The
Board of Bar Overseers, the panel that disciplines lawyers, has been
investigating accusations that three former assistant attorneys general
failed to alert defense lawyers about key exculpatory evidence involving
disgraced chemist Sonja Farak.
Farak
was convicted in 2014 of tampering with many of the drugs she was
supposed to be testing at the state drug lab in Amherst, some of which
she stole for her own use. When Farak was arrested, police found
so-called “mental health worksheets” in her car indicating that Farak’s
on-the-job drug use was more extensive and had gone on longer than
then-Attorney General Martha Coakley initially acknowledged. But
prosecutors didn’t turn over the worksheets until a defense attorney
fought to review the state’s case file.
Jim
McKenna, who has represented defendants challenging their convictions
because of the drug lab scandals, criticized the state's decision to
spend money defending the former assistant attorneys general from
potential discipline.
"It's
a constitutional right to obtain legal counsel when charges are brought
against you criminally, but that same right doesn't apply here,"
McKenna said.
A spokesperson for
Attorney General Maura Healey said in an emailed statement that the
office agreed to pay the legal fees because the alleged misconduct
happened in the course of the lawyers' jobs, and there was a conflict of
interest that prevented the state’s own attorneys from representing the
prosecutors. “They have a right to counsel,” the AG's spokesperson
said.
But Boston College Law Professor
R. Michael Cassidy also questioned the decision to pay the legal fees,
saying he wasn't aware of any requirement to do so for attorney
disciplinary proceedings.
"If
you're alleging these lawyers acted unlawfully is it really right for
the AG to be paying their legal expenses,” Cassidy said. “I think
there's a valid question whether it's in the best interest of the public
for tax dollars to be spent that way."
And when public defenders are accused of misconduct, they are on their own.
The
state's public defender agency, the Committee for Public Counsel
Services, says it is not permitted to pay legal fees for a public
defender facing discipline, even if the alleged offense occurs while the
attorney was on the job. The agency also says paying disciplinary legal
bills could present a conflict if it also ended up representing a
client involved in any alleged misconduct.
"We
consider these cases disciplinary actions on licensure," said Lisa
Hewitt, general counsel for the public defender agency. "So if the
commonwealth doesn't have exposure in these cases, the commonwealth
doesn't pay."
The attorney general’s
office said it agreed to pay three different law firms $300 per hour, up
to $330,000 each, to represent the former prosecutors before the BBO —
or nearly $1 million in total. And state comptroller’s records show the
firms appear to have already reached or nearly reached that ceiling.
Butters
Brazilian is representing Verner. Peabody & Arnold is defending
Foster. And Cosgrove Eisenberg & Kiley is counsel for Kaczmarek. The
law firms did not comment on their fees.
The
attorney general’s office said it reviewed the bills and determined
that they're reasonable. And several other attorneys said the bills were
in line with what other private attorneys might charge to represent
lawyers in BBO proceedings.
“In
a case like this, there is an enormous amount of preparation involved,”
said Jim Bolan, a Boston attorney who has represented lawyers in BBO
disciplinary proceedings. "I've done tons of these cases, and it
wouldn't surprise me that this would be a major expense. I think public
servants are owed good, competent counsel — which can be expensive."
The
BBO complaint against the former assistant attorneys general was
prompted in part by a 2017 Superior Court judge's ruling, which said
that two of the former prosecutors, Kaczmarek and Foster, committed
"fraud on the court" for not turning over Farak's mental health
worksheets to defense attorneys.
After
the judge's ruling, a complaint was filed against the prosecutors by
the Innocence Project and others. The Office of Bar Counsel investigated
and issued a formal complaint against Verner, Foster and Kaczmarek in
2019.
"This is not a
question of a prosecutor being charged with something out of the blue,"
said defense attorney Jim McKenna. "This is after both a Superior Court
and the [state Supreme Judicial Court] have made decisions consistent
with two of these prosecutors having engaged in misconduct."
In
findings of fact submitted last month, the Office of Bar Counsel said
that Foster misled the court by saying that she had reviewed the files
in the Farak case, and there was no further evidence to disclose. The
Bar Counsel also wrote that Kaczmarek "actively opposed efforts of any
Farak Defendant to gain access to discovery," and that "Verner, perhaps
motivated to avoid embarrassing the Attorney General and Governor,
supported her."
Kaczmarek's attorneys
argued she was focused on prosecuting Farak and thought all the evidence
had already been turned over. "She [Kaczmarek] did not violate any
disciplinary rule and does not deserve the continued role of scapegoat
for the collective failure of many Commonwealth officials," Kaczmarek's
attorneys wrote.
Foster's attorneys
said she should not be held responsible for not turning over the
evidence because she was a new assistant attorney general at the time
and was told by her supervisors that all the evidence had been
disclosed.
Verner's attorneys argued
that he relied on his subordinates and believed that the district
attorneys had received all the evidence, who could then provide it to
defense attorneys.
The BBO has already
completed weeks of hearings on whether to discipline the former
prosecutors. The next step in the discipline process is for a special
hearing officer to recommend whether punishment is warranted. Depending
on that recommendation, there could be further hearings and potential
appeals. Ultimately, the state Supreme Judicial Court will have to
approve any punishment.
"I
would expect there is still another year of legal arguing in this
case," said Nancy Kaufman, an adjunct law professor at Boston College
who formerly worked for the Bar Counsel. "I expect that there will be
appeals, and ultimately, the full Supreme Judicial Court will want to
weigh in on this case."
But if the
case drags on further, it's not clear who would be responsible for the
future legal bills. So far, the attorney general’s office said it has
paid what it agreed to, and "there are no additional payments to be made
at this time."
State law places a $1
million cap on legal fees paid for a public employee. The attorney
general's office said the statute does not apply in BBO proceedings, but
does apply in the civil suits against the former assistant attorneys
general over the drug lab scandal.
Cassidy,
the Boston College law professor, said these proceedings could force
the Legislature to take steps to further clarify indemnification of
public employees. He also said this case sends a message to prosecutors,
who aren't often before the BBO, concerning the so-called "Brady rule," which requires them to turn over evidence that may be favorable to a defendant.
"Prosecutors
might be tempted to play fast and loose with the Brady rule because
they think, OK, the worst that can happen is if I convict the person,
that conviction could be reversed," Cassidy said. "But this case could
set a precedent in Massachusetts that the worst that can actually happen
is that you can be suspended or disbarred from the practice of law,
which is, I think, a really significant wake-up call to prosecutors."
