In the Matter of Foster
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Opinion
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
SJC-13360
IN THE MATTER OF KRIS C. FOSTER & others.1
Suffolk. April 3, 2023. - August 31, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, & Wendlandt, JJ.
Attorney at Law, Disciplinary proceeding, Suspension, Disbarment, Public reprimand. Rules of Professional Conduct.
Information filed in the Supreme Judicial Court for the county of Suffolk on September 23, 2022.
The case was reported by Lowy, J.
Joseph M. Makalusky, Assistant Bar Counsel. Allen N. David (Kristyn K. St. George also present) for Kris C. Foster. Patrick Hanley (Thomas J. Butters also present) for John C. Verner. Thomas R. Kiley (Meredith G. Fierro also present) for Anne K. Kaczmarek.
GAZIANO, J. A prosecutor "may prosecute with earnestness
and vigor -- indeed, he should do so. But, while he may strike
1 Anne K. Kaczmarek and John C. Verner. 2
hard blows, he is not at liberty to strike foul ones." Berger
v. United States, 295 U.S. 78, 88 (1935). In this appeal, we
address disciplinary sanctions imposed by the Board of Bar
Overseers (board) on three assistant attorneys general accused
of crossing that line.
The consolidated bar disciplinary proceedings arise from
the respondents' involvement in the withholding of exculpatory
evidence during the prosecution of a chemist in the State
Laboratory Institute in Amherst (Amherst lab or drug lab), Sonja
Farak, by the Attorney General's office (AGO). As detailed in
Committee for Pub. Counsel Servs. v. Attorney Gen., 480 Mass.
700, 705-720 (2018), we dismissed with prejudice thousands of
pending drug charges and drug convictions tainted by evidence
tampering at the Amherst lab. Id. at 725. This "strong
medicine" was necessary, we stated, to remedy the intentional
and egregious governmental misconduct of Farak and two of the
three respondents, Anne K. Kaczmarek and Kris C. Foster. Id.
In the wake of the Farak drug lab scandal, bar counsel
filed petitions for discipline with the board charging
Kaczmarek, Foster, and John C. Verner with various violations of
the Massachusetts rules of professional conduct. The matter was
heard by a special hearing officer (SHO). The board adopted in
full the extensive factual findings of the SHO. The board
recommended that Verner, who supervised the Farak prosecution, 3
be suspended for three months for neglecting his supervisory
duties. The board further recommended that Foster, who was
responsible for the AGO's response to subpoenas and discovery
motions filed by defense counsel, be suspended for one year and
one day for her violations that, for the most part, amounted to
"gross incompetence" and "reckless lawyering." In so holding,
the board rejected bar counsel's argument that Foster engaged in
conduct involving dishonesty, fraud, deceit, or
misrepresentation, in violation of Mass. R. Prof. C. 8.4 (c),
426 Mass. 1429 (1998).2 Finally, the board recommended
disbarment for Kaczmarek, who, as lead prosecutor in the Farak
case, "[bore] the greatest responsibility" and "the greatest
culpability." A single justice reserved and reported the matter
to the full court.
We adopt, in part, the board's recommendations. The record
supports a finding that the prosecutors failed in their
collective duty to disclose potentially exculpatory information
that was known to the AGO. We also conclude, however, that in
certain circumstances, reasonable and good faith reliance on
another attorney's representations may be a special mitigating
factor. Because Verner reasonably relied in good faith on
2 Because this case concerns misconduct that occurred in 2013, we refer to the rules of professional conduct as they existed at that time. See Matter of Brauer, 452 Mass. 56, 64 n.11 (2008). 4
Kaczmarek's misrepresentations that she had turned over
exculpatory information, and his liability is limited to failing
to follow up with her as to whether she had disclosed all such
information, we differ with the board and conclude that anything
more severe than a public reprimand would be inappropriate.
Because Foster was reckless in her representations about what
the AGO had disclosed, and otherwise exhibited incompetence in
her response to the subpoena and discovery motions, we accept
the board's recommendation that she receive a suspension of one
year and one day. Finally, because Kaczmarek was most culpable
for the AGO's failure to turn over all exculpatory information,
and because she displayed a lack of candor and remorse at the
disciplinary hearing, we accept the board's recommendation that
she be disbarred. The matter is remanded to the county court
for entry of final judgment.
1. Background. We summarize the relevant factual findings
of the SHO from his detailed ninety-two page hearing report, as
adopted by the board, concluding that they are supported by
substantial evidence.3 See S.J.C. Rule 4:01, § 8 (6), as
appearing in 453 Mass. 1310 (2009). We supplement the facts
3 We therefore refer to the SHO's factual findings as those of the board. See Matter of Laroche-St. Fleur, 490 Mass. 1020, 1021 n.7 (2022), citing Matter of Eisenhauer, 426 Mass. 448, 449 n.1, cert. denied sub nom. Eisenhauer v. Massachusetts Bar Counsel, 524 U.S. 919 (1998). 5
with undisputed evidence in the record as needed. See Matter of
Angwafo, 453 Mass. 28, 29 (2009), citing Commonwealth v. Isaiah
I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008).
a. Arrest and initial investigation of Farak. From 2004
through 2013, Farak worked as a chemist at the drug lab, located
on the campus of the University of Massachusetts in Amherst.
Farak was responsible for analyzing suspected narcotics
submitted by law enforcement agencies, issuing drug analysis
certificates, and testifying in criminal proceedings regarding
her analyses. On January 17, 2013, another chemist in the
Amherst lab noticed that two samples that had been assigned to
Farak were missing from the evidence locker. The next day,
Farak's supervisor searched the lab and found the packaging for
the two missing samples at Farak's work area. Farak had
identified the samples as cocaine, but subsequent testing of the
substances in the packaging showed one sample adulterated with a
foreign substance and the other negative for cocaine.
On the next day, January 18, 2013, the State police began a
criminal investigation into Farak's potential tampering with
drug samples submitted for analysis. The AGO agreed to
undertake the investigation and the potential prosecution of
Farak. In the early morning hours of January 19, 2013, a team
of investigators, which included State police Sergeant Joseph
Ballou, executed a search warrant on Farak's car. The search 6
team catalogued twenty separate items, including several "zip-
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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
SJC-13360
IN THE MATTER OF KRIS C. FOSTER & others.1
Suffolk. April 3, 2023. - August 31, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, & Wendlandt, JJ.
Attorney at Law, Disciplinary proceeding, Suspension, Disbarment, Public reprimand. Rules of Professional Conduct.
Information filed in the Supreme Judicial Court for the county of Suffolk on September 23, 2022.
The case was reported by Lowy, J.
Joseph M. Makalusky, Assistant Bar Counsel. Allen N. David (Kristyn K. St. George also present) for Kris C. Foster. Patrick Hanley (Thomas J. Butters also present) for John C. Verner. Thomas R. Kiley (Meredith G. Fierro also present) for Anne K. Kaczmarek.
GAZIANO, J. A prosecutor "may prosecute with earnestness
and vigor -- indeed, he should do so. But, while he may strike
1 Anne K. Kaczmarek and John C. Verner. 2
hard blows, he is not at liberty to strike foul ones." Berger
v. United States, 295 U.S. 78, 88 (1935). In this appeal, we
address disciplinary sanctions imposed by the Board of Bar
Overseers (board) on three assistant attorneys general accused
of crossing that line.
The consolidated bar disciplinary proceedings arise from
the respondents' involvement in the withholding of exculpatory
evidence during the prosecution of a chemist in the State
Laboratory Institute in Amherst (Amherst lab or drug lab), Sonja
Farak, by the Attorney General's office (AGO). As detailed in
Committee for Pub. Counsel Servs. v. Attorney Gen., 480 Mass.
700, 705-720 (2018), we dismissed with prejudice thousands of
pending drug charges and drug convictions tainted by evidence
tampering at the Amherst lab. Id. at 725. This "strong
medicine" was necessary, we stated, to remedy the intentional
and egregious governmental misconduct of Farak and two of the
three respondents, Anne K. Kaczmarek and Kris C. Foster. Id.
In the wake of the Farak drug lab scandal, bar counsel
filed petitions for discipline with the board charging
Kaczmarek, Foster, and John C. Verner with various violations of
the Massachusetts rules of professional conduct. The matter was
heard by a special hearing officer (SHO). The board adopted in
full the extensive factual findings of the SHO. The board
recommended that Verner, who supervised the Farak prosecution, 3
be suspended for three months for neglecting his supervisory
duties. The board further recommended that Foster, who was
responsible for the AGO's response to subpoenas and discovery
motions filed by defense counsel, be suspended for one year and
one day for her violations that, for the most part, amounted to
"gross incompetence" and "reckless lawyering." In so holding,
the board rejected bar counsel's argument that Foster engaged in
conduct involving dishonesty, fraud, deceit, or
misrepresentation, in violation of Mass. R. Prof. C. 8.4 (c),
426 Mass. 1429 (1998).2 Finally, the board recommended
disbarment for Kaczmarek, who, as lead prosecutor in the Farak
case, "[bore] the greatest responsibility" and "the greatest
culpability." A single justice reserved and reported the matter
to the full court.
We adopt, in part, the board's recommendations. The record
supports a finding that the prosecutors failed in their
collective duty to disclose potentially exculpatory information
that was known to the AGO. We also conclude, however, that in
certain circumstances, reasonable and good faith reliance on
another attorney's representations may be a special mitigating
factor. Because Verner reasonably relied in good faith on
2 Because this case concerns misconduct that occurred in 2013, we refer to the rules of professional conduct as they existed at that time. See Matter of Brauer, 452 Mass. 56, 64 n.11 (2008). 4
Kaczmarek's misrepresentations that she had turned over
exculpatory information, and his liability is limited to failing
to follow up with her as to whether she had disclosed all such
information, we differ with the board and conclude that anything
more severe than a public reprimand would be inappropriate.
Because Foster was reckless in her representations about what
the AGO had disclosed, and otherwise exhibited incompetence in
her response to the subpoena and discovery motions, we accept
the board's recommendation that she receive a suspension of one
year and one day. Finally, because Kaczmarek was most culpable
for the AGO's failure to turn over all exculpatory information,
and because she displayed a lack of candor and remorse at the
disciplinary hearing, we accept the board's recommendation that
she be disbarred. The matter is remanded to the county court
for entry of final judgment.
1. Background. We summarize the relevant factual findings
of the SHO from his detailed ninety-two page hearing report, as
adopted by the board, concluding that they are supported by
substantial evidence.3 See S.J.C. Rule 4:01, § 8 (6), as
appearing in 453 Mass. 1310 (2009). We supplement the facts
3 We therefore refer to the SHO's factual findings as those of the board. See Matter of Laroche-St. Fleur, 490 Mass. 1020, 1021 n.7 (2022), citing Matter of Eisenhauer, 426 Mass. 448, 449 n.1, cert. denied sub nom. Eisenhauer v. Massachusetts Bar Counsel, 524 U.S. 919 (1998). 5
with undisputed evidence in the record as needed. See Matter of
Angwafo, 453 Mass. 28, 29 (2009), citing Commonwealth v. Isaiah
I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008).
a. Arrest and initial investigation of Farak. From 2004
through 2013, Farak worked as a chemist at the drug lab, located
on the campus of the University of Massachusetts in Amherst.
Farak was responsible for analyzing suspected narcotics
submitted by law enforcement agencies, issuing drug analysis
certificates, and testifying in criminal proceedings regarding
her analyses. On January 17, 2013, another chemist in the
Amherst lab noticed that two samples that had been assigned to
Farak were missing from the evidence locker. The next day,
Farak's supervisor searched the lab and found the packaging for
the two missing samples at Farak's work area. Farak had
identified the samples as cocaine, but subsequent testing of the
substances in the packaging showed one sample adulterated with a
foreign substance and the other negative for cocaine.
On the next day, January 18, 2013, the State police began a
criminal investigation into Farak's potential tampering with
drug samples submitted for analysis. The AGO agreed to
undertake the investigation and the potential prosecution of
Farak. In the early morning hours of January 19, 2013, a team
of investigators, which included State police Sergeant Joseph
Ballou, executed a search warrant on Farak's car. The search 6
team catalogued twenty separate items, including several "zip-
lock" plastic bags containing capsules, pills, and a white
powder, as well as manila envelopes dated as early as 2008 and
2009, and what seemed to be assorted paperwork from the drug
lab. When the search was complete, the State troopers secured
the evidence in the evidence room at the Springfield State
police barracks (Springfield barracks).
Farak was arrested on January 19, 2013, and arraigned three
days later, charged with two counts of evidence tampering, and
possession of cocaine and heroin. It generally was recognized
by the AGO that the Farak case was a matter of high importance.
At the time, Verner was the chief of the AGO's criminal
bureau, and between 2012 and 2014, Verner managed more than one
hundred people, including about fifty lawyers. Verner assigned
Kaczmarek, an assistant attorney general in the enterprise,
major, and cyber crimes division (EMC) of the AGO's criminal
bureau, as lead prosecutor on the Farak case. Verner chose
Kaczmarek in part because she had been assigned to, and was at
the time working on, the prosecution of another State drug
laboratory chemist who tampered with evidence, Annie Dookhan.
See Bridgeman v. District Attorney for the Suffolk Dist., 476
Mass. 298, 303 (2017). Kaczmarek primarily was responsible for
the prosecution of Farak, while Verner was available for support
and assistance as needed. 7
Verner and Kaczmarek understood early in the Farak case, as
had been the case in the Dookhan investigation, that defendants
with pending cases, as well as those who had been convicted on
the basis of Farak's drug analysis, would be entitled to receive
from the district attorneys' offices (DAOs) potentially
exculpatory information obtained by State police and the AGO in
the investigation and prosecution of Farak. Verner and
Kaczmarek further understood that any information inculpatory
toward Farak potentially would be exculpatory toward those
defendants.
Verner adopted the same discovery policy for the Farak case
that the AGO had in the Dookhan case. In the Dookhan case, a
discovery policy had to be created due to the unprecedented
nature of Dookhan's misconduct and the AGO's indirect
relationship with affected defendants. Generally, the vast
majority of drug cases are prosecuted by the DAOs, so the AGO's
connection with those defendants affected by Dookhan's
misconduct was through the DAOs. Thus, Verner and his
supervisor, First Assistant Attorney General Edward Bedrosian,
developed a policy that they would provide "discoverable
information . . . [w]hether it was exculpatory or not," obtained
by the State police and the AGO to the DAOs, so that the DAOs
could provide it to the affected defendants. Verner made it 8
clear to Kaczmarek that the AGO would adopt the Dookhan protocol
in the Farak case.
During the investigation of Farak, Ballou obtained
information from a prosecutor in Hampden County regarding two
cases in which the drug samples appeared to have been tampered
with by Farak. On January 23, 2013, after Ballou informed
Kaczmarek, Verner, and his supervisor, Detective Lieutenant
Robert Irwin, about the two additional cases, Kaczmarek and
Verner each approved and authorized Ballou to obtain additional
information about Farak's potential tampering. Kaczmarek wrote
in an e-mail message to Verner, Ballou, and Irwin, "I think this
is the tip of the iceberg."
On further investigation, Ballou learned about a March 2012
case involving suspected oxycodone pills; in that case, Farak
returned more pills than she had received from police, and the
pills were different in appearance from those initially
submitted to the drug lab. Ballou also learned of a 2005 case
in which the amount of cocaine had decreased by four grams
between the time it initially was weighed by police and when it
was returned by Farak. A prosecutor involved in the 2005
"light" cocaine case told Ballou that he thought the difference
in weight could be explained by the weight of the packaging,
drying of the product, and inaccuracy in the police scale. In
January 2013, Ballou informed Verner and Kaczmarek by e-mail 9
about the two cases. In response, Kaczmarek wrote, "Please
don't let this get more complicated than we thought. If she
were suffering from a back injury -- maybe she took some oxys?"
Despite the oxycodone and cocaine cases, Ballou, Verner,
and Kaczmarek operated on the theory that Farak's drug use and
tampering had been confined to cocaine and only dated back to
November or December 2012; they believed the 2005 cocaine case
and the 2012 oxycodone case to be "outliers." The board found
that the 2012 oxycodone case and the 2005 cocaine case were
potentially exculpatory evidence. Verner testified that these
cases were "exculpatory information," and the SHO did not credit
that Kaczmarek failed to realize that this evidence was
potentially exculpatory. While the 2012 oxycodone case was
eventually sent to at least one of the DAOs by Ballou, the 2005
cocaine case was not turned over.
At around the same time, Kaczmarek also learned that Farak
had tested positive for cocaine on a urinalysis to which she
submitted near the time of her arrest, and that Farak had
admitted to using cocaine on Friday, January 18, the day before
her arrest. Kaczmarek forwarded this information to Verner,
Ballou, and Randall Ravitz, the chief of the appeals division of
the AGO's criminal bureau. Verner testified that he agreed that
the January 2013 urinalysis potentially was exculpatory, but
Kaczmarek denied that it was. 10
By the end of January, Farak's conduct was attracting
considerable attention. A colleague sent an e-mail message to
Verner and Kaczmarek that the district attorney for the Hampden
district "was getting pressure from the judges to identify cases
that were handled by Farak."
b. Discovery of mental health worksheets. On February 14,
Ballou reviewed the paperwork in the manila envelopes recovered
from the search of Farak's car. Ballou realized that papers
police originally thought were related to the drug lab actually
were personal papers, which included mental health counselling
worksheets that detailed Farak's struggles with drug addiction,
as well as her failed efforts to resist using drugs at work.
Handwritten notes on these papers suggested that Farak's
misconduct may have had a longer history than the AGO had
realized. Ballou, knowing that Kaczmarek was preparing for a
grand jury and recognizing the potentially inculpatory value of
the mental health worksheets, telephoned Kaczmarek to tell her
about them. During the telephone call, he expressed a concern
that the worksheets could be privileged. Kaczmarek said that
she would inquire of Verner whether a court order was needed to
present them to the grand jury.
That same day, Ballou scanned and attached eleven pages
found within Farak's vehicle to an e-mail message with the
subject "FARAK Admissions" addressed to Irwin, Kaczmarek, and 11
Verner. The first four pages were news articles, dated sometime
in 2011, about drug use by law enforcement officers, a
pharmacist, and a former technician of a drug laboratory in
another State, with what appeared to be Farak's handwritten
comments in the margins discussing their drug use. Ballou
included these articles because he believed they indicated that
"the case could have gone back much further than the time frame
[at which they] had been looking." In the remaining pages,
Farak referenced lying on or about a Drug Enforcement Agency
application, having "urge-ful" samples to analyze at work,
having urges to use a good sample at work, and knowing there
would be periods when she would be alone at work. One of the
pages provided: "Thursday: tried to resist using @ work, but
ended up failing"; and "Friday: @ work use w/out debating doing
it."
When Kaczmarek received Ballou's e-mail message, she
reviewed the pages and researched their contents for about
thirty minutes. Kaczmarek then saved a combined electronic copy
of the documents on her computer, titling the file "mental
health worksheets." Kaczmarek also printed copies of each
document, placed them in a manila envelope likewise labeled
"mental health worksheets," and added the envelope to a box
dedicated to Farak's trial. In a follow-up telephone call with
Kaczmarek, Ballou advised her that, because "there were so many 12
papers and things" seized from Farak's car, she should "come out
and look" at everything, not just the eleven pages he had sent
to her by e-mail. She never did.
Kaczmarek sought Verner's advice about whether to include
the mental health worksheets in her grand jury presentation.
She told Verner that there had been documents discovered in
Farak's car in which Farak "was talking about how she felt using
drugs and it may have been with some form of clinician" but that
she had a concern that the documents might be privileged.
Verner advised Kaczmarek not to include the mental health
worksheets in her grand jury presentation. Kaczmarek told
Ballou that she had discussed the issue with Verner and that
they had decided not to include the mental health worksheets in
the grand jury presentation because they had sufficient evidence
without the worksheets.
Before the SHO, Verner testified that he neither had read
Ballou's e-mail message nor opened the attachments. The SHO
rejected this testimony as not credible and found instead that
he had looked at the attachments. The SHO also found that both
Kaczmarek and Verner had known the documents Ballou had sent
them were exculpatory: "Any prosecutor or criminal defense
counsel who spent even a few minutes reviewing the attachments
to Ballou's February 14 [e-mail message] would have recognized
their significance: highly inculpatory to Farak, and highly 13
exculpatory to all Farak defendants." The mental health
worksheets remained in the evidence room at the Springfield
barracks.4 Copies of the mental health worksheets also were on
Kaczmarek's computer, on Verner's computer as an attachment to
Ballou's February 14, 2013, e-mail message, and in Kaczmarek's
trial box.
c. Prosecution memorandum and grand jury preparation. In
late March 2013, Kaczmarek wrote a prosecution memorandum5
seeking approval from the executive bureau of the AGO to indict
Farak. In the section of the memorandum discussing items
recovered from Farak's vehicle, Kaczmarek included "mental
health worksheets describing how Farak feels when she uses
illegal substances and the temptation of working with 'urge-ful
samples.'" Her direct supervisor, the chief of the EMC
division, Dean Mazzone, reviewed the prosecution memorandum and
suggested edits, which Kaczmarek adopted. Before Mazzone signed
off on the prosecution memorandum, he and Kaczmarek had a
4 It is unclear whether the mental health worksheets, or photocopies of them, were located in Ballou's investigatory file. Before the SHO, Ballou testified that he did not know whether the mental health worksheets were in his case file. The SHO found that Ballou's file contained his reports, search warrants, returns, and other similar items, but not the actual evidence in the evidence locker in the Springfield barracks.
5 A prosecution memorandum, or a "pros memo," is an internal memorandum that prosecutors write at the AGO to obtain approval to charge a particular case. 14
conversation about the mental health worksheets because
Kaczmarek was concerned that they possibly were privileged or
too prejudicial. In footnote seven in the memorandum, Kaczmarek
described the mental health worksheets: "These worksheets were
not submitted to the grand jury out of an abundance of caution
in order to protect possibly privileged information. Case law
suggests, however, that the paperwork is not privileged."
Verner also reviewed Kaczmarek's prosecution memorandum.
He signed his approval on March 27, but made significant and
substantial comments throughout it, including comments and
questions directed specifically to Kaczmarek. In one instance,
Verner made a handwritten notation next to footnote seven,
writing as to the mental health worksheets: "this paperwork NOT
turned over to DAs office yet." Verner "absolutely" understood
that these worksheets needed to be turned over to the DAOs.
At the hearing before the SHO, Kaczmarek testified that she
never had reviewed a signed, approved prosecution memorandum,
and that even if she had seen Verner's note about the mental
health worksheets, she would not have interpreted it as an
instruction to turn them over to the DAOs. The SHO did not
credit Kaczmarek's testimony, relying on the fact that Kaczmarek
had incorporated Verner's comments in another section of the
memorandum, and that Kaczmarek not viewing Verner's comments
with the purpose of acting on them would have been a knowing 15
violation of office policy and protocol. The SHO found that
Verner had instructed Kaczmarek to turn over the mental health
worksheets through the prosecution memorandum and, as was
Verner's expectation with every assistant attorney general, he
expected Kaczmarek to review this instruction and take the
required actions.
In late March 2013, before the grand jury Kaczmarek
presented various testimony and exhibits, including the
newspaper articles from 2011 that had been found with the mental
health worksheets. On April 1, 2013, the grand jury indicted
Farak on four counts of tampering with evidence, two counts of
unlawful possession of a class B controlled substance, and four
counts of theft of a controlled substance from a dispensary.
d. AGO's formal disclosures. At around the same time as
the grand jury proceedings, the AGO began receiving discovery
requests from the DAOs. While the prosecution memorandum was
being edited and finalized, Kaczmarek and Verner discussed the
language of a discovery letter to be sent to the DAOs along with
documents related to and obtained in the course of the Farak
investigation. Verner testified that, as was done in the
Dookhan case, the evidence the AGO uncovered "would be turned
over by [the AGO] to the individual [DAOs] who would then make
the determination on what to do with them." On March 27, 2013,
Verner signed the first discovery letter sent to the DAOs, which 16
Kaczmarek helped draft, and which accompanied 210 pages of
potentially exculpatory material, but excluded the mental health
worksheets, 2005 cocaine case, 2012 oxycodone case, and Farak's
urinalysis.
Kaczmarek also was responsible for providing discovery to
Farak's defense attorney, Elaine Pourinski. When Farak was
arraigned on April 22, 2013, Kaczmarek provided Pourinski with
assorted documents, which included the six pages of mental
health worksheets. On May 14, Kaczmarek arranged with Ballou
for Pourinski and Farak to review the evidence located in the
evidence room at the Springfield barracks. Kaczmarek did not
review that evidence herself.
There were two subsequent discovery letters and packages
sent to the DAOs on June 26, 2013, and July 12, 2013, signed by
Kaczmarek, which Verner did not review, but the second discovery
letter was sent to Verner for his approval. Kaczmarek's second
and third discovery letters noted the AGO's "continuing
obligation to provide potentially exculpatory information to the
[d]istrict [a]ttorneys as well as information necessary to your
[o]ffices' determination about how to proceed with cases in
which related narcotics evidence was tested at the Amherst
lab[]." The second and third disclosures, sent on June 26 and
July 12, respectively, included minutes and exhibits from the
grand jury, but did not include information about the 2005 17
cocaine case, the 2012 oxycodone case, the mental health
worksheets, or Farak's urinalysis. There were no additional
disclosures sent to the DAOs after July 12, 2013.
As of March 27, 2013, Verner knew that the mental health
worksheets had not yet been turned over, but understood that his
office had an obligation to do so, and reasonably expected that
Kaczmarek was going to disclose them, along with all other
exculpatory information. Verner never followed up with
Kaczmarek to ensure that the mental health worksheets and other
information had been disclosed to the DAOs.
e. Defendants' additional discovery requests. As the
prosecution of Farak progressed, multiple defendants filed
subpoenas and discovery requests for information related to
Farak's conduct. The matters were consolidated before Superior
Court Judge C. Jeffrey Kinder, who assigned Francis E. Flannery,
then first assistant district attorney for the Hampden district,
to serve as lead counsel on behalf of the Commonwealth, and
attorneys Luke Ryan and Jared Olanoff to serve as lead counsel
for the Farak defendants. A hearing was set for September 9,
2013, for the purpose of determining "the timing and scope of
. . . Farak's alleged criminal conduct."
Prior to the hearing, Ryan served Kaczmarek and Ballou with
subpoenas seeking documents pertaining to the scope of evidence
tampering at the Amherst lab in connection with a matter 18
captioned Commonwealth vs. Penate, Mass. App. Ct., No. 2015-P-
0054. At around the same time, the AGO also received other
subpoenas and discovery requests for the September 9 hearing,
including a discovery motion from Ryan in Commonwealth vs.
Rodriguez, Mass. Super. Ct., No. 1079CR01181 (Hampden County
2013), and a subpoena for Ballou from Olanoff in Commonwealth
vs. Watt, Mass. Super. Ct., Nos. 0979CR01068 & 0979CR01069
(Hampden County 2013). The discovery motions and subpoena each
sought substantially the same documents, such as "all documents
and photographs pertaining to the investigation of . . . Farak
and the Amherst drug lab[]." In the Rodriguez case, Ryan also
filed a motion to inspect the evidence seized from Farak's car
that was located at the Springfield barracks. Ballou sent the
subpoenas to Verner, Mazzone, Irwin, and Kaczmarek, writing,
"Anne asked me to forward this to the group to see if it can be
quashed."
On August 23, 2013, Ravitz assigned Foster, who had started
in the appeals division of the AGO in July 2013 and had no
experience in responding to subpoenas, to serve as the lead
attorney representing the AGO in the Superior Court proceedings.
A few days later, Ravitz met with Foster to provide her some
guidance on the process for responding to subpoenas and a few
sample motions. Foster was told not to "reinvent the wheel" and
was advised to copy wholesale from the sample motions. The 19
board noted that, "[g]iven the nature of the Farak prosecution,
and the subpoenas' importance both to the Farak case and to the
Farak defendants' cases, someone with significant experience
with subpoenas should have been assigned."
Under the direction of Susanne Reardon, the deputy chief of
the AGO's criminal bureau's appeals division, Foster prepared a
motion to quash the subpoena for Ballou in the Watt case.
Reardon told Foster to speak with Kaczmarek and Ballou before
responding, so that she could determine what had yet to be
turned over. Foster did not consult Kaczmarek or Ballou about
what had been turned over and proceeded to draft a motion to
quash the Watt subpoenas and a memorandum of law in support of
the motion. Foster sent Reardon a draft to review, and Reardon
provided comments, again noting that it would be "helpful" if
Foster verified what had and had not been turned over to defense
counsel. Neither Ravitz nor Reardon explicitly instructed
Foster to review Ballou's file.
After a meeting with Verner, Mazzone, Kaczmarek, and
Reardon, Foster filed a motion to quash the Watt subpoena on
September 6. Foster asserted that Ballou had limited first-hand
knowledge of the events described in the document requests, some
documents were protected by the qualified law enforcement
privilege, and Ballou should not be compelled to reveal his
thought process or the work product of the AGO. Foster 20
alternatively asked Judge Kinder to restrict the subpoena's
scope and to protect certain categories of information. Foster
did not review Ballou's file prior to filing these documents,
despite Reardon's suggestion.
Foster also filed an opposition to the discovery motion in
the Rodriguez case. She argued that the discovery requests were
unreasonably broad and sought documents outside the scope of the
issues to be litigated at the hearing on September 9. In
response to the motion to inspect the evidence seized from
Farak's car, Foster replied that the AGO was taking the position
that this would not be possible because the investigation of
Farak was ongoing.
At this time, lead counsel for the DAOs, Flannery, was also
actively preparing for the September 9 hearing. He reached out
to Ballou seeking information about Farak's potential tampering
in the 2012 oxycodone case. Ballou prepared and sent a report
to Flannery on September 4, including Kaczmarek on the e-mail
message, detailing what he knew about the 2012 oxycodone case.
Flannery also requested that Ballou set up a date "so a team of
defense attorneys [could] review the FARAK evidence at [his]
office" before the hearing. Ballou forwarded the request to
Irwin and Kaczmarek. Kaczmarek quickly responded, "No. This is
still an open criminal case. I do not want defense attorneys
going through evidence on a fishing expedition." As a result of 21
Kaczmarek's response, the parties did not arrange a time to view
the evidence prior to the September 9 hearing.
Also on September 4, at a meeting in her office, Kaczmarek
informed John Bossé, an assistant district attorney in Berkshire
County, that he should advise defense attorneys that "all
relevant discovery had been provided to the [DAOs]."
Kaczmarek's statement to Bossé was materially false and
intentionally misleading; it was not possible at that time for
Kaczmarek to know whether all relevant evidence had been
provided to the DAOs, as she had made no effort to review the
evidence at the Springfield barracks.
Kaczmarek also did not review Ballou's file prior to the
September 9 hearing, even though the subpoena required Ballou to
bring his file to the hearing and to testify about the
investigation. The board described Kaczmarek's failure to
review the file and her failure to meet with and help prepare
Ballou for the hearing a "dereliction of . . . duty," noting
that "[a]ny prosecutor should want to review the contents of the
lead investigator's file and all the evidence he had collected."
No one from the AGO prepared Ballou for the hearing.
f. Superior Court proceedings. Foster represented the AGO
at the September 9 Superior Court hearing before Judge Kinder,
where her motion to quash the subpoena in the Watt case was
denied. As to Foster's request for a protective order, Judge 22
Kinder asked: "Have you personally reviewed the file to
determine that there are categories of documents in the file
that fit the description of those that you wish to be
protected?" Foster responded that she had not, but that she had
spoken with Kaczmarek, who indicated that several documents, e-
mail messages, and correspondences that had been requested would
be protected as work product. Judge Kinder then asked, "But you
don't know, having never even looked at the file, what those
documents are?" Foster answered, "Correct."
Judge Kinder next asked whether the file was present, and
Foster told him, incorrectly, that she did not believe it was.
When Ballou was called to the stand, he brought his file with
him. Ballou testified that "everything in my case file has been
turned over." Olanoff asked if he knew whether everything in
Kaczmarek's file had been turned over, and Ballou stated: "I
believe everything pertaining to the Farak investigation has
been turned over. I am not aware of anything else." This
statement may have been true as it related to Ballou's case
file, but this file was a subset of the totality of discovery
material within the custody and control of the State police and
the AGO. For example, the mental health worksheets were located
at the Springfield barracks. Despite Judge Kinder's probing,
Foster still did not request to see Ballou's file; Ballou 23
testified before the SHO that he would have shown it to her had
she asked to see it.
At the conclusion of the hearing, with respect to the
subpoena in the Watt case and the discovery motion in the
Rodriguez case, Judge Kinder ordered Foster to send to him all
responsive documents for which a claim of privilege was being
asserted so he could conduct an in camera review.6 Foster asked
Judge Kinder to clarify the scope of his order, to which he
responded by explaining that he did not want to see anything
that had been turned over or that the AGO already had agreed to
turn over, but that he did want to see the documents Foster
believed were privileged or not discoverable.7
6 Judge Kinder's order stated: "[W]hat I expect, again, if you can provide and that will be for my in camera review, those documents that you feel should not be disclosed with some indication somewhere in the body of the pleading why it is you feel those documents should not be disclosed."
7 Foster then again asked Judge Kinder to clarify the scope of the Watt subpoena:
Foster: "It's just [that the] language of the subpoena was for all documents and photographs for the whole investigation, so I was wondering since the subpoena was for Sergeant Ballou, the documents he has or the documents the [AGO] has?"
Judge Kinder: "The subpoena duces tecum, as I understood it, went to Sergeant Ballou and that was the subpoena that you sought to quash."
Foster: "Correct."
Judge Kinder: "So that is what we are talking about." 24
The board characterized Foster's failure to review the file
and lack of preparedness, particularly at the September 9
hearing, as "at best inconvenient and at worst incompetent."
The day after the hearing, in an e-mail message to Mazzone,
Kaczmarek, Verner, Ravitz, and Reardon, Foster explained that
her motion to quash had been rejected and that Judge Kinder had
given them until September 18 to go through Ballou's file and to
provide him anything that they thought was privileged, along
with a memorandum explaining the basis for each privilege claim.
Verner responded to the entire group almost immediately, asking:
"Anne, can you get a sense from Joe what is in his file?
Emails[,] etc[.]? Kris, did the judge say his 'file' or did he
indicate Joe had to search his emails[,] etc[.]?"
At that point, Verner reasonably believed that both Foster
and Kaczmarek had reviewed Ballou's file; Foster was
representing Ballou in court, and Kaczmarek had spent nine
months on the case and had obtained indictments with Ballou's
aid. This belief was further supported by Kaczmarek's response
to Verner's e-mail message, minutes later: "Joe has all his
reports and all reports generated in the case. All photos and
videos taken in the case. His search warrants and returns.
Copies of the paperwork seized from her car regarding new[s] 25
articles and her mental health worksheets."8 Verner then
replied, "Is that every[thing] in his file?" Kaczmarek
responded: "Yes. By file, we are talking about his working
file. Think trial binder. The boxes of actual evidence are in
Springfield. Log books (which we have copied), actual items
taken from car, tote bag, and drawer (all of which are
photographed)."
Later that same day, a brief meeting was held among
Kaczmarek, Foster, Verner, Reardon, Ravitz, and Mazzone. At
that meeting, Kaczmarek informed the attendees that she believed
everything in Ballou's file had been turned over.9
Kaczmarek did not clearly explain that the materials in
Ballou's file were but a subset of the evidence stored at the
Springfield barracks. She also failed to inform her superiors
that no one in the AGO had reviewed the evidence in Springfield.
On the basis of Kaczmarek's representations about Ballou's file,
Verner believed that the mental health worksheets had been
turned over.
8 This was the first time the mental health worksheets had been mentioned to Foster.
9 The SHO found that a meeting had been held at which Kaczmarek told Foster and the other attendees that everything had been turned over. He did not make a finding as to the attendees, but none of the parties disputes Foster's or Reardon's testimony that Kaczmarek, Foster, Reardon, Ravitz, and Mazzone attended. See Matter of Angwafo, 453 Mass. at 29, citing Isaiah I., 448 Mass. at 337. 26
That same day, Kaczmarek sent an e-mail message to Ballou
asking, "Can you come to Boston sometime this week and bring
your file so we can see what[']s in it?" She then sent a
message to Verner, confirming that she had asked Ballou "to come
to Boston sometime this week so we/I can look at his file."
Verner thought that Kaczmarek was being cautious in requesting
the file, wanting to confirm what was in it.
On September 12, Ballou brought his file to the AGO in
Boston. No one at the AGO reviewed it. Foster unreasonably
assumed Ballou and Kaczmarek would meet and that she was not
invited to that meeting. Kaczmarek expected someone else to
review the file, not believing it to be her responsibility.
Verner assumed that Foster, in conjunction with Kaczmarek, would
review the file. Verner never followed up with Kaczmarek about
her review of Ballou's file.
At a meeting with Verner and Mazzone on September 16,
Ravitz told Foster that everything had been turned over and she
should draft a letter to the judge saying as much. Following
those instructions, Foster prepared a letter to send to the
judge concerning the Watt subpoena to Ballou.10 Before Foster
10The discovery motion in the Rodriguez case was denied on September 9 as untimely to the extent that it sought the production of additional discovery. The judge took under advisement the question whether additional discovery should be forthcoming, and he ultimately denied this motion and general relief to Rodriguez later that year. 27
filed the letter with the court, Ravitz quickly reviewed the
draft of the letter and approved it. It stated:
"Dear Judge Kinder,
"On September 9, 2013, pursuant to a subpoena issued by defense counsel, you ordered the [AGO] to produce all documents in Sergeant Joseph Ballou's possession that the [AGO] believes to be privileged by September 18, 2013, to be reviewed by your [sic] Honor in camera. After reviewing Sergeant Ballou's file, every document in his possession has already been disclosed. This includes grand jury minutes and exhibits, and police reports. Therefore, there is nothing for the [AGO] to produce for your review on September 18, 2013. (Emphases added.)
"Please do not hesitate to contact me should your [sic] require anything further.
"Sincerely,
"Kris C. Foster"
The board found that the statements in Foster's letter were
misleading and intentionally vague. Contrary to Foster's
assertion in her letter, no one at the AGO had reviewed Ballou's
file and no one had determined whether every document in
Ballou's possession had been disclosed. The board found that by
using the passive voice, Foster had intended to keep her
statements vague so as to shield the AGO from further inquiry at
that stage by the judge. Further, in her letter, Foster did not
distinguish between Ballou's case file and the larger set of
evidence located at the Springfield barracks. Ballou had
substantial evidence in his "possession," including all
documents from Farak's car, so Foster's reference to such 28
evidence was found by the board to be "reckless" and
"misleading."
Ryan continued to press the AGO for access to documents
related to Farak's tampering. On September 17, Ryan, in the
Penate case, served a motion on the AGO and the State police to
compel production of documents pursuant to Mass. R. Crim. P.
17 (a) (2), 378 Mass. 885 (1979). An attorney for the State
police, Sean Farrell, sent an e-mail message to Kaczmarek
seeking information she had on the discovery history and
responses. Kaczmarek responded, "We also received this gem,"
warning Farrell "not [to] give this attorney an inch, he is very
rude and aggressive." As to the specific categories requested
by Ryan, Kaczmarek falsely implied that the AGO had no
information in its files responsive to the Penate requests in
its files. Farrell also reached out to Ballou, telling Ballou
that Kaczmarek had advised him that there were no records
responsive to certain requests and asking Ballou to confirm.
Ballou responded to Farrell, including Kaczmarek on the e-mail
message, explaining that his "entire investigative file ha[d]
been turned over." Kaczmarek did not correct or clarify
Ballou's statements.
The parties returned to court on October 2, where Foster
once again represented to the court that all the contents of
Ballou's file had been produced. Foster objected to Ryan's 29
argument for permission to view the physical evidence seized in
the search of Farak's car, arguing that the evidence was
irrelevant and that to allow one defense lawyer to look at it
would "open the floodgates" to similar requests by other
defendants. In response to a comment by Judge Kinder that it
might be helpful for her to look at the information about which
she was making representations, Foster stated, "I have talked to
[Kaczmarek and Ballou] and both of them said there's nothing -
- there's no smoking gun . . . ." The board found this
statement to be inaccurate and misleading. The judge denied
Ryan's motion to inspect physical evidence, reasoning that
"physical evidence has been described in detail for the
defendant and photographs of that evidence have been provided."
Judge Kinder allowed Ryan's motion to compel production of
documentary evidence "insofar as it [sought] production of drug
testing administered to Sonja Farak by her employer, and any
correspondence related directly to drug use or evidence
tampering by Sonja Farak." Foster, at the direction of Verner,
and with the guidance of Ravitz and Kaczmarek, filed a motion to
clarify what Judge Kinder meant by "correspondence." After
Kaczmarek reviewed the motion for clarification, she failed to
ensure that all potentially exculpatory information known to her
had been turned over to the DAOs. 30
Over the next two months, Judge Kinder denied discovery
requests and other forms of relief to the consolidated
defendants before him. In general, he reasoned that the
defendants had failed to show that Farak had been abusing drugs
and tampering with evidence in 2011 or earlier, when the
defendants had been arrested. He denied a motion to dismiss
filed by Ryan in Penate because there was insufficient evidence
that Farak had engaged in misconduct in November 2011 and
January 2012 when the defendant had been arrested and the drug
samples had been tested.
The board found that Foster's letter's misguided phrasing,
and her incompetence and lack of diligence, in part caused Judge
Kinder to find that the defendants had not met their burden to
show that Farak's misconduct had occurred early enough to make a
difference in their cases. The board also found that "defense
counsel could have used the undisclosed mental health worksheets
to show that Farak was engaged in drug tampering and drug abuse
in 2011, and perhaps could have used the [2005] light cocaine
case to attempt to show that Farak's drug tampering and drug use
had extended back many years before 2011."
g. Ryan's discovery of mental health worksheets. In
January 2014, Farak pleaded guilty to four counts of evidence
tampering, four counts of larceny of a controlled substance from
a dispensary, and two counts of unlawful possession of a class B 31
controlled substance. After the guilty plea and sentencing, the
Farak matter was no longer an open criminal investigation, and
the AGO had no basis for objecting to turning over evidence to
defendants in related criminal matters.
On October 30, 2014, after the AGO assented to a motion to
inspect physical evidence, Ryan was granted access to all the
evidence that originally had been stored at the Springfield
barracks.11 Ryan saw the mental health worksheets and
immediately recognized their significance. This was the first
time any of the defendants affected by Farak's misconduct had
gained access to the mental health worksheets and other
potentially exculpatory evidence.
Ryan wrote an eleven-page letter to the AGO, detailing the
withheld evidence, explaining its exculpatory value, and
observing that "[i]t would be difficult to overstate the
significance of these documents." On receiving the letter from
Ryan, Verner immediately met with Foster, Ravitz, and Mazzone.
Members of the Farak prosecution team were shocked, upset, and
concerned that their office may have made inaccurate
representations.
11Prior to Ryan's discovery, Kaczmarek had left the AGO to take a position as an assistant clerk-magistrate in the office of the clerk of the Superior Court for criminal business in Suffolk County. 32
Verner himself reviewed the entirety of the Farak material
to ensure there was nothing else that had not been produced. On
November 13, 2014, the AGO produced an additional 289 pages of
previously undisclosed documents, including the mental health
worksheets and other papers that supported a strong inference
that Farak's misconduct began before 2012.
In December 2016, Superior Court Judge Richard Carey held a
six-day evidentiary hearing in Hampden County on renewed motions
to dismiss and motions for new trials or to withdraw guilty
pleas filed by ten defendants who claimed a right to relief
based on Farak's tampering and the AGO's misconduct.12 All three
respondents testified under oath before the judge, who granted
relief to some of the defendants, focusing mostly on those whose
certificates of drug analysis (drug certificates) had been
signed by Farak. The Committee for Public Counsel Services
(CPCS) and other defendants then sought relief in this court
pursuant to G. L. c. 211, § 3, and G. L. c. 231A, § 1.
On October 11, 2018, we ordered relief for the defendants
affected by Farak's misconduct, dismissing (1) "all convictions
based on evidence that was tested at the Amherst lab on or after
12The SHO did not admit in evidence the judge's 2017 findings and conclusions of law, except for three pages of his final memorandum and order. The majority of the judge's findings, therefore, were not considered as part of these proceedings. 33
January 1, 2009, regardless of the chemist who signed the drug
certificate," and (2) "all methamphetamine convictions where the
drugs were tested during Farak's tenure at the Amherst lab."
Committee for Pub. Counsel Servs., 480 Mass. at 729. Unlike in
the Dookhan cases, where we established a conclusive presumption
of government misconduct, see Bridgeman, 476 Mass. at 321-322,
we concluded that the more drastic remedy of dismissal was
required for Farak defendants because the government misconduct
by Farak and the assistant attorneys general was "so intentional
and so egregious" (citation omitted), Committee for Pub. Counsel
Servs., supra at 725.
2. Procedural history. In June 2019, bar counsel filed a
three-count petition for discipline against Foster, Kaczmarek,
and Verner, alleging multiple violations of the Massachusetts
rules of professional conduct related to the AGO's prosecution
of Farak. The first count alleged violations stemming from
Verner and Kaczmarek's failure to disclose to the DAOs
potentially exculpatory information as to the timing and scope
of Farak's drug use and tampering, as well as Verner's failure
to fulfill his duties as Kaczmarek's supervisor. The second
count alleged violations stemming from Kaczmarek's failure to
disclose to Flannery, Bossé, and Farrell potentially exculpatory
information, and Verner's failure to ensure that Kaczmarek had
made such disclosures. The third count alleged violations 34
stemming from Foster's response to the Watt subpoena and the
Rodriguez and Penate motions, Kaczmarek's failure to undertake a
review of her file and to produce documents in response to the
subpoena and discovery motions, Kaczmarek's failure to alert
Foster to the existence of undisclosed documents, and
Kaczmarek's and Verner's failure to ensure that potentially
exculpatory information had been disclosed following their
respective reviews of the motion to clarify.
The respondents filed their answers in August 2019. On
Foster's motion, the board chair appointed an SHO to preside
over the proceedings. See S.J.C. Rule 4:01, § 5 (3) (d), as
amended, 453 Mass. 1305 (2009). An evidentiary hearing was held
by video conference over the course of twenty-three
nonconsecutive days, beginning in September 2020 and ending in
December 2020, and included testimony from fifteen witnesses and
the submission of 305 exhibits.
In July 2021, the SHO issued his hearing report. On the
first count of the petition, the SHO concluded that Kaczmarek,
by failing to disclose to the DAOs potentially exculpatory
evidence known to her, violated Mass. R. Prof. C. 1.1, 426 Mass.
1308 (1998) (provide competent representation); Mass. R. Prof.
C. 1.3, 426 Mass. 1313 (1998) (act with diligence in
representing client); Mass. R. Prof. C. 3.4 (a), 426 Mass. 1389
(1998) (do not obstruct another's access to evidence); Mass. R. 35
Prof. C. 3.4 (c), 426 Mass. 1389 (1998) (do not knowingly
disobey obligation under rules of tribunal); Mass. R. Prof. C.
3.8 (d), 426 Mass. 1389 (1998) (as prosecutor, timely disclose
to defense all evidence or information known to prosecutor that
tends to negate guilt or mitigates offense); and Mass. R. Prof.
C. 8.4 (d), 426 Mass. 1429 (1998) (do not engage in conduct
prejudicial to administration of justice). The SHO concluded
that Verner violated Mass. R. Prof. C. 1.3; and Mass. R. Prof.
C. 5.1 (b), 426 Mass. 1405 (1998) (as supervising attorney, make
reasonable efforts to ensure that supervised lawyer's conduct
conforms to rules of professional conduct). The SHO concluded
that bar counsel had not proved that Verner had violated any
other rules.
On the second count of the petition, the SHO concluded that
Kaczmarek, by knowingly failing to disclose potentially
exculpatory evidence and by knowingly making materially
misleading statements to assistant district attorneys Bossé and
Flannery and State police counsel Farrell, had violated Mass. R.
Prof. C. 1.1, 1.3, 3.4 (a), 3.4 (c), and 3.8 (d); Mass. R. Prof.
C. 4.1 (a), 426 Mass. 1401 (1998) (do not knowingly make false
statement of material fact to third person); Mass. R. Prof. C.
8.4 (a), 426 Mass. 1429 (1998) (do not knowingly assist or
induce another to violate rules of professional conduct or do so
through acts of another); Mass. R. Prof. C. 8.4 (c) (do not 36
engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation); Mass. R. Prof. C. 8.4 (d); and Mass. R.
Prof. C. 8.4 (h), 426 Mass. 1429 (1998) (do not engage in any
other conduct that adversely reflects on fitness to practice
law). He also found that, by failing to direct Ballou to
provide Flannery with potentially exculpatory information known
to her, Kaczmarek violated Mass. R. Prof. C. 1.1, 1.3, 3.4 (a),
3.4 (c), and 3.8 (d); Mass. R. Prof. C. 5.3 (b), 426 Mass. 1408
(1998) (as supervisory lawyer over nonlawyer, make sure
nonlawyer's conduct complies with lawyer's obligations); and
Mass. R. Prof. C. 8.4 (a), 8.4 (d), and 8.4 (h). Finally, he
found that, by failing to take remedial action when she learned
that Ballou had not disclosed potentially exculpatory evidence
to Flannery, Kaczmarek had violated Mass. R. Prof. C.
5.3 (c) (2), as appearing in 426 Mass. 1408 (1998) (as
supervisory lawyer, take remedial action to avoid or mitigate
misconduct by nonlawyer). The SHO concluded that Verner was not
responsible for any of the alleged rules violations on the
second count.
On the third count of the petition, the SHO determined that
Foster had committed violations of Mass. R. Prof. C. 1.1; Mass.
R. Prof. C. 1.2 (a), 426 Mass. 1310 (1998) (seek lawful
objectives of client through reasonably available means
permitted by law and rules of professional conduct); and Mass. 37
R. Prof. C. 1.3, by failing to adequately prepare to respond to
subpoenas and appear at hearings regarding the production of
evidence and by failing to ensure that the AGO reviewed Ballou's
file. The SHO also concluded that, by drafting a letter with
reckless disregard for the truth that misled the judge to
believe that the entirety of the file had been reviewed and all
documents had been produced, Foster had violated Mass. R. Prof.
C. 8.4 (d) and 8.4 (h). The SHO rejected Foster's argument that
Mass. R. Prof. C. 5.2 (b), 426 Mass. 1407 (1998) (subordinate
lawyer may act in accordance with supervisory lawyer's
reasonable resolution of arguable question of duty), relieved
her of responsibility because she had been acting in accordance
with her supervisor's instructions. The SHO held that
Kaczmarek, by failing to undertake a review of her file and
produce documents responsive to the subpoenas and discovery
motions, and by failing to alert Foster to the existence of
undisclosed documents, had violated Mass. R. Prof. C. 1.1, 1.3,
and 3.4 (c). Finally, the SHO concluded that, by failing to
ensure that potentially exculpatory information known to her had
been disclosed following her review of the motion to clarify,
Kaczmarek had violated Mass. R. Prof. C. 1.1, 1.3, 3.4 (a), and
8.4 (d). The SHO found that bar counsel had not proved any of
the charges against Verner in the third count. 38
In October 2021, the SHO issued a supplemental report
detailing aggravating and mitigating factors, and recommended
sanctions, for each respondent. Based on his findings, the SHO
recommended a public reprimand for Verner, a suspension of one
year and one day for Foster, and a two-year suspension for
Kaczmarek.
Bar counsel and Foster filed timely appeals with the board.
Bar counsel challenged the sanctions for all three respondents,
arguing that the SHO improperly considered several mitigating
factors and failed to consider notable aggravating factors.
Neither Kaczmarek nor Verner appealed from the SHO's findings
and conclusions.
In June 2022, the board issued its final memorandum. The
board adopted the SHO's recommendation of a suspension of one
year and one day for Foster, but recommended a three-month
suspension for Verner and disbarment for Kaczmarek. The board
thereafter filed an information with a single justice of this
court pursuant to S.J.C. Rule 4:01, § 8 (6), in addition to a
motion to reserve and report without decision. In November
2022, a single justice reserved and reported the case to the
full court.
3. Discussion. a. Standard of review. "In bar
disciplinary cases where a single justice has reserved and
reported the case to the full court, we review the matter and 39
'reach our own conclusion.'" Matter of Finneran, 455 Mass. 722,
730 (2010), quoting Matter of Wainwright, 448 Mass. 378, 384
(2007). In doing so, we keep in mind that the disciplinary
rules exist to "protect the public and maintain its confidence
in the integrity of the bar and the fairness and impartiality of
our legal system." Matter of Curry, 450 Mass. 503, 520-521
(2008). Accordingly, "[t]he appropriate level of discipline is
that which is necessary to deter other attorneys and to protect
the public." Matter of Zak, 476 Mass. 1034, 1038 (2017),
quoting Matter of Curry, supra at 530. To ensure that a
recommended disciplinary sanction achieves its desired ends, we
focus our review on whether it is "markedly disparate from
judgments in comparable cases." Matter of McBride, 449 Mass.
154, 163 (2007). It is not necessary to this endeavor, however,
that we "find perfectly analogous cases" (citation omitted).
Matter of Doyle, 429 Mass. 1013, 1014 (1999). Where no
analogous cases exist, we "must establish independently a
sanction adequate to address the seriousness of the misconduct."
Matter of Foley, 439 Mass. 324, 339 (2003). Each case "must be
decided on its own merits and every offending attorney must
receive the disposition most appropriate in the circumstances."
Matter of Murray, 455 Mass. 872, 883 (2010), quoting Matter of
the Discipline of an Attorney, 392 Mass. 827, 837 (1984). 40
Although the board's findings and recommendations are not
binding on the court, they are "entitled to great weight."
Matter of Fordham, 423 Mass. 481, 487 (1996), cert. denied, 519
U.S. 1149 (1997). We generally afford substantial deference to
the board's recommended disciplinary sanction. See Matter of
Griffith, 440 Mass. 500, 507 (2003). Further, we defer to the
board's findings of subsidiary facts if they are "supported by
substantial evidence, upon consideration of the record." Matter
of Murray, 455 Mass. at 879, quoting S.J.C. Rule 4:01, § 8 (4).
We may, however, draw reasonable inferences from the board's
findings. See Matter of Driscoll, 447 Mass. 678, 685 (2006),
citing Matter of Orfanello, 411 Mass. 551, 556 (1992). The SHO
is the sole judge of the credibility of the testimony presented
at the hearing. S.J.C. Rule 4:01, § 8 (5) (a).
b. Verner. The SHO found that Verner violated Mass. R.
Prof. C. 1.3 and 5.1 (b) because he failed to follow up with
Kaczmarek about whether she had disclosed the mental health
worksheets, along with all other potentially exculpatory
information, to the DAOs. The SHO also found that Verner
neglected his supervisory duties when he failed to follow up
with Kaczmarek about the contents of Ballou's file, and likewise
failed to verify whether all potentially exculpatory evidence in
that file had been disclosed, following Kaczmarek's e-mail
message on September 10. The board adopted these findings, and 41
Verner does not dispute them. Verner argues, however, that a
public reprimand, rather than a three-month suspension, is the
appropriate sanction for his violations. Bar counsel argues
that, as the board concluded, Verner's misconduct warrants a
suspension.
i. Reliance as mitigating factor. "In assessing the
appropriate level of discipline, [we] must . . . consider
factors that mitigate, and those that aggravate, the misconduct
the lawyer committed." Board of Bar Overseers, Massachusetts
Bar Discipline: History, Practice, and Procedure 62 (2018)
(Massachusetts Bar Discipline). The SHO found as mitigating
that Verner relied on Kaczmarek's September 10, 2013, statement
that she had turned over everything in Ballou's file, including
the mental health worksheets. The board, on the other hand,
concluded that Verner's reliance was not mitigating, because
Verner nonetheless had a duty to follow up rather than accept
the statement at face value. Accordingly, the board found that
no factors mitigated Verner's misconduct. Verner argues that
his reliance should be treated as a mitigating factor. Bar
counsel argues that we should adopt the board's reasoning.
We conclude that Verner's misconduct is mitigated by his
reliance on Kaczmarek's false representations. Reliance, when
it is reasonable and in good faith, may indicate a lesser degree
of culpability. See Massachusetts Bar Discipline, supra at 393 42
("The principle underlying a special mitigating consideration is
that it shows that the lawyer who committed misconduct acted
unintentionally, had some reason beyond the attorney's voluntary
control for engaging in the misconduct, or was less culpable
than the category of misconduct would otherwise imply").
Verner's reliance was reasonable and in good faith:
Kaczmarek was Verner's subordinate, and Verner knew her to be an
experienced prosecutor who had demonstrated her competence
during her work on the Dookhan case. See Admonition No. 19-09,
35 Mass. Att'y Discipline Rep. 698, 698-699 (2019) (respondent's
failure to ensure filing of motion for postconviction relief was
mitigated by his reliance on more experienced co-counsel's false
representation that motion had been filed); Camilo-Robles v.
Zapata, 175 F.3d 41, 46 & n.2 (1st Cir. 1999) (attorney is
"entitled to rely, at least to some extent, on the work of his
predecessors and subordinates" because for "bureaucratic
structures . . . to function, the ability to delegate
responsibility and to trust the judgments of others is
essential"). In addition, by the time Kaczmarek represented
that Ballou's file had been turned over, she had been in charge
of the Farak investigation and prosecution for nine months, and
there had been no signs indicating that Kaczmarek was not
complying with the rules of professional conduct. Contrast
Attorney Grievance Comm'n of Md. v. Kimmel, 405 Md. 647, 673 43
(2008) ("numerous warning or alert indicators should have
informed the . . . managing attorneys . . . of the need for more
heightened supervision").
Although the SHO found that Verner should have followed up
with Kaczmarek to ensure that she indeed had disclosed all
potentially exculpatory evidence, Kaczmarek's deceit gave Verner
some reason to believe that such follow up was unnecessary. See
Matter of Newman, 31 Mass. Att'y Discipline Rep. 482, 483 (2015)
(in mitigation, respondent made false representations after
consulting "with an experienced appellate lawyer, who
incorrectly advised the respondent that [his contemplated
actions would be] appropriate").13
Bar counsel argues that, even if reasonable and good faith
reliance is a mitigating factor, in the context of a rule
5.1 (b) violation it is a "typical" mitigating factor, and so
should be discounted. Typical mitigating factors are those that
"are common to almost all such violations by an attorney."
Matter of Barkin, 1 Mass. Att'y Discipline Rep. 18, 21 (1977).
See Matter of Parigian, 33 Mass. Att'y Discipline Rep. 375, 381
(2017) (typical mitigating factors include "unblemished
13Bar counsel argues that Verner's belief that the mental health worksheets had been turned over was not reasonable because, had the worksheets been disclosed, there would have been a flood of motions to dismiss or for a new trial. Bar counsel, however, does not point to anything in the record that indicates Verner should have had such an expectation. 44
disciplinary record" and "cooperation with bar counsel"). They
are generally "not given great weight in determining the
appropriate sanction." Matter of Crossen, 450 Mass. 533, 576
n.55 (2008). By contrast, "special" mitigating factors are
those that generally do warrant a deviation from the "usual and
presumptive sanction." See Matter of Otis, 438 Mass. 1016, 1017
(2003), quoting Matter of Concemi, 422 Mass. 326, 330 (1996).
We conclude that reasonable and good faith reliance is a
special rather than a typical mitigating factor, and so should
weigh in favor of a lesser sanction. See Matter of Finneran,
455 Mass. at 736. Unlike the mitigating factors that this court
previously has found to be typical, reasonable and good faith
reliance on another attorney is not an excuse that generally
will be available to attorneys -- supervisory or otherwise --
who have engaged in misconduct. See Matter of Gleason, 28 Mass.
Att'y Discipline Rep. 352, 354-355 (2012) (rule 5.1 [b]
violation stemmed from respondent's failure to discuss case with
associate, rather than any misrepresentations by associate);
Kimmel, 405 Md. at 677-678 (rule 5.1 [b] violation stemmed from
failure to provide support following subordinate's requests for
help). Even where there is reliance, it will not always be
reasonable and in good faith. See Matter of McDonald, 18 Mass.
Att'y Discipline Rep. 382, 388 (2002) (respondent placed "too
much trust in his friend and colleague" when he relied "upon his 45
representations as to the progress of the case"); In re Dickens,
174 A.3d 283, 298 (D.C. Ct. App. 2017) (respondent violated rule
5.1 [a] because she "ignored clear warning signs that the trust
and confidence" placed in associate "was no longer justified").
ii. Aggravating factors. The board's recommendation that
Verner receive a suspension was based in part on several
aggravating circumstances. This included Verner's years of
experience as a lawyer and prosecutor, the extent of the harm to
and the vulnerability of the victims, the notoriety of the case
and the deleterious effect on the public's confidence in the
criminal justice system, and the lack of candor he demonstrated
in his testimony.
We first address the board's conclusion that Verner lacked
candor in his testimony. The board's conclusion was based
solely on Verner's denial that he had read Ballou's February 14,
2013, e-mail message and its attachments. The SHO found that,
because Verner was detail-oriented and this was a high-profile
case, it was not plausible that Verner had failed to review the
e-mail message and its attachments. The board, but not the SHO,
characterized Verner's contention that he had not seen Ballou's
message as a "self-servingly untruthful denial." Verner argues
that the board erred in finding a lack of candor in his
testimony. 46
We agree with Verner. The SHO, whose task it is to
determine whether a respondent's testimony was "deliberately
false or . . . merely confused or mistaken," did not find
Verner's representation about Ballou's e-mail message to be a
deliberate falsehood. Matter of Hoicka, 442 Mass. 1004, 1006
(2004). See Strigler v. Board of Bar Examiners, 448 Mass. 1027,
1029-1030 (2007) (distinguishing failure to remember from lack
of candor). This is in contrast to the SHO's finding that
Foster's testimony was "dissembling, disingenuous[], and
evasive[]," and his finding that Kaczmarek's testimony was
"vague" and "dissembling." Instead, the SHO found that "during
the hearings, Verner demonstrated candor, remorse, and a
recognition of and responsibility for his mistakes," and that
Verner's "forthrightness . . . [was] noteworthy and laudatory."
See Matter of Johnson, 452 Mass. 1010, 1011 (2008), quoting
S.J.C. Rule 4:01, § 8 (4) ("special hearing officer is the 'sole
judge of the credibility of the testimony presented at the
hearing'").
Verner next argues that the board erred in considering his
experience as an aggravating factor, given that virtually all
supervising attorneys are experienced. This argument is
unavailing. See Matter of Corbett, 478 Mass. 1004, 1007 (2017)
("substantial experience in the practice of law" may be
considered as aggravating factor by board). Verner does not 47
provide any legal authority to suggest that we categorize
aggravating factors in terms of whether they are "typical."
Contrast Matter of Otis, 438 Mass. at 1017 n.3 (discussing
"typical" mitigating factors). Regardless, however, the board
did not merely focus on Verner's experience as an attorney
generally; instead, the board considered Verner's extensive
experience as a supervising attorney to be aggravating. See
Admonition No. 22-06, 38 Mass. Att'y Discipline
Rep. , (2021) (particular type of experience may be
considered as aggravating factor). In particular, Verner served
in three different supervisory positions during the time he
worked as a prosecutor in the office of the district attorney
for the northern district. While virtually all supervisory
attorneys may be experienced, this amount of supervisory
experience is not necessarily typical. We therefore hold Verner
to a higher standard than a supervising attorney who lacks such
experience. See Matter of Moran, 479 Mass. 1016, 1022 (2018)
("substantial experience in the . . . practice area in which the
misconduct occurred . . . properly was considered an aggravating
factor").
Verner also contends that consideration of his experience
was inappropriate because the board did not draw a causal
connection between his experience and the charged misconduct.
This argument also fails. Experience is considered as an 48
aggravating factor because an "experienced attorney should
understand ethical obligations to a greater degree than a
neophyte." Matter of Luongo, 416 Mass. 308, 312 (1993).
Verner's experience, therefore, can be said to have aggravated
Verner's misconduct without having caused it. See Matter of
Weisman, 30 Mass. Att'y Discipline Rep. 440, 455 (2014) (citing
experience as aggravating factor without drawing causal
connection).
Finally, Verner argues that the board erred by including as
an aggravating factor the significant harm that resulted from
the AGO's failure to disclose exculpatory evidence. According
to Verner, because his misconduct was not willful, and because
he made some reasonable efforts to supervise Kaczmarek, he did
not cause the harm that resulted. Verner points to the SHO's
conclusion that, because Kaczmarek's actions "were deliberate
acts for which Verner bore no responsibility," there was "no
causal connection between Verner's lack of follow-up . . . and
the harm that ensued." The board disagreed with the SHO and
concluded that Verner's failure to adequately supervise
Kaczmarek caused "catastrophic harm."
Verner's argument misses the mark. The SHO found that
Kaczmarek's failure to disclose potentially exculpatory evidence
was "due at least in part to Verner's failure adequately and
diligently to supervise . . . and follow up with her." This 49
finding, which Verner does not dispute, plainly establishes that
Verner's misconduct was a contributing cause of the harm that
resulted. See Matter of Nealon, 26 Mass. Att'y Discipline Rep.
427, 429, 435 (2010) (respondent's failure to take remedial
action after learning of subordinate attorney's "ongoing delay
and neglect of the estate . . . resulted in potential or actual
harm"). There is simply no legal authority to support the SHO's
reasoning that, because Kaczmarek's acts were deliberate, Verner
cannot be held responsible for the harms that resulted from his
failure to prevent her misconduct. Under rule 5.1, Verner was
not entitled to assume that Kaczmarek would "inevitably conform"
to the rules of professional conduct. See Mass. R. Prof. C. 5.1
comment 2.
The harm that resulted from the combined misconduct of
Verner, Foster, and Kaczmarek cannot be overstated. Over the
course of a year, from October 2013 through the time defense
attorney Ryan discovered the exculpatory mental health
worksheets in October 2014, many criminal defendants were found
guilty, admitted to sufficient facts, or pleaded guilty because
of the AGO's failure to turn over exculpatory evidence.
Thousands of defendants, who otherwise would have been eligible
for relief at an earlier date, remained incarcerated during this
time. As a result of Farak's prolonged misconduct and the AGO's
failure to produce exculpatory evidence relating to that 50
misconduct, this court dismissed with prejudice thousands of
convictions based on drug offenses. See Committee for Pub.
Counsel Servs., 480 Mass. at 704-705. We held that "[t]he
government misconduct by Farak and the assistant attorneys
general[14] was 'so intentional and so egregious' that [the]
harsher sanction[]" of dismissal with prejudice was necessary.
Id. at 725, quoting Bridgeman, 476 Mass. at 322. This was a
system-wide failure. It is unsurprising that "the publicity has
taken an ugly toll on the public's perception of the legal
profession and those who practice it." Matter of Donahue, 22
Mass. Att'y Discipline Rep. 193, 276 (2006).
While harm is not everything, it is properly taken into
account as an aggravating factor for all three respondents here.
See Matter of Heartquist, 29 Mass. Att'y Discipline Rep. 332,
333-334 (2013). Generally speaking, the more culpable a
respondent is in causing harm, however, the more heavily the
harm weighs in aggravation. See, e.g., Matter of Curry, 450
Mass. at 531 (disbarment); Matter of Crossen, 450 Mass. at 576
(disbarment); Matter of Donahue, 22 Mass. Att'y Discipline Rep.
at 276-277 (three-year suspension for Donahue, whose "overall
14Our holding in that case, which was based on Judge Carey's findings, was only with regards to the misconduct of Kaczmarek and Foster. See Committee for Pub. Counsel Servs., 480 Mass. at 720. Judge Carey, unlike the SHO, determined that "the misconduct by the [AGO] was limited to Foster and Kaczmarek." Id. 51
involvement did not approach the scope or severity of Curry's or
Crossen's").
iii. Verner's sanction. In Matter of Kane, 13 Mass. Att'y
Discipline Rep. 321, 327-328 (1997), the board set forth the
presumptive sanctions in matters involving "neglect or failure
of zealous representation." The board held that, absent
aggravating and mitigating factors, a public reprimand is
"generally appropriate where a lawyer has failed to act with
reasonable diligence . . . or otherwise has neglected a legal
matter and the lawyer's misconduct causes serious injury or
potentially serious injury to a client or others." Id. at 327.
The board further explained that suspension is generally
warranted for misconduct that, in addition to causing serious or
potentially serious injury, involves "repeated failures to act
with reasonable diligence, or . . . a pattern of neglect." Id.
at 328. This court has endorsed these principles. See Matter
of Grayer, 483 Mass. 1013, 1018 (2019). See also Massachusetts
Bar Institute, New Massachusetts Rules of Professional Conduct
110 (1998) ("Public reprimand or private admonition may be
considered if the lawyer's conduct is merely negligent").
The question, then, is whether Verner's misconduct was of
the sort that warrants a more severe sanction than public
reprimand. Rule violations that involve the neglect of
supervisory duties have "never resulted in a disbarment or a 52
suspension unless combined with other rules violations."
Massachusetts Bar Discipline, supra at 327. According to the
board, however, Verner did not merely engage in "'run-of-the-
mill' negligence." Rather, the board concluded that Verner, by
passively relying on his subordinates to comply with the rules
of professional conduct, abdicated his responsibility to ensure
such compliance, and thereby took part in "protracted"
negligence. For these reasons, in addition to aggravating
circumstances, the board recommended that Verner receive a
three-month suspension. The SHO, in contrast, had recommended
that Verner receive a public reprimand.
We conclude that Verner did not engage in a pattern of
neglect. Generally, either several instances of misconduct or a
protracted period of neglect are necessary before a "pattern of
neglect" finding is appropriate. See American Bar Association,
Annotated Standards for Imposing Lawyer Sanctions 202 (2d ed.
2019). Verner's misconduct was limited to a single matter.
Contrast Matter of Lagana, 26 Mass. Att'y Discipline Rep. 295,
298 (2010) (three-month suspension stayed for year15 for repeated
15A stayed suspension is "effectively a public reprimand, but with more teeth and a greater opportunity for ongoing monitoring." Board of Bar Overseers, Massachusetts Bar Discipline: History, Practice, and Procedure 51 (2018). The board has stated that "staying all or part of a suspension that would otherwise be appropriate for the misconduct involved should be reserved for matters in which the stay itself functions as an incentive or a deterrent, as the case may be, to 53
neglect of client's temporary protected status application and,
in a separate matter, violating rules 5.1 [a] and 5.1 [b];
misconduct aggravated by substantial experience, previous
admonition for similar misconduct, lack of candor, and harm to
clients). Further, Verner did not commit several rule
violations with respect to a particular matter over an extended
period of time. Contrast Matter of Perrault, 29 Mass. Att'y
Discipline Rep. 531, 532-534 (2013) (three-month suspension
stayed for year for several instances over period of years in
which both respondent and, as result of inadequate supervision,
his inexperienced associate did not handle matters diligently
and efficiently, to detriment of estate; aggravated by prior
disciplinary history). Rather, he neglected to follow up with
Kaczmarek on two occasions -- after he instructed her on the
prosecution memorandum to disclose the mental health worksheets,
and after Kaczmarek said she would review Ballou's file when he
came to Boston. This does not constitute the sort of pattern of
neglect that warrants a suspension. See Massachusetts Bar
Discipline, supra at 124 ("a lawyer who neglects a single matter
and causes harm ought to receive a public reprimand").
encourage or discourage certain conduct, whether for the sake of safeguarding the public or assisting the lawyer to take certain remedial steps, or both." Matter of O'Neill, 30 Mass. Att'y Discipline Rep. 289, 295 (2014). 54
Further, Verner did take some steps to ensure that
Kaczmarek would disclose potentially exculpatory evidence.
Verner chose to adopt the discovery policy used in the Dookhan
case and made this policy known to Kaczmarek. Verner
additionally wrote the initial letter informing the DAOs of the
AGO's obligation to provide potentially exculpatory information,
which was reviewed by Kaczmarek. Finally, Verner communicated
with Kaczmarek about particular decisions related to the
disclosure of exculpatory information. Verner instructed
Kaczmarek to disclose the mental health worksheets in his
feedback on her prosecution memorandum, and he attempted to gain
an understanding of what was in Ballou's file, and whether it
had been turned over, following the September 9 hearing. See
American Bar Association Standing Committee on Ethics and
Professional Responsibility, Formal Op. 467, at 10 (Sept. 8,
2014) (among appropriate measures that supervising prosecutor
might adopt, he or she might participate in major decisions such
as "identifying Brady material, and, where feasible, documenting
the basis for [such] decisions in writing," and he or she might
"designat[e] a specific attorney to oversee the review of files
for Brady material"). Contrast Matter of Myers, 355 S.C. 1, 9,
15 (2003) (respondent received private reprimand after failing
to instruct his subordinate to "inform the defense of [an]
eavesdropped conversation"). 55
Because of Kaczmarek's experience handling the Dookhan
case, Verner also was not required to engage in the sort of
oversight that might have been required of a less experienced
attorney. See Admonition No. 18-31, 34 Mass. Att'y Discipline
Rep. 632, 632 (2018) (respondent should have engaged in greater
"supervision of [subordinate] lawyer's activities" because
lawyer "lacked sufficient experience to handle the [case]
without oversight and guidance"). Rather, Verner had reason to
believe that Kaczmarek was competent to engage in the processes
necessary to uncover and disclose potentially exculpatory
evidence. See In re Dickens, 174 A.3d at 303 (less oversight is
needed "for a small firm with experienced attorneys"). Indeed,
the SHO found that, excepting the instances where Verner should
have followed up with Kaczmarek, Verner was "entitled to rely on
[her] to discharge competently and fully the duty to disclose
exculpatory evidence."
The board's recommendation that Verner be suspended,
however, was not only grounded in the extent of Verner's
negligence; the board also took into account the aforementioned
aggravating factors, as well as an absence of mitigating
factors. We conclude that, once the mitigating effect of
Verner's reliance on Kaczmarek is considered, the factors
aggravating Verner's misconduct do not warrant a suspension.
See S.J.C. Rule 3:07 scope 5, as appearing in 426 Mass. 1301 56
(1998) ("the severity of a sanction . . . depend[s] on all the
circumstances, including the wilfulness and seriousness of the
violation, [and] extenuating factors").
The board's decision in Matter of Gleason, 28 Mass. Att'y
Discipline Rep. at 352-357, is instructive. There, the
respondent reviewed a complaint written by an associate over
whom he had supervisory authority, but "did not take any action
to have it corrected or filed before the expiration of the
statutes of limitations against [the defendants]." See id.
at 353-354. Further, over the course of seven years, the
respondent did not discuss the case with the associate and took
no "action[s] of substance to determine the actual status of the
case" throughout its proceedings. See id. at 354. This led the
respondent to negligently misrepresent to his clients on
multiple occasions that their case was proceeding. See id. The
board found that the respondent's misconduct was aggravated by
his substantial experience, the protracted nature of his
negligence, and the harm suffered by his clients. See id.
at 356. The only mitigating factors found by the board were
typical. See id. The respondent received a public reprimand.
See id. at 356-357. See also Matter of Goldberg, 34 Mass. Att'y
Discipline Rep. 135, 136-138 (2018) (respondent received public
reprimand for widespread practice of allowing attorneys and
other staff members to sign respondent's name to pleadings and 57
motions without respondent's review, resulting in default of
client's case, as well as false representations to court).
Verner, unlike the respondent in Matter of Gleason, did
take actions to determine the status of the case under his
supervision. Most notably, Verner inquired into the contents of
Ballou's file, which led Kaczmarek to falsely represent to him
that everything in the file, including the mental health
worksheets, had been disclosed. Kaczmarek's representation
bolstered Verner's already reasonable expectation that she would
disclose all potentially exculpatory evidence.
In the absence of said expectation and reliance, Verner's
misconduct might have resembled the sort of negligence that
warrants a public reprimand. See Matter of Gleason, 28 Mass.
Att'y Discipline Rep. at 356. But see Matter of Myers, 355 S.C.
at 8-9. Verner's misconduct is somewhat excused, however,
because he had reason to believe that Kaczmarek was complying
with the rules of professional conduct. See Matter of the
Discipline of an Attorney, 448 Mass. 819, 831, 833-835 (2007)
(private admonition, rather than public reprimand, issued for
misleading statements to clients because respondent's misconduct
was mitigated by his inexperience and absence of selfish
motive). Hence, absent aggravating factors, a private reprimand
would be appropriate. See Matter of Kane, 13 Mass. Att'y 58
Discipline Rep. at 327 (presumed sanctions are "[a]bsent
aggravating and mitigating factors").
Because Verner's negligence was also aggravated by several
aforementioned factors, however, we conclude that a public
reprimand is warranted. See Matter of Anderson, 416 Mass. 521,
525-526 (1993) (public censure, rather than private reprimand,
warranted because of respondent's twenty-year history of
neglecting clients and violating disciplinary rules). Verner
had experience as a supervisor, his misconduct caused harm that
was "particularly outrageous" to victims who were vulnerable,
and the Farak case has taken on public notoriety. Matter of
Kane, 13 Mass. Att'y Discipline Rep. at 329. These factors
suffice to warrant the issuance of a public reprimand. See
Matter of Kelley, 489 Mass. 300, 307 (2022) (public reprimand,
rather than private admonition, warranted because respondent had
"substantial experience" and previous disciplinary history, and
"committed multiple rules violations involving multiple clients,
. . . who were vulnerable individuals").
c. Foster. Bar counsel appeals from the board's
conclusion that Foster did not violate rule 8.4 (c). Foster
appeals from the sanction recommended by the board, a term
suspension of one year and one day. We address each in turn.
i. Alleged rule 8.4 (c) violation. Bar counsel charged
Foster with violating rule 8.4 (c), alleging that she knowingly 59
made materially misleading statements to Judge Kinder in her
September 16 letter. More specifically, bar counsel took issue
with Foster's deliberate obfuscation regarding who reviewed
Ballou's file when she wrote "[a]fter reviewing Sergeant
Ballou's file," and her reckless expansion of the alleged review
to include "every document in [Ballou's] possession." The SHO
found that although a "close call," Foster's use of
intentionally vague language did not rise to the level of
conduct sanctioned by rule 8.4 (c); while grossly incompetent
and reckless, Foster's statements were not knowingly false
statements of material fact.
On appeal, bar counsel challenges this determination and
asks us to conclude that Foster intended to deceive Judge Kinder
into believing that she had personal knowledge that Ballou's
file had been reviewed and that everything had been turned over
or, alternatively, to hold that Foster knew that the statements
she made in her letter were false based on principles of willful
blindness.
"It is professional misconduct for a lawyer to . . . engage
in conduct involving dishonesty, fraud, deceit, or
misrepresentation." Mass. R. Prof. C. 8.4 (c). To prove a
violation of rule 8.4 (c), bar counsel must establish either
(1) an intent to deceive or (2) at least knowledge of the
falsity and an understanding that someone will likely rely on 60
it. Matter of Zimmerman, 17 Mass. Att'y Discipline Rep. 633,
645-646 (2001). See Matter of Grossman, 448 Mass. 151, 155,
157, 161-162 (2007) (respondent violated rule 8.4 [c] when she
"intentionally altered" documents submitted to bar counsel
"knowing that it was false"); Matter of MacDonald, 23 Mass.
Att'y Discipline Rep. 411, 415 (2007) (respondent made
"knowingly false statements of fact" in affidavits submitted to
court in violation of rule 8.4 [c]). A lawyer's knowledge of a
fact may be proved by circumstantial evidence. Matter of
Zimmerman, supra at 646, quoting Mass. R. Prof. C. 9 (f) (now
rule 1 [h]) ("A person's knowledge may be inferred from the
circumstances"). Further, "a lawyer cannot avoid 'knowing' a
fact by purposefully refusing to look." Zimmerman, supra.
Under the doctrine of willful blindness, a lawyer's "studied
ignorance of a readily accessible fact by consciously avoiding
it is the functional equivalent of knowledge of the fact." Id.
The SHO found that Foster did not have actual knowledge
that "no one had reviewed Ballou's file[,] and no one had
determined whether every document in his possession had already
been disclosed." Specifically, the SHO determined that Foster's
statements "were not knowing false statements of material fact."
See Admonition No. 02-13, 18 Mass. Att'y Discipline Rep. 640,
652, 654 (2002), citing Matter of Provanzano, 5 Mass. Att'y
Discipline Rep. 300, 302 (1987) (no violation of [S.J.C. Rule 61
3:07, Canon 1, DR 1-102 (A) (4),] where respondent's statements
in affidavit "may have been misleading" but "were not
intentionally false"). The SHO's finding that Foster lacked
actual knowledge is based on a credibility determination that we
do not disturb. See Matter of Zimmerman, 17 Mass. Att'y
Discipline Rep. at 647 (accepting hearing committee's subsidiary
findings on respondent's subjective knowledge, based on
committee's credibility determinations); Matter of Provanzano, 5
Mass. Att'y Discipline Rep. at 304 (credibility findings by the
hearing officer shall not be disturbed "absent some clear
error").
To support a finding of willful blindness, the facts must
be sufficiently "substantial and obvious" or "overwhelmingly
clear or unambiguous" to put a respondent on notice that
something is amiss. Matter of Driscoll, 447 Mass. at 685-686.
See Matter of Zimmerman, 17 Mass. Att'y Discipline Rep. at 678
(forgery of client's former wife's signature was so obvious
based on respondent's knowledge of couple's tenuous relationship
and client's evasive behavior that board found respondent
"steadfastly kept his eyes closed" to ensure transaction was
successful).
Bar counsel argues that Foster's incompetence -- her
failure to personally review Ballou's file, her failure to
consult Kaczmarek and Ballou to determine what had been turned 62
over, her failure to ask more questions, and her failure to meet
Ballou when he came to Boston with his file -- is evidence that
she "closed her eyes to what was right in front of her,"
supporting a finding of willful blindness. We disagree. There
is no evidence that supports the inference that Foster was
purposefully avoiding familiarizing herself with the contents of
Ballou's file or the larger set of evidence in Springfield by
refusing to look. Further, as Foster suggests, unlike in Matter
of Zimmerman, there was nothing about Kaczmarek's, Ravitz's, or
Ballou's behavior to arouse suspicion that documents were being
withheld. On the contrary, all three represented that
everything had been disclosed. See Mass. R. Prof. C. 5.2 (b)
comment 1 (fact that lawyer acts at direction of supervisor "may
be relevant in determining whether a lawyer had the knowledge
required to render conduct a violation of the [r]ules"). Bar
counsel relies on the notion that it would have been easy for
Foster to confirm whether everything had been turned over to the
DAOs by "simply" reviewing the disclosure letters. While the
ease of confirming the representations at issue is certainly
part of the analysis of whether a respondent was willfully
blind, it is not dispositive. See, e.g., Matter of Driscoll,
447 Mass. at 680, 685-686 (no willful blindness where
respondent's secretary forged her husband's signature on loan
documents despite that it would have been easy for respondent to 63
confirm legitimacy). Because there is insufficient evidence
that Foster knew the AGO had exculpatory evidence that had yet
to be turned over, and was not willfully blind to this fact, we
agree with the board that there was no rule 8.4 (c) violation.
ii. Mitigating factors. The SHO concluded that Foster
violated rules 1.1, 1.2 (a), and 1.3 in connection with how she
handled the responses to the Watt subpoena and the Rodriguez and
Penate motions. Specifically, the SHO found that Foster
performed her role in an incompetent manner by failing to
adequately prepare to respond to the motions, by failing to
ensure that the AGO reviewed Ballou's file, and by failing to
prepare Ballou for the hearings before Judge Kinder. The SHO
also concluded that, by making misleading statements in a letter
to Judge Kinder with reckless disregard for their truth, Foster
violated rules 1.1, 1.2 (a), 1.3, 8.4 (d), and 8.4 (h). As a
result, both the SHO and the board recommended a suspension of
one year and one day. Bar counsel supports the recommended
suspension. On appeal, Foster argues that a suspension is
unwarranted and instead seeks a public reprimand.
A. Lack of experience as mitigating factor. Although she
had been an attorney for five years, the board found Foster's
lack of experience in having never responded to a subpoena
before to mitigate some of her misconduct. The board agreed,
and bar counsel does not dispute that Foster's inexperience 64
should be considered in mitigation. See Matter of the
Discipline of an Attorney, 448 Mass. at 834-835 (special
mitigating factors that respondent was new attorney in first
legal position, made misleading statements in negotiations, and
mishandled client funds at direction of employer); Admonition
No. 95-36, 11 Mass. Att'y Discipline Rep. 373, 375 (1995)
(mitigating factor that respondent lacked prior experience in
civil litigation and, specifically, in real estate). We assign
minimal weight to this. Foster's lack of experience in
responding to subpoenas does little to mitigate misconduct based
largely on her competence and diligence; more is expected of a
fifth-year attorney.
B. Reliance as mitigating factor.16 Next, Foster contends
that her reliance on Ravitz and Kaczmarek is a "substantial"
mitigating factor under rule 5.2 (b).17 The SHO credited and
16Foster argues that her reliance on the instructions and misrepresentations of Ravitz and Kaczmarek is a complete defense to her rules violations pursuant to rule 5.2 (b). This argument is waived. See Matter of Gannett, 489 Mass. 1007, 1009 (2022) ("Claims that were not raised before the hearing [officer] or the board have been deemed waived"). Although Foster raised the issue before the SHO, the SHO found that rule 5.2 (b) did not apply, and Foster did not appeal that finding to the board: "Foster is not asking the [b]oard to give [rule 5.2 (b)] exculpatory effect."
17In her brief, Foster includes among the representations on which she relied Ballou's testimony at the September 9 hearing. Foster, however, does not argue that reliance on a nonattorney client is mitigating. 65
considered as mitigating the fact that Foster's September 16
letter to Judge Kinder had been reviewed and approved by Ravitz.
The SHO also found, regarding Foster's September 16 letter, that
Foster's misconduct was further mitigated because Kaczmarek had
misrepresented what had been disclosed to the DAOs and the
nature of the evidence that had been found during the Farak
investigation. The board declined to consider Foster's reliance
on Ravitz's review or Kaczmarek's deception, however, reasoning
that neither fact fell into the category of a special mitigating
factor recognized by this court. Bar counsel concedes that a
subordinate attorney's reliance on a supervising attorney may be
considered a special mitigating factor in appropriate cases, as
long as the reliance is reasonable and in good faith. Bar
counsel maintains, however, that Foster's reliance on Ravitz
does not meet this standard. We disagree.
Bar counsel has not pointed to any evidence in the record
indicating that Foster relied on Ravitz's statements in bad
faith. At a meeting on September 16, Ravitz told Foster that
because everything had been turned over, there was nothing to
produce, and directed Foster to draft her letter to Judge Kinder
saying as much. Thereafter, Ravitz approved Foster's draft of
the letter prior to Foster filing it.
Foster presumably requested Ravitz's review because he was
her supervisor, this was an important matter, and she was a new 66
employee at the AGO who had no prior experience in responding to
subpoenas. See Matter of Orfanello, 411 Mass. at 556 ("we may
draw reasonable inferences from [the board's findings of fact]
even if the board did not draw them"). As the SHO found, given
Foster's status, and the importance of complying with Judge
Kinder's order, it made "good sense" for her to have sought out
Ravitz's approval.
Bar counsel cites Foster's failure to explain the
distinction between Ballou's file and the evidence in
Springfield at the September 10 meeting, which was attended by
Ravitz, as evidence that Foster was acting in bad faith. We are
unconvinced. This behavior is sufficiently explained by
Foster's lack of diligence and competence and, therefore, is not
evidence of an intent by Foster either to avoid her
responsibilities or to mislead Ravitz and her colleagues.
Further, Foster's reliance on Ravitz's advice was
reasonable. Ravitz was her direct supervisor, and he had worked
at the AGO's office in the appeals division since 2004. See
Matter of Newman, 31 Mass. Att'y Discipline Rep. at 483
(mitigating that attorney, in making false statements, relied on
experienced appellate attorney). He also helped to train Foster
in responding to subpoenas. See Matter of Galat, 18 Mass. Att'y
Discipline Rep. 229, 237 (2002) (mitigating that junior
attorney, who was not decision maker, relied on senior attorney 67
who had hired her, for guidance in using receivership funds).
It was reasonable for Foster to assume that the information
Ravitz provided her -- that everything had been turned over --
was correct. Because Foster's reliance on Ravitz's instructions
and approval of her September 16 letter was reasonable and in
good faith, it may be considered in mitigation of her rules
violations related to the filing of her September 16 letter.
Foster's reliance on Kaczmarek may also be considered in
mitigation. There were two misrepresentations by Kaczmarek on
which Foster relied: her e-mail message on September 10 and her
statements in the September 10 meeting. Both times, Kaczmarek
detailed the contents of Ballou's file, and at the meeting, she
represented that everything in Ballou's file had been turned
over. Similar to Verner's reliance, Foster's reliance on
Kaczmarek was reasonable. Bar counsel argues that we should not
find mitigating a subordinate's reliance on a colleague who is
not her direct supervisor. We decline to limit our holding in
this way. A respondent's reliance on a colleague's false
statements -- as long as the reliance is reasonable and in good
faith -- has been and may be a special mitigating factor in
certain circumstances. See, e.g., Admonition No. 19-09, 35
Mass. Att'y Discipline Rep. at 700 (reliance on more experienced
co-counsel, who was not respondent's supervisor, mitigating).
Although we conclude that Foster's reliance on Ravitz and 68
Kaczmarek is a mitigating factor, we assign less weight to
Foster's reliance on Kaczmarek and Ravitz than we assigned to
Verner's reliance on Kaczmarek. We do so for two reasons.
First, Foster was making affirmative representations in
court filings, on which she signed her name. It should have
been abundantly clear to Foster that it was her responsibility
to verify the truth of her own representations. See Matter of
Diviacchi, 475 Mass. 1013, 1020 (2016), quoting Mass. R. Prof.
C. 3.3 comment 2, 426 Mass. 1383 (1998) ("[A]n assertion
purporting to be on the lawyer's own knowledge, as in an
affidavit by the lawyer or in a statement in open court, may
properly be made only when the lawyer knows the assertion is
true or believes it to be true on the basis of a reasonably
diligent inquiry"). While the SHO found that Verner also should
have verified the truth of Kaczmarek's representations, Verner
did not adopt those representations as his own before a
tribunal.
Second, Foster took the information Ravitz and Kaczmarek
gave her and added her own "gloss" to it. The first statement
in the letter, "After reviewing Sergeant Ballou's file," was not
based on Kaczmarek's or Ravitz's statements; neither had
indicated to Foster that Ballou's file had been reviewed. The
SHO found that Foster's addition was reckless and misleading. 69
iii. Aggravating factors. The SHO found significant
aggravating factors for Foster, including lack of candor, lack
of remorse, lack of awareness of wrongdoing, great harm to and
vulnerability of the victims, notoriety and harm to the public,
and multiple instances of significant incompetence, lack of
diligence, and repeated misrepresentations. Foster does not
challenge all of the individual aggravating factors assigned to
her, but we review them to determine the most appropriate
sanction.18
Foster's lack of candor, lack of awareness of her
wrongdoing, and lack of remorse before the SHO all weigh heavily
in aggravation. See Matter of Eisenhauer, 426 Mass. 448, 456
18The SHO considered Foster's uncharged misconduct relating to statements she made at the October 2 hearing before Judge Kinder and her testimony before Judge Carey in 2016, finding, "Foster showed pervasive dishonesty across three tribunals." The board declined to consider Foster's uncharged misconduct from the October 2 hearing and the 2016 Judge Carey hearing in aggravation. While uncharged misconduct has been considered to be an aggravating factor in the past, see Matter of Strauss, 479 Mass. 294, 300 n.9 (2018) ("we have permitted uncharged misconduct to be considered in aggravation of sanction"), the board has recently cited a discomfort with doing so where bar counsel was in a position to raise the charge in the petition for discipline, but declined to do so, see Matter of Parker, 38 Mass. Att'y Discipline Rep. , (2022) (considering uncharged misconduct in aggravation "deprived the respondent of notice and an opportunity to defend against [the charges]"). As the petition for discipline was filed in 2019, bar counsel had the opportunity to charge her with misconduct relating to the events from 2013 and 2016, but chose not to do so. Thus, it was appropriate for the board to avoid considering Foster's conduct at these hearings as aggravating. 70
(1998), cert. denied sub nom. Eisenhauer v. Massachusetts Bar
Counsel, 524 U.S. 919 (1998) (credibility, candor, remorse, and
awareness of wrongdoing all relevant in deciding sanctions).
The SHO found Foster's testimony before him to be "dissembling,
disingenuous[], and evasive[]." Specifically, the SHO did not
credit Foster's testimony that she was not trying to be
intentionally vague in her September 16 letter, and described
her answers to his questions about the September 16 letter as
"disingenuous[]."
Another example of Foster's lack of candor before the SHO
is her testimony about her prior work experience. On her resume
that she submitted to the AGO, she indicated that she had
substantial Superior Court experience, including "second-
seating" homicide cases and drafting and arguing postconviction
motions. Before the SHO, however, she claimed that she had no
Superior Court experience. When questioned about the
discrepancy, Foster refused to agree that she had embellished
her prior experience and, instead, claimed disingenuously that
she had a different understanding of the terms "drafting" and
"arguing" when she compiled her resume. Foster's lack of candor
was properly considered aggravating by the board, and we
consider it here as well. Matter of Eisenhauer, 426 Mass.
at 456 ("respondent's candor and trustworthiness both directly
affect [her] capacity to practice law"). 71
iv. Foster's sanction. Foster, like Verner, maintains
that bar counsel failed to prove that her misconduct was the
proximate cause of any of the harm that resulted. Foster's
attempt to make this argument is no more persuasive than
Verner's. Despite Foster's suggestion otherwise, the SHO found
a causal connection between Foster's reckless misrepresentations
and Judge Kinder's decision in the cases before him. Foster's
representation that everything had been turned over led Judge
Kinder to decline to grant new trials in the defendants' cases
before him, because there was insufficient evidence that Farak
had engaged in misconduct when the defendants had been arrested
in 2011 or earlier. Moreover, when recommending a sanction of
one year and one day, the SHO considered "the significant and
far-reaching harm to the public and the insult to the legal
system [Foster] caused."
As stated, each respondent's misconduct caused great harm,
both to the criminal defendants whose cases were corrupted by
Farak's tampering and to the public's perception of the criminal
justice system. See, e.g., Commonwealth v. Claudio, 484 Mass.
203, 210 (2020) ("In [Commonwealth v. Scott, 467 Mass. 336, 352
(2014)], we recognized that Dookhan's misconduct 'cast a shadow
over the entire criminal justice system.' In comparison, the
government misconduct committed by Farak and members of the
Attorney General's office cast a shadow even longer and 72
darker"). Accordingly, the board appropriately considered the
extent of the harm caused by Foster, including the harm to
vulnerable third parties, as aggravating. See Matter of
Zimmerman, 17 Mass. Att'y Discipline Rep. at 651 (harm to third
party aggravating factor). See also Matter of Crossen, 450
Mass. at 581 (vulnerability of third parties aggravating
factor).
We adopt the board's recommendation of a suspension of one
year and one day for Foster. "When an attorney has engaged in
misconduct 'involving repeated failures to act with reasonable
diligence . . . and the lawyer's misconduct causes serious
injury . . . to a client or others,' a suspension is warranted."
Matter of Grayer, 483 Mass. at 1018, quoting Matter of Kane, 13
Mass. Att'y Discipline Rep. at 328.19 After considering the
mitigating factors and the multiple significant aggravating
factors, particularly Foster's lack of candor and her
recklessness that led to extensive harm, we do not believe that
this is markedly disparate from the sanctions imposed in other
cases involving similar circumstances. See Matter of Serpa, 30
19Foster argues that bar counsel only proved she engaged in "essentially negligent conduct." As stated, Foster's conduct went beyond negligence; the SHO found that her conduct rose to a level of recklessness and gross incompetence. And "reckless misrepresentation[s] to the court add[] weight to the . . . balance in determining the appropriate sanction." Matter of Serpa, 30 Mass. Att'y Discipline Rep. at 370. 73
Mass. Att'y Discipline Rep. 358, 362, 372-373 (2014) (sixty-day
suspension for violation of rules 1.5 [a], 3.3 [a], 8.4 [c],
8.4 [d], and 8.4 [h], absent certain aggravating factors, for
"respondent's reckless misrepresentations [that were]
particularly troublesome because they contaminated a process
that . . . is likely to have had an impact on a person's
liberty"); Matter of Scannell, 21 Mass. Att'y Discipline Rep.
580, 581-584 (2005) (suspension of one year and one day for
neglect of three client matters in violation of rules 1.1,
1.2 [a], 1.3, and 1.4 aggravated by prior disciplinary history).
See also Matter of Moore, 442 Mass. 285, 294-295 (2004) (fact
that respondent failed to appreciate gravity of misconduct and
lied to committee took case "beyond the short suspensions
usually imposed" and for violations of [S.J.C. Rule 3:07, Canon
1,] DR 1-101 [A], DR 1-102 [A] [4], [5], and [6], [as appearing
in 382 Mass. 769 (1981),] respondent received two-year
suspension).
d. Kaczmarek. The SHO concluded that Kaczmarek, by
failing to disclose to the DAOs potentially exculpatory evidence
known to her, violated rules 1.1, 1.3, 3.4 (a), 3.4 (c),
3.8 (d), and 8.4 (d). The SHO also concluded that Kaczmarek, by
knowingly failing to disclose potentially exculpatory evidence
and by knowingly making materially misleading statements to
assistant district attorneys Bossé and Flannery and State police 74
counsel Farrell, violated rules 1.1, 1.3, 3.4 (a), 3.4 (c),
3.8 (d), 4.1 (a), 8.4 (a), 8.4 (c), 8.4 (d), and 8.4 (h).
Further, the SHO found that Kaczmarek, by failing to direct
Ballou to provide Flannery with potentially exculpatory
information known to her, violated rules 1.1, 1.3, 3.4 (a),
3.4 (c), 3.8 (d), 5.3 (b), 8.4 (a), 8.4 (d), and 8.4 (h). The
SHO found that, by failing to take remedial action despite her
awareness that Ballou had not disclosed potentially exculpatory
information to Flannery, Kaczmarek violated rule 5.3 (c) (2).
The SHO further concluded that Kaczmarek, by failing to
undertake a review of her file and produce documents responsive
to the subpoenas and discovery motions, and by failing to alert
Foster to the existence of undisclosed documents, violated rules
1.1, 1.3, and 3.4 (c). Finally, the SHO found that, by failing,
after reviewing the motion to clarify, to ensure potentially
exculpatory information known to her that could be useful to
Penate had been disclosed to the DAOs, Kaczmarek violated rules
1.1, 1.3, 3.4 (a), and 8.4 (d). As a result, the SHO
recommended a two-year suspension for Kaczmarek. Reasoning that
Kaczmarek bore the most responsibility for the AGO's failure to
disclose exculpatory information, and that Kaczmarek was thereby
the most culpable for the resulting harm, the board recommended
disbarment. Bar counsel agrees with the board's recommendation;
Kaczmarek appeals. 75
The only issue before us with respect to Kaczmarek is what
sanction is most appropriate. Kaczmarek argues that we should
reject the board's recommendation of disbarment and instead
impose a public reprimand or a two-year suspension. Anything
more than a two-year suspension, Kaczmarek argues, would be
disproportional to her misconduct.20
i. Aggravating factors. The SHO and the board did not
find any factors in mitigation for Kaczmarek. Conversely, the
SHO found, and the board adopted, a litany of factors in
aggravation. These included Kaczmarek's experience; her lack of
remorse, lack of admission of wrongdoing, and her failure to
show appreciation for her role in what occurred; her lack of
candor; her multiple rules violations; her improper motivation
for her misconduct; and the significant harm to third-party
defendants, the criminal justice system, and the public.
20In support of her argument, Kaczmarek maintains that at the time of her misconduct, no disciplinary rule imposed an obligation on a prosecutor to disclose evidence from a pending criminal case to third persons. She alleges that, if she were to be disbarred, the court would be engaging in a "retroactive" application of rule 3.8 (d). In making this claim, Kaczmarek attempts to seek review of the SHO's finding that she violated 3.8 (d) by cloaking her argument as one that affects her sanction. As this argument is not properly before the court, we do not address it. We note, however, that the only way the Farak defendants could have accessed the exculpatory evidence was through the AGO; it acted as a gatekeeper to the information. The AGO was the only entity that possessed the mental health worksheets and the 2005 cocaine case, both of which "tend[ed] to negate the guilt of the accused or mitigate[] the offense." See Mass. R. Prof. C. 3.8 (d). 76
Kaczmarek challenges some, but not all, of the factors
considered by the board, arguing that the board "ignore[d] the
nuances that distinguish this matter."
First, Kaczmarek argues that the board improperly
considered the number of rules violations in aggravation because
she committed only three acts of misconduct: (1) failing to
disclose potentially exculpatory information to the DAOs;
(2) misleading Bossé by telling him that "all relevant discovery
had been provided"; and (3) misleading Farrell when he inquired
about Ryan's subpoena for documents. This, however, understates
Kaczmarek's misconduct. We are not persuaded that Kaczmarek's
misconduct can be characterized as three discrete instances; it
is "neither possible nor logical to isolate each distinct
instance of wrongdoing. They infect each other." Matter of
Hayes, 39 Mass. Att'y Discipline Rep. (2023) (respondents'
multiple rules violations considered in aggravation).
Kaczmarek's deceit was protracted. See Matter of Griffith, 440
Mass. at 510 ("the length of time the respondent permitted his
[or her] concealment of information to stand" may be aggravating
factor). She "actively and intentionally" misled assistant
district attorneys and her colleagues at the AGO, failed to
correct Ballou's inaccurate and misleading statements, and
avoided learning anything more about the extent of Farak's
misconduct over the course of her involvement in the Farak 77
investigation. It was appropriate for the board and the SHO to
consider Kaczmarek's multiple rules violations as aggravating.
See Matter of Saab, 406 Mass. 315, 326-327 (1989)
("consideration of the cumulative effect of several violations
is proper").
Kaczmarek next argues that the board erred in considering
her improper motive. The board found that Kaczmarek's primary
motivation was to contain the damage of Farak's misconduct to a
few cases in order to avoid further complications. Kaczmarek
maintains that this characterization of her motivation is not
supported by substantial evidence. We agree with Kaczmarek that
there was not substantial evidence that her intentional
misrepresentations were motivated by a desire to downplay the
extent of Farak's misconduct. The SHO found, however, that
Kaczmarek's "disturbing attitude" toward defense counsel
evidenced an improper motive. Kaczmarek was wholly
uncooperative and dismissive of Ryan's appropriate discovery
requests. She obstructed defense attorneys' access to important
exculpatory evidence. Indeed, Kaczmarek conceded at the hearing
before the SHO that she was "annoyed" that Ryan continued to ask
for access to evidence in the Farak case: "it's probably the
90th time he asked if he could see the evidence in the lab."
An attorney's motive can be relevant in determining the
proper sanction. See Massachusetts Bar Discipline, supra 78
at 403. The SHO properly considered this factor in aggravation,
and we assign it some weight in our determination of her
sanction. See Matter of Finneran, 455 Mass. at 736 (improper
motive constitutes aggravation); Matter of the Disciplinary
Proceeding Against Schafer, 149 Wash. 2d 148, 170 (2003) (lawyer
who violated client confidences and was partly motivated by
vindictiveness found to have met standard for having selfish
motive).
Kaczmarek also takes issue with the board's consideration
of her experience as an aggravating factor. Specifically,
Kaczmarek argues that "her experience disclosing exculpatory
evidence to the defendant she was prosecuting did not provide
her with knowledge of how to handle disclosure to others." We
are wholly unconvinced that Kaczmarek's experience as an
attorney for thirteen years, her experience both as an assistant
district attorney and in private practice, and her eight-year
long tenure at the AGO did not provide her with the knowledge of
how to handle disclosures to others. Even more significant was
Kaczmarek's work on the Dookhan case. By the time Kaczmarek was
assigned to the Farak prosecution, she had already possessed an
intimate familiarity with the AGO's discovery policy adopted in
the case, because it was the same policy that she had used in
the Dookhan case. Kaczmarek's experience is properly considered 79
aggravating. See Matter of Moran, 479 Mass. at 1022; Matter of
Luongo, 416 Mass. 308, 312 (1993).
In further aggravation, Kaczmarek exhibited a lack of
candor before the SHO; Kaczmarek's testimony was characterized
as "vague" and "dissembling." See Matter of Zankowski, 487
Mass. 140, 153 (2021) ("While an attorney is entitled to defend
against allegations of a petition for discipline, the hearing
[officer] may determine whether to credit the testimony and
evidence, and [the officer] may consider in aggravation any lack
of candor [he or she] finds"). Indeed, the SHO found a
remarkable number of instances in which Kaczmarek's testimony
was not credible: her failure to realize that the 2012
oxycodone case and the 2005 light cocaine case were potentially
exculpatory; her claim that she had no reason to review, and her
failure to review, the prosecution memorandum once Verner
returned it to her; her assertion that it was not her job to
identify and disclose exculpatory evidence to the DAOs for the
benefit of the Farak defendants; her claim that her September 10
e-mail message listing the mental health worksheets triggered
nothing in her mind; and her denial that the meeting on
September 10 with Foster, Verner, Reardon, Ravitz, and Mazzone
had occurred, wherein she informed everyone that everything in
Ballou's file had been turned over. The SHO found, on the basis
of these falsehoods, that Kaczmarek's testimony was not candid. 80
Kaczmarek's striking lack of truthfulness is deeply troublesome
with respect to her capacity to practice law. See Matter of
Eisenhauer, 426 Mass. at 456.
Moreover, Kaczmarek misled Verner, Foster, and other
colleagues about what had been disclosed to the DAOs, something
the SHO labeled as "particularly disturbing" in an office where
colleagues must be able to rely on each other for accurate
information. We consider this, too, as aggravating. See Matter
of Ferris, 9 Mass. Att'y Discipline Rep. 110, 112 (1993) ("In
aggravation, the committee found that . . . the respondent
intentionally misled his clients for his own gain");
Massachusetts Bar Discipline, supra at 406 ("the extent of an
attorney's . . . manipulation in the course of the misconduct"
may be aggravating factor).
Additionally, the SHO found that Kaczmarek displayed no
remorse, admitted no wrongdoing, and showed no appreciation for
her role in what occurred. As it was with Foster, this was
properly considered by the board as aggravating. See
Finally, the board assigned weight to the gravity of the
harm and to the fact that Kaczmarek's intentional misconduct
directly caused this harm. Kaczmarek argues that the harm
caused by the AGO's failure to disclose exculpatory information
cannot be solely attributable to her because institutional 81
failures and Farak's own misconduct were also contributing
causes. As discussed supra, each of the respondents played a
role in causing the harm. Accordingly, we do not find Kaczmarek
solely responsible. We do conclude, however, as the SHO did,
that she bears the greatest responsibility, as well as the
greatest culpability. Kaczmarek "knowingly failed" to produce
exculpatory evidence and made "materially false and
intentionally misleading" statements to the DAOs and to her
colleagues that all relevant discovery had been turned over.
See Matter of Pike, 408 Mass. 740, 741 (1990) ("intentional
abdication of . . . professional obligations" may warrant more
severe sanction).
Kaczmarek further maintains that the record contains
evidence of only thirteen convicted defendants, not thousands,
who were party to the consolidated case before Judge Kinder and
who were affected by their inability to access the mental health
worksheets and exculpatory evidence. We reject this
characterization of the harm for reasons we have already
discussed.
ii. Kaczmarek's sanction. To start, as noted by the
board, although they are not entirely unprecedented, there are
few disciplinary cases in Massachusetts against prosecutors.
See Matter of Dunne, 36 Mass. Att'y Discipline Rep. 143, 144
(2020) (in reciprocal discipline case, one-year suspension for 82
prosecutor's misrepresentation to court and opposing counsel
that she did not possess tape recording of defendant's
conversations with his son, in violation of Fla. R. Prof. C.
3.3, 4.1, and 8.4 [d]); Matter of Marshard, 34 Mass. Att'y
Discipline Rep. 283, 286, 295 (2018) (one-month suspension for
prosecutor's meeting with represented witness without witness's
attorney, in violation of rules 4.2 and 8.4 [d], aggravated by
experience, lack of understanding of ethical obligations, lack
of candor, and misrepresentations to judge). In reviewing these
cases, we have come across none that is comparable to the facts
we have here. Although we consider whether the recommended
sanction is "markedly disparate from judgments in comparable
cases," see Matter of McBride, 449 Mass. at 163, when there are
no comparable cases,
"[w]e . . . must establish independently a sanction adequate to address the seriousness of the misconduct, to reassure the bar and the public that such conduct is completely contrary to the oath of office taken by every lawyer, and to underscore that, when it is uncovered, such conduct will be treated with the utmost severity."
Matter of Foley, 439 Mass. at 339.
In determining what sanction to assign, "the primary factor
. . . is 'the effect upon, and perception of, the public and the
bar.'" Matter of Zak, 476 Mass. at 1041, quoting Matter of
Finnerty, 418 Mass. 821, 829 (2008). Our rules of professional
conduct "[e]xist to protect the public and maintain its 83
confidence in the integrity of the bar and the fairness and
impartiality of our legal system." Matter of Zak, supra
at 1038.
As a result of Kaczmarek's intentional and egregious
misconduct, the due process rights of thousands of criminal
defendants were violated for a prolonged period based on the
withholding of exculpatory evidence. Kaczmarek failed in her
duties as a prosecutor by knowingly impeding access to evidence
and information. She made materially false and misleading
statements to the DAOs and her colleagues. Due to the gravity
of the harm, the multitude of serious aggravating factors, and
the lack of any mitigating factors, we adopt the board's
recommendation of disbarment for Kaczmarek.
4. Conclusion. For the reasons stated, we adopt the
board's recommendations of a suspension of one year and one day
for Foster and disbarment for Kaczmarek. For Verner, we
conclude that a public reprimand is appropriate. We remand to
the county court where a judgment consistent with this decision
shall enter.
So ordered.
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In the Matter of Foster, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-foster-mass-2023.