Victory Sometimes Precedes the Trial

By David Hechler
National Law Journal
June 2, 2003

Attorney: Roderick MacLeish Jr.
Firm: Greenberg Traurig
Case: Ford v. Cardinal Bernard Law, No. 02-0626B [Middlesex Co., Mass., Super. Ct.]

Sometimes a lawyer wins even before a case goes to trial.

Roderick [Eric] MacLeish scored some of the most important victories of his career last year, even though his case hasn't even had a pretrial conference.

The 50-year-old lawyer has successfully represented clients in a variety of high-stakes litigation. He defended the city of Miami when it was sued by its former police chief for racial discrimination and he defended an entrepreneur sued by Siemens A.G. and Nortel Networks Corp. in a multibillion-dollar claim of misappropriation of trade secrets. He likes to alternate commercial litigation with cases that focus on employment law or public policy issues.

But MacLeish is best known for his representation of plaintiffs who claim that, as children, they were sexually abused by Roman Catholic priests. His first foray into this area was in 1992, when he represented 101 plaintiffs who sued the Rev. James Porter. Porter eventually pleaded guilty to rape charges and was sentenced to 18 to 20 years in prison. The church settled the lawsuits for an undisclosed sum. "At the time it was the largest amount the church had ever paid to settle a case with a single perpetrator," MacLeish said.

Following Porter, MacLeish continued to handle sexual abuse cases, but in 2001 they occupied only 10% of his time. Last year that exploded to about 85%.

It turned out to be the Year of the Documents. MacLeish and other lawyers managed to pry loose 45,000 pages from the archives of the Boston Archdiocese. It was the first time, he said, that church officials released records covering the entire diocese and made them public. But they didn't do so voluntarily, he said. They fought every inch of the way, throwing up a First Amendment defense. Even when he won, he had to file motions to secure compliance with court orders.

Many of the most damaging documents involve the Rev. Paul Shanley, who allegedly abused dozens of children in Boston and elsewhere. Shanley was arrested in San Diego last May and extradited to Boston to face child rape charges.

Though Shanley's name appears on virtually every page of MacLeish's complaint, he isn't a defendant. The defendants are the archdiocese's corporate entity and church officials who were allegedly informed of Shanley's conduct beginning in the 1960s and were negligent in failing to protect plaintiff Greg Ford, who claims he was repeatedly molested by Shanley over a half-dozen years, beginning when he was 6 years old.

The named defendants are Cardinal Bernard Law, who resigned his position as head of the Boston Archdiocese last December, and two priests who were his aides-Thomas Daily, now bishop of the Brooklyn, N.Y., Diocese and John McCormack, bishop of the Manchester, N.H., Diocese.

Though MacLeish is the first to say he had plenty of help in the paper chase, he is the lawyer who has battled longest in Boston, the center of the storm, and he led the way. A trial is still a long way off, and documents continue to trickle in, but already, MacLeish said, they've had a major impact.

The documents paved the way for MacLeish's deposition of Law, which took eight days that began last June and ended in January. The documents and the depositions, in turn, were largely, if not entirely, responsible for Law's resignation. MacLeish also believes they made possible the settlement the Manchester Diocese reached in December with that state's attorney general to avoid criminal prosecution. It required McCormack, who worked with Law until 1998, to acknowledge publicly that the church had "contributed to the endangerment of children."

The documents also provided ammunition for an unprecedented lawsuit in which the church is essentially suing itself. In April, the Diocese of San Bernardino, Calif., sued the Boston Archdiocese for transferring Shanley west without mentioning the allegations that trailed him.

Though the Ford case has received the most attention, it is by no means MacLeish's only case against Shanley or the church. He represents 22 people who allege that Shanley molested them; eight are in litigation. Overall, he represents about 240 plaintiffs suing the church.

Two of his clients settled cases against Shanley for confidential sums in 1994. At the time, MacLeish said, Shanley "didn't stand out." He had no sense of the magnitude of the priest's activities. Church officials told him that Shanley wasn't in active ministry. "I believed what I was told," said MacLeish, who added that it was a mistake to take their word. "We all wanted to believe. We all hoped that this wasn't widespread."

The mistake he has never made that other lawyers have, he said, is "taking the money and running." He won't agree to a settlement in which a priest is permitted continued access to children, or a plaintiff is constrained from cooperating with the police. Nor will he threaten to go to the police or the press to extract a settlement. "It's close to extortion," he said. "I think it's unethical."

His clients were faced with a difficult choice shortly before the first cache of Shanley documents surfaced. They were asked by a superior court judge to accept a gag order, at least temporarily, in exchange for the papers. They refused. When the documents were finally released, in April 2002, MacLeish, 24-year-old Greg Ford and his parents [who are also plaintiffs] held a press conference that lasted more than two hours and drew dozens of television crews. It was, MacLeish said, a turning point. Within days, Law was summoned to Rome, and within two months he became the first sitting cardinal ever to be deposed.

It's terribly important in these cases, MacLeish said, to be sensitive to your clients' needs. "You're talking about people who have already been betrayed once. You have to be very careful not to do that again." To clients who see their lawyers as authority figures, he explained, failing to return phone calls can feel like betrayal.

Dealing with the media can also present special challenges. "Find out what your client wants, and don't put your ego ahead of the client's interest," he advised. "Fully inform your client that when you talk to the media, you lose control. There are real risks."

His first rule: "Always tell the truth. If you don't tell the truth, they will stop listening and they will expose you." But there's another, more subtle, message he also tries to convey: "There's going to come a time when the media move on and they're not calling anymore. It can be hard for the client if they feel like they're being forgotten."

There are lessons to be gleaned from his bruising battle for documents. "Don't rely on the other side to tell you what documents they have." Depose their keeper of records and become an expert yourself, he said. Ultimately, he obtained documents on 139 priests who allegedly molested children-far more than the church had originally acknowledged.

Once a lawyer obtains the goods, MacLeish said, there's a temptation to scan them into a database and forget the originals. While database software is an essential tool, he and David Thomas, an associate at his firm, pored over the originals. About half of the key pages were handwritten or included handwritten notes, some cryptic and some in code.

It was almost like learning a new language, he said, but the payoff can be enormous. Sometimes notes tell not only what priests were doing, but which officials knew-and when they knew it.