Massachusetts bar officials said yesterday they have begun an investigation into whether a Boston lawyer engaged in "professional misconduct" by representing both the captain of a Coast Guard cutter and several of the survivors and families of victims of the ship's Oct. 20 collision.
A Coast Guard legal officer confirmed separately yesterday that he had recommended the lawyer, Jerome V. Flanagan, to at least two widows of accident victims. At that time the officer knew that Flanagan already was defending the cutter's captain.
Flanagan, himself a former Coast Guard officer, was representing Chief Warrant Officer Donald K. Robinson, who has been named a "suspect" in the collision, which killed 11 members of his crew and sank the cutter Cuyahoga near the Potomac River.
"He should not be representing both the crew and the captain who might be court martialed," said Roy A. Hammer, president of the Masschusetts Bar Association. "The entire situation may be riddled with conflicts, but I'm reluctant to characterize his conduct."
More critical was Robert J. De Giacomo, chief disciplinary officer and bar counsel for the Massachusetts Supreme Judicial Court. "There is no question that an appearance of conflict exists," he said. "We will look into it. It seems to me that this situation warrants an inevstigation."
Flanagan interviewed in Washington yesterday, said he saw no problem with his role as attorney for Robinson and the victims of the accident. "I don't see any conflict," he said.
Coast Guard officers maintained yesterday that the controversy was "Flanagan's problem" and would not affect the status of a Coast Guard Board of Inquiry which is expected to make a report on the accident within the next two weeks.
Both Hammer and DiGiacome said the possible conflict would arise if Flanagan used information gathered in his capacity as an attorney for Robinson in his private suits against the Argentinean freighter, which collided with the cutter.
Despite objections by the freighter's lawyers, Flanagan was allowed to question the witnesses before the inquiry board even though he then had been retained by several survivors who testified at the hearings.
The board of inquiry rules stipulate that witnesses are entitled to counsel, but say the lawyer "may not examine or cross-examine . . . or otherwise participate" in the hearings. Flanagan, in his capacity as Robinson's attorney, was afforded that priviledge.
"There's where the rub comes," Hammer said.
So far Flanagan has been retained by 12 clients and has filed a number of suits in U.S. District Court in Boston over the collision. All against the Argentinean ship. Robinson, the Cuyahoga Skipper and Flanagan's client, is not named as a defendant in any of the cases despite his being named as a "suspect" by the board of inquiry.
Flanagan said he based his decision to represent both the families of survivors and victims and Robinson on his understanding that the families of dead servicemen cannot sue their service or commanding officer over such an accident.
Flanagan said yesterday if there is a conflict, he would "drop" Robinson as a client.
In describing what he called "a unique" situation, Flanagan said, "I don't see any problems. I think the issues are identical. My job is to minimize any fault, if there is any, on Robinson's part. By the same token, I am minimizing any fault of the Cuyahoga and maximizing the fault of the freighter."
Flanagan said he considered the conflict of interest question before he agreed to represent Robinson. "I told him (Robinson) when I took the case that if any conflict developed, I would drop him."
Flanagan said he was retained by the brother of a dead crewmen two days after the collision. The next day, Flanagan said, he traveled to Baltimore for the opening day of the hearings "as a spectator."
In Baltimore Flanagan said he was asked by Robinson to take his case. He did.
Several days later, at the Coast Guard's Yorktown Training Center and the Cuyahoga's home port, Lt. Cmdr. David Kantor called widows of two crewmen and suggested they hire Flanagan to sue the freighter.
Kantor, of the Yorktown legal office, said he had recommended Flanagan because the attorney had "good qualifications." Kantor said he also mentioned the names of two local law firms, which he could not recall yesterday.
Saying he "didn't pull anybody's arm," Kantor said his recommendation of Flanagan was based on the attorney's "strong background" in the area of maritime law.
Leonie Balina, the widow of a Cuyahoga crewman from Newport News, Va., said the fact that Flanagan is also representing the captain of her dead husband's ship "bothers" her. "He (Flanagan) called me up. He asked me if I wanted him to represent my case. I said yes because I didn't know any other lawyers."
Balina said she told Flanagan that she wanted to sue the Coast Guard. "He told me I couldn't do that. So I said I wanted to sue Mr. Robinson. He told me 'no' because he (Robinson) didn't have any money."
Flanagan said yesterday that he was told by the Coast Guard legal office in Yorktown to call Mrs. Balina.