Lawyers, DA respond to prosecutor’s letter accusing defense attorney of unprofessional conduct

  • Dana Goldblatt, the lawyer for Eric Matlock, questions a witness during Matlock’s trial in Northampton District Court, Sept. 26. GAZETTE FILE PHOTO

Staff Writer
Published: 2/25/2019 11:03:40 PM

NORTHAMPTON — A letter to Judge Maureen Walsh from First Assistant District Attorney Steven Gagne questioning whether Northampton attorney Dana Goldblatt should handle cases involving the Northampton Police Department has drawn strong criticism from the legal community. It also has raised the question of whether Gagne has violated the Massachusetts Rules of Professional Conduct.

Marissa Elkins, board president of the Hampshire County Bar Advocate program, wrote a Feb. 20 letter on behalf of the board to Judge Walsh criticizing Gagne’s actions.

Elkins writes that “it is difficult to view First Assistant Gagne’s letter as anything other than retaliation for statements made by Attorney Goldblatt criticizing the Northampton Police, with which First Assistant Gagne clearly disagrees, but are nonetheless constitutionally protected speech.”

Elkins also claims that Gagne’s letter constitutes ex parte communication and that it violates the Massachusetts Rules of Professional Conduct, “prohibiting ex parte communication with a judge regarding open matters over which that judge is or may be presiding.”

Ex parte refers to one-sided communication between a judge or juror and a party in a legal case when the other party is not present. Gagne said he did not consider the communication to be ex parte because it was about a statement in a courtroom — not about a case.

Northwestern District Attorney David Sullivan released a statement Monday to the Gazette defending Gagne’s actions.

“Our First Assistant District Attorney, Steve Gagne, made a complaint to court officials about threatening words spoken in a courtroom by Attorney Dana Goldblatt. These words were about an arresting police officer and were heard by an Assistant District Attorney and two court officers. This written complaint did not violate any Rules of Professional Conduct. It was our obligation to file such a complaint with court authorities as ignoring them would be tantamount to condoning such conduct,” Sullivan said.

Gagne’s letter was sent to Walsh on Feb. 5 and copied to law enforcement and court officials, but not to Goldblatt. The letter alleges that on Jan. 29, in Northampton District Court, Goldblatt was heard by two court officers and an assistant district attorney saying that she either “wanted to kill” or would “like to kill” Northampton Police Officer Andrew Kohl. Kohl was the officer who most recently arrested Goldblatt’s client Eric Matlock.

Goldblatt denies threatening Officer Kohl in the conversation, and the session clerk to whom she allegedly made the comment did not recall hearing it, according to a footnote in Gagne’s letter.

In her letter, Elkins notes that at the time of the allegations, Goldblatt was representing a court-appointed case administered by the Hampshire County Bar Advocate program, or HCBA, and that the HCBA routinely investigates complaints about the performance of bar advocates.

Elkins said the board has found that Goldblatt did not fail to meet any of the Committee for Public Counsel Services standards of representation.

“Further, we very much disagree with First Assistant Gagne’s bare assertion that the alleged conduct, a clearly rhetorical statement that no person present understood to be an actual threat in any way, constitutes a violation of the Rules of Professional Conduct,” the letter reads.

Elkins goes on to note the procedure for getting a lawyer removed from a case involving the state, namely by filing a motion and then arguing for the removal in a hearing.

Of Gagne, Elkins writes, “That he made this request in an ex parte communication not only violates the Rules of Professional Conduct as referenced above, but it undermines the legal requirements of notice and an opportunity to be heard when issues of attorney disqualification arise.”

In his statement, Sullivan said that “Attorney Elkins and our DA office have drastically different opinions about the incident that gave rise to this entire situation, and the manner in which it was reported to the authorities. She has every right to zealously argue and defend her position.”

He added that he found it “unfortunate that someone decided to fan the flames of this disagreement” by releasing Gagne’s and Elkins’ letters to the public, and hopes to sit down with Elkins and her colleagues to discuss the incident and how to deal with similar situations should they arise in the future.

‘Just wrong’

Some legal experts said the matter is problematic and unusual.

“This is asking the judge to take action to remove somebody from cases without giving any notice to that lawyer,” said Jack Cunha, a Boston attorney and former president of the Massachusetts Association of Criminal Defense Lawyers. “That’s just wrong.”

He noted that disqualifying an attorney from a case is rare and that such actions are done through a legal motion, where the attorney in question gets notice and the opportunity to respond.

Gagne has declined to comment on why he did not reach out to Goldblatt about the matter. Attempts to reach Judge Walsh were unsuccessful in recent days.

Stephen Gillers, a professor at the New York University School of Law and the author of the widely used law school casebook “Regulation of Lawyers: Problems of Law and Ethics,” said the allegation in Gagne’s letter “does not, in my view, state a basis for professional discipline.”

“People including lawyers and judges often get excited and use inflammatory figures of speech off the record during contentious litigation,” Gillers wrote in an email to the Gazette.

In his view, the communication was ex parte, Gillers wrote, adding that Goldblatt should have been copied.

“The informality of the letter and its reference to what Goldblatt’s alleged conduct “calls into question” does not, in my opinion, justify noncompliance with Rule 3.5(b), which forbids a lawyer to ‘communicate ex parte with [a judge] during the proceeding unless authorized to do so by law or court order,’” Gillers wrote.

Goldblatt has retained attorney Howard Cooper of Todd & Weld LLP in Boston to represent her. Cooper told the Gazette that the district attorney needs to conduct an investigation as to whether Gagne’s action violated the Rules of Professional Conduct.

“This was an extraordinary event in my opinion,” Cooper said.

Bera Dunau can be reached at bdunau@gazettenet.com.


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