Massachusetts State House.
Boston Bar Journal

Supervisory Liability After Foster: Tips for Public and Private Lawyers

February 09, 2024
| Winter 2024 Vol. 68 #1

By Jessica Gray Kelly and Katherine Chenail

In Matter of Foster, 492 Mass. 724 (2023), (“Foster”) the Supreme Judicial Court (“SJC”) imposed professional discipline on three Assistant Attorneys General (“AAGs”) in connection with their failure to turn over exculpatory evidence to criminal defendants affected by the misconduct of former state drug lab chemist Sonja Farak. The case is remarkable, not only because of how rarely Bar Counsel charges government lawyers with disciplinary violations, but also because of the disparity in sanctions: The Court ordered the disbarment of AAG Anne Kaczmarek and suspended AAG Kris Foster for one year and a day, but subjected their supervisor, AAG John Verner, to only a public reprimand. This article explores the difference in punishments among the AAGs involved in the underlying matters and the various factors that the Board of Bar Overseers (“BBO”) and the SJC will consider when deciding on those punishments.

Under Massachusetts Rule of Professional Conduct 5.1, a supervisor may be liable for the conduct of supervisees if the supervisor (a) orders or ratifies the misconduct, or (b) knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. In Foster, the SJC found that Verner reasonably relied on Kaczmarek to turn over the exculpatory evidence, which was a special mitigating factor warranting a lesser sanction.

Ultimately, Foster serves as guidance to government and private lawyers alike on how to properly supervise less experienced attorneys. While supervisors cannot be expected to check every action or decision made by their colleagues, their reliance on others must be reasonable in light of the circumstances. Having provided this guidance, the Board and the SJC may not be as forgiving to lawyers in the future who do not heed their recommendations as they were to Verner. Public and private entities should establish systems to ensure all attorneys assigned to a case follow ethical procedures.

Relevant Background of Foster Case

The disciplinary action arose from the role of the Attorney General’s Office (“AGO”) in prosecuting Sonja Farak, a state drug lab chemist accused of tampering with drug samples used as evidence to prosecute drug crimes. Verner was the Chief of the AGO’s criminal bureau at the time and assigned Kaczmarek as lead prosecutor on Farak’s case, partly because of her work on the case against Annie Dookhan, another state chemist who falsified drug evidence.

During the investigation, the State Police found evidence suggesting Farak’s misconduct began in 2005. They provided this evidence to Verner and Kaczmarek, who decided not to present it to the grand jury as they considered whether to indict Farak. Instead, they asked the grand jury to consider her actions in tampering with evidence that had begun in 2012.

In August 2013, the AGO assigned AAG Foster to respond to subpoenas from criminal defendants whose cases might have been affected by Farak’s misconduct. Foster had only worked for the AGO for one month and had no prior experience responding to subpoenas. Another AAG supervised Foster and advised her to talk to the investigator and Kaczmarek about what had or had not been produced, telling her it would be helpful to look at the file herself. Foster did not look at the file, and her supervisor never confirmed the content of her responses to the subpoena requests or whether she had complied with the subpoenas.

Subsequently, Foster, on behalf of the AGO, made statements to the court managing the subpoena proceedings in which she implied that the AGO had turned over all relevant, exculpatory evidence in the AGO’s possession. The court made several rulings based upon Foster’s statements—statements that were not accurate, as the evidence from the State Police demonstrating possible misconduct by Farak as early as 2005, among other things, had not been produced.

Farak ultimately pled guilty to numerous charges in January 2014, which concluded the active prosecution of her case. Thereafter, the AGO could not object to producing documents based on the open criminal case. In October 2014, the AGO gave defense counsel access to the physical evidence file. The AGO ultimately turned over an additional 289 documents. Lead defense counsel discovered the state police evidence indicating that Farak’s tampering may have started in 2005. In light of this discovery, in October 2018, the SJC entered an order dismissing all convictions that resulted from evidence tested at the Amherst lab after January 1, 2009, as well as all convictions based on methamphetamines tested while Farak was employed at the lab. Foster, 492 Mass. at 742.

In June 2019, Bar Counsel brought disciplinary proceedings against Verner, Kaczmarek, and Foster charging them with failing to disclose exculpatory evidence. The charges against Kaczmarek focused on her misrepresentations regarding the evidence produced; the charges against Verner focused on his failure to adequately supervise; and the charges against Foster focused on her failure of competence and diligence in responding to the subpoenas. Id. at 743. The Board’s Special Hearing Officer (“SHO”) specifically found that Verner instructed Kaczmarek to turn over all exculpatory evidence of Farak’s drug tampering, and that Kaczmarek misrepresented to Verner and her AGO colleagues what had been produced. The SHO found that Foster lacked diligence and competence in responding to the subpoena but that she did not make intentional misrepresentations to the Court.

The Board recommended a three-month suspension for Verner, disbarment for Kaczmarek, and a year and a day suspension for Foster, which will require her to reapply for her license. The Court agreed with the discipline for Kaczmarek and Foster, but reduced Verner’s discipline to a public reprimand. Id. at 756, 764, 770.

The Court’s Analysis of the AAGs’ Conduct

Why did Verner receive a public reprimand while Kaczmarek and Foster received potentially career-ending sanctions? While there is clear precedent for certain violations of the disciplinary rules, oftentimes it is difficult to predict how or why the Board will determine a particular sanction. This is especially true for sanctions involving failure to supervise.

Indeed, violations of Rule 5.1 have resulted in discipline ranging from a private admonition to a term suspension. The cases suggest the Board will focus on the measures taken by the attorney to give “reasonable assurance that all lawyers [assigned to tasks] conformed to the Rules of Professional Conduct.” See Admonition No. 22-14, 2022 WL 5058413 (Ma. St. Bar. Disp. Bd. 2022). The severity of the discipline for failure to supervise is often tied to whether the attorney committed other rule violations and/or the extent of the harm to the client. See Admonition No. 17-16, 2017 WL 7051164 (Ma. St. Bar. Disp. Bd. 2017) (private admonition against partner for failing to supervise associate, leading to detention of client but no additional prejudice); Matter of Gleason, 28 Mass. Att’y Discipline Rep. 352, 354-55 (2012) (reprimand entered for failing to supervise associate in filing claim within statute of limitations); Matter of Perrault, 29 Mass. Att’y Discipline Rep. 531, 532-34 (2013) (three-month suspension for failing to supervise associate over period of years); Matter of Rainer, BD-2013-099, 2013 WL 7085679 (Ma. St. Bar. Disp. Bd. 2013) (six-month suspended suspension for failing to supervise transition of client cases to another attorney); see also Matter of Ablitt, 486 Mass. 1011, 1017 (2021) (citing cases where term suspensions entered for failing to supervise nonlawyer employees resulting in pecuniary loss to clients). The Board also does not look favorably upon a supervising attorney’s attempt to blame less experienced colleagues for misconduct. See Matter of Cammarano, No. BD-2013-040, 2011 WL 11557905, at *12 (Ma. St. Bar. Disp. Bd. 2011) (indefinite suspension imposed for attorney for multiple instances of misconduct aggravated by attorney’s attempt “to place all blame for his actions on a much less experienced attorney whom he supervised”).

In Foster, the court focused on Verner’s reliance upon Kaczmarek’s statements to him about what had been produced during the subpoena proceedings. 492 Mass. at 747-49. See Matter of McDonald, 18 Mass. Att’y Discipline Rep. 382, 388 (2002) (reliance not reasonable where respondent attorney placed “too much trust in his friend and colleague” about “his representations as to the progress of the case”). While not absolving Verner of all responsibility for the AGO’s failure to produce all exculpatory evidence in response to the subpoenas, the SJC gave Verner the benefit of the doubt at almost every point at which he could have – in theory – mitigated the harm from the non-disclosure had he probed beyond Kaczmarek’s statements to him or followed-up with her about what had been produced. The court held Verner’s reasonable and good faith reliance on Kaczmarek to produce the evidence was a “special” mitigating factor, which weighed in favor of lesser discipline for Verner. Ironically, while the court held that Kaczmarek’s ten years of practice and her work on another drug lab scandal to be an aggravating factor against her, those same factors helped Verner, as the court deemed his reliance on Kaczmarek more reasonable because of her experience.

The SJC noted that Verner managed over 100 people, including approximately 50 government attorneys, perhaps suggesting the difficulty of keeping close watch on so many lawyers’ activities. Such grace is not likely to apply outside the public sector, where law firms generally have more resources and fewer lawyers under one supervisor. While the Court did not specifically include Verner’s candor and remorse as a mitigating factor, it did note the SHO’s findings that Verner “demonstrated candor, remorse, and a recognition of and responsibility for his mistakes” as compared to Kaczmarek and Foster. Foster, 492 Mass. at 750. The role of mitigating and aggravating factors in the imposition of discipline can be unpredictable and arbitrary. While the Board has said it will “consider and find mitigating even typical factors such as remorse and acceptance of responsibility,” Matter of Parigian, No. BD-2015-102, 2015 WL 13687918, at *5 (Ma. St. Bar. Disp. Bd. 2015), it has also said “[e]xpressions of remorse are not considered mitigating . . . we expect all respondents to feel and convey sincere, genuine remorse for their misconduct.”  Matter of Sargent, C1-19-260146, 2023 WL 3443627, at *4 (Ma. St. Bar. Disp. Bd. 2023); see also Matter of Rosin, Public Reprimand No. 2023-12, 2023 WL 7499920 (Ma. St. Bar. Disp. Bd. 2023) (imposing public reprimand on attorney who coached deposition answers to client during Zoom deposition after considering his “immediate and candid acknowledgment of misconduct” and “his remorse”); Matter of Corben, No. BD-2009-113, 2015 WL 9308986, at *3 (Ma. St. Bar. Disp. Bd. 2015) (“sincere remorse, standing alone, does not equal reform”). As a general rule, however, attorneys who own their mistakes and exhibit remorse for their misconduct will fare better before the Board. The SHO’s findings that Foster and Kaczmarek (neither of whom received any of the benefit of the doubt that Verner did) lacked appropriate acknowledgment and contrition for their conduct contributed to the severity of their sanctions. Foster, 492 Mass. at 762; see also Matter of Moore, 442 Mass. 285, 295 (2004); Matter of Eisenhauer, 426 Mass. 448, 455 (1998).

Supervisory Liability After Foster

The Foster decision not only sets a standard for prosecutorial misconduct in Massachusetts, it sheds light on how the BBO and the SJC will analyze supervisory liability going forward. As supervisors, attorneys must make sure that their reliance on their colleagues to handle certain tasks is reasonable in the circumstances. The Board will likely evaluate reasonableness based upon the significance of the task, the level of experience of both supervisor and supervisee, and the supervisor’s efforts to ensure the supervisee is in compliance with ethical rules. See Foster, 492 Mass. at 755 (contrasting Verner’s reliance on Kaczmarek with supervisor in Matter of Gleason, who did nothing to determine whether his associate was properly handling case). Supervisory attorneys should ensure their instructions to colleagues handling assigned work are clear, including instructions about discoverable evidence. Supervisors should also be involved in and ultimately responsible for any judgment calls that may involve ethical considerations, such as what materials are or are not to be turned over. Finally, while supervisors should not have to repeat or review all of their colleagues’ work to confirm it was done correctly, supervisors should use their best judgment – again depending on the importance of the task and/or the experience of the attorney handling the work – to determine the level of review or follow-up needed.

In Foster, given the gravity of Farak’s misconduct and the effect on individuals convicted of or facing charges based on tampered evidence, Verner should have paid closer attention to the AGO’s disclosure obligations. If he had, he might have been able to ensure the disclosure of all exculpatory evidence. Foster’s supervisor, who apparently did not face any disciplinary charges, also should have paid closer attention to the subpoena proceedings, given Foster’s inexperience. Foster, 492 Mass. at 747-48 (holding Foster’s inexperience and reliance on supervisor to be mitigating factors). Despite these failures, Verner escaped relatively unscathed because of his reliance on Kaczmarek, while Kaczmarek and Foster bore the brunt of the SHO’s findings and the court’s conclusions on the misconduct.

The AAGs conduct at issue in Foster occurred almost a decade ago. Since then, as a result of the drug lab and other police misconduct investigations, the SJC has issued several decisions on prosecutors’ duty to disclose government misconduct, including most recently in Graham v. Dist. Att’y for Hampden Dist., No. SJC-13386, 2024 WL 236151 (Mass. Jan. 23, 2024); see also Comm. for Pub. Couns. Servs. v. Att’y Gen., 480 Mass. 700, 732 (2018) (directing standing committee to adopt Brady checklist procedure and holding that prosecutors should submit any questionable exculpatory evidence to the court for in camera review); Bridgeman v. Dist. Att’y for Suffolk Dist., 476 Mass. 298, 315 (2017) (“where there is egregious misconduct attributable to the government in the investigation or prosecution of a criminal case, the government bears the burden of taking reasonable steps to remedy that misconduct”). In Graham, the SJC reaffirmed “the importance of a prosecutor’s dual duties—to disclose and to investigate—in upholding the integrity of our criminal justice system,” while also delineating a prosecutor’s unique disclosure obligations in the context of government misconduct investigations. Id. at *2. If these decisions had existed in 2013, perhaps the AAGs would have better understood their ethical obligations and would not have suffered the individualized punishments handed down in Foster. Going forward, attorney supervisors, both public and private, must take appropriate steps to monitor their colleagues depending on their experience and the significance of the task at hand, in addition to ensuring compliance with the Rules of Professional Conduct. Supervising prosecutors now have significant guidance for how to monitor disclosure issues.

Jessica Gray Kelly is a Partner at Freeman Mathis & Gary, LLP’s Boston office and a vice-chair of the Professional Liability / Errors and Omissions Practice Section and Co-Chair of the Lawyer’s Division. Throughout her career she has represented individuals and businesses in high stakes litigation matters, including commercial, real estate and land use, and professional liability disputes. Ms. Kelly also represents lawyers before the Board of Bar Overseers.

Katherine C. Chenail is an Associate at Freeman Mathis & Gary, LLP’s Boston office. Katherine practices in the Professional Liability / Errors and Omissions and Labor and Employment Practice Sections.