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Judge in DUI case buoyed by support

Letter-writing effort shows perspective shift

Email|Print|Single Page| Text size + By Jonathan Saltzman
Globe Staff / April 3, 2008

In the early 1990s, Paul Moore and Robert Somma were bankruptcy lawyers on opposite sides of a mammoth dispute involving $675 million in debt owed by Boston's largest single real estate investor.

Although they were adversaries, Moore said he respected Somma's keen intellect and believes his sometime rival became a superb federal bankruptcy judge after his appointment in 2004.

So when Somma submitted his resignation on Feb. 15, nine days after he was arrested on a drunken drive charge while wearing a dress, Moore acted quickly and began e-mailing an extraordinary letter to other bankruptcy lawyers. It expressed support for Somma and urged the US Court of Appeals to reject his resignation.

"Recent events do not in any manner diminish Judge Somma's ability to fulfill his duties and to remain as a highly respected member of the bench with the overwhelming support of the community of bankruptcy practitioners," said the letter, which Moore helped write. More than 200 bankruptcy lawyers signed the letter, one of several sent to the court by Somma's supporters in the legal community after he submitted his resignation.

On Tuesday, Somma wrote in a letter to the editor of Massachusetts Lawyers Weekly that the outpouring of support had caused him to reconsider his resignation, which he said he submitted following a "media frenzy."

How the Court of Appeals will respond is an open question.

Gary H. Wente, circuit executive of the US Courts for the First Circuit, said yesterday that court officials have reviewed the letters. But he had no comment on whether the Court of Appeals, which appointed Somma to a 14-year term, will allow the judge to rescind his resignation.

Wente's office issued a one-sentence statement Monday saying that Somma's resignation, scheduled to take effect the next day, would not become effective until May 15. The statement gave no explanation. Some lawyers have interpreted the delay as an attempt by the court to buy time to consider allowing Somma to rescind the resignation, which he submitted to Wente by phone from the Caribbean on Feb. 15, two days after pleading no contest in Manchester, N.H., to driving while intoxicated.

But Lee Harrington, a Boston bankruptcy lawyer and supporter of Somma, speculated that some members of the appeals court might oppose letting Somma keep his job. Some judges, he said, might feel that because Somma submitted his resignation, "a decision has been made, and it's time to move forward."

Harrington received the letter of support for Somma by e-mail but did not sign it, partly because he was busy at work, he said.

The letter-writing campaign illustrates how perspectives have changed about behavior such as cross-dressing. Twenty years ago, several lawyers acknowledged, it was highly unlikely that the legal community would have rallied around a judge who was arrested under circumstances like those in the Somma case.

To be sure, several lawyers said, Somma's arrest for drunken driving after he rear-ended a pickup truck at a traffic light in Manchester reflected a serious lapse in judgment.

But he is not the first judge in Massachusetts arrested on such a charge, and Harrington said some lawyers feel, "There but for the grace of God . . ."

As for Somma's attire during the arrest - he wore a black dress - several supporters said it had no bearing on his job performance.

"I find that totally irrelevant," said Natalie Sawyer, a Boston bankruptcy lawyer who signed and circulated the letter.

"He's always been a good example of what a bankruptcy judge should be," she said, calling Somma courteous, fair, and knowledgeable.

Jennifer Levi, a lawyer for Gay & Lesbian Advocates & Defenders who specializes in transgender legal advocacy, said the Appeals Court risks a lawsuit if it uses Somma's attire the night of his arrest as a reason not to rescind his resignation.

"Nobody should lose their job for wearing a dress," she said.

Not all lawyers were so accepting of Somma's actions however.

Dwight Duncan, who teaches at Southern New England Law School and has represented the Massachusetts Family Institute and other groups that oppose gay marriage, said he was troubled by Somma's arrest, attire, and flip-flopping on his decision to resign.

"If it was a mistake for him to resign, that means he's inclined to act impulsively, which I don't think is a good quality as a judge," he said.

"The whole picture doesn't give you an impression of a judicious man," Duncan said. "I'm looking at it the way an ordinary person on the street would react."

Michael C. Gilleran, a Boston business litigator, said Somma's conduct did not bear on his performance as a judge, but "whether it reflects upon him as a person is another question."

Nonetheless, Gilleran said Somma, who earns about $158,000 a year and has been on paid leave since his no-contest plea, has such a sterling professional reputation that Gilleran predicted he will keep his job.

"My guess is he will return to the bench," he said.

Jonathan Saltzman can be reached at jsaltzman@globe.com.

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