On Tuesday, a special hearing officer for the board that reviews attorney misconduct released recommended punishments for three former Massachusetts assistant attorneys general who prosecuted one of the state's drug lab scandals.
The proposed sanctions against the attorneys ranged from a public reprimand to a two-year law license suspension.
The Board of Bar Overseers [BBO] Special Hearing Officer Alan Rose made the recommendations following disciplinary hearings before the BBO last year that explored whether the three attorneys withheld potentially exculpatory evidence in state's case against former drug lab chemist Sonja Farak.
Farak was convicted in 2014 for consuming drug samples she was supposed to be testing at a state-run lab in Amherst. Thousands of drug cases were dismissed because of her misconduct.
Initially, the AG's office said Farak's drug use at the lab happened for a short time, but documents later indicated she had been using drugs for years. Those documents were a core part of the BBO's review.
The toughest sanction — a two-year law license suspension — was recommended for Anne Kaczmarek, who led the prosecution of Farak; she is no longer a practicing attorney.
Rose found that Kaczmarek was "not candid" and "displayed no remorse" for not making sure potentially exculpatory materials were provided to district attorneys and criminal defense lawyers. The suspension, Rose wrote, would be for "numerous disciplinary rules" and conduct causing "significant harm."
"Kaczmarek’s emails and conduct during the Farak investigation demonstrated a disturbing attitude toward defense counsel, who were simply trying to do their job in defending their clients’ rights," Rose wrote. "These attorneys were appropriately following up when the evidence they had seen (2011 newspaper articles, for example) suggested to them that Farak’s misconduct had begun years earlier than the Commonwealth was acknowledging."
During the BBO disciplinary hearings Kaczmarek said it was an oversight that Farak's mental health worksheets — detailing years of substance use while on the job — were not turned over to defense attorneys. Kaczmarek said she thought any potentially exculpatory materials had been provided.
The Office of Bar Counsel in August recommended Kaczmarek be disbarred, while Kaczmarek's attorney, Tom Kiley, with the firm CEK Boston, suggested his client's law license be suspended for less than one year. He called Rose's proposed sanctions report "challenging," and said Tuesday he was still considering whether he'll appeal to the full BBO.
Rose recommended former Assistant Attorney General Kris Foster have her license suspended for a year and a day. Attorneys for Foster, now general counsel for the state's Alcoholic Beverages Control Commission, argued before the BBO that Foster was an inexperienced prosecutor in the AG's office at the time of the Farak case and was following supervisors' orders. Her lawyers recommended she be punished with an admonishment.
But Rose said Foster made misrepresentations during court hearings about the evidence and did not show remorse during the disciplinary hearings.
"While I did not find that Foster violated any disciplinary rules charging intentional misconduct, I did find a pattern of significant incompetence and lack of diligence, and I found repeated misrepresentations," Rose wrote.
Foster's attorneys said they were disappointed and are "actively considering an appeal." Attorney Allen David, with the firm Peabody & Arnold, said because Rose did not find intentional misconduct on Foster's part, it appears his client would be reprimanded for violations for which she was not charged.
"The severity of the sanction is largely driven by uncharged misconduct," said David. "I don't think it's warranted."
Rose recommended the lightest sanction for John Verner, who oversaw the AG's criminal bureau at the time of Farak's prosecution under former Massachusetts Attorney General Martha Coakley. Rose recommended a public reprimand for Verner for not properly supervising the subordinate lawyers.
"I specifically find that during the hearings, Verner demonstrated candor, remorse, and a recognition of and responsibility for his mistakes," Rose wrote. "Verner forthrightly acknowledged that the AGO’s goal and policy of turning over all exculpatory evidence was not accomplished, and that he shared in the blame. He tried to remedy the AGO’s lapses promptly, once he learned of them."
Verner's attorneys said they do not plan to appeal Rose's proposed sanction. Verner is now a prosecutor in the Suffolk County district attorney's office.
"We recommended a public reprimand to the Special Hearing Officer, and we are pleased that he agreed," said an emailed statement from Verner's attorneys, Patrick Hanley and Thomas Butters, with the firm Butters Brazilian LLP.
The Office of the Bar Counsel, which prosecutes complaints against attorneys before the BBO, said it has not determined if it will appeal Rose's recommendations. Assistant Bar Counsel Joseph Makalusky said the office is reviewing Rose's recommendations "and his reasoning in order to determine our next steps."
The possible BBO punishments for the three attorneys ranged from a private admonition up to disbarment. Rose found their infractions were somewhere in the middle. If their licenses ultimately are suspended, Rose recommended Foster and Kaczmarek undergo reinstatement hearings to get them back.
"I do not find any of the respondents here to be entitled to, or deserving of, the sanctions at the far ends of the spectrum," Rose wrote. "Their conduct, no matter how troublesome at some levels, should be viewed in the context that they were all public servants working in the stressful criminal justice system."
The proposed sanctions now go to the full Board of Bar Overseers and must be approved by the state Supreme Judicial Court.
Correction: An earlier version of this post misspelled Allen David's name. The post has been updated. We regret the error.