MASSACHUSETTS www.masslawyersweekly.com December 28, 2008 Lawyers of the Year | 2008 JONATHAN M. ALBANO Boston f you buy ink by the barrel, you es,” he says. “In all of the cas - probably know Jonathan M. Al - es, you are working with the bano. Bingham McCutchen’s First client who cares deeply Amendment specialist represents about what happens. And in Inewspapers across New England all of the cases, you care — as well as The New York Times and about your credibility as a The Washington Post — in libel disputes lawyer. You want people to and in efforts to gain access to informa - be able to trust what you say tion. if you’re talking about a rule And he can take personal credit for at of law or facts in the case .” least one Pulitzer Prize, journalism’s most coveted award. In 2001, he con - Q. You defended Michael vinced Superior Court Judge Constance Moore in a suit brought by M. Sweeney to unseal court records in a sergeant in the Reserves clergy -abuse cases, which led to a prize- whose news clip appeared in winning “Spotlight” series in The Boston the film “Fahrenheit 9/11” Globe. without his consent. How Celebrities looking to enforce their did you prevail in that case? constitutional legal rights have also A. The plaintiff’s theory turned to Albano. This year, he defended was that, by being inserted filmmaker -firebrand Michael Moore into the movie, he was against a disabled veteran’s defamation falsely aligned with Michael claim on appeal , and he represented Moore’s anti-war views. We Q. You’ve had a number of big cases over the Yoko Ono in a copyright dispute over made two arguments. We said that it’s not years. Which one do you consider to be your archival footage of her and her late hus - a fair take on the movie to say that simply most important? band, the Beatles’ John Lennon. Past because Mr. Damon [the plaintiff] was in A. clients have also included pop star it, he was portrayed as being supportive I’d have to say that the work that was ob - Madonna and artist Christopher Buchel . of Michael Moore. The other argument jectively the most significant would be Despite his brushes with fame, Albano we made was that it shouldn’t be consid - helping the [Globe] Spotlight Team unseal is resolutely humble about his work. He ered defamatory to be called either pro- records of the Boston Diocese. That’s a case insists that he has labored over more com - war or anti-war. That argument was rem - where if the paper wasn’t interested in pur - mercial litigation cases than he has high- iniscent of the one we made of the suing it, and if we didn’t get judges who profile First Amendment issues and that Madonna case. There, the plaintiff said were receptive, that information would nev - he still cribs phrases from the briefs of his that he was falsely portrayed as being ho - er have come to light. Lawyers tend to take mentors. As for representing Madonna, mosexual. The 1st Circuit in both cases credit for things, and if we lose, we blame he says he doesn’t do anything differently went with the most limited rationale, that the judges. But really and truly, it was the for her than he does for a client in a small- it just wasn’t a reasonable conclusion to court that opened up those records. claims case . draw that the movie in one case and the “It’s not like you care more about those book in the other portrayed the plaintiff Q. How did you get involved in First Amend - cases than you care about your other cas - in that particular light. ment law? 2 • Massachusetts Lawyers Weekly December 28, 2008 A. There’s a long tradition at Bingham of too. I think: “That’s not a real sentence; I doing this kind of work. When I went to sound like Sarah Palin.” It’s an opportunity to Q. What will your role look like in news - Bingham, I thought, “Maybe if I get one case say something dumb. But the answer can’t be papers’ post-crisis incarnation? among 10, that would be great.” So I worked that lawyers don’t talk to the press, because in A. I’m tempted to say that we’re about to see, criminal cases and cases of significance to for [James F.] McHugh for a few years and over the next few years, all kinds of changes in how government operates, it’s essential for got a few cases, and he then went on the every industry because of the economic crisis. lawyers to be able to talk to the press so that bench, and Susan Garsh basically took Jim’s And lawyers are going to have to adjust to that people know what’s going on, to have a sense spot, and I worked for her for several years, in every situation, to figure out how to more of fairness and a sense that the system is and then she went on the bench, and then efficiently help our clients, how to do it better, working fairly. Without that, people would they were sort of stuck with me. They are meaner, leaner — that’s the cliché. And I think become incredibly distrustful. two great First Amendment lawyers. I those principles have to apply to the lawyer learned a lot from then, and I still — this is who represents the press as well. I don’t mean Q. What’s it like being a First Amendment God’s honest truth — have briefs that they to imply that it’s all altruistic. If you don’t effi - lawyer at a time when newspapers are in fi - wrote that I still steal lines from. ciently handle a case, you don’t get anybody nancial trouble? coming back to you. On the other hand, if you Q. You represent a lot of high-profile A. Of course, it doesn’t change at all my inter - efficiently handle a case and are sensitive to a clients. What is that like? est or what I believe is the significance of the client’s needs, you get more work. A. You actually prepare the cases exactly area of law. But it does give you kind of a — JULIA REISCHEL the same way. There really is no differ - front-row seat in seeing how the economics [email protected] ence between working on those cases have truly changed the ability of the press to and working on any other case. You want do some of the things they used to be able to to do your best in all of them, and you do when there were more economic re - try to bring the same effort and attention sources. Things like pursuing the public’s to detail to all of the cases. right of access to certain materials is, in tough economic times, much more difficult for news organizations to do. And so they really Q. But those high-profile cases come with in - have to make very tough decisions about tense media scrutiny. How do you handle where to devote their resources. In cases that as a lawyer? where papers are self-insured, the costs of a A. The only really worrisome thing is that I libel case actually translate into, at the end of might say something that sounds stupid. I the year, a certain number of reporter spots hate reading transcripts of my arguments, that can no longer be afforded. Jonathan Albano on ... His most memorable moment at law school: “My first year at BC Law, my property professor was Mary Ann Glendon . I got called on in property class, and I was supposed to state the facts of the case, an old property trespass case from the 1600s. I described the parties who had trespassed as ‘duck hunters .’ A year later, I walked by her office in the hall and I said hello. As I went past her, I heard her say, ‘We did the duck hunters in class today.’” Highlight of his legal career: “Helping The Boston Globe Spot - light Team unseal court records of the Boston Diocese ” Age : 51 One thing about him that might surprise other people: “Most of the cases I’ve worked on in my career are commercial Education: Boston College cases. I’m quite sure that if I added them all up, there’s more Law School (1982); Boston commercial litigation than constitutional litigation.” College (1979) A E Favorite book or film : “To Kill a Mockingbird ” H S Bar admission: 1982 L L I What has kept him in the practice of law: “A combination of the R R Professional experience: E cases I’ve worked on and the people who I’ve worked with and for ” M Partner, Bingham Y B S McCutchen, Boston O T O (1982- present) H P December 28, 2008 Massachusetts Lawyers Weekly • 3 P. SABIN WILLETT Boston worth millions of dollars matter, as a commercial litigator that pre - in an attempt to secure pared you for this kind of pro bono work? the release of several of Or is it an area of law unto itself? the detainees. Wilmer - A. There is nothing about the substantive Hale’s clients were from law that I do that prepared me. But the Algeria; Bingham’s were training we get as trial lawyers helped from China. prepare me to try to persuade [a court] Earlier this year, the why we should prevail.