In re Crossen

Attorney Gary C. Crossen contests an information filed in the county court by the Board of Bar Overseers (board) recommending that Crossen be disbarred for his part in an intricate plan to discredit a Superior Court judge presiding in an ongoing matter in which he represented some of the litigants. The aim of the plan was to influence the outcome of the litiga*535tian by forcing the judge’s recusal and obtaining reversal of her prior rulings against Crossen’s clients. In furtherance of the scheme, Crossen, with his own investigators posing as corporate executives, set up and secretly made a tape recording of a sham job interview for a former law clerk of the judge, during which the law clerk repeatedly was questioned about the judge’s personal and professional character and her decision-making process in the ongoing matter involving Crossen’s clients. Although the “interview” with the law clerk did not yield the information Crossen had hoped, Crossen did not change course. He redoubled his efforts to malign the judge for the benefit of his clients by using a tape recording of the interview to coax and then threaten the law clerk into providing sworn statements damaging to the judge, which the law clerk otherwise would not have made.

Bar counsel alleged that Crossen’s conduct violated S.J.C. Rule 3:07, Canon 1, DR 1-102 (A) (2) and (4)-(6), as appearing in 382 Mass. 769 (1981),1 and Canon 7, DR 7-102 (A) (5) and (7), as appearing in 382 Mass. 785 (1981).2 The matter was tried to a special hearing officer appointed by the board. The board adopted, with minor exceptions, the special hearing of*536fleer’s extensive findings and conclusions, as well as her recommendation that Crossen be disbarred. A single justice reserved and reported the matter to the full court.

We adopt the board’s recommendation. The record leaves no doubt that Crossen was a willing participant, and at times a driving force, in a web of false, deceptive, and threatening behavior designed to impugn the integrity of a sitting judge in order to obtain a result favorable to his clients. The scope of this misconduct has scant parallel in the disciplinary proceedings of this Commonwealth. This was not conduct on the uncertain border between zealous advocacy and dishonorable tactics, a border about which reasonable minds may differ. It struck at the heart of the lawyer’s professional obligations of good faith and honesty. Crossen’s conduct was so egregious and extensive that no reasonable attorney could have believed it comported with the solemn ethical obligations of attorneys. It caused harm to the orderly administration of justice, as well as to the law clerk, the judge, and their families, and it harmed public confidence in the legal profession.

We reject Crossen’s argument that the prevailing ethical standards at the time were at best ambiguous about the propriety of attorney participation in the kind of “sting” operation at the center of this case. Nor do we credit Crossen’s contentions that the special hearing officer was obligated to accept the testimony of Crossen’s expert on legal ethics; that Crossen was improperly singled out for disciplinary action; that he was otherwise deprived of due process of law; or that the sanction of disbarment is markedly disparate from sanctions for similar conduct. We remand the case to the county court where a judgment of disbarment shall enter.

We turn now to the background of this case. Our recitation of the facts is necessarily lengthy because of the range of the respondent’s claims and the severity of the sanction we impose.

*5371. Background.3 Crossen was admitted to the Massachusetts bar in 1977 and soon thereafter became an assistant district attorney in the Suffolk County district attorney’s office, serving primarily in the organized crime division. Among his duties in the division was to supervise undercover investigations and serve as a “point person” for court-authorized wiretaps of alleged organized crime figures. In 1983, Crossen joined the newly created New England Organized Crime Drug Enforcement Task Force in the Boston office of the United States Attorney, becoming in turn chief of the General Crimes Unit and of the Criminal Division. At the United States Attorney’s office, Crossen handled criminal cases, supervised undercover investigations, court-ordered wiretaps and one-party consent tape recordings, and participated in decisions to immunize witnesses. Crossen left government service in 1988 to join a large Boston law firm, starting as “counsel” and becoming a partner specializing in criminal and civil litigation.

a. Demoulas family litigation. As with its companion case, Matter of Curry, ante 503, 506 (2008) (Curry), this disciplinary proceeding is one more offspring of a family dispute among members of the Demoulas family, recounted at length in Demoulas v. Demoulas Supermarkets, Inc., 424 Mass. 501, 504-509 (1997), and Demoulas v. Demoulas, 432 Mass. 43 (2000). See also Demoulas v. Demoulas, 428 Mass. 555 (1998). For a summary of the issues in these family disputes, see Curry, supra.

The background to this disciplinary proceeding begins in 1994, when Crossen filed an appearance for Frances Kettenbach, daughter of Telemachus Demoulas, in the shareholder derivative suit filed against Telemachus, his wife, and their children4 by members of the George Demoulas branch of the family. See Curry, supra at 507. One of Crossen’s first actions as counsel in that case was to file an “emergency motion” for recusal of Superior Court Judge Maria Lopez, or in the alternative, for an evidentiary hearing on the recusal motion before *538another judge. The essence of the emergency motion was that Judge Lopez’s actions in a former case involving the Demoulas family dispute had demonstrated bias against Crossen’s clients. See Demoulas v. Demoulas, 432 Mass. 43, 45 (2000). The emergency motion was denied.

The suspicion of bias on the part of Judge Lopez did not end there. In 1996, Crossen hired a private investigating firm to investigate a rumor that Judge Lopez had been seen dining with the lead counsel for the George Demoulas branch of the family at the Charles Restaurant, a business owned by Judge Lopez’s husband (Charles Restaurant investigation). By late spring of 1997, when the events in this case began to unfold, Crossen was contemplating whether to file a second motion to recuse Judge Lopez from the shareholder derivative case based on the Charles Restaurant allegations. The matter was urgent. This court had upheld Judge Lopez’s decision in the shareholder derivative matter, as well as her denial of the “emergency motion” to recuse, and had remanded the case to the Superior Court where Judge Lopez would preside over further proceedings.5 See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 503-504 (1997). Looming were accountings and a merger of assets that would deprive Telemachus’s family group of much of their control of the family businesses and fortune, this despite millions of dollars in legal fees that had been paid by that group to prominent Boston law firms and attorneys.6 The contemplated second recusal motion was an attempt to stop, or at least slow, the merger of assets and its attendant divestment of a substantial portion of Crossen’s clients’ assets by disqualifying Judge Lopez and, ultimately, having her previous findings and orders set aside.

We turn now to the key events in this disciplinary proceeding against Crossen.

b. Preparations for a sham interview. On June 8, 1997,7 a Sunday, Crossen met with Arthur T. Demoulas (Arthur T.) *539at the latter’s request at the Demoulas corporate offices in Tewksbury. There Crossen learned for the first time that, in 1995, Arthur T. had hired attorney Kevin Curry and two investigators, Ernest Reid and Richard LaBonte, to conduct a “pretext investigation ... to figure out who wrote the Demoulas decision.”8 Arthur T. told Crossen that Curry and LaBonte, using assumed identities, had met with a former law clerk of Judge Lopez (law clerk) in Halifax, Nova Scotia, under the pretext of interviewing the law clerk for a position as in-house counsel for a sham multinational corporation. Arthur T. reported that the law clerk claimed to have written the entire Demoulas decision, and that Judge Lopez had signed the decision without reading it. More significantly, Arthur T. told Crossen that the law clerk had said that Judge Lopez had told him (the law clerk) who the winners and losers, the “good guys” and the “bad guys,” were going to be before the shareholder derivative suit began. Crossen dismissed as “not that big a deal” the information concerning authorship of the Demoulas decision, but he was troubled by the information that Judge Lopez had prejudged his clients’ case.

That same day Crossen met with Arthur T. and another attorney for the defendants, Richard K. Donahue,9 to discuss the import of the Halifax interview. Crossen testified before the special hearing officer that he considered his only options at the time to be ignoring the information, incorporating it into a motion or pleading or complaint, or investigating further to determine the truth. At the time, Crossen testified, he did not “give[ ] a whole lot of thought to the issue of the propriety” of Curry’s communications with the law clerk.

Some time after the June 8 meetings, Crossen received a signed affidavit from Curry in which the latter averred that during the Halifax “interview,” the law clerk on four separate occasions had disclosed Judge Lopez’s predisposition against Crossen’s clients; that the law clerk claimed to have written the *540Demoulas decision himself; and that the law clerk had submitted a letter attesting his fitness for admission to the Massachusetts bar that was written by someone whom the law clerk did not know. See Curry, supra at n.19. Soon after receiving Curry’s affidavit, Crossen decided to procure tape-recorded statements of the law clerk by interviewing and secretly tape recording him in a jurisdiction that permits one-party consent, which Massachusetts does not. See G. L. c. 272, § 99 (B) (4) & (C) (l).10

Crossen then set about to implement his plan. He directed an associate at his law firm to review the laws of Canada and a Caribbean jurisdiction (either Bermuda or the Bahamas) to determine whether one-party consent to tape recording communications was permitted in either jurisdiction. To assess Curry’s credibility, Crossen also directed the associate to discover what he could about Curry. In addition, Crossen met personally with Curry to discuss the information Curry claimed he had learned from the law clerk, and what to do with it. Among other things, the two men discussed continuing the mse and secretly tape recording the law clerk’s statements in a one-party consent jurisdiction such as New York or Bermuda. At some point in early June, Crossen also discussed the surreptitious tape-recording plan with Donahue. Donahue questioned Crossen about the propriety of such an investigation; he testified before the special hearing officer that Crossen “said he was having [the matter] looked into, and that he was not concerned with it and that basically I shouldn’t be.”

Between June 9 and June 12, Crossen consulted about the planned subterfuge with Donahue, Curry, and others, including two private investigators who were working with Crossen on *541the Charles Restaurant investigation, Stewart Henry and Joseph McCain. The group decided that the law clerk would be asked to go to the Four Seasons Hotel in New York, a one-party-consent jurisdiction, for a “further interview” for an in-house counsel position with a phantom multinational reinsurance firm, British Pacific Surplus Risks, Ltd. (British Pacific). See Curry, supra at 512, 516-517. Unbeknownst to the law clerk, the interview would be tape recorded. The group’s plan was to catch the law clerk unawares by having him repeat the assertions Curry claimed he had made in Halifax concerning Judge Lopez’s predispositions about the Demoulas decision. At that point, Crossen would “brace,”11 or aggressively confront, the law clerk with the tape recorded-statements in order to gain his cooperation in giving an affidavit or sworn testimony against Judge Lopez.12

The group decided that Reid, resuming his guise as a job consultant, see Curry, supra at 510-511, would contact the law clerk about interviewing with some British Pacific “decision makers.” In New York LaBonte, reprising his role in Halifax as British Pacific employee Richard LaBlanc, would be one of the interviewers. See Curry, supra at 516. The part of “Peter O’Hara,” a “principal” in British Pacific, would be played by Joseph Peter Rush, a private investigator who previously had worked as a United States Secret Service special agent-in-charge in Boston.13 Crossen and Henry would “monitor” developments *542from an adjoining room.14 A tape-recording technician would complete the New York contingent. Crossen was to be the sole decision maker on whether to “brace” the law clerk once the law clerk uttered the “magic words” concerning Judge Lopez’s predisposition.

Other members of Crossen’s team besides Donahue felt uncomfortable with their intended methods. During the planning process, Rush asked Crossen whether the New York interview was ethical and legal. Rush was particularly concerned to know whether it was permissible for him, as a private citizen, to conduct a sham interview and secretly make a tape recording of the interview with the law clerk, another private citizen. Crossen assured Rush that, in Rush’s words, Crossen “had researched the legalities and ethics of it and that it was legal.” Crossen also reassured Rush that, again in Rush’s words, “it’s been cleared by ethics.” Rush testified that he “took that to believe [Crossen’s] firm had an ethical committee, and it had been run through them and they had okayed it.”15 “In fact,” the special hearing officer found, “Crossen never discussed any issue regarding the Demoulas case with [his] firm’s committee on conflicts and professional responsibility.” Based on Crossen’s assurances that, in Rush’s words, the “legal and ethical bases had been touched,” Rush agreed to participate in the sham interview.

Crossen, Henry, LaBonte, and Rush decided that Rush would carry a concealed tape recorder in the pocket of a spare jacket and that Crossen and Henry would monitor the interview by silent videotape recording in the adjacent room of the suite.

c. The sham interview in New York. Prior to the interview, Reid delivered airplane tickets, one hundred dollars in cash, and O’Hara’s name to the law clerk. When he arrived in New York, *543the law clerk was met by a chauffeur who drove him to the hotel in a Mercedes limousine.16

The ruse interview lasted approximately one and one-half hours. Rush, as O’Hara, began by (falsely) explaining the nature of British Pacific’s reinsurance business and its opportunities for travel and interesting work.17 Rush then explained (again falsely) that Shaw was unable to attend the interview but had been “very laudatory” about the law clerk’s writing skills. He reassured the law clerk that the law clerk’s speech impediment, see Curry, supra at 513, would not be a barrier to his employment by British Pacific because the company was most concerned with hiring “new blood” who could “write the facts in a manner which is favorable to our partnership . . . .” Rush also raised the law clerk’s submission of a letter of support for his bar application written by an attorney who falsely claimed to know the law clerk. See Curry, supra at 515 n.19.

Conversation then turned to what Rush called the “Demopolis” case. The law clerk explained that he was able to write the decision on his own because he had sat through the trial and he and Judge Lopez had discussed the witnesses at the end of each day of the trial.18 He also told his interlocutors that he had begun writing the decision shortly before the trial ended.19 The law clerk’s responses to questions concerning Judge Lopez’s *544alleged predisposition were decidedly more equivocal and weaker than they were alleged to have been in Halifax.20,21

*545At one point during the interview, Rush took a break and went to the adjoining suite to tell Crossen and Henry that he believed the law clerk’s statements to be “very weak.” Crossen instructed Rush to resume the interview and attempt to “clarify the issue of” Judge Lopez’s predisposition. Soon thereafter, LaBonte was summoned out of the room because Rush was afraid that he was being so persistent about the Demoulas decision that the law clerk would become suspicious. When LaBonte went to the room where Crossen and Henry were viewing the videotape recording, he told them that the law clerk was stuttering badly, and that they would give the law clerk a “heart attack” if they were to “brace” him.22 Crossen replied that they “would see.” The law clerk was not “braced” that day.

d. Preparations to confront the law clerk. After reviewing the tape recording of the interview, Crossen reported to Arthur T. that it was a “mixed bag,” and that he had not “braced” the law clerk. Upon returning to Boston, Crossen met with Henry, McCain, and Edward Barshak and Susan Hartnett, two other members of the Telemachus Demoulas family defense team who were partners at another Boston law firm, and told them about the New York interview. Once again Crossen was asked whether there was “any issue” related to contact with a judge’s former law clerk. Crossen stated that he did not think so, but would look into the matter. The record does not reveal whether the defense team discussed the appropriateness of contacting a former law clerk regarding an ongoing matter in which their clients were litigants.

On June 20, Crossen asked a second associate at his firm to research whether it was proper to speak with a former law clerk *546concerning conversations between the law clerk and the judge.23 The associate reported later that day that, although he had been unable to find an explicit ban on contacts with former law clerks, a limited privilege may prevail between judges and their clerks, and that even absent such privilege, policy arguments disfavored such contact. He left a number of cases on Crossen’s chair, with notes, including cases dealing with contacts with former jurors. Crossen did not ask the associate to follow up this initial research.

That same day, June 20, Judge Lopez ordered the long-delayed merger of Demoulas assets to take place. An emergency meeting of the Telemachus Demoulas family defense team, consisting of at least twelve lawyers from leading Boston law firms, was called for June 23 to discuss filing a recusal motion based on the Charles Restaurant investigation. Barshak’s firm had been tasked with drafting the motion to recuse based on affidavits obtained by Crossen and his investigators on the Charles Restaurant matter. Prior to the June 23 meeting, which Arthur T. was also expected to attend, Crossen sent a copy of the tape recording of the New York “interview” and a transcript to Barshak, who reviewed the material with two of his colleagues.

The emergency meeting focused first on the Charles River investigation, but soon turned to the law clerk matter. Attorneys who had not known of the investigation were apprised of it by Arthur T, with Crossen adding further information about the Halifax and New York interviews. Crossen also distributed transcripts of the New York interview to the meeting’s participants. Some attorneys, including Barshak, John P. Sullivan, Judith Dein, and Samuel Adams opined that the information was worthless or should not be pursued further. Adams and Sullivan also voiced reservations about Curry’s credibility based on their prior dealings with him. According to Adams, when Dein asked Crossen whether it was ethical to “approach a law clerk who had been on a case you tried,” Crossen replied that “they had researched that, and, while [there were] issues that related to approaching a juror, that prohibition did not relate to a *547law clerk.” Crossen told the group he thought the law clerk information was “persuasive” and should be included in the motion to recuse.

At the end of the two-and-one-half hour meeting, the group decided not to include the information obtained from the law clerk in the motion to recuse Judge Lopez. On June 25, the motion to recuse Judge Lopez was filed, based solely on the Charles Restaurant investigation. On July 21, Judge Lopez heard the motion and denied it.

Arthur T., however, told Crossen and Donahue privately that he did not want to let the law clerk matter drop. Crossen suggested that a logical step would be to confront the law clerk and, in the special hearing officer’s words, “ask him to tell the truth about what had happened.” Donahue met separately with Arthur T. and told him that Barshak would leave the defense team if any of the law clerk material was used. Neither Crossen nor Donahue told Barshak or Adams about their subsequent dealings with the law clerk.

On July 24, Reid made reservations for “Peter O’Hara” at the Four Seasons Hotel in Boston for an August 2 meeting with the law clerk. On August 1, Crossen, Curry, Donahue, Arthur T., Rush, Reid, McCain, and Henry met at the offices of Crossen’s law firm to discuss strategy for this upcoming meeting. The participants knew that Reid had told the law clerk that this meeting would be his final “interview” for the British Pacific job.24 They decided on a free-form interview that would (1) apprise the law clerk of the ruse, (2) serve to determine whether the law clerk would verify the statements attributed to him in Halifax and parts of his New York interview, and (3) gouge the law clerk’s willingness to cooperate with defendants’ counsel by confirming the statements in an affidavit or otherwise. The group also decided to have the law clerk followed after the meeting in case the law clerk attempted to contact Judge Lopez *548or the Demoulas plaintiffs’ counsel. McCain and his associates were given the job of surveillance.

e. Confrontation of the law clerk. Soon after the law clerk arrived at the appointed suite in the Four Seasons Hotel in Boston, Rush told the law clerk to listen carefully because he would hear something that would send him on the “roller coaster of [his] life” and elicit a range of emotions and “concern for the future.” But, Rush added, “if you cooperate with us, it will be okay.” Rush then laid out for the dumbfounded law clerk the details of the British Pacific ruse. The law clerk almost immediately connected the dupery with the Demoulas decision and with Crossen, whom he had earlier seen in the lobby. Rush explained to the law clerk, who by this time was enraged, who his clients were.

Crossen then entered the room. He and the law clerk had words about the motion to recuse, and the ruse. The law clerk yelled at Crossen for doing nothing to stop the chicanery, and Crossen replied that, while he was not entirely comfortable with the tape recording, he had “inherited the ruse” and it was not something he could stop. He told the law clerk that the present meeting was not being tape recorded because this was not legal in Massachusetts, but that Halifax and New York were one-party consent jurisdictions. Crossen did nothing to dispel the impression conveyed by Rush that tape recordings had been made of both the Halifax and New York sham interviews.25 The law clerk angrily denied that he had written the entire Demoulas decision and claimed to have been “puffing” when he previously had proclaimed otherwise. He also refused to answer repeated questions about Judge Lopez’s predisposition, saying that the Demoulas defendants had received a fair trial.

Crossen told the law clerk that he could not control what his clients would do with the information they had; that if the law clerk did not “help him” there would be a “missile” fired “that’s out of my control and it’s off, and I don’t know where it goes and what it ends up doing”; that he, Crossen, needed a *549“candid conversation” with the law clerk “about what really happened here”; and other statements that the special hearing officer, in our view, characterized correctly as threats. Donahue told the law clerk that, if he did not cooperate with them, the false letter submitted with his bar application would be made public.26

The law clerk asked numerous times to hear the “tapes” or read transcripts of the Halifax and New York tape recordings himself, but Crossen refused to permit this. After some forty minutes, the law clerk got up to leave. Crossen told the law clerk to retain a lawyer, talk the matter over with his wife, and to telephone either Donahue or Crossen on Monday.

f. Further threats and surveillance. The law clerk was so visibly shaken and upset when he left the meeting that McCain, who was following him, thought he might be suicidal. The law clerk went to the offices of his employer where named law partner Robert Sullivan found him alone in a conference room, crying. The law clerk told Sullivan what happened. Sullivan promptly contacted attorney Harry Manion, who agreed to represent the law clerk. The law clerk then went home to see his wife. A delivery person appeared at their door with a pizza the couple had not ordered. The law clerk noticed a man with a mobile telephone sitting on a bench across from his apartment house, the same man who had been there when the law clerk had left for work in the morning.

On Manion’s advice, the law clerk began drafting an affidavit. On August 4, the law clerk met with agents of the Federal Bureau of Investigation (FBI), a meeting Manion had arranged. The law clerk’s affidavit and a supplemental affidavit were given to the FBI and also provided to Judge Lopez and her attorney. The Federal agents told the law clerk that his affidavit *550did not provide substantial evidence of what had occurred and urged him to agree to wear a recording device to capture Crossen’s statements that he had the “tapes,” as well as Crossen’s threats to the law clerk. After some hesitation, the law clerk agreed to do so.

On August 20, after exchanging several telephone calls, the law clerk and Crossen met at the latter’s office. There they had a lengthy conversation, which was secretly tape recorded by the law clerk for the FBI. The law clerk repeatedly asked Crossen whether he could listen to the “tapes,” claiming that he did not recall some of the statements attributed to him in the sham interviews, and that listening to the tape recordings would help him determine his next steps. Crossen adamantly refused, telling him “that is just not going to happen.” Crossen did tell the law clerk that the information about Judge Lopez’s predisposition would “come out one way or the other,” and he again urged the law clerk to have a “candid conversation” with him about Judge Lopez’s predisposition. Crossen told the law clerk that, while he (Crossen) could not guarantee that the false bar application letter would not be made public by other counsel, he would do his best to see that the letter was not introduced in evidence or to minimize the damage if it were. The special hearing officer found that the law clerk understood from Crossen’s comments that “if he helped Crossen, Crossen would not bring up the bar letter.”

The special hearing officer also determined that the “candid conversation” Crossen was urging meant a conversation in which the law clerk stated that Judge Lopez, was predisposed against Crossen’s clients: no other statement from the law clerk would have satisfied Crossen.27 The meeting concluded on a note of urgency. While the special hearing officer did not summarize the remainder of the conversation, the transcript entered in evidence establishes that Crossen told the law clerk that a hearing on the interlocutory appeal of Judge Lopez’s denial of the Charles Restaurant recusal motion was scheduled to take place in five days before a single justice of the Appeals Court. *551As a result, he said, he and the client were “making strategic decisions day to day.” Crossen stated that “the client knows the information is there” and might direct the attorneys to use the information at or before the Appeals Court hearing.28 Crossen told the law clerk to get back to him within twenty-four hours.

The following day, Crossen and the law clerk spoke by telephone. Again, the law clerk secretly tape recorded the conversation at the request of the FBI. The law clerk and Crossen repeated their respective, contradictory demands about the “tapes.” After the law clerk again refused to help Crossen without hearing the tape recordings, Crossen told the law clerk that “you’re going to find yourself in a situation that is gonna be very troublesome to you and the lawyers that recommended you” for admission to the bar. He urged the law clerk to hire independent counsel, saying: “It’s, it’s gonna be a very harmful road for you, you [ought to] talk to somebody before this hits.” After more wrangling about the tape recordings, Crossen offered to let the law clerk listen to a “small segment” to satisfy himself that the tape recordings existed. The law clerk agreed to the proposal. They agreed to meet the next day at Crossen’s office. Prior to the meeting, Crossen and Donahue decided to play the portion of the New York tape recording dealing with the false bar letter because, in the words of the special hearing officer, “they knew that it was [the law clerk’s] Achilles heel, and they intended to use that to pressure and intimidate [the law clerk] into cooperating with them by giving them an affidavit on Judge Lopez’s alleged predisposition in the [shareholder [derivative [c]ase.”29

On August 22, a Friday, the law clerk met with Crossen, Donahue, and McCain at Crossen’s office. Crossen played a portion of the tape recording in which the law clerk and Rush discussed the false letter recommending the law clerk for admis*552sion to the bar. The law clerk stated: “You’ve got tapes.” Crossen replied, “We have tapes.”

Crossen told the law clerk that the tape recording would be played in the court room on the “best equipment,” to override its poor quality. He told the law clerk that “[w]e’re on a fast moving train here” and that “the train is ready to pull out of the station.” He reiterated the need to have a “full blown discussion” with the law clerk “as soon as possible” about Judge Lopez’s predisposition. They arranged to meet again early the following Monday.30

On Monday, August 25, rather than meeting Crossen, the law clerk left a voice mail message telling Crossen that he (the law clerk) was required to be out of town. McCain’s investigators, however, later informed Crossen that the law clerk was actually in Boston that day. On learning the news, Crossen telephoned the law clerk’s home.

The law clerk returned Crossen’s telephone call the following day. Crossen told the law clerk he was “a little bit angry” to learn that the law clerk had been at home on the day of the canceled meeting. The law clerk accused Crossen of having him followed; Crossen denied the charge.31 Crossen then told the law clerk that “if we don’t get something done before” Thursday, he was not “optimistic” that the client “won’t insist upon me dropping the hammer, if you will.” Crossen suggested that they meet early the next evening because he could no longer keep his client “[reined] in.”

On August 28, the law clerk left Crossen a voice mail mes*553sage saying he was going out of town and would contact Crossen when he returned. On August 29, the FBI served grand jury subpoenas on McCain, LaBonte, Rush, and Reid. On that day, Crossen learned that the FBI also was investigating his contacts with the law clerk. The law clerk and Manion held a press conference about the matter on September 17, 1997.

2. Bar disciplinary proceedings. In January, 2002, bar counsel filed a three-count petition for discipline against Crossen, Curry, and Donahue in connection with the law clerk matter. Among other things, the petition alleged that Crossen: “plann[ed], execut[ed], and participat[ed] in a scheme to induce a former law clerk to travel to New York under the pretext of a job interview in order to tape record a conversation with him without his knowledge or consent,” in violation of Canon 1, DR 1-102 (A) (2) and (4)-(6), and Canon 7, DR 7-102 (A) (5) and (7); “plan-n[ed], execut[ed], and participat[ed] in a scheme to induce a former law clerk to make damaging or compromising statements about himself or about the judge for whom he clerked with the false inducement of a lucrative employment... in order to force the judge’s recusal or undermine her decisions in an ongoing case,” in violation of Canon 1, DR 1-102 (A) (2) and (4)-(6) and Canon 7, DR 7-102 (A) (5) and (7); “communicat[ed] falsely to [the law clerk] that [he] had in [his] possession a tape of the Halifax meeting,” in violation of Canon 1, DR 1-102 (A) (4) and (6), and Canon 7, DR 7-102 (A) (5) and (7); “attempt[ed] to get [the law clerk] to state under oath that Judge Lopez had predetermined the outcome of the stockholder derivative trial and had told him from the outset how the case was to be decided under the threat of disclosing the supposed contents of the tape and embarrassing and compromising statements [the law clerk] made at the pretext job interviews,” in violation of Canon 1, DR 1-102 (A) (4)-(6), and Canon 7, DR 7-102 (A) (5) and (7); “attempt[ed] to get [the law clerk] to state under oath that Judge Lopez had predetermined the outcome of the stockholder derivative trial and had told him from the outset how the case was to be decided under the threat of disclosing that he and his friends had submitted with his petition for admission to the bar a recommendation from a lawyer whom he personally did not know,” in violation of Canon 1, DR 1-102 (A) (4)-(6), and Canon 7, *554DR 7-102 (A) (5) and (7); “[had the law clerk] and his wife put under surveillance and [had the law clerk’s] personal circumstances investigated,” in violation of Canon 1, DR 1-102 (A) (5) and (6); and “[denied] to [the law clerk] that [the law clerk] was under surveillance,” in violation of Canon 1, DR 7-102 (A) (4) and (6).32

Pursuant to S.J.C. Rule 4:01, § 3 (2), as amended, 430 Mass. 1314 (1999), and Rule 3.19 (a) of the Rules of the Board of Bar Overseers (2007, the board designated a special hearing officer to take evidence and make findings of fact, conclusions, and recommendations. Her report issued on May 11, 2005. By a vote of nine to two, the board adopted the special hearing officer’s recommendation that Crossen be disbarred.

3. Standard of review. Our standard of review in bar discipline cases is well established, and is set out in Curry, supra at 519. We apply this settled standard to Crossen’s threefold appeal. He contends, first, that judged by professional standards as they existed in 1997, his actions were not only proper but “required” in order to represent his clients zealously and to protect the integrity of the judicial system. He was acting, he claims, as would any “courageous advoca[te].” Second, he argues that the procedures followed by the special hearing officer deprived him of due process. Last, he claims that the sanction of disbarment is markedly harsher than sanctions imposed for similar conduct. We consider each argument in turn.

4. Violations of the Rules of Professional Responsibility.

a. Contemporary ethical standards. Crossen does not argue, nor could he, that the disciplinary rules forbidding a lawyer from engaging in dishonest or deceitful behavior, through his own professional conduct or through an emissary, are unclear or ambiguous. See DR 1-102 (A) (2) and (4) and DR 7-102 (A) (5) and (7). To the contrary, the disciplinary rules are written in terms that any attorney bound by them should readily understand. See Matter of the Discipline of an Attorney, 442 Mass. 660, 669 (2004), quoting Matter of Keiler, 380 A.2d 119, 126 (D.C. 1977) (because disciplinary rules are written “by and for law*555vers,” they “need not meet the precise standards of clarity that might be required of rules of conduct for laymen”).

Nor does he argue as a general matter that his conduct in the law clerk matter would be appropriate professional conduct in all circumstances. Rather, Crossen argues that the professional norms prevalent in 1997 obligated him to vindicate his clients’ interests by investigating allegations of judicial misconduct, and, further, that he reasonably believed at the time that as a private attorney he was empowered to use the same investigative techniques that would have been available to government attorneys, including the ploy of a “pretextual” interview where ascertaining the truth by less covert means likely would not be possible. We are not persuaded.

(i) The duty to investigate. Crossen’s first point strikes at a straw man. Contrary to his assertions, the special hearing officer did not conclude that in 1997 Crossen was “ethically prohibited” from investigating the allegations against Judge Lopez as the basis for a potential recusal motion. Rather, she found that Crossen could have pursued, and was aware that he could have pursued, a number of legitimate avenues to investigate the claims against Judge Lopez.33 Given these unquestionably legitimate options, she concluded, Crossen’s choice to conduct his investigation by means of a sham interview and other actions designed to trick or coerce the law clerk into making sworn statements “he otherwise would not have made” far exceeded any acceptable norms of professional conduct, as Crossen’s conduct shows that he himself was aware. We agree.

The cases on which Crossen relies to defend his duty to investigate allegations of judicial misconduct avail him little. In Moffat v. Gilmore, 113 F.3d 698, 702-703 (7th Cir. 1997), for example, a prisoner in a habeas petition asserted that the pres*556ence of the judge’s son at the prisoner’s criminal trial and a subsequent conversation between the judge and his son concerning the trial was sufficient to prove that the judge was prejudiced against him. Dismissing the claim as without merit, the court held that the defendant’s attorney, not the court, bears the burden of conducting a thorough investigation into allegations of judicial misconduct. Id. at 703. The case says nothing about the methods used by an attorney to investigate such allegations. In In re Order to Show Cause, 741 F. Supp. 1379, 1383 (N.D. Cal. 1990), the court determined that attorneys had acted reasonably in hiring an investigator to interview individuals concerning the allegations of judicial misconduct that formed the basis of their motion to recuse. Although the allegations later proved false, the court emphasized that the attorneys did not act recklessly or with gross negligence in including them in their pleadings. Of relevance here, the court found that the attorneys’ conduct did not involve “intentional conduct, such as a knowing falsehood, a misrepresentation, or other willful misconduct.” Id. at 1383.

In United States v. Cooper, 872 F.2d 1, 3-4 (1st Cir. 1989), the court held that a judge erred in ruling that a criminal defense attorney had violated Rhode Island’s Code of Professional Conduct in filing his own affidavit supporting a motion to recuse on grounds of judicial prejudice where there was insufficient evidence of the attorney’s lack of good faith in moving to recuse. The court noted, among other things, that the attorney’s sworn averment of good faith was uncontradicted, id. at 5, that the trial judge had expressed a “strong reaction” to the attorney in a related opinion, and that “spirited advocacy” is required in defending one’s client from criminal charges. Id. at 4. At most, these cases confirm an attorney’s obligation to investigate allegations of judicial misconduct in the course of the attorney’s zealous representation of the client, a point not in contention. They say nothing about the ethical propriety of the methods that Crossen employed and directed,34 which form the basis of the specific disciplinary charges against him. We turn now to this issue.

*557(ii) Use of a sham interview. The board properly determined that Crossen’s participation in the New York interview, including the surreptitious tape recording, violated Canon 1, DR 1-102 (A) (2) and (4)-(6), and Canon 7, DR 7-102 (A) (5) and (7). That the New York interview involved “dishonesty, fraud, deceit, or misrepresentation,” Canon 1, DR 1-102 (A) (4), and “false” statements and “fraudulent” conduct, Canon 7, DR 7-102 (A) (5) and (7), cannot seriously be doubted. From beginning to end, the New York interview was a sham. Crossen devised and orchestrated that sham. He directed Rush and LaBonte, as “O’Hara” and “LaBlanc,” to feed the law clerk enticing, false information in the pressured context of a “job interview,” in the hopes of lulling the law clerk into making damaging and compromising statements about Judge Lopez and about himself.35 In the words of the special hearing officer, throughout the false interview Crossen and his colleagues worked “long and hard ... to maneuver [the law clerk] into confirming their preferred version of events surrounding Judge Lopez’s decision.”

Far less baroque falsehoods have been sanctioned as violating an attorney’s obligation to eschew fraud, dishonesty, and deceit in professional dealings. See, e.g., Matter of Cobb, 445 Mass. 452, 461 (2005) (violation of DR 1-102 [A] [4]; misrepresentation to clients that sanctions had been assessed against them when in fact attorney had been sanctioned personally); Matter of O’Sullivan, 16 Mass. Att’y Discipline Rep. 332, 332-335 (2000) (violations of DR 1-102 [A] [4]; false statements to client that lawyer had appeared at court numerous times on client’s behalf, failure to disclose that attorney’s errors caused delay, failure to notify clients in timely manner that closing on property had occurred; filing of falsified documents in court); Matter of Marshall, 16 Mass. Att’y Discipline Rep. 299, 299-301 (2000) (violations of DR 1-102 [A] [4]; intentional misrepresentations to clients regarding status of matters and failure to respond to requests for file); Matter of Sprei, 10 Mass. Att’y Discipline Rep. 246, *558248-249 (1994) (violations of DR 1-102 [A] [4]; knowing misrepresentations to clients about status of claim; submission to bar counsel of fabricated letter; false statements to bar counsel under oath). See also Matter of Thurston, 13 Mass. Att’y Discipline Rep. 776, 790-791 (1997) (violation of DR 7-102 [A] [7]; assisting one shareholder in closely held corporation in stripping corporation of all assets without informing other shareholder); Matter of Hayeck, 13 Mass. Att’y Discipline Rep. 252, 252-253 (1997) (violation of DR 1-102 [A] [4]; impersonation of police officer while providing private security s