By; Bharany Padmanabhan – 10-23
Back in the spring the Supreme Judicial Court called for amicus briefs in the case of the Attorney General’s lawyers who hadn’t cared about the fundamental American rights of 33,000 people, some of whom died in prison and some who were in prison when their loved ones died.
ANNOUNCEMENT: The Justices are soliciting amicus briefs. To what extent a supervising attorney may rely on the representations of a subordinate lawyer for purposes of Mass. R. Prof. C. 1.3 and 5.1 (b); the circumstances in which that reliance, even if not permitted by the rules, may serve as mitigation; and the extent to which a subordinate lawyer’s reliance on a supervising lawyer’s directions may serve as a defense under Mass. R. Prof. C. 5.2 (b) or as mitigation.
In a court brief I noted that this meant the AG’s lawyers could lie to the court and still keep their law license, unlike doctors who get indefinite suspensions for reporting Medicaid fraud.
On August 31, 2023, the SJC issued its opinion in the matter of three AG attorneys who had lied in the Sonja Farak case. Sonja Farak was the state chemist who herself ate both the samples that police brought in from suspects as well as the lab’s reference samples, then lied that the samples tested positive, and people should be incarcerated.
Kaczmarek lied to the court that the AG had turned over all documents to defense attorneys. Foster delivered that lie to the judge, and Vernon, as their supervisor, signed off on the lie without bothering to look.
This likely happens routinely at the Attorney General’s given the people who work there, but this time a defense attorney was allowed by one good person within the AGO to come into HQ and go through file boxes. The lie was thus discovered.
One good person within the AGO can make a difference. Pity I haven’t found one yet.
The scandal became a popular Netflix series. Newspapers and legal blogs weighed in. It became impossible to ignore the drumbeat that gasp! even an AG attorney had to be held responsible at a level that would placate the masses.
The SJC’s Bar Counsel thus brought charges. The AG predictably paid $1 million for private lawyers to defend them. Bar Overseers decided that Anne Kaczmarek, the heartless un-American liar that the Attorney General paid to defend, should be disbarred. The other two got license suspensions for a few months.
The SJC agreed that Kaczmarek should be disbarred, and that Kris Foster’s license should be suspended for one year and one day.
When it came to their boss at the AGO however, the SJC wrote “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 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.”
This is an intentional mockery of the very concept of oversight. Just imagine this applied to a newspaper’s Chief Editor who published a total fabrication on something or someone, and the court letting the Chief and all senior editors off for not checking the story and instead showing “reasonable and good faith reliance” on a fellow journalist. I guess senior auditors at Arthur Anderson showed “reasonable and good faith reliance” on Enron.
But for sunlight from Netflix, it is likely that the SJC would not have punished even Kaczmarek. After being forced by Netflix to throw the public a bone, the SJC has now intentionally granted carte blanche to Andrea Campbell and senior attorneys at the Attorney General’s Office.
This will not be good for the people of Massachusetts.
Bharani Padmanabhan MD PhD is a neurologist whose license was indefinitely suspended because he reported Medicaid fraud that allows Massachusetts to steal from the US Treasury. firstname.lastname@example.org ◊