The Massachusetts attorney general’s office has spent nearly $1 million in legal fees defending three former prosecutors facing potential disbarment for their roles in one of the state's drug lab scandals.
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."
This segment aired on March 31, 2021.