that I think people are casting about psychologically," he said. "People want to point fingers, or at least point blame partially elsewhere."

Settlements, secrecy serve many roles

Other plaintiff attorneys offer no apologies for having settled cases in secrecy. Among them is Mitchell Garabedian, whose lawsuits against former priest John J. Geoghan set the stage for the release of thousands of pages of Boston archdiocesan files, which revealed that church officials reassigned Geoghan despite knowing about his abusive past.

Garabedian began handling clergy sex abuse cases in the late 1980s and represented his first Geoghan victim in 1994. To date, the Boston-based lawyer estimates he has represented 250 alleged victims of dozens of priests. Before filing the Geoghan lawsuits, he said, he settled about 30 clergy sex abuse cases, many in confidentiality. Yet he's since come to believe that secrecy causes victims to feel "more unnecessary guilt about the sexual molestation, even if it's years later." So he has vowed that confidentiality will not be part of any settlement in the Geoghan cases.

Still, Garabedian said he harbors no regrets about the settlements he negotiated in secrecy, often at his clients' insistence. "They were embarrassed, and many victims thought they were the only ones," he said.

But with time, his growing sense that "the decay was so deep and wide that it was almost beyond belief" motivated him to file the Geoghan lawsuits.

Jeffrey R. Anderson, a Minnesota lawyer who estimates he's represented more than 1,000 clergy sex abuse victims since taking his first church case in the early 1980s, said he has never agreed to a confidentiality clause, even if it's meant walking away from a potentially lucrative case.

"I am greatly offended by the frequency and number of confidentially settled agreements," Anderson said. By requiring confidentiality, he said, "the church overwhelms lawyers and survivors into silence and secrecy . . . and I don't like it."

Anderson's very public crusade against dioceses that conceal the abuses of predatory priests has made him the nation's most prominent clergy sex abuse plaintiff lawyer. It has also made him very wealthy; he estimates he has won more than $60 million in settlements from Catholic dioceses.

His 20 years spent battling the Catholic Church has made him more than familiar with complaints about laywers like himself.

"We get harshly criticized, but I hail that criticism and I wear it as a badge of honor," Anderson said. "The only equalizer in our system is the courage of the survivors and a few lawyers and our jury system."

Indeed, were it not for the plaintiff attorneys, many of their defenders say, clergy abuse victims would have little means of recourse.

"It should not be forgotten they are doing a job that nobody else did," said Martinek. "Nobody else brought this out and exposed it."

Matters of legality, money come into question

Plaintiff lawyers have also come under fire for publicizing church files released during litigation before knowing whether they would be admissible at trial. The result, say critics like Boston attorney Timothy P. O'Neill -- who in an interview blasted what he calls the "promiscuous public disclosure" of discovery documents -- is trial by media.

O'Neill, who has frequently represented accused priests on behalf of the archdiocese, including several named in current lawsuits, specifically mentioned "PowerPoint presentations." It is an apparent reference to the 2 1/2-hour multimedia event staged April 8 by MacLeish to publicize more than 800 pages of damaging church documents about the Rev. Paul R. Shanley.

And last month, Judge Constance M. Sweeney sharply criticized Garabedian's associate, William H. Gordon, for his role in the premature release of Law's deposition in the Geoghan case. "You blew the rule sky high here and you blew it to the detriment of the defendants," Sweeney told Gordon.

MacLeish steadfastly defends his decision to make discovery documents public, saying, "I think it's absolutely imperative people know the truth."

He said he is fiercely proud of his 10-year history of handling clergy sex abuse cases, noting that many of the 200 or so cases he settled confidentially required abusive priests to leave active service and submit to treatment.

MacLeish, who works for the Boston office of Greenberg Traurig LLP, acknowledged that he received some client referrals from Sister Catherine E. Mulkerrin, the archdiocese's former sex abuse liaison. He also conceded that he required some clients to sign paperwork specifying that although he would represent them in settlement negotiations with church officials, he would not necessarily represent them if they insisted on filing a lawsuit against the church.

But he noted that some allegations were so old they were barred by the statute of limitations from proceeding to trial, making an out-of-court settlement the sole option. He said negotiations were sometimes only a first step in investigating complaints, noting that he has filed lawsuits on behalf of scores of clergy sex abuse clients.

Furthermore, although clergy sex abuse cases have often been a cash cow for lawyers representing victims, many of them note that when the first steady trickle of allegations began in the late 1980s, it was uncertain whether the cases would be money-makers at all.

Hardoon, a member of the Boston firm Brody, Hardoon, Perkins & Kesten, said, "For every case in which I made a significant recovery, there were probably seven or eight others in which I think I made a minimal recovery or was almost working pro bono on behalf of the client."

Added MacLeish: "Are we interested in getting good cases? Of course we are, because we think we can help people. Do we take a fee because of that? Yes . . . Could I be doing trade secret litigation at $500 an hour? Yes. But I choose to do this because I want to make a difference. This is not about money, and anybody who suggests that doesn't know what they're talking about."

The handsome settlements many victims have received from the church have sparked a scramble for new business in what has proved to be a financially enriching field of the law.

Mark M. Rufo, a Nashua, N.H., personal injury lawyer, said he was recently retained by a dozen clients after running ads in several New Hampshire newspapers that listed a toll-free number for clergy sex abuse victims. "Can work for a percentage," the advertisements said.

Rufo, who never handled a church molestation abuse case before placing his ads, is unapologetic about his strategy for landing new cases.

"That's the American way," he said.

Sacha Pfeiffer can be reached at pfeiffer@globe.com.

This story ran on page A1 of the Boston Globe on 6/3/2002.
© Copyright 2002 Globe Newspaper Company.