The first time he talked to Jonathan Albano, Marty Baron posed a burning question. Baron had just become, in July 2001, the editor of The Boston Globe. Albano, a partner in Bingham McCutchen’s Boston office, was the newspaper’s principal litigator in First Amendment and libel cases.
Baron’s question: What were the Globe’s chances of forcing the Boston Archdiocese of the Catholic Church to grant public access to depositions and other documents that Massachusetts courts had sealed or ruled confidential in lawsuits alleging sex abuse by priests?
“My response was ‘50-50,’ which I don’t think he thought was very illuminating,” Albano recalls.
The response may not have thrilled Baron, but the results of Albano’s efforts on behalf of the newspaper surely did. With instructions from Baron to press forward, Albano filed motions over the next year and a half in dozens of suits involving the Boston Archdiocese. He eventually obtained court orders mandating the disclosure of thousands of pages of documents.
Based on those records, the Globe published a series of stories that revealed the Church’s repeated failures to police sexual predators within the priesthood. The upshot was deep soul-searching within the Church, the resignation of Cardinal Bernard F. Law and the award of a Pulitzer Prize to the newspaper for meritorious public service.
Who made it happen? Albano credits everyone but himself. He touts Globe reporters for their “extraordinarily hard work.” He points to the contributions of other lawyers who appeared beside him in court representing Boston TV stations and the Boston-Herald. He names Suffolk Superior Court Judge Constance M. Sweeney, who vacated other judges’ confidentiality rulings, as the key figure, because she determined “what the right outcome was and stuck to it.”
Yet Albano’s record in the priest sex-abuse cases attests to his top-notch skill as a litigator, according to Joan Lukey, a partner at Wilmer Hale and former president of the Boston Bar Association. “If you’re looking at First Amendment lawyers, he is really on top of the pile,” says Lukey, who opposed Albano in one libel case and who is familiar with his work in other cases as well. “He’s got the longest history that I know of in this area and really a terrific track record.”
Self-described as “balding and chubby,” Albano stands 5 foot 7, wears gold-rimmed glasses and has a full beard tinged with gray. He sits in his slightly cluttered office at 150 Federal Street — a sleek high-rise in which Bingham McCutchen occupies 13 of the 28 upper floors — looking scruffy in gray slacks and an open-necked white shirt, some errant dark curls spilling over the collar in back. He has lived in the Boston area for 30 years and still professes wonderment that he made it to the “big city.”
The 49-year-old Albano grew up in Pittsfield, the relatively small western-Massachusetts city (population: 45,000) that he remembers nostalgically as a place where people sat on their front porches at night “to cool off, the Red Sox game on the radio” and where “any form of pretension was essentially not tolerated.”
He and his twin sister, Jayne, were the youngest of the five Albano children. Their father, Joseph, was of Italian descent, and their mother, Shirley, was Irish (“It was considered a mixed marriage,” he says). Both parents were the children of factory workers — Albano’s father, a partner in a small accounting firm, was the first one in his family to wear a tie to work.
Catholicism suffused Albano’s boyhood. When he was in the fourth grade, Albano and his family moved to a house on Albro Street sandwiched between St. Mark’s Catholic Church and its rectory. Albano became an altar boy. In the summers he worked at the church as a custodian’s assistant, mowing the yard and buffing floors. Priests walking from the church to the rectory would sometimes cut through the Albanos’ backyard. Even visiting priests from Ireland became familiar figures in the neighborhood.
At St. Joseph’s, the parochial high school from which he graduated, he fell in line behind Catholic precepts. When he penned an editorial for the school newspaper arguing for capital punishment, the nun who was the faculty supervisor objected to his viewpoint, telling him it was contrary to Church doctrine. “I said, ‘Okay, if you want an editorial that points out what’s wrong with capital punishment, I could do that, too.’ So I did,” Albano recalls.
His choice of Boston College for undergraduate study and law school kept him on a Catholic-education track. He did well, graduating magna cum laude from both the college and law school and serving as co-executive editor of the law review. He sums up his academic performance: “Most things don’t come particularly easy to me, so I did work pretty hard in college and law school.”
Fresh out of law school in 1982, he signed on as a litigator with Bingham, Dana & Gould, as the firm was then known. That he might have an opportunity to represent the Globe, a longtime Bingham Dana client, figured strongly into Albano’s decision to join the firm. Work for the newspaper and other media clients now accounts for about half of his practice. He devotes the rest of his time to a commercial-law practice, representing clients such as construction companies, financial institutions and charitable organizations.
At first, when he looked into the Globe’s prospects for obtaining the documents in the church sex-abuse cases, Albano worried that judges would exercise their discretionary power in favor of the Boston Archdiocese. Judges had often granted the archdiocese’s requests for keeping the sensitive sex-abuse charges from public view and had sealed court records or ruled that discovery documents not on file in the case dockets were confidential.
In his opening salvo Albano submitted a brief to Judge Sweeney of the Superior Court in August 2001. The brief laid out the arguments for public disclosure of the discovery documents in 86 suits against former priest John Geoghan.
The documents would shine light on allegations that Church officials “had failed to properly supervise personnel, which did not fall into the category of intensely private and personal matters that could be legitimately kept from public view,” Albano says, reprising a central argument of his brief. Judge Sweeney embraced that rationale, ruling in the Globe’s favor.
Albano’s brief was “brilliant,” says Walter Robinson, editor of the Globe Spotlight Team, whose series about the priest sex-abuse matter won a Pulitzer for the newspaper in 2003.
“He did what none of us thought possible,” Robinson says. “He did something that went against the grain in the history of the Massachusetts judiciary. He obtained a ruling against the Catholic Church that became a precedent for opening the vault door and established the right of public access to files about nearly 200 priests who had sexually abused children.”
Not surprisingly for someone steeped in Catholic tradition, Albano expresses mixed emotions about playing the role of the Church’s nemesis in court. On the one hand, he regards the Church’s attempt to deal confidentially with priests implicated in the sex-abuse cases as motivated by the Catholic redemptive tradition — “the notion that, if you truly repent, you can be redeemed,” as he puts it.
Still, Albano says, the Globe’s suit uncorked documents that rightly called the Church’s record into account. “For me,” he explains, “the fact that I maybe — I stress maybe — understood some of the thinking behind the [redemptive] process didn’t make me feel that the arguments in favor of public access were undercut.”
When not shaking loose documents for the Globe, Albano has been in the trenches defending the newspaper against libel claims. He received kudos in a case brought by Stephen Columbus, a Stoneham lawyer. Columbus accused the Globe of having defamed him and caused him sleepless nights when it reported that he used political connections to have a house built for him by vocational high school students.
In a Perry Mason moment during the trial in 2005, Albano was cross-examining Columbus’ wife, Susan. First, Albano asked her if Columbus had shown signs of emotional distress before the Globe’s story appeared. No, she testified.
Then Albano “sprung a trap,” according to an account in the Boston-Herald. He produced a financial claims letter that Columbus had written five months before the Globe had published its story — a letter in which the Stoneham lawyer complained that house-construction delays were causing him emotional distress, and which, of course, appeared to contradict the wife’s testimony. A jury ultimately found in favor of the Globe.
Albano remembers the Columbus case as one of the highs of his career — though, characteristically, he attributes the verdict not so much to his own performance as to the credibility of the testimony by Walter Robinson of the Globe, whose story was at issue in the trial.
As for lows, Albano laments judicial rulings against reporters Richard Knox, formerly of the Globe, and Jim Taricani of WJAR-TV in Providence, R.I. Both refused judges’ orders to reveal confidential sources. In Knox’s case, the newspaper essentially had to forfeit a $2.1 million judgment in a libel suit brought by a former oncologist at the Dana-Farber Cancer Institute. Taricani, who was found in contempt when he declined to identify the source of a videotape indicating corruption among Providence officials, had to serve four months under house arrest.
“That’s the biggest disappointment––not being able to convince the courts that those [confidential] relationships are worth protecting,” Albano says.
Although the highs have greatly outnumbered the lows, it is the lows that preoccupy him because, he says, “I can’t help but go back and say, ‘What could I have done differently? How could I persuade these people that what I believe is true?’”
He may not be able to convince everyone, but that doesn’t mean he won’t try.