In many respects, trial practice is like professional athletics.
Talented, highly compensated and driven individuals compete against
each other with the knowledge that victory or defeat is the
ultimate outcome of the contest. Sometimes the competitor operates
singularly; more often, however, the competitor is part of a team
of like minded and equally talented individuals.
As in professional sports, trial practice is played out in
conformity with established rules and against a time clock that
inexorably runs its course and terminates the contest. But, unlike
professional athletes, trial lawyers are officers of the court and
hearken to a higher calling than pursuit of victory alone. The
integrity of the court and its processes and, indeed, the search
for truth, are core values imparted to all lawyers who practice in
In the first paragraph of the preamble to the Rules of
Professional Conduct, we are instructed that "a lawyer is a
representative of clients, an officer of the legal system, and a
public citizen having special responsibility for the quality of
justice." Rule 3.3 mandates candor toward the Court, prohibiting
false statements of material fact or law and failure to disclose
material facts. Rule 3.4 requires fairness to the opposing party
and counsel and prohibits obstruction of access to evidence or the
unlawful alteration, destruction, or concealment of "a document or
other material having potential evidentiary value."
When trial lawyers focus only on victory and lose sight of their
primary role as officers of the court and public citizens with
special duties for the quality of justice, trouble follows. The
risks are great; the fall from prominence to ignominy is swift,
particularly for the high and mighty.
Donovan Leisure Newton & Irvine was a white-shoe, Wall
Street law firm founded in 1929 by General William "Wild Bill"
Donovan, often called the "Father of the CIA." In the late 1970s,
it was one of the top five or six law firms in New York City with
upwards of 200 lawyers in its employ. It was well known and highly
regarded for its defense of antitrust cases and became infamous for
its handling of Berkey Photo, Inc. v. Eastman Kodak.
Donovan Leisure's lead trial counsel on the Berkey Photo
antitrust case was John Doar, the former counsel for the House
Judiciary Committee during President Nixon's impeachment.
Mahlon F. Perkins, Jr., a 59 year old patrician and senior
partner was one of the 30 lawyers assisting Mr. Doar. Mr. Perkins,
the son of a United States diplomat, attended Phillips Exeter
Academy, Harvard College, and Harvard Law School (where he was an
editor of its Law Review). He lived most of his adult life in the
rarified borough of Greenwich, Connecticut.
In the course of discovery, Berkey's lawyers demanded production
of specific documents including correspondence by a key Kodak
witness. Mr. Perkins filed an affidavit in response averring that
that the documents as been destroyed. In fact, he still had
possession of them in his Manhattan office.
Days before final argument, Mr. Doar announced in open court
that an entire suitcase of documents had not been destroyed as Mr.
Perkins had testified. In his closing, counsel for Berkey described
the events as a "sordid spectacle of dissembling, evasiveness,
deception and concealment that disgraces the dignity of this court,
this proceeding, and you jurors." The jury's trebled award totaled
$112.8 million. Kodak fired Donovan Leisure. Some observers believe
that the Kodak case ultimately led to the failure of the law firm
in 1998. Donovan Leisure separated its ties with its senior
partner. More importantly, however, Mr. Perkins was charged and
convicted of contempt of court and sentenced by a federal judge
(and classmate) to a month in jail.
Mahlon Perkins somehow successfully defended disbarment
proceedings. But he never worked at a Wall Street law firm
In a great story of redemption and revival, Mr. Perkins spent
the balance of his career working part time at the Center for
Constitutional Rights and for a small Manhattan law firm, and
volunteering in Greenwich for the symphony orchestra, the library,
the United Way, the National Association for the Advancement of
Colored People, the Audubon Society. See D. Margolick, LAW; The
Long Road Back for a Disgraced Patrician, NY Times, January 19,
Richard P. Campbell is a fellow of the American
College of Trial Lawyers and a past president of the Massachusetts
Bar Association. He founded Campbell Campbell Edwards & Conroy,
P.C., a firm with a national practice, in 1983.
Suzanne Elovecky practices at Todd & Weld LLP,
where she enjoys a diverse complex commercial litigation practice
representing individuals and corporations in contract disputes,
employment disputes, automobile dealership matters, shareholder
disputes, and trademark, trade secret and copyright disputes.
Suzanne is a member of the Women's Bar Association, the Boston Bar
Association, and the Massachusetts Bar Association (Complex
Commercial Litigation Committee; Professional Ethics