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SJC rules against disbarred lawyer who owes $1.5 million to former client

E-mail|Link|Comments () September 23, 2009 05:08 PM

By John R. Ellement, Globe Staff

In a case that is part Charles Dickens and part Raymond Chandler, the state’s high court today said a disbarred lawyer must stay in debtor's jail for now – because he owes $1.5 million to a Brewster woman once charged with hiring her lover to murder her husband.

The money is partly from a $3 million life insurance policy Suzanne D'Amour collected after her husband, Robert D'Amour, was murdered in South Hadley n 1993, according to court records.

She invested the money with Richard G. Birchall when she went to state prison in 1999 for five years for perjury -- she was acquitted of the murder plot charges -- and now has spent nearly a decade trying to get her cash back from Birchall.

Birchall has resolutely refused to pay up, so steadfastly that he has been held in civil contempt in the Barnstable County jail for nearly 2 1/2 years. He even chose to skip his mother's funeral when ordered to be closely monitored by sheriffs..

Today, the Supreme Judicial Court said Birchall must stay for another 30 days so D'Amour's attorney, Jennifer E. Vecchi, can convince a judge Birchall has more cash hidden overseas.

If she can show he has the money, Birchall stays locked up -- for another 30 days, the SJC said. If Birchall convinces a judge he is really broke, then he can be freed, the SJC said.

Birchall's long jail stay has already paid off for D'Amour, who has collected $1.3 million out of the total judgment of $2.8 million Birchall was first ordered to pay in 2005.

According to court records, that money was stashed in Swiss bank accounts that Birchall had listed in his mother's name. They were identified only after Vecchi -- like prosecutors routinely now do -- got a court order letting her listen to tape-recorded phone conversations Birchall made from behind bars. Birchall has made 2,500 calls, under his name and that of other pre-trial detainees, according to court records.

Vecchi was also able to block an attempt by Birchall to get an associate to destroy business records. Birchall's plan included a coded means of reporting success, records show.

"Go to a locked briefcase and open it,'' Birchall wrote in a July 2007 jailhouse letter intercepted by Vecchi. "Find a manila folder... destroy that file in its entirety. Burn it or shred it.''

Birchall instructed the associate how to report the outcome. "On the phone, if the briefcase work has been completed, tell me you have not been feeling too well,'' Birchall wrote, according to court records.

In its unanimous ruling, the SJC also updated the rules judges must apply when they hold anyone in civil contempt -- whether for an unpaid debt, child support, or refusing to comply with a civil court order.

"We (now) require that a civil contempt finding be supported by clear and convincing evidence of disobedience of a clear and unequivocal command,'' Justice Ralph Gants wrote for the court.

Brian D. Bixby, a Boston attorney with an extensive probate practice, said the court refined, but did not dramatically change, the analysis judges must complete before deciding someone should be sent to what is in effect a 21st-century debtors prison.

"Civil contempt is intended just to coerce someone to comply. It's not intended to be punitive,'' he said. "The incarceration aspect often works, but the question is...how long are you going to let somebody sit in jail for non-payment?"