In the Matter of Foster

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-13360

IN THE MATTER OF KRIS C. FOSTER & others.1

Suffolk. April 3, 2023. - August 31, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker,
& Wendlandt, JJ.

Attorney at Law, Disciplinary proceeding, Suspension,
Disbarment, Public reprimand. Rules of Professional
Conduct.

Information filed in the Supreme Judicial Court for the
county of Suffolk on September 23, 2022.

The case was reported by Lowy, J.

Joseph M. Makalusky, Assistant Bar Counsel.
Allen N. David (Kristyn K. St. George also present) for
Kris C. Foster.
Patrick Hanley (Thomas J. Butters also present) for John C.
Verner.
Thomas R. Kiley (Meredith G. Fierro also present) for Anne
K. Kaczmarek.

GAZIANO, J. A prosecutor "may prosecute with earnestness

and vigor -- indeed, he should do so. But, while he may strike

1 Anne K. Kaczmarek and John C. Verner.
 2

hard blows, he is not at liberty to strike foul ones." Berger

v. United States, 295 U.S. 78, 88 (1935). In this appeal, we

address disciplinary sanctions imposed by the Board of Bar

Overseers (board) on three assistant attorneys general accused

of crossing that line.

The consolidated bar disciplinary proceedings arise from

the respondents' involvement in the withholding of exculpatory

evidence during the prosecution of a chemist in the State

Laboratory Institute in Amherst (Amherst lab or drug lab), Sonja

Farak, by the Attorney General's office (AGO). As detailed in

Committee for Pub. Counsel Servs. v. Attorney Gen., 480 Mass.

700, 705-720 (2018), we dismissed with prejudice thousands of

pending drug charges and drug convictions tainted by evidence

tampering at the Amherst lab. Id. at 725. This "strong

medicine" was necessary, we stated, to remedy the intentional

and egregious governmental misconduct of Farak and two of the

three respondents, Anne K. Kaczmarek and Kris C. Foster. Id.

In the wake of the Farak drug lab scandal, bar counsel

filed petitions for discipline with the board charging

Kaczmarek, Foster, and John C. Verner with various violations of

the Massachusetts rules of professional conduct. The matter was

heard by a special hearing officer (SHO). The board adopted in

full the extensive factual findings of the SHO. The board

recommended that Verner, who supervised the Farak prosecution,
 3

be suspended for three months for neglecting his supervisory

duties. The board further recommended that Foster, who was

responsible for the AGO's response to subpoenas and discovery

motions filed by defense counsel, be suspended for one year and

one day for her violations that, for the most part, amounted to

"gross incompetence" and "reckless lawyering." In so holding,

the board rejected bar counsel's argument that Foster engaged in

conduct involving dishonesty, fraud, deceit, or

misrepresentation, in violation of Mass. R. Prof. C. 8.4 (c),

426 Mass. 1429 (1998).2 Finally, the board recommended

disbarment for Kaczmarek, who, as lead prosecutor in the Farak

case, "[bore] the greatest responsibility" and "the greatest

culpability." A single justice reserved and reported the matter

to the full court.

We adopt, in part, the board's recommendations. The record

supports a finding that the prosecutors failed in their

collective duty to disclose potentially exculpatory information

that was known to the AGO. We also conclude, however, 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

2 Because this case concerns misconduct that occurred in
2013, we refer to the rules of professional conduct as they
existed at that time. See Matter of Brauer, 452 Mass. 56, 64
n.11 (2008).
 4

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.

Because Foster was reckless in her representations about what

the AGO had disclosed, and otherwise exhibited incompetence in

her response to the subpoena and discovery motions, we accept

the board's recommendation that she receive a suspension of one

year and one day. Finally, because Kaczmarek was most culpable

for the AGO's failure to turn over all exculpatory information,

and because she displayed a lack of candor and remorse at the

disciplinary hearing, we accept the board's recommendation that

she be disbarred. The matter is remanded to the county court

for entry of final judgment.

1. Background. We summarize the relevant factual findings

of the SHO from his detailed ninety-two page hearing report, as

adopted by the board, concluding that they are supported by

substantial evidence.3 See S.J.C. Rule 4:01, § 8 (6), as

appearing in 453 Mass. 1310 (2009). We supplement the facts

3 We therefore refer to the SHO's factual findings as those
of the board. See Matter of Laroche-St. Fleur, 490 Mass. 1020,
1021 n.7 (2022), citing Matter of Eisenhauer, 426 Mass. 448, 449
n.1, cert. denied sub nom. Eisenhauer v. Massachusetts Bar
Counsel, 524 U.S. 919 (1998).
 5

with undisputed evidence in the record as needed. See Matter of

Angwafo, 453 Mass. 28, 29 (2009), citing Commonwealth v. Isaiah

I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008).

a. Arrest and initial investigation of Farak. From 2004

through 2013, Farak worked as a chemist at the drug lab, located

on the campus of the University of Massachusetts in Amherst.

Farak was responsible for analyzing suspected narcotics

submitted by law enforcement agencies, issuing drug analysis

certificates, and testifying in criminal proceedings regarding

her analyses. On January 17, 2013, another chemist in the

Amherst lab noticed that two samples that had been assigned to

Farak were missing from the evidence locker. The next day,

Farak's supervisor searched the lab and found the packaging for

the two missing samples at Farak's work area. Farak had

identified the samples as cocaine, but subsequent testing of the

substances in the packaging showed one sample adulterated with a

foreign substance and the other negative for cocaine.

On the next day, January 18, 2013, the State police began a

criminal investigation into Farak's potential tampering with

drug samples submitted for analysis. The AGO agreed to

undertake the investigation and the potential prosecution of

Farak. In the early morning hours of January 19, 2013, a team

of investigators, which included State police Sergeant Joseph

Ballou, executed a search warrant on Farak's car. The search
 6

team catalogued twenty separate items, including several "zip-

lock" plastic bags containing capsules, pills, and a white

powder, as well as manila envelopes dated as early as 2008 and

2009, and what seemed to be assorted paperwork from the drug

lab. When the search was complete, the State troopers secured

the evidence in the evidence room at the Springfield State

police barracks (Springfield barracks).

Farak was arrested on January 19, 2013, and arraigned three

days later, charged with two counts of evidence tampering, and

possession of cocaine and heroin. It generally was recognized

by the AGO that the Farak case was a matter of high importance.

At the time, Verner was the chief of the AGO's criminal

bureau, and between 2012 and 2014, Verner managed more than one

hundred people, including about fifty lawyers. Verner assigned

Kaczmarek, an assistant attorney general in the enterprise,

major, and cyber crimes division (EMC) of the AGO's criminal

bureau, as lead prosecutor on the Farak case. Verner chose

Kaczmarek in part because she had been assigned to, and was at

the time working on, the prosecution of another State drug

laboratory chemist who tampered with evidence, Annie Dookhan.

See Bridgeman v. District Attorney for the Suffolk Dist., 476

Mass. 298, 303 (2017). Kaczmarek primarily was responsible for

the prosecution of Farak, while Verner was available for support

and assistance as needed.
 7

Verner and Kaczmarek understood early in the Farak case, as

had been the case in the Dookhan investigation, that defendants

with pending cases, as well as those who had been convicted on

the basis of Farak's drug analysis, would be entitled to receive

from the district attorneys' offices (DAOs) potentially

exculpatory information obtained by State police and the AGO in

the investigation and prosecution of Farak. Verner and

Kaczmarek further understood that any information inculpatory

toward Farak potentially would be exculpatory toward those

defendants.

Verner adopted the same discovery policy for the Farak case

that the AGO had in the Dookhan case. In the Dookhan case, a

discovery policy had to be created due to the unprecedented

nature of Dookhan's misconduct and the AGO's indirect

relationship with affected defendants. Generally, the vast

majority of drug cases are prosecuted by the DAOs, so the AGO's

connection with those defendants affected by Dookhan's

misconduct was through the DAOs. Thus, Verner and his

supervisor, First Assistant Attorney General Edward Bedrosian,

developed a policy that they would provide "discoverable

information . . . [w]hether it was exculpatory or not," obtained

by the State police and the AGO to the DAOs, so that the DAOs

could provide it to the affected defendants. Verner made it
 8

clear to Kaczmarek that the AGO would adopt the Dookhan protocol

in the Farak case.

During the investigation of Farak, Ballou obtained

information from a prosecutor in Hampden County regarding two

cases in which the drug samples appeared to have been tampered

with by Farak. On January 23, 2013, after Ballou informed

Kaczmarek, Verner, and his supervisor, Detective Lieutenant

Robert Irwin, about the two additional cases, Kaczmarek and

Verner each approved and authorized Ballou to obtain additional

information about Farak's potential tampering. Kaczmarek wrote

in an e-mail message to Verner, Ballou, and Irwin, "I think this

is the tip of the iceberg."

On further investigation, Ballou learned about a March 2012

case involving suspected oxycodone pills; in that case, Farak

returned more pills than she had received from police, and the

pills were different in appearance from those initially

submitted to the drug lab. Ballou also learned of a 2005 case

in which the amount of cocaine had decreased by four grams

between the time it initially was weighed by police and when it

was returned by Farak. A prosecutor involved in the 2005

"light" cocaine case told Ballou that he thought the difference

in weight could be explained by the weight of the packaging,

drying of the product, and inaccuracy in the police scale. In

January 2013, Ballou informed Verner and Kaczmarek by e-mail
 9

about the two cases. In response, Kaczmarek wrote, "Please

don't let this get more complicated than we thought. If she

were suffering from a back injury -- maybe she took some oxys?"

Despite the oxycodone and cocaine cases, Ballou, Verner,

and Kaczmarek operated on the theory that Farak's drug use and

tampering had been confined to cocaine and only dated back to

November or December 2012; they believed the 2005 cocaine case

and the 2012 oxycodone case to be "outliers." The board found

that the 2012 oxycodone case and the 2005 cocaine case were

potentially exculpatory evidence. Verner testified that these

cases were "exculpatory information," and the SHO did not credit

that Kaczmarek failed to realize that this evidence was

potentially exculpatory. While the 2012 oxycodone case was

eventually sent to at least one of the DAOs by Ballou, the 2005

cocaine case was not turned over.

At around the same time, Kaczmarek also learned that Farak

had tested positive for cocaine on a urinalysis to which she

submitted near the time of her arrest, and that Farak had

admitted to using cocaine on Friday, January 18, the day before

her arrest. Kaczmarek forwarded this information to Verner,

Ballou, and Randall Ravitz, the chief of the appeals division of

the AGO's criminal bureau. Verner testified that he agreed that

the January 2013 urinalysis potentially was exculpatory, but

Kaczmarek denied that it was.
 10

By the end of January, Farak's conduct was attracting

considerable attention. A colleague sent an e-mail message to

Verner and Kaczmarek that the district attorney for the Hampden

district "was getting pressure from the judges to identify cases

that were handled by Farak."

b. Discovery of mental health worksheets. On February 14,

Ballou reviewed the paperwork in the manila envelopes recovered

from the search of Farak's car. Ballou realized that papers

police originally thought were related to the drug lab actually

were personal papers, which included mental health counselling

worksheets that detailed Farak's struggles with drug addiction,

as well as her failed efforts to resist using drugs at work.

Handwritten notes on these papers suggested that Farak's

misconduct may have had a longer history than the AGO had

realized. Ballou, knowing that Kaczmarek was preparing for a

grand jury and recognizing the potentially inculpatory value of

the mental health worksheets, telephoned Kaczmarek to tell her

about them. During the telephone call, he expressed a concern

that the worksheets could be privileged. Kaczmarek said that

she would inquire of Verner whether a court order was needed to

present them to the grand jury.

That same day, Ballou scanned and attached eleven pages

found within Farak's vehicle to an e-mail message with the

subject "FARAK Admissions" addressed to Irwin, Kaczmarek, and
 11

Verner. The first four pages were news articles, dated sometime

in 2011, about drug use by law enforcement officers, a

pharmacist, and a former technician of a drug laboratory in

another State, with what appeared to be Farak's handwritten

comments in the margins discussing their drug use. Ballou

included these articles because he believed they indicated that

"the case could have gone back much further than the time frame

[at which they] had been looking." In the remaining pages,

Farak referenced lying on or about a Drug Enforcement Agency

application, having "urge-ful" samples to analyze at work,

having urges to use a good sample at work, and knowing there

would be periods when she would be alone at work. One of the

pages provided: "Thursday: tried to resist using @ work, but

ended up failing"; and "Friday: @ work use w/out debating doing

it."

When Kaczmarek received Ballou's e-mail message, she

reviewed the pages and researched their contents for about

thirty minutes. Kaczmarek then saved a combined electronic copy

of the documents on her computer, titling the file "mental

health worksheets." Kaczmarek also printed copies of each

document, placed them in a manila envelope likewise labeled

"mental health worksheets," and added the envelope to a box

dedicated to Farak's trial. In a follow-up telephone call with

Kaczmarek, Ballou advised her that, because "there were so many
 12

papers and things" seized from Farak's car, she should "come out

and look" at everything, not just the eleven pages he had sent

to her by e-mail. She never did.

Kaczmarek sought Verner's advice about whether to include

the mental health worksheets in her grand jury presentation.

She told Verner that there had been documents discovered in

Farak's car in which Farak "was talking about how she felt using

drugs and it may have been with some form of clinician" but that

she had a concern that the documents might be privileged.

Verner advised Kaczmarek not to include the mental health

worksheets in her grand jury presentation. Kaczmarek told

Ballou that she had discussed the issue with Verner and that

they had decided not to include the mental health worksheets in

the grand jury presentation because they had sufficient evidence

without the worksheets.

Before the SHO, Verner testified that he neither had read

Ballou's e-mail message nor opened the attachments. The SHO

rejected this testimony as not credible and found instead that

he had looked at the attachments. The SHO also found that both

Kaczmarek and Verner had known the documents Ballou had sent

them were exculpatory: "Any prosecutor or criminal defense

counsel who spent even a few minutes reviewing the attachments

to Ballou's February 14 [e-mail message] would have recognized

their significance: highly inculpatory to Farak, and highly
 13

exculpatory to all Farak defendants." The mental health

worksheets remained in the evidence room at the Springfield

barracks.4 Copies of the mental health worksheets also were on

Kaczmarek's computer, on Verner's computer as an attachment to

Ballou's February 14, 2013, e-mail message, and in Kaczmarek's

trial box.

c. Prosecution memorandum and grand jury preparation. In

late March 2013, Kaczmarek wrote a prosecution memorandum5

seeking approval from the executive bureau of the AGO to indict

Farak. In the section of the memorandum discussing items

recovered from Farak's vehicle, Kaczmarek included "mental

health worksheets describing how Farak feels when she uses

illegal substances and the temptation of working with 'urge-ful

samples.'" Her direct supervisor, the chief of the EMC

division, Dean Mazzone, reviewed the prosecution memorandum and

suggested edits, which Kaczmarek adopted. Before Mazzone signed

off on the prosecution memorandum, he and Kaczmarek had a

4 It is unclear whether the mental health worksheets, or
photocopies of them, were located in Ballou's investigatory
file. Before the SHO, Ballou testified that he did not know
whether the mental health worksheets were in his case file. The
SHO found that Ballou's file contained his reports, search
warrants, returns, and other similar items, but not the actual
evidence in the evidence locker in the Springfield barracks.

5 A prosecution memorandum, or a "pros memo," is an internal
memorandum that prosecutors write at the AGO to obtain approval
to charge a particular case.
 14

conversation about the mental health worksheets because

Kaczmarek was concerned that they possibly were privileged or

too prejudicial. In footnote seven in the memorandum, Kaczmarek

described the mental health worksheets: "These worksheets were

not submitted to the grand jury out of an abundance of caution

in order to protect possibly privileged information. Case law

suggests, however, that the paperwork is not privileged."

Verner also reviewed Kaczmarek's prosecution memorandum.

He signed his approval on March 27, but made significant and

substantial comments throughout it, including comments and

questions directed specifically to Kaczmarek. In one instance,

Verner made a handwritten notation next to footnote seven,

writing as to the mental health worksheets: "this paperwork NOT

turned over to DAs office yet." Verner "absolutely" understood

that these worksheets needed to be turned over to the DAOs.

At the hearing before the SHO, Kaczmarek testified that she

never had reviewed a signed, approved prosecution memorandum,

and that even if she had seen Verner's note about the mental

health worksheets, she would not have interpreted it as an

instruction to turn them over to the DAOs. The SHO did not

credit Kaczmarek's testimony, relying on the fact that Kaczmarek

had incorporated Verner's comments in another section of the

memorandum, and that Kaczmarek not viewing Verner's comments

with the purpose of acting on them would have been a knowing
 15

violation of office policy and protocol. The SHO found that

Verner had instructed Kaczmarek to turn over the mental health

worksheets through the prosecution memorandum and, as was

Verner's expectation with every assistant attorney general, he

expected Kaczmarek to review this instruction and take the

required actions.

In late March 2013, before the grand jury Kaczmarek

presented various testimony and exhibits, including the

newspaper articles from 2011 that had been found with the mental

health worksheets. On April 1, 2013, the grand jury indicted

Farak on four counts of tampering with evidence, two counts of

unlawful possession of a class B controlled substance, and four

counts of theft of a controlled substance from a dispensary.

d. AGO's formal disclosures. At around the same time as

the grand jury proceedings, the AGO began receiving discovery

requests from the DAOs. While the prosecution memorandum was

being edited and finalized, Kaczmarek and Verner discussed the

language of a discovery letter to be sent to the DAOs along with

documents related to and obtained in the course of the Farak

investigation. Verner testified that, as was done in the

Dookhan case, the evidence the AGO uncovered "would be turned

over by [the AGO] to the individual [DAOs] who would then make

the determination on what to do with them." On March 27, 2013,

Verner signed the first discovery letter sent to the DAOs, which
 16

Kaczmarek helped draft, and which accompanied 210 pages of

potentially exculpatory material, but excluded the mental health

worksheets, 2005 cocaine case, 2012 oxycodone case, and Farak's

urinalysis.

Kaczmarek also was responsible for providing discovery to

Farak's defense attorney, Elaine Pourinski. When Farak was

arraigned on April 22, 2013, Kaczmarek provided Pourinski with

assorted documents, which included the six pages of mental

health worksheets. On May 14, Kaczmarek arranged with Ballou

for Pourinski and Farak to review the evidence located in the

evidence room at the Springfield barracks. Kaczmarek did not

review that evidence herself.

There were two subsequent discovery letters and packages

sent to the DAOs on June 26, 2013, and July 12, 2013, signed by

Kaczmarek, which Verner did not review, but the second discovery

letter was sent to Verner for his approval. Kaczmarek's second

and third discovery letters noted the AGO's "continuing

obligation to provide potentially exculpatory information to the

[d]istrict [a]ttorneys as well as information necessary to your

[o]ffices' determination about how to proceed with cases in

which related narcotics evidence was tested at the Amherst

lab[]." The second and third disclosures, sent on June 26 and

July 12, respectively, included minutes and exhibits from the

grand jury, but did not include information about the 2005
 17

cocaine case, the 2012 oxycodone case, the mental health

worksheets, or Farak's urinalysis. There were no additional

disclosures sent to the DAOs after July 12, 2013.

As of March 27, 2013, Verner knew that the mental health

worksheets had not yet been turned over, but understood that his

office had an obligation to do so, and reasonably expected that

Kaczmarek was going to disclose them, along with all other

exculpatory information. Verner never followed up with

Kaczmarek to ensure that the mental health worksheets and other

information had been disclosed to the DAOs.

e. Defendants' additional discovery requests. As the

prosecution of Farak progressed, multiple defendants filed

subpoenas and discovery requests for information related to

Farak's conduct. The matters were consolidated before Superior

Court Judge C. Jeffrey Kinder, who assigned Francis E. Flannery,

then first assistant district attorney for the Hampden district,

to serve as lead counsel on behalf of the Commonwealth, and

attorneys Luke Ryan and Jared Olanoff to serve as lead counsel

for the Farak defendants. A hearing was set for September 9,

2013, for the purpose of determining "the timing and scope of

. . . Farak's alleged criminal conduct."

Prior to the hearing, Ryan served Kaczmarek and Ballou with

subpoenas seeking documents pertaining to the scope of evidence

tampering at the Amherst lab in connection with a matter
 18

captioned Commonwealth vs. Penate, Mass. App. Ct., No. 2015-P-

0054. At around the same time, the AGO also received other

subpoenas and discovery requests for the September 9 hearing,

including a discovery motion from Ryan in Commonwealth vs.

Rodriguez, Mass. Super. Ct., No. 1079CR01181 (Hampden County

2013), and a subpoena for Ballou from Olanoff in Commonwealth

vs. Watt, Mass. Super. Ct., Nos. 0979CR01068 & 0979CR01069

(Hampden County 2013). The discovery motions and subpoena each

sought substantially the same documents, such as "all documents

and photographs pertaining to the investigation of . . . Farak

and the Amherst drug lab[]." In the Rodriguez case, Ryan also

filed a motion to inspect the evidence seized from Farak's car

that was located at the Springfield barracks. Ballou sent the

subpoenas to Verner, Mazzone, Irwin, and Kaczmarek, writing,

"Anne asked me to forward this to the group to see if it can be

quashed."

On August 23, 2013, Ravitz assigned Foster, who had started

in the appeals division of the AGO in July 2013 and had no

experience in responding to subpoenas, to serve as the lead

attorney representing the AGO in the Superior Court proceedings.

A few days later, Ravitz met with Foster to provide her some

guidance on the process for responding to subpoenas and a few

sample motions. Foster was told not to "reinvent the wheel" and

was advised to copy wholesale from the sample motions. The
 19

board noted that, "[g]iven the nature of the Farak prosecution,

and the subpoenas' importance both to the Farak case and to the

Farak defendants' cases, someone with significant experience

with subpoenas should have been assigned."

Under the direction of Susanne Reardon, the deputy chief of

the AGO's criminal bureau's appeals division, Foster prepared a

motion to quash the subpoena for Ballou in the Watt case.

Reardon told Foster to speak with Kaczmarek and Ballou before

responding, so that she could determine what had yet to be

turned over. Foster did not consult Kaczmarek or Ballou about

what had been turned over and proceeded to draft a motion to

quash the Watt subpoenas and a memorandum of law in support of

the motion. Foster sent Reardon a draft to review, and Reardon

provided comments, again noting that it would be "helpful" if

Foster verified what had and had not been turned over to defense

counsel. Neither Ravitz nor Reardon explicitly instructed

Foster to review Ballou's file.

After a meeting with Verner, Mazzone, Kaczmarek, and

Reardon, Foster filed a motion to quash the Watt subpoena on

September 6. Foster asserted that Ballou had limited first-hand

knowledge of the events described in the document requests, some

documents were protected by the qualified law enforcement

privilege, and Ballou should not be compelled to reveal his

thought process or the work product of the AGO. Foster
 20

alternatively asked Judge Kinder to restrict the subpoena's

scope and to protect certain categories of information. Foster

did not review Ballou's file prior to filing these documents,

despite Reardon's suggestion.

Foster also filed an opposition to the discovery motion in

the Rodriguez case. She argued that the discovery requests were

unreasonably broad and sought documents outside the scope of the

issues to be litigated at the hearing on September 9. In

response to the motion to inspect the evidence seized from

Farak's car, Foster replied that the AGO was taking the position

that this would not be possible because the investigation of

Farak was ongoing.

At this time, lead counsel for the DAOs, Flannery, was also

actively preparing for the September 9 hearing. He reached out

to Ballou seeking information about Farak's potential tampering

in the 2012 oxycodone case. Ballou prepared and sent a report

to Flannery on September 4, including Kaczmarek on the e-mail

message, detailing what he knew about the 2012 oxycodone case.

Flannery also requested that Ballou set up a date "so a team of

defense attorneys [could] review the FARAK evidence at [his]

office" before the hearing. Ballou forwarded the request to

Irwin and Kaczmarek. Kaczmarek quickly responded, "No. This is

still an open criminal case. I do not want defense attorneys

going through evidence on a fishing expedition." As a result of
 21

Kaczmarek's response, the parties did not arrange a time to view

the evidence prior to the September 9 hearing.

Also on September 4, at a meeting in her office, Kaczmarek

informed John Bossé, an assistant district attorney in Berkshire

County, that he should advise defense attorneys that "all

relevant discovery had been provided to the [DAOs]."

Kaczmarek's statement to Bossé was materially false and

intentionally misleading; it was not possible at that time for

Kaczmarek to know whether all relevant evidence had been

provided to the DAOs, as she had made no effort to review the

evidence at the Springfield barracks.

Kaczmarek also did not review Ballou's file prior to the

September 9 hearing, even though the subpoena required Ballou to

bring his file to the hearing and to testify about the

investigation. The board described Kaczmarek's failure to

review the file and her failure to meet with and help prepare

Ballou for the hearing a "dereliction of . . . duty," noting

that "[a]ny prosecutor should want to review the contents of the

lead investigator's file and all the evidence he had collected."

No one from the AGO prepared Ballou for the hearing.

f. Superior Court proceedings. Foster represented the AGO

at the September 9 Superior Court hearing before Judge Kinder,

where her motion to quash the subpoena in the Watt case was

denied. As to Foster's request for a protective order, Judge
 22

Kinder asked: "Have you personally reviewed the file to

determine that there are categories of documents in the file

that fit the description of those that you wish to be

protected?" Foster responded that she had not, but that she had

spoken with Kaczmarek, who indicated that several documents, e-

mail messages, and correspondences that had been requested would

be protected as work product. Judge Kinder then asked, "But you

don't know, having never even looked at the file, what those

documents are?" Foster answered, "Correct."

Judge Kinder next asked whether the file was present, and

Foster told him, incorrectly, that she did not believe it was.

When Ballou was called to the stand, he brought his file with

him. Ballou testified that "everything in my case file has been

turned over." Olanoff asked if he knew whether everything in

Kaczmarek's file had been turned over, and Ballou stated: "I

believe everything pertaining to the Farak investigation has

been turned over. I am not aware of anything else." This

statement may have been true as it related to Ballou's case

file, but this file was a subset of the totality of discovery

material within the custody and control of the State police and

the AGO. For example, the mental health worksheets were located

at the Springfield barracks. Despite Judge Kinder's probing,

Foster still did not request to see Ballou's file; Ballou
 23

testified before the SHO that he would have shown it to her had

she asked to see it.

At the conclusion of the hearing, with respect to the

subpoena in the Watt case and the discovery motion in the

Rodriguez case, Judge Kinder ordered Foster to send to him all

responsive documents for which a claim of privilege was being

asserted so he could conduct an in camera review.6 Foster asked

Judge Kinder to clarify the scope of his order, to which he

responded by explaining that he did not want to see anything

that had been turned over or that the AGO already had agreed to

turn over, but that he did want to see the documents Foster

believed were privileged or not discoverable.7

6 Judge Kinder's order stated: "[W]hat I expect, again, if
you can provide and that will be for my in camera review, those
documents that you feel should not be disclosed with some
indication somewhere in the body of the pleading why it is you
feel those documents should not be disclosed."

7 Foster then again asked Judge Kinder to clarify the scope
of the Watt subpoena:

Foster: "It's just [that the] language of the subpoena was
for all documents and photographs for the whole
investigation, so I was wondering since the subpoena was
for Sergeant Ballou, the documents he has or the documents
the [AGO] has?"

Judge Kinder: "The subpoena duces tecum, as I understood
it, went to Sergeant Ballou and that was the subpoena that
you sought to quash."

Foster: "Correct."

Judge Kinder: "So that is what we are talking about."
 24

The board characterized Foster's failure to review the file

and lack of preparedness, particularly at the September 9

hearing, as "at best inconvenient and at worst incompetent."

The day after the hearing, in an e-mail message to Mazzone,

Kaczmarek, Verner, Ravitz, and Reardon, Foster explained that

her motion to quash had been rejected and that Judge Kinder had

given them until September 18 to go through Ballou's file and to

provide him anything that they thought was privileged, along

with a memorandum explaining the basis for each privilege claim.

Verner responded to the entire group almost immediately, asking:

"Anne, can you get a sense from Joe what is in his file?

Emails[,] etc[.]? Kris, did the judge say his 'file' or did he

indicate Joe had to search his emails[,] etc[.]?"

At that point, Verner reasonably believed that both Foster

and Kaczmarek had reviewed Ballou's file; Foster was

representing Ballou in court, and Kaczmarek had spent nine

months on the case and had obtained indictments with Ballou's

aid. This belief was further supported by Kaczmarek's response

to Verner's e-mail message, minutes later: "Joe has all his

reports and all reports generated in the case. All photos and

videos taken in the case. His search warrants and returns.

Copies of the paperwork seized from her car regarding new[s]
 25

articles and her mental health worksheets."8 Verner then

replied, "Is that every[thing] in his file?" Kaczmarek

responded: "Yes. By file, we are talking about his working

file. Think trial binder. The boxes of actual evidence are in

Springfield. Log books (which we have copied), actual items

taken from car, tote bag, and drawer (all of which are

photographed)."

Later that same day, a brief meeting was held among

Kaczmarek, Foster, Verner, Reardon, Ravitz, and Mazzone. At

that meeting, Kaczmarek informed the attendees that she believed

everything in Ballou's file had been turned over.9

Kaczmarek did not clearly explain that the materials in

Ballou's file were but a subset of the evidence stored at the

Springfield barracks. She also failed to inform her superiors

that no one in the AGO had reviewed the evidence in Springfield.

On the basis of Kaczmarek's representations about Ballou's file,

Verner believed that the mental health worksheets had been

turned over.

8 This was the first time the mental health worksheets had
been mentioned to Foster.

9 The SHO found that a meeting had been held at which
Kaczmarek told Foster and the other attendees that everything
had been turned over. He did not make a finding as to the
attendees, but none of the parties disputes Foster's or
Reardon's testimony that Kaczmarek, Foster, Reardon, Ravitz, and
Mazzone attended. See Matter of Angwafo, 453 Mass. at 29,
citing Isaiah I., 448 Mass. at 337.
 26

That same day, Kaczmarek sent an e-mail message to Ballou

asking, "Can you come to Boston sometime this week and bring

your file so we can see what[']s in it?" She then sent a

message to Verner, confirming that she had asked Ballou "to come

to Boston sometime this week so we/I can look at his file."

Verner thought that Kaczmarek was being cautious in requesting

the file, wanting to confirm what was in it.

On September 12, Ballou brought his file to the AGO in

Boston. No one at the AGO reviewed it. Foster unreasonably

assumed Ballou and Kaczmarek would meet and that she was not

invited to that meeting. Kaczmarek expected someone else to

review the file, not believing it to be her responsibility.

Verner assumed that Foster, in conjunction with Kaczmarek, would

review the file. Verner never followed up with Kaczmarek about

her review of Ballou's file.

At a meeting with Verner and Mazzone on September 16,

Ravitz told Foster that everything had been turned over and she

should draft a letter to the judge saying as much. Following

those instructions, Foster prepared a letter to send to the

judge concerning the Watt subpoena to Ballou.10 Before Foster

10The discovery motion in the Rodriguez case was denied on
September 9 as untimely to the extent that it sought the
production of additional discovery. The judge took under
advisement the question whether additional discovery should be
forthcoming, and he ultimately denied this motion and general
relief to Rodriguez later that year.
 27

filed the letter with the court, Ravitz quickly reviewed the

draft of the letter and approved it. It stated:

"Dear Judge Kinder,

"On September 9, 2013, pursuant to a subpoena issued by
defense counsel, you ordered the [AGO] to produce all
documents in Sergeant Joseph Ballou's possession that the
[AGO] believes to be privileged by September 18, 2013, to
be reviewed by your [sic] Honor in camera. After reviewing
Sergeant Ballou's file, every document in his possession
has already been disclosed. This includes grand jury
minutes and exhibits, and police reports. Therefore, there
is nothing for the [AGO] to produce for your review on
September 18, 2013. (Emphases added.)

"Please do not hesitate to contact me should your [sic]
require anything further.

"Sincerely,

"Kris C. Foster"

The board found that the statements in Foster's letter were

misleading and intentionally vague. Contrary to Foster's

assertion in her letter, no one at the AGO had reviewed Ballou's

file and no one had determined whether every document in

Ballou's possession had been disclosed. The board found that by

using the passive voice, Foster had intended to keep her

statements vague so as to shield the AGO from further inquiry at

that stage by the judge. Further, in her letter, Foster did not

distinguish between Ballou's case file and the larger set of

evidence located at the Springfield barracks. Ballou had

substantial evidence in his "possession," including all

documents from Farak's car, so Foster's reference to such
 28

evidence was found by the board to be "reckless" and

"misleading."

Ryan continued to press the AGO for access to documents

related to Farak's tampering. On September 17, Ryan, in the

Penate case, served a motion on the AGO and the State police to

compel production of documents pursuant to Mass. R. Crim. P.

17 (a) (2), 378 Mass. 885 (1979). An attorney for the State

police, Sean Farrell, sent an e-mail message to Kaczmarek

seeking information she had on the discovery history and

responses. Kaczmarek responded, "We also received this gem,"

warning Farrell "not [to] give this attorney an inch, he is very

rude and aggressive." As to the specific categories requested

by Ryan, Kaczmarek falsely implied that the AGO had no

information in its files responsive to the Penate requests in

its files. Farrell also reached out to Ballou, telling Ballou

that Kaczmarek had advised him that there were no records

responsive to certain requests and asking Ballou to confirm.

Ballou responded to Farrell, including Kaczmarek on the e-mail

message, explaining that his "entire investigative file ha[d]

been turned over." Kaczmarek did not correct or clarify

Ballou's statements.

The parties returned to court on October 2, where Foster

once again represented to the court that all the contents of

Ballou's file had been produced. Foster objected to Ryan's
 29

argument for permission to view the physical evidence seized in

the search of Farak's car, arguing that the evidence was

irrelevant and that to allow one defense lawyer to look at it

would "open the floodgates" to similar requests by other

defendants. In response to a comment by Judge Kinder that it

might be helpful for her to look at the information about which

she was making representations, Foster stated, "I have talked to

[Kaczmarek and Ballou] and both of them said there's nothing -

- there's no smoking gun . . . ." The board found this

statement to be inaccurate and misleading. The judge denied

Ryan's motion to inspect physical evidence, reasoning that

"physical evidence has been described in detail for the

defendant and photographs of that evidence have been provided."

Judge Kinder allowed Ryan's motion to compel production of

documentary evidence "insofar as it [sought] production of drug

testing administered to Sonja Farak by her employer, and any

correspondence related directly to drug use or evidence

tampering by Sonja Farak." Foster, at the direction of Verner,

and with the guidance of Ravitz and Kaczmarek, filed a motion to

clarify what Judge Kinder meant by "correspondence." After

Kaczmarek reviewed the motion for clarification, she failed to

ensure that all potentially exculpatory information known to her

had been turned over to the DAOs.
 30

Over the next two months, Judge Kinder denied discovery

requests and other forms of relief to the consolidated

defendants before him. In general, he reasoned that the

defendants had failed to show that Farak had been abusing drugs

and tampering with evidence in 2011 or earlier, when the

defendants had been arrested. He denied a motion to dismiss

filed by Ryan in Penate because there was insufficient evidence

that Farak had engaged in misconduct in November 2011 and

January 2012 when the defendant had been arrested and the drug

samples had been tested.

The board found that Foster's letter's misguided phrasing,

and her incompetence and lack of diligence, in part caused Judge

Kinder to find that the defendants had not met their burden to

show that Farak's misconduct had occurred early enough to make a

difference in their cases. The board also found that "defense

counsel could have used the undisclosed mental health worksheets

to show that Farak was engaged in drug tampering and drug abuse

in 2011, and perhaps could have used the [2005] light cocaine

case to attempt to show that Farak's drug tampering and drug use

had extended back many years before 2011."

g. Ryan's discovery of mental health worksheets. In

January 2014, Farak pleaded guilty to four counts of evidence

tampering, four counts of larceny of a controlled substance from

a dispensary, and two counts of unlawful possession of a class B
 31

controlled substance. After the guilty plea and sentencing, the

Farak matter was no longer an open criminal investigation, and

the AGO had no basis for objecting to turning over evidence to

defendants in related criminal matters.

On October 30, 2014, after the AGO assented to a motion to

inspect physical evidence, Ryan was granted access to all the

evidence that originally had been stored at the Springfield

barracks.11 Ryan saw the mental health worksheets and

immediately recognized their significance. This was the first

time any of the defendants affected by Farak's misconduct had

gained access to the mental health worksheets and other

potentially exculpatory evidence.

Ryan wrote an eleven-page letter to the AGO, detailing the

withheld evidence, explaining its exculpatory value, and

observing that "[i]t would be difficult to overstate the

significance of these documents." On receiving the letter from

Ryan, Verner immediately met with Foster, Ravitz, and Mazzone.

Members of the Farak prosecution team were shocked, upset, and

concerned that their office may have made inaccurate

representations.

11Prior to Ryan's discovery, Kaczmarek had left the AGO to
take a position as an assistant clerk-magistrate in the office
of the clerk of the Superior Court for criminal business in
Suffolk County.
 32

Verner himself reviewed the entirety of the Farak material

to ensure there was nothing else that had not been produced. On

November 13, 2014, the AGO produced an additional 289 pages of

previously undisclosed documents, including the mental health

worksheets and other papers that supported a strong inference

that Farak's misconduct began before 2012.

In December 2016, Superior Court Judge Richard Carey held a

six-day evidentiary hearing in Hampden County on renewed motions

to dismiss and motions for new trials or to withdraw guilty

pleas filed by ten defendants who claimed a right to relief

based on Farak's tampering and the AGO's misconduct.12 All three

respondents testified under oath before the judge, who granted

relief to some of the defendants, focusing mostly on those whose

certificates of drug analysis (drug certificates) had been

signed by Farak. The Committee for Public Counsel Services

(CPCS) and other defendants then sought relief in this court

pursuant to G. L. c. 211, § 3, and G. L. c. 231A, § 1.

On October 11, 2018, we ordered relief for the defendants

affected by Farak's misconduct, dismissing (1) "all convictions

based on evidence that was tested at the Amherst lab on or after

12The SHO did not admit in evidence the judge's 2017
findings and conclusions of law, except for three pages of his
final memorandum and order. The majority of the judge's
findings, therefore, were not considered as part of these
proceedings.
 33

January 1, 2009, regardless of the chemist who signed the drug

certificate," and (2) "all methamphetamine convictions where the

drugs were tested during Farak's tenure at the Amherst lab."

Committee for Pub. Counsel Servs., 480 Mass. at 729. Unlike in

the Dookhan cases, where we established a conclusive presumption

of government misconduct, see Bridgeman, 476 Mass. at 321-322,

we concluded that the more drastic remedy of dismissal was

required for Farak defendants because the government misconduct

by Farak and the assistant attorneys general was "so intentional

and so egregious" (citation omitted), Committee for Pub. Counsel

Servs., supra at 725.

2. Procedural history. In June 2019, bar counsel filed a

three-count petition for discipline against Foster, Kaczmarek,

and Verner, alleging multiple violations of the Massachusetts

rules of professional conduct related to the AGO's prosecution

of Farak. The first count alleged violations stemming from

Verner and Kaczmarek's failure to disclose to the DAOs

potentially exculpatory information as to the timing and scope

of Farak's drug use and tampering, as well as Verner's failure

to fulfill his duties as Kaczmarek's supervisor. The second

count alleged violations stemming from Kaczmarek's failure to

disclose to Flannery, Bossé, and Farrell potentially exculpatory

information, and Verner's failure to ensure that Kaczmarek had

made such disclosures. The third count alleged violations
 34

stemming from Foster's response to the Watt subpoena and the

Rodriguez and Penate motions, Kaczmarek's failure to undertake a

review of her file and to produce documents in response to the

subpoena and discovery motions, Kaczmarek's failure to alert

Foster to the existence of undisclosed documents, and

Kaczmarek's and Verner's failure to ensure that potentially

exculpatory information had been disclosed following their

respective reviews of the motion to clarify.

The respondents filed their answers in August 2019. On

Foster's motion, the board chair appointed an SHO to preside

over the proceedings. See S.J.C. Rule 4:01, § 5 (3) (d), as

amended, 453 Mass. 1305 (2009). An evidentiary hearing was held

by video conference over the course of twenty-three

nonconsecutive days, beginning in September 2020 and ending in

December 2020, and included testimony from fifteen witnesses and

the submission of 305 exhibits.

In July 2021, the SHO issued his hearing report. On the

first count of the petition, the SHO concluded that Kaczmarek,

by failing to disclose to the DAOs potentially exculpatory

evidence known to her, violated Mass. R. Prof. C. 1.1, 426 Mass.

1308 (1998) (provide competent representation); Mass. R. Prof.

C. 1.3, 426 Mass. 1313 (1998) (act with diligence in

representing client); Mass. R. Prof. C. 3.4 (a), 426 Mass. 1389

(1998) (do not obstruct another's access to evidence); Mass. R.
 35

Prof. C. 3.4 (c), 426 Mass. 1389 (1998) (do not knowingly

disobey obligation under rules of tribunal); Mass. R. Prof. C.

3.8 (d), 426 Mass. 1389 (1998) (as prosecutor, timely disclose

to defense all evidence or information known to prosecutor that

tends to negate guilt or mitigates offense); and Mass. R. Prof.

C. 8.4 (d), 426 Mass. 1429 (1998) (do not engage in conduct

prejudicial to administration of justice). The SHO concluded

that Verner violated Mass. R. Prof. C. 1.3; and Mass. R. Prof.

C. 5.1 (b), 426 Mass. 1405 (1998) (as supervising attorney, make

reasonable efforts to ensure that supervised lawyer's conduct

conforms to rules of professional conduct). The SHO concluded

that bar counsel had not proved that Verner had violated any

other rules.

On the second count of the petition, the SHO concluded that

Kaczmarek, by knowingly failing to disclose potentially

exculpatory evidence and by knowingly making materially

misleading statements to assistant district attorneys Bossé and

Flannery and State police counsel Farrell, had violated Mass. R.

Prof. C. 1.1, 1.3, 3.4 (a), 3.4 (c), and 3.8 (d); Mass. R. Prof.

C. 4.1 (a), 426 Mass. 1401 (1998) (do not knowingly make false

statement of material fact to third person); Mass. R. Prof. C.

8.4 (a), 426 Mass. 1429 (1998) (do not knowingly assist or

induce another to violate rules of professional conduct or do so

through acts of another); Mass. R. Prof. C. 8.4 (c) (do not
 36

engage in conduct involving dishonesty, fraud, deceit, or

misrepresentation); Mass. R. Prof. C. 8.4 (d); and Mass. R.

Prof. C. 8.4 (h), 426 Mass. 1429 (1998) (do not engage in any

other conduct that adversely reflects on fitness to practice

law). He also found that, by failing to direct Ballou to

provide Flannery with potentially exculpatory information known

to her, Kaczmarek violated Mass. R. Prof. C. 1.1, 1.3, 3.4 (a),

3.4 (c), and 3.8 (d); Mass. R. Prof. C. 5.3 (b), 426 Mass. 1408

(1998) (as supervisory lawyer over nonlawyer, make sure

nonlawyer's conduct complies with lawyer's obligations); and

Mass. R. Prof. C. 8.4 (a), 8.4 (d), and 8.4 (h). Finally, he

found that, by failing to take remedial action when she learned

that Ballou had not disclosed potentially exculpatory evidence

to Flannery, Kaczmarek had violated Mass. R. Prof. C.

5.3 (c) (2), as appearing in 426 Mass. 1408 (1998) (as

supervisory lawyer, take remedial action to avoid or mitigate

misconduct by nonlawyer). The SHO concluded that Verner was not

responsible for any of the alleged rules violations on the

second count.

On the third count of the petition, the SHO determined that

Foster had committed violations of Mass. R. Prof. C. 1.1; Mass.

R. Prof. C. 1.2 (a), 426 Mass. 1310 (1998) (seek lawful

objectives of client through reasonably available means

permitted by law and rules of professional conduct); and Mass.
 37

R. Prof. C. 1.3, by failing to adequately prepare to respond to

subpoenas and appear at hearings regarding the production of

evidence and by failing to ensure that the AGO reviewed Ballou's

file. The SHO also concluded that, by drafting a letter with

reckless disregard for the truth that misled the judge to

believe that the entirety of the file had been reviewed and all

documents had been produced, Foster had violated Mass. R. Prof.

C. 8.4 (d) and 8.4 (h). The SHO rejected Foster's argument that

Mass. R. Prof. C. 5.2 (b), 426 Mass. 1407 (1998) (subordinate

lawyer may act in accordance with supervisory lawyer's

reasonable resolution of arguable question of duty), relieved

her of responsibility because she had been acting in accordance

with her supervisor's instructions. The SHO held that

Kaczmarek, by failing to undertake a review of her file and

produce documents responsive to the subpoenas and discovery

motions, and by failing to alert Foster to the existence of

undisclosed documents, had violated Mass. R. Prof. C. 1.1, 1.3,

and 3.4 (c). Finally, the SHO concluded that, by failing to

ensure that potentially exculpatory information known to her had

been disclosed following her review of the motion to clarify,

Kaczmarek had violated Mass. R. Prof. C. 1.1, 1.3, 3.4 (a), and

8.4 (d). The SHO found that bar counsel had not proved any of

the charges against Verner in the third count.
 38

In October 2021, the SHO issued a supplemental report

detailing aggravating and mitigating factors, and recommended

sanctions, for each respondent. Based on his findings, the SHO

recommended a public reprimand for Verner, a suspension of one

year and one day for Foster, and a two-year suspension for

Kaczmarek.

Bar counsel and Foster filed timely appeals with the board.

Bar counsel challenged the sanctions for all three respondents,

arguing that the SHO improperly considered several mitigating

factors and failed to consider notable aggravating factors.

Neither Kaczmarek nor Verner appealed from the SHO's findings

and conclusions.

In June 2022, the board issued its final memorandum. The

board adopted the SHO's recommendation of a suspension of one

year and one day for Foster, but recommended a three-month

suspension for Verner and disbarment for Kaczmarek. The board

thereafter filed an information with a single justice of this

court pursuant to S.J.C. Rule 4:01, § 8 (6), in addition to a

motion to reserve and report without decision. In November

2022, a single justice reserved and reported the case to the

full court.

3. Discussion. a. Standard of review. "In bar

disciplinary cases where a single justice has reserved and

reported the case to the full court, we review the matter and
 39

'reach our own conclusion.'" Matter of Finneran, 455 Mass. 722,

730 (2010), quoting Matter of Wainwright, 448 Mass. 378, 384

(2007). In doing so, we keep in mind that the disciplinary

rules exist to "protect the public and maintain its confidence

in the integrity of the bar and the fairness and impartiality of

our legal system." Matter of Curry, 450 Mass. 503, 520-521

(2008). Accordingly, "[t]he appropriate level of discipline is

that which is necessary to deter other attorneys and to protect

the public." Matter of Zak, 476 Mass. 1034, 1038 (2017),

quoting Matter of Curry, supra at 530. To ensure that a

recommended disciplinary sanction achieves its desired ends, we

focus our review on whether it is "markedly disparate from

judgments in comparable cases." Matter of McBride, 449 Mass.

154, 163 (2007). It is not necessary to this endeavor, however,

that we "find perfectly analogous cases" (citation omitted).

Matter of Doyle, 429 Mass. 1013, 1014 (1999). Where no

analogous cases exist, we "must establish independently a

sanction adequate to address the seriousness of the misconduct."

Matter of Foley, 439 Mass. 324, 339 (2003). Each case "must be

decided on its own merits and every offending attorney must

receive the disposition most appropriate in the circumstances."

Matter of Murray, 455 Mass. 872, 883 (2010), quoting Matter of

the Discipline of an Attorney, 392 Mass. 827, 837 (1984).
 40

Although the board's findings and recommendations are not

binding on the court, they are "entitled to great weight."

Matter of Fordham, 423 Mass. 481, 487 (1996), cert. denied, 519

U.S. 1149 (1997). We generally afford substantial deference to

the board's recommended disciplinary sanction. See Matter of

Griffith, 440 Mass. 500, 507 (2003). Further, we defer to the

board's findings of subsidiary facts if they are "supported by

substantial evidence, upon consideration of the record." Matter

of Murray, 455 Mass. at 879, quoting S.J.C. Rule 4:01, § 8 (4).

We may, however, draw reasonable inferences from the board's

findings. See Matter of Driscoll, 447 Mass. 678, 685 (2006),

citing Matter of Orfanello, 411 Mass. 551, 556 (1992). The SHO

is the sole judge of the credibility of the testimony presented

at the hearing. S.J.C. Rule 4:01, § 8 (5) (a).

b. Verner. The SHO found that Verner violated Mass. R.

Prof. C. 1.3 and 5.1 (b) because he failed to follow up with

Kaczmarek about whether she had disclosed the mental health

worksheets, along with all other potentially exculpatory

information, to the DAOs. The SHO also found that Verner

neglected his supervisory duties when he failed to follow up

with Kaczmarek about the contents of Ballou's file, and likewise

failed to verify whether all potentially exculpatory evidence in

that file had been disclosed, following Kaczmarek's e-mail

message on September 10. The board adopted these findings, and
 41

Verner does not dispute them. Verner argues, however, that a

public reprimand, rather than a three-month suspension, is the

appropriate sanction for his violations. Bar counsel argues

that, as the board concluded, Verner's misconduct warrants a

suspension.

i. Reliance as mitigating factor. "In assessing the

appropriate level of discipline, [we] must . . . consider

factors that mitigate, and those that aggravate, the misconduct

the lawyer committed." Board of Bar Overseers, Massachusetts

Bar Discipline: History, Practice, and Procedure 62 (2018)

(Massachusetts Bar Discipline). The SHO found as mitigating

that Verner relied on Kaczmarek's September 10, 2013, statement

that she had turned over everything in Ballou's file, including

the mental health worksheets. The board, on the other hand,

concluded that Verner's reliance was not mitigating, because

Verner nonetheless had a duty to follow up rather than accept

the statement at face value. Accordingly, the board found that

no factors mitigated Verner's misconduct. Verner argues that

his reliance should be treated as a mitigating factor. Bar

counsel argues that we should adopt the board's reasoning.

We conclude that Verner's misconduct is mitigated by his

reliance on Kaczmarek's false representations. Reliance, when

it is reasonable and in good faith, may indicate a lesser degree

of culpability. See Massachusetts Bar Discipline, supra at 393
 42

("The principle underlying a special mitigating consideration is

that it shows that the lawyer who committed misconduct acted

unintentionally, had some reason beyond the attorney's voluntary

control for engaging in the misconduct, or was less culpable

than the category of misconduct would otherwise imply").

Verner's reliance was reasonable and in good faith:

Kaczmarek was Verner's subordinate, and Verner knew her to be an

experienced prosecutor who had demonstrated her competence

during her work on the Dookhan case. See Admonition No. 19-09,

35 Mass. Att'y Discipline Rep. 698, 698-699 (2019) (respondent's

failure to ensure filing of motion for postconviction relief was

mitigated by his reliance on more experienced co-counsel's false

representation that motion had been filed); Camilo-Robles v.

Zapata, 175 F.3d 41, 46 & n.2 (1st Cir. 1999) (attorney is

"entitled to rely, at least to some extent, on the work of his

predecessors and subordinates" because for "bureaucratic

structures . . . to function, the ability to delegate

responsibility and to trust the judgments of others is

essential"). In addition, by the time Kaczmarek represented

that Ballou's file had been turned over, she had been in charge

of the Farak investigation and prosecution for nine months, and

there had been no signs indicating that Kaczmarek was not

complying with the rules of professional conduct. Contrast

Attorney Grievance Comm'n of Md. v. Kimmel, 405 Md. 647, 673
 43

(2008) ("numerous warning or alert indicators should have

informed the . . . managing attorneys . . . of the need for more

heightened supervision").

Although the SHO found that Verner should have followed up

with Kaczmarek to ensure that she indeed had disclosed all

potentially exculpatory evidence, Kaczmarek's deceit gave Verner

some reason to believe that such follow up was unnecessary. See

Matter of Newman, 31 Mass. Att'y Discipline Rep. 482, 483 (2015)

(in mitigation, respondent made false representations after

consulting "with an experienced appellate lawyer, who

incorrectly advised the respondent that [his contemplated

actions would be] appropriate").13

Bar counsel argues that, even if reasonable and good faith

reliance is a mitigating factor, in the context of a rule

5.1 (b) violation it is a "typical" mitigating factor, and so

should be discounted. Typical mitigating factors are those that

"are common to almost all such violations by an attorney."

Matter of Barkin, 1 Mass. Att'y Discipline Rep. 18, 21 (1977).

See Matter of Parigian, 33 Mass. Att'y Discipline Rep. 375, 381

(2017) (typical mitigating factors include "unblemished

13Bar counsel argues that Verner's belief that the mental
health worksheets had been turned over was not reasonable
because, had the worksheets been disclosed, there would have
been a flood of motions to dismiss or for a new trial. Bar
counsel, however, does not point to anything in the record that
indicates Verner should have had such an expectation.
 44

disciplinary record" and "cooperation with bar counsel"). They

are generally "not given great weight in determining the

appropriate sanction." Matter of Crossen, 450 Mass. 533, 576

n.55 (2008). By contrast, "special" mitigating factors are

those that generally do warrant a deviation from the "usual and

presumptive sanction." See Matter of Otis, 438 Mass. 1016, 1017

(2003), quoting Matter of Concemi, 422 Mass. 326, 330 (1996).

We conclude that reasonable and good faith reliance is a

special rather than a typical mitigating factor, and so should

weigh in favor of a lesser sanction. See Matter of Finneran,

455 Mass. at 736. Unlike the mitigating factors that this court

previously has found to be typical, reasonable and good faith

reliance on another attorney is not an excuse that generally

will be available to attorneys -- supervisory or otherwise --

who have engaged in misconduct. See Matter of Gleason, 28 Mass.

Att'y Discipline Rep. 352, 354-355 (2012) (rule 5.1 [b]

violation stemmed from respondent's failure to discuss case with

associate, rather than any misrepresentations by associate);

Kimmel, 405 Md. at 677-678 (rule 5.1 [b] violation stemmed from

failure to provide support following subordinate's requests for

help). Even where there is reliance, it will not always be

reasonable and in good faith. See Matter of McDonald, 18 Mass.

Att'y Discipline Rep. 382, 388 (2002) (respondent placed "too

much trust in his friend and colleague" when he relied "upon his
 45

representations as to the progress of the case"); In re Dickens,

174 A.3d 283, 298 (D.C. Ct. App. 2017) (respondent violated rule

5.1 [a] because she "ignored clear warning signs that the trust

and confidence" placed in associate "was no longer justified").

ii. Aggravating factors. The board's recommendation that

Verner receive a suspension was based in part on several

aggravating circumstances. This included Verner's years of

experience as a lawyer and prosecutor, the extent of the harm to

and the vulnerability of the victims, the notoriety of the case

and the deleterious effect on the public's confidence in the

criminal justice system, and the lack of candor he demonstrated

in his testimony.

We first address the board's conclusion that Verner lacked

candor in his testimony. The board's conclusion was based

solely on Verner's denial that he had read Ballou's February 14,

2013, e-mail message and its attachments. The SHO found that,

because Verner was detail-oriented and this was a high-profile

case, it was not plausible that Verner had failed to review the

e-mail message and its attachments. The board, but not the SHO,

characterized Verner's contention that he had not seen Ballou's

message as a "self-servingly untruthful denial." Verner argues

that the board erred in finding a lack of candor in his

testimony.
 46

We agree with Verner. The SHO, whose task it is to

determine whether a respondent's testimony was "deliberately

false or . . . merely confused or mistaken," did not find

Verner's representation about Ballou's e-mail message to be a

deliberate falsehood. Matter of Hoicka, 442 Mass. 1004, 1006

(2004). See Strigler v. Board of Bar Examiners, 448 Mass. 1027,

1029-1030 (2007) (distinguishing failure to remember from lack

of candor). This is in contrast to the SHO's finding that

Foster's testimony was "dissembling, disingenuous[], and

evasive[]," and his finding that Kaczmarek's testimony was

"vague" and "dissembling." Instead, the SHO found that "during

the hearings, Verner demonstrated candor, remorse, and a

recognition of and responsibility for his mistakes," and that

Verner's "forthrightness . . . [was] noteworthy and laudatory."

See Matter of Johnson, 452 Mass. 1010, 1011 (2008), quoting

S.J.C. Rule 4:01, § 8 (4) ("special hearing officer is the 'sole

judge of the credibility of the testimony presented at the

hearing'").

Verner next argues that the board erred in considering his

experience as an aggravating factor, given that virtually all

supervising attorneys are experienced. This argument is

unavailing. See Matter of Corbett, 478 Mass. 1004, 1007 (2017)

("substantial experience in the practice of law" may be

considered as aggravating factor by board). Verner does not
 47

provide any legal authority to suggest that we categorize

aggravating factors in terms of whether they are "typical."

Contrast Matter of Otis, 438 Mass. at 1017 n.3 (discussing

"typical" mitigating factors). Regardless, however, the board

did not merely focus on Verner's experience as an attorney

generally; instead, the board considered Verner's extensive

experience as a supervising attorney to be aggravating. See

Admonition No. 22-06, 38 Mass. Att'y Discipline

Rep. , (2021) (particular type of experience may be

considered as aggravating factor). In particular, Verner served

in three different supervisory positions during the time he

worked as a prosecutor in the office of the district attorney

for the northern district. While virtually all supervisory

attorneys may be experienced, this amount of supervisory

experience is not necessarily typical. We therefore hold Verner

to a higher standard than a supervising attorney who lacks such

experience. See Matter of Moran, 479 Mass. 1016, 1022 (2018)

("substantial experience in the . . . practice area in which the

misconduct occurred . . . properly was considered an aggravating

factor").

Verner also contends that consideration of his experience

was inappropriate because the board did not draw a causal

connection between his experience and the charged misconduct.

This argument also fails. Experience is considered as an
 48

aggravating factor because an "experienced attorney should

understand ethical obligations to a greater degree than a

neophyte." Matter of Luongo, 416 Mass. 308, 312 (1993).

Verner's experience, therefore, can be said to have aggravated

Verner's misconduct without having caused it. See Matter of

Weisman, 30 Mass. Att'y Discipline Rep. 440, 455 (2014) (citing

experience as aggravating factor without drawing causal

connection).

Finally, Verner argues that the board erred by including as

an aggravating factor the significant harm that resulted from

the AGO's failure to disclose exculpatory evidence. According

to Verner, because his misconduct was not willful, and because

he made some reasonable efforts to supervise Kaczmarek, he did

not cause the harm that resulted. Verner points to the SHO's

conclusion that, because Kaczmarek's actions "were deliberate

acts for which Verner bore no responsibility," there was "no

causal connection between Verner's lack of follow-up . . . and

the harm that ensued." The board disagreed with the SHO and

concluded that Verner's failure to adequately supervise

Kaczmarek caused "catastrophic harm."

Verner's argument misses the mark. The SHO found that

Kaczmarek's failure to disclose potentially exculpatory evidence

was "due at least in part to Verner's failure adequately and

diligently to supervise . . . and follow up with her." This
 49

finding, which Verner does not dispute, plainly establishes that

Verner's misconduct was a contributing cause of the harm that

resulted. See Matter of Nealon, 26 Mass. Att'y Discipline Rep.

427, 429, 435 (2010) (respondent's failure to take remedial

action after learning of subordinate attorney's "ongoing delay

and neglect of the estate . . . resulted in potential or actual

harm"). There is simply no legal authority to support the SHO's

reasoning that, because Kaczmarek's acts were deliberate, Verner

cannot be held responsible for the harms that resulted from his

failure to prevent her misconduct. Under rule 5.1, Verner was

not entitled to assume that Kaczmarek would "inevitably conform"

to the rules of professional conduct. See Mass. R. Prof. C. 5.1

comment 2.

The harm that resulted from the combined misconduct of

Verner, Foster, and Kaczmarek cannot be overstated. Over the

course of a year, from October 2013 through the time defense

attorney Ryan discovered the exculpatory mental health

worksheets in October 2014, many criminal defendants were found

guilty, admitted to sufficient facts, or pleaded guilty because

of the AGO's failure to turn over exculpatory evidence.

Thousands of defendants, who otherwise would have been eligible

for relief at an earlier date, remained incarcerated during this

time. As a result of Farak's prolonged misconduct and the AGO's

failure to produce exculpatory evidence relating to that
 50

misconduct, this court dismissed with prejudice thousands of

convictions based on drug offenses. See Committee for Pub.

Counsel Servs., 480 Mass. at 704-705. We held that "[t]he

government misconduct by Farak and the assistant attorneys

general[14] was 'so intentional and so egregious' that [the]

harsher sanction[]" of dismissal with prejudice was necessary.

Id. at 725, quoting Bridgeman, 476 Mass. at 322. This was a

system-wide failure. It is unsurprising that "the publicity has

taken an ugly toll on the public's perception of the legal

profession and those who practice it." Matter of Donahue, 22

Mass. Att'y Discipline Rep. 193, 276 (2006).

While harm is not everything, it is properly taken into

account as an aggravating factor for all three respondents here.

See Matter of Heartquist, 29 Mass. Att'y Discipline Rep. 332,

333-334 (2013). Generally speaking, the more culpable a

respondent is in causing harm, however, the more heavily the

harm weighs in aggravation. See, e.g., Matter of Curry, 450

Mass. at 531 (disbarment); Matter of Crossen, 450 Mass. at 576

(disbarment); Matter of Donahue, 22 Mass. Att'y Discipline Rep.

at 276-277 (three-year suspension for Donahue, whose "overall

14Our holding in that case, which was based on Judge
Carey's findings, was only with regards to the misconduct of
Kaczmarek and Foster. See Committee for Pub. Counsel Servs.,
480 Mass. at 720. Judge Carey, unlike the SHO, determined that
"the misconduct by the [AGO] was limited to Foster and
Kaczmarek." Id.
 51

involvement did not approach the scope or severity of Curry's or

Crossen's").

iii. Verner's sanction. In Matter of Kane, 13 Mass. Att'y

Discipline Rep. 321, 327-328 (1997), the board set forth the

presumptive sanctions in matters involving "neglect or failure

of zealous representation." The board held that, absent

aggravating and mitigating factors, a public reprimand is

"generally appropriate where a lawyer has failed to act with

reasonable diligence . . . or otherwise has neglected a legal

matter and the lawyer's misconduct causes serious injury or

potentially serious injury to a client or others." Id. at 327.

The board further explained that suspension is generally

warranted for misconduct that, in addition to causing serious or

potentially serious injury, involves "repeated failures to act

with reasonable diligence, or . . . a pattern of neglect." Id.

at 328. This court has endorsed these principles. See Matter

of Grayer, 483 Mass. 1013, 1018 (2019). See also Massachusetts

Bar Institute, New Massachusetts Rules of Professional Conduct

110 (1998) ("Public reprimand or private admonition may be

considered if the lawyer's conduct is merely negligent").

The question, then, is whether Verner's misconduct was of

the sort that warrants a more severe sanction than public

reprimand. Rule violations that involve the neglect of

supervisory duties have "never resulted in a disbarment or a
 52

suspension unless combined with other rules violations."

Massachusetts Bar Discipline, supra at 327. According to the

board, however, Verner did not merely engage in "'run-of-the-

mill' negligence." Rather, the board concluded that Verner, by

passively relying on his subordinates to comply with the rules

of professional conduct, abdicated his responsibility to ensure

such compliance, and thereby took part in "protracted"

negligence. For these reasons, in addition to aggravating

circumstances, the board recommended that Verner receive a

three-month suspension. The SHO, in contrast, had recommended

that Verner receive a public reprimand.

We conclude that Verner did not engage in a pattern of

neglect. Generally, either several instances of misconduct or a

protracted period of neglect are necessary before a "pattern of

neglect" finding is appropriate. See American Bar Association,

Annotated Standards for Imposing Lawyer Sanctions 202 (2d ed.

2019). Verner's misconduct was limited to a single matter.

Contrast Matter of Lagana, 26 Mass. Att'y Discipline Rep. 295,

298 (2010) (three-month suspension stayed for year15 for repeated

15A stayed suspension is "effectively a public reprimand,
but with more teeth and a greater opportunity for ongoing
monitoring." Board of Bar Overseers, Massachusetts Bar
Discipline: History, Practice, and Procedure 51 (2018). The
board has stated that "staying all or part of a suspension that
would otherwise be appropriate for the misconduct involved
should be reserved for matters in which the stay itself
functions as an incentive or a deterrent, as the case may be, to
 53

neglect of client's temporary protected status application and,

in a separate matter, violating rules 5.1 [a] and 5.1 [b];

misconduct aggravated by substantial experience, previous

admonition for similar misconduct, lack of candor, and harm to

clients). Further, Verner did not commit several rule

violations with respect to a particular matter over an extended

period of time. Contrast Matter of Perrault, 29 Mass. Att'y

Discipline Rep. 531, 532-534 (2013) (three-month suspension

stayed for year for several instances over period of years in

which both respondent and, as result of inadequate supervision,

his inexperienced associate did not handle matters diligently

and efficiently, to detriment of estate; aggravated by prior

disciplinary history). Rather, he neglected to follow up with

Kaczmarek on two occasions -- after he instructed her on the

prosecution memorandum to disclose the mental health worksheets,

and after Kaczmarek said she would review Ballou's file when he

came to Boston. This does not constitute the sort of pattern of

neglect that warrants a suspension. See Massachusetts Bar

Discipline, supra at 124 ("a lawyer who neglects a single matter

and causes harm ought to receive a public reprimand").

encourage or discourage certain conduct, whether for the sake of
safeguarding the public or assisting the lawyer to take certain
remedial steps, or both." Matter of O'Neill, 30 Mass. Att'y
Discipline Rep. 289, 295 (2014).
 54

Further, Verner did take some steps to ensure that

Kaczmarek would disclose potentially exculpatory evidence.

Verner chose to adopt the discovery policy used in the Dookhan

case and made this policy known to Kaczmarek. Verner

additionally wrote the initial letter informing the DAOs of the

AGO's obligation to provide potentially exculpatory information,

which was reviewed by Kaczmarek. Finally, Verner communicated

with Kaczmarek about particular decisions related to the

disclosure of exculpatory information. Verner instructed

Kaczmarek to disclose the mental health worksheets in his

feedback on her prosecution memorandum, and he attempted to gain

an understanding of what was in Ballou's file, and whether it

had been turned over, following the September 9 hearing. See

American Bar Association Standing Committee on Ethics and

Professional Responsibility, Formal Op. 467, at 10 (Sept. 8,

2014) (among appropriate measures that supervising prosecutor

might adopt, he or she might participate in major decisions such

as "identifying Brady material, and, where feasible, documenting

the basis for [such] decisions in writing," and he or she might

"designat[e] a specific attorney to oversee the review of files

for Brady material"). Contrast Matter of Myers, 355 S.C. 1, 9,

15 (2003) (respondent received private reprimand after failing

to instruct his subordinate to "inform the defense of [an]

eavesdropped conversation").
 55

Because of Kaczmarek's experience handling the Dookhan

case, Verner also was not required to engage in the sort of

oversight that might have been required of a less experienced

attorney. See Admonition No. 18-31, 34 Mass. Att'y Discipline

Rep. 632, 632 (2018) (respondent should have engaged in greater

"supervision of [subordinate] lawyer's activities" because

lawyer "lacked sufficient experience to handle the [case]

without oversight and guidance"). Rather, Verner had reason to

believe that Kaczmarek was competent to engage in the processes

necessary to uncover and disclose potentially exculpatory

evidence. See In re Dickens, 174 A.3d at 303 (less oversight is

needed "for a small firm with experienced attorneys"). Indeed,

the SHO found that, excepting the instances where Verner should

have followed up with Kaczmarek, Verner was "entitled to rely on

[her] to discharge competently and fully the duty to disclose

exculpatory evidence."

The board's recommendation that Verner be suspended,

however, was not only grounded in the extent of Verner's

negligence; the board also took into account the aforementioned

aggravating factors, as well as an absence of mitigating

factors. We conclude that, once the mitigating effect of

Verner's reliance on Kaczmarek is considered, the factors

aggravating Verner's misconduct do not warrant a suspension.

See S.J.C. Rule 3:07 scope 5, as appearing in 426 Mass. 1301
 56

(1998) ("the severity of a sanction . . . depend[s] on all the

circumstances, including the wilfulness and seriousness of the

violation, [and] extenuating factors").

The board's decision in Matter of Gleason, 28 Mass. Att'y

Discipline Rep. at 352-357, is instructive. There, the

respondent reviewed a complaint written by an associate over

whom he had supervisory authority, but "did not take any action

to have it corrected or filed before the expiration of the

statutes of limitations against [the defendants]." See id.

at 353-354. Further, over the course of seven years, the

respondent did not discuss the case with the associate and took

no "action[s] of substance to determine the actual status of the

case" throughout its proceedings. See id. at 354. This led the

respondent to negligently misrepresent to his clients on

multiple occasions that their case was proceeding. See id. The

board found that the respondent's misconduct was aggravated by

his substantial experience, the protracted nature of his

negligence, and the harm suffered by his clients. See id.

at 356. The only mitigating factors found by the board were

typical. See id. The respondent received a public reprimand.

See id. at 356-357. See also Matter of Goldberg, 34 Mass. Att'y

Discipline Rep. 135, 136-138 (2018) (respondent received public

reprimand for widespread practice of allowing attorneys and

other staff members to sign respondent's name to pleadings and
 57

motions without respondent's review, resulting in default of

client's case, as well as false representations to court).

Verner, unlike the respondent in Matter of Gleason, did

take actions to determine the status of the case under his

supervision. Most notably, Verner inquired into the contents of

Ballou's file, which led Kaczmarek to falsely represent to him

that everything in the file, including the mental health

worksheets, had been disclosed. Kaczmarek's representation

bolstered Verner's already reasonable expectation that she would

disclose all potentially exculpatory evidence.

In the absence of said expectation and reliance, Verner's

misconduct might have resembled the sort of negligence that

warrants a public reprimand. See Matter of Gleason, 28 Mass.

Att'y Discipline Rep. at 356. But see Matter of Myers, 355 S.C.

at 8-9. Verner's misconduct is somewhat excused, however,

because he had reason to believe that Kaczmarek was complying

with the rules of professional conduct. See Matter of the

Discipline of an Attorney, 448 Mass. 819, 831, 833-835 (2007)

(private admonition, rather than public reprimand, issued for

misleading statements to clients because respondent's misconduct

was mitigated by his inexperience and absence of selfish

motive). Hence, absent aggravating factors, a private reprimand

would be appropriate. See Matter of Kane, 13 Mass. Att'y
 58

Discipline Rep. at 327 (presumed sanctions are "[a]bsent

aggravating and mitigating factors").

Because Verner's negligence was also aggravated by several

aforementioned factors, however, we conclude that a public

reprimand is warranted. See Matter of Anderson, 416 Mass. 521,

525-526 (1993) (public censure, rather than private reprimand,

warranted because of respondent's twenty-year history of

neglecting clients and violating disciplinary rules). Verner

had experience as a supervisor, his misconduct caused harm that

was "particularly outrageous" to victims who were vulnerable,

and the Farak case has taken on public notoriety. Matter of

Kane, 13 Mass. Att'y Discipline Rep. at 329. These factors

suffice to warrant the issuance of a public reprimand. See

Matter of Kelley, 489 Mass. 300, 307 (2022) (public reprimand,

rather than private admonition, warranted because respondent had

"substantial experience" and previous disciplinary history, and

"committed multiple rules violations involving multiple clients,

. . . who were vulnerable individuals").

c. Foster. Bar counsel appeals from the board's

conclusion that Foster did not violate rule 8.4 (c). Foster

appeals from the sanction recommended by the board, a term

suspension of one year and one day. We address each in turn.

i. Alleged rule 8.4 (c) violation. Bar counsel charged

Foster with violating rule 8.4 (c), alleging that she knowingly
 59

made materially misleading statements to Judge Kinder in her

September 16 letter. More specifically, bar counsel took issue

with Foster's deliberate obfuscation regarding who reviewed

Ballou's file when she wrote "[a]fter reviewing Sergeant

Ballou's file," and her reckless expansion of the alleged review

to include "every document in [Ballou's] possession." The SHO

found that although a "close call," Foster's use of

intentionally vague language did not rise to the level of

conduct sanctioned by rule 8.4 (c); while grossly incompetent

and reckless, Foster's statements were not knowingly false

statements of material fact.

On appeal, bar counsel challenges this determination and

asks us to conclude that Foster intended to deceive Judge Kinder

into believing that she had personal knowledge that Ballou's

file had been reviewed and that everything had been turned over

or, alternatively, to hold that Foster knew that the statements

she made in her letter were false based on principles of willful

blindness.

"It is professional misconduct for a lawyer to . . . engage

in conduct involving dishonesty, fraud, deceit, or

misrepresentation." Mass. R. Prof. C. 8.4 (c). To prove a

violation of rule 8.4 (c), bar counsel must establish either

(1) an intent to deceive or (2) at least knowledge of the

falsity and an understanding that someone will likely rely on
 60

it. Matter of Zimmerman, 17 Mass. Att'y Discipline Rep. 633,

645-646 (2001). See Matter of Grossman, 448 Mass. 151, 155,

157, 161-162 (2007) (respondent violated rule 8.4 [c] when she

"intentionally altered" documents submitted to bar counsel

"knowing that it was false"); Matter of MacDonald, 23 Mass.

Att'y Discipline Rep. 411, 415 (2007) (respondent made

"knowingly false statements of fact" in affidavits submitted to

court in violation of rule 8.4 [c]). A lawyer's knowledge of a

fact may be proved by circumstantial evidence. Matter of

Zimmerman, supra at 646, quoting Mass. R. Prof. C. 9 (f) (now

rule 1 [h]) ("A person's knowledge may be inferred from the

circumstances"). Further, "a lawyer cannot avoid 'knowing' a

fact by purposefully refusing to look." Zimmerman, supra.

Under the doctrine of willful blindness, a lawyer's "studied

ignorance of a readily accessible fact by consciously avoiding

it is the functional equivalent of knowledge of the fact." Id.

The SHO found that Foster did not have actual knowledge

that "no one had reviewed Ballou's file[,] and no one had

determined whether every document in his possession had already

been disclosed." Specifically, the SHO determined that Foster's

statements "were not knowing false statements of material fact."

See Admonition No. 02-13, 18 Mass. Att'y Discipline Rep. 640,

652, 654 (2002), citing Matter of Provanzano, 5 Mass. Att'y

Discipline Rep. 300, 302 (1987) (no violation of [S.J.C. Rule
 61

3:07, Canon 1, DR 1-102 (A) (4),] where respondent's statements

in affidavit "may have been misleading" but "were not

intentionally false"). The SHO's finding that Foster lacked

actual knowledge is based on a credibility determination that we

do not disturb. See Matter of Zimmerman, 17 Mass. Att'y

Discipline Rep. at 647 (accepting hearing committee's subsidiary

findings on respondent's subjective knowledge, based on

committee's credibility determinations); Matter of Provanzano, 5

Mass. Att'y Discipline Rep. at 304 (credibility findings by the

hearing officer shall not be disturbed "absent some clear

error").

To support a finding of willful blindness, the facts must

be sufficiently "substantial and obvious" or "overwhelmingly

clear or unambiguous" to put a respondent on notice that

something is amiss. Matter of Driscoll, 447 Mass. at 685-686.

See Matter of Zimmerman, 17 Mass. Att'y Discipline Rep. at 678

(forgery of client's former wife's signature was so obvious

based on respondent's knowledge of couple's tenuous relationship

and client's evasive behavior that board found respondent

"steadfastly kept his eyes closed" to ensure transaction was

successful).

Bar counsel argues that Foster's incompetence -- her

failure to personally review Ballou's file, her failure to

consult Kaczmarek and Ballou to determine what had been turned
 62

over, her failure to ask more questions, and her failure to meet

Ballou when he came to Boston with his file -- is evidence that

she "closed her eyes to what was right in front of her,"

supporting a finding of willful blindness. We disagree. There

is no evidence that supports the inference that Foster was

purposefully avoiding familiarizing herself with the contents of

Ballou's file or the larger set of evidence in Springfield by

refusing to look. Further, as Foster suggests, unlike in Matter

of Zimmerman, there was nothing about Kaczmarek's, Ravitz's, or

Ballou's behavior to arouse suspicion that documents were being

withheld. On the contrary, all three represented that

everything had been disclosed. See Mass. R. Prof. C. 5.2 (b)

comment 1 (fact that lawyer acts at direction of supervisor "may

be relevant in determining whether a lawyer had the knowledge

required to render conduct a violation of the [r]ules"). Bar

counsel relies on the notion that it would have been easy for

Foster to confirm whether everything had been turned over to the

DAOs by "simply" reviewing the disclosure letters. While the

ease of confirming the representations at issue is certainly

part of the analysis of whether a respondent was willfully

blind, it is not dispositive. See, e.g., Matter of Driscoll,

447 Mass. at 680, 685-686 (no willful blindness where

respondent's secretary forged her husband's signature on loan

documents despite that it would have been easy for respondent to
 63

confirm legitimacy). Because there is insufficient evidence

that Foster knew the AGO had exculpatory evidence that had yet

to be turned over, and was not willfully blind to this fact, we

agree with the board that there was no rule 8.4 (c) violation.

ii. Mitigating factors. The SHO concluded that Foster

violated rules 1.1, 1.2 (a), and 1.3 in connection with how she

handled the responses to the Watt subpoena and the Rodriguez and

Penate motions. Specifically, the SHO found that Foster

performed her role in an incompetent manner by failing to

adequately prepare to respond to the motions, by failing to

ensure that the AGO reviewed Ballou's file, and by failing to

prepare Ballou for the hearings before Judge Kinder. The SHO

also concluded that, by making misleading statements in a letter

to Judge Kinder with reckless disregard for their truth, Foster

violated rules 1.1, 1.2 (a), 1.3, 8.4 (d), and 8.4 (h). As a

result, both the SHO and the board recommended a suspension of

one year and one day. Bar counsel supports the recommended

suspension. On appeal, Foster argues that a suspension is

unwarranted and instead seeks a public reprimand.

A. Lack of experience as mitigating factor. Although she

had been an attorney for five years, the board found Foster's

lack of experience in having never responded to a subpoena

before to mitigate some of her misconduct. The board agreed,

and bar counsel does not dispute that Foster's inexperience
 64

should be considered in mitigation. See Matter of the

Discipline of an Attorney, 448 Mass. at 834-835 (special

mitigating factors that respondent was new attorney in first

legal position, made misleading statements in negotiations, and

mishandled client funds at direction of employer); Admonition

No. 95-36, 11 Mass. Att'y Discipline Rep. 373, 375 (1995)

(mitigating factor that respondent lacked prior experience in

civil litigation and, specifically, in real estate). We assign

minimal weight to this. Foster's lack of experience in

responding to subpoenas does little to mitigate misconduct based

largely on her competence and diligence; more is expected of a

fifth-year attorney.

B. Reliance as mitigating factor.16 Next, Foster contends

that her reliance on Ravitz and Kaczmarek is a "substantial"

mitigating factor under rule 5.2 (b).17 The SHO credited and

16Foster argues that her reliance on the instructions and
misrepresentations of Ravitz and Kaczmarek is a complete defense
to her rules violations pursuant to rule 5.2 (b). This argument
is waived. See Matter of Gannett, 489 Mass. 1007, 1009 (2022)
("Claims that were not raised before the hearing [officer] or
the board have been deemed waived"). Although Foster raised the
issue before the SHO, the SHO found that rule 5.2 (b) did not
apply, and Foster did not appeal that finding to the board:
"Foster is not asking the [b]oard to give [rule 5.2 (b)]
exculpatory effect."

17In her brief, Foster includes among the representations
on which she relied Ballou's testimony at the September 9
hearing. Foster, however, does not argue that reliance on a
nonattorney client is mitigating.
 65

considered as mitigating the fact that Foster's September 16

letter to Judge Kinder had been reviewed and approved by Ravitz.

The SHO also found, regarding Foster's September 16 letter, that

Foster's misconduct was further mitigated because Kaczmarek had

misrepresented what had been disclosed to the DAOs and the

nature of the evidence that had been found during the Farak

investigation. The board declined to consider Foster's reliance

on Ravitz's review or Kaczmarek's deception, however, reasoning

that neither fact fell into the category of a special mitigating

factor recognized by this court. Bar counsel concedes that a

subordinate attorney's reliance on a supervising attorney may be

considered a special mitigating factor in appropriate cases, as

long as the reliance is reasonable and in good faith. Bar

counsel maintains, however, that Foster's reliance on Ravitz

does not meet this standard. We disagree.

Bar counsel has not pointed to any evidence in the record

indicating that Foster relied on Ravitz's statements in bad

faith. At a meeting on September 16, Ravitz told Foster that

because everything had been turned over, there was nothing to

produce, and directed Foster to draft her letter to Judge Kinder

saying as much. Thereafter, Ravitz approved Foster's draft of

the letter prior to Foster filing it.

Foster presumably requested Ravitz's review because he was

her supervisor, this was an important matter, and she was a new
 66

employee at the AGO who had no prior experience in responding to

subpoenas. See Matter of Orfanello, 411 Mass. at 556 ("we may

draw reasonable inferences from [the board's findings of fact]

even if the board did not draw them"). As the SHO found, given

Foster's status, and the importance of complying with Judge

Kinder's order, it made "good sense" for her to have sought out

Ravitz's approval.

Bar counsel cites Foster's failure to explain the

distinction between Ballou's file and the evidence in

Springfield at the September 10 meeting, which was attended by

Ravitz, as evidence that Foster was acting in bad faith. We are

unconvinced. This behavior is sufficiently explained by

Foster's lack of diligence and competence and, therefore, is not

evidence of an intent by Foster either to avoid her

responsibilities or to mislead Ravitz and her colleagues.

Further, Foster's reliance on Ravitz's advice was

reasonable. Ravitz was her direct supervisor, and he had worked

at the AGO's office in the appeals division since 2004. See

Matter of Newman, 31 Mass. Att'y Discipline Rep. at 483

(mitigating that attorney, in making false statements, relied on

experienced appellate attorney). He also helped to train Foster

in responding to subpoenas. See Matter of Galat, 18 Mass. Att'y

Discipline Rep. 229, 237 (2002) (mitigating that junior

attorney, who was not decision maker, relied on senior attorney
 67

who had hired her, for guidance in using receivership funds).

It was reasonable for Foster to assume that the information

Ravitz provided her -- that everything had been turned over --

was correct. Because Foster's reliance on Ravitz's instructions

and approval of her September 16 letter was reasonable and in

good faith, it may be considered in mitigation of her rules

violations related to the filing of her September 16 letter.

Foster's reliance on Kaczmarek may also be considered in

mitigation. There were two misrepresentations by Kaczmarek on

which Foster relied: her e-mail message on September 10 and her

statements in the September 10 meeting. Both times, Kaczmarek

detailed the contents of Ballou's file, and at the meeting, she

represented that everything in Ballou's file had been turned

over. Similar to Verner's reliance, Foster's reliance on

Kaczmarek was reasonable. Bar counsel argues that we should not

find mitigating a subordinate's reliance on a colleague who is

not her direct supervisor. We decline to limit our holding in

this way. A respondent's reliance on a colleague's false

statements -- as long as the reliance is reasonable and in good

faith -- has been and may be a special mitigating factor in

certain circumstances. See, e.g., Admonition No. 19-09, 35

Mass. Att'y Discipline Rep. at 700 (reliance on more experienced

co-counsel, who was not respondent's supervisor, mitigating).

Although we conclude that Foster's reliance on Ravitz and
 68

Kaczmarek is a mitigating factor, we assign less weight to

Foster's reliance on Kaczmarek and Ravitz than we assigned to

Verner's reliance on Kaczmarek. We do so for two reasons.

First, Foster was making affirmative representations in

court filings, on which she signed her name. It should have

been abundantly clear to Foster that it was her responsibility

to verify the truth of her own representations. See Matter of

Diviacchi, 475 Mass. 1013, 1020 (2016), quoting Mass. R. Prof.

C. 3.3 comment 2, 426 Mass. 1383 (1998) ("[A]n assertion

purporting to be on the lawyer's own knowledge, as in an

affidavit by the lawyer or in a statement in open court, may

properly be made only when the lawyer knows the assertion is

true or believes it to be true on the basis of a reasonably

diligent inquiry"). While the SHO found that Verner also should

have verified the truth of Kaczmarek's representations, Verner

did not adopt those representations as his own before a

tribunal.

Second, Foster took the information Ravitz and Kaczmarek

gave her and added her own "gloss" to it. The first statement

in the letter, "After reviewing Sergeant Ballou's file," was not

based on Kaczmarek's or Ravitz's statements; neither had

indicated to Foster that Ballou's file had been reviewed. The

SHO found that Foster's addition was reckless and misleading.
 69

iii. Aggravating factors. The SHO found significant

aggravating factors for Foster, including lack of candor, lack

of remorse, lack of awareness of wrongdoing, great harm to and

vulnerability of the victims, notoriety and harm to the public,

and multiple instances of significant incompetence, lack of

diligence, and repeated misrepresentations. Foster does not

challenge all of the individual aggravating factors assigned to

her, but we review them to determine the most appropriate

sanction.18

Foster's lack of candor, lack of awareness of her

wrongdoing, and lack of remorse before the SHO all weigh heavily

in aggravation. See Matter of Eisenhauer, 426 Mass. 448, 456

18The SHO considered Foster's uncharged misconduct relating
to statements she made at the October 2 hearing before Judge
Kinder and her testimony before Judge Carey in 2016, finding,
"Foster showed pervasive dishonesty across three tribunals."
The board declined to consider Foster's uncharged misconduct
from the October 2 hearing and the 2016 Judge Carey hearing in
aggravation. While uncharged misconduct has been considered to
be an aggravating factor in the past, see Matter of Strauss, 479
Mass. 294, 300 n.9 (2018) ("we have permitted uncharged
misconduct to be considered in aggravation of sanction"), the
board has recently cited a discomfort with doing so where bar
counsel was in a position to raise the charge in the petition
for discipline, but declined to do so, see Matter of Parker, 38
Mass. Att'y Discipline Rep. , (2022) (considering
uncharged misconduct in aggravation "deprived the respondent of
notice and an opportunity to defend against [the charges]"). As
the petition for discipline was filed in 2019, bar counsel had
the opportunity to charge her with misconduct relating to the
events from 2013 and 2016, but chose not to do so. Thus, it was
appropriate for the board to avoid considering Foster's conduct
at these hearings as aggravating.
 70

(1998), cert. denied sub nom. Eisenhauer v. Massachusetts Bar

Counsel, 524 U.S. 919 (1998) (credibility, candor, remorse, and

awareness of wrongdoing all relevant in deciding sanctions).

The SHO found Foster's testimony before him to be "dissembling,

disingenuous[], and evasive[]." Specifically, the SHO did not

credit Foster's testimony that she was not trying to be

intentionally vague in her September 16 letter, and described

her answers to his questions about the September 16 letter as

"disingenuous[]."

Another example of Foster's lack of candor before the SHO

is her testimony about her prior work experience. On her resume

that she submitted to the AGO, she indicated that she had

substantial Superior Court experience, including "second-

seating" homicide cases and drafting and arguing postconviction

motions. Before the SHO, however, she claimed that she had no

Superior Court experience. When questioned about the

discrepancy, Foster refused to agree that she had embellished

her prior experience and, instead, claimed disingenuously that

she had a different understanding of the terms "drafting" and

"arguing" when she compiled her resume. Foster's lack of candor

was properly considered aggravating by the board, and we

consider it here as well. Matter of Eisenhauer, 426 Mass.

at 456 ("respondent's candor and trustworthiness both directly

affect [her] capacity to practice law").
 71

iv. Foster's sanction. Foster, like Verner, maintains

that bar counsel failed to prove that her misconduct was the

proximate cause of any of the harm that resulted. Foster's

attempt to make this argument is no more persuasive than

Verner's. Despite Foster's suggestion otherwise, the SHO found

a causal connection between Foster's reckless misrepresentations

and Judge Kinder's decision in the cases before him. Foster's

representation that everything had been turned over led Judge

Kinder to decline to grant new trials in the defendants' cases

before him, because there was insufficient evidence that Farak

had engaged in misconduct when the defendants had been arrested

in 2011 or earlier. Moreover, when recommending a sanction of

one year and one day, the SHO considered "the significant and

far-reaching harm to the public and the insult to the legal

system [Foster] caused."

As stated, each respondent's misconduct caused great harm,

both to the criminal defendants whose cases were corrupted by

Farak's tampering and to the public's perception of the criminal

justice system. See, e.g., Commonwealth v. Claudio, 484 Mass.

203, 210 (2020) ("In [Commonwealth v. Scott, 467 Mass. 336, 352

(2014)], we recognized that Dookhan's misconduct 'cast a shadow

over the entire criminal justice system.' In comparison, the

government misconduct committed by Farak and members of the

Attorney General's office cast a shadow even longer and
 72

darker"). Accordingly, the board appropriately considered the

extent of the harm caused by Foster, including the harm to

vulnerable third parties, as aggravating. See Matter of

Zimmerman, 17 Mass. Att'y Discipline Rep. at 651 (harm to third

party aggravating factor). See also Matter of Crossen, 450

Mass. at 581 (vulnerability of third parties aggravating

factor).

We adopt the board's recommendation of a suspension of one

year and one day for Foster. "When an attorney has engaged in

misconduct 'involving repeated failures to act with reasonable

diligence . . . and the lawyer's misconduct causes serious

injury . . . to a client or others,' a suspension is warranted."

Matter of Grayer, 483 Mass. at 1018, quoting Matter of Kane, 13

Mass. Att'y Discipline Rep. at 328.19 After considering the

mitigating factors and the multiple significant aggravating

factors, particularly Foster's lack of candor and her

recklessness that led to extensive harm, we do not believe that

this is markedly disparate from the sanctions imposed in other

cases involving similar circumstances. See Matter of Serpa, 30

19Foster argues that bar counsel only proved she engaged in
"essentially negligent conduct." As stated, Foster's conduct
went beyond negligence; the SHO found that her conduct rose to a
level of recklessness and gross incompetence. And "reckless
misrepresentation[s] to the court add[] weight to the . . .
balance in determining the appropriate sanction." Matter of
Serpa, 30 Mass. Att'y Discipline Rep. at 370.
 73

Mass. Att'y Discipline Rep. 358, 362, 372-373 (2014) (sixty-day

suspension for violation of rules 1.5 [a], 3.3 [a], 8.4 [c],

8.4 [d], and 8.4 [h], absent certain aggravating factors, for

"respondent's reckless misrepresentations [that were]

particularly troublesome because they contaminated a process

that . . . is likely to have had an impact on a person's

liberty"); Matter of Scannell, 21 Mass. Att'y Discipline Rep.

580, 581-584 (2005) (suspension of one year and one day for

neglect of three client matters in violation of rules 1.1,

1.2 [a], 1.3, and 1.4 aggravated by prior disciplinary history).

See also Matter of Moore, 442 Mass. 285, 294-295 (2004) (fact

that respondent failed to appreciate gravity of misconduct and

lied to committee took case "beyond the short suspensions

usually imposed" and for violations of [S.J.C. Rule 3:07, Canon

1,] DR 1-101 [A], DR 1-102 [A] [4], [5], and [6], [as appearing

in 382 Mass. 769 (1981),] respondent received two-year

suspension).

d. Kaczmarek. The SHO concluded that Kaczmarek, by

failing to disclose to the DAOs potentially exculpatory evidence

known to her, violated rules 1.1, 1.3, 3.4 (a), 3.4 (c),

3.8 (d), and 8.4 (d). The SHO also concluded that Kaczmarek, by

knowingly failing to disclose potentially exculpatory evidence

and by knowingly making materially misleading statements to

assistant district attorneys Bossé and Flannery and State police
 74

counsel Farrell, violated rules 1.1, 1.3, 3.4 (a), 3.4 (c),

3.8 (d), 4.1 (a), 8.4 (a), 8.4 (c), 8.4 (d), and 8.4 (h).

Further, the SHO found that Kaczmarek, by failing to direct

Ballou to provide Flannery with potentially exculpatory

information known to her, violated rules 1.1, 1.3, 3.4 (a),

3.4 (c), 3.8 (d), 5.3 (b), 8.4 (a), 8.4 (d), and 8.4 (h). The

SHO found that, by failing to take remedial action despite her

awareness that Ballou had not disclosed potentially exculpatory

information to Flannery, Kaczmarek violated rule 5.3 (c) (2).

The SHO further concluded that Kaczmarek, by failing to

undertake a review of her file and produce documents responsive

to the subpoenas and discovery motions, and by failing to alert

Foster to the existence of undisclosed documents, violated rules

1.1, 1.3, and 3.4 (c). Finally, the SHO found that, by failing,

after reviewing the motion to clarify, to ensure potentially

exculpatory information known to her that could be useful to

Penate had been disclosed to the DAOs, Kaczmarek violated rules

1.1, 1.3, 3.4 (a), and 8.4 (d). As a result, the SHO

recommended a two-year suspension for Kaczmarek. Reasoning that

Kaczmarek bore the most responsibility for the AGO's failure to

disclose exculpatory information, and that Kaczmarek was thereby

the most culpable for the resulting harm, the board recommended

disbarment. Bar counsel agrees with the board's recommendation;

Kaczmarek appeals.
 75

The only issue before us with respect to Kaczmarek is what

sanction is most appropriate. Kaczmarek argues that we should

reject the board's recommendation of disbarment and instead

impose a public reprimand or a two-year suspension. Anything

more than a two-year suspension, Kaczmarek argues, would be

disproportional to her misconduct.20

i. Aggravating factors. The SHO and the board did not

find any factors in mitigation for Kaczmarek. Conversely, the

SHO found, and the board adopted, a litany of factors in

aggravation. These included Kaczmarek's experience; her lack of

remorse, lack of admission of wrongdoing, and her failure to

show appreciation for her role in what occurred; her lack of

candor; her multiple rules violations; her improper motivation

for her misconduct; and the significant harm to third-party

defendants, the criminal justice system, and the public.

20In support of her argument, Kaczmarek maintains that at
the time of her misconduct, no disciplinary rule imposed an
obligation on a prosecutor to disclose evidence from a pending
criminal case to third persons. She alleges that, if she were
to be disbarred, the court would be engaging in a "retroactive"
application of rule 3.8 (d). In making this claim, Kaczmarek
attempts to seek review of the SHO's finding that she violated
3.8 (d) by cloaking her argument as one that affects her
sanction. As this argument is not properly before the court, we
do not address it. We note, however, that the only way the
Farak defendants could have accessed the exculpatory evidence
was through the AGO; it acted as a gatekeeper to the
information. The AGO was the only entity that possessed the
mental health worksheets and the 2005 cocaine case, both of
which "tend[ed] to negate the guilt of the accused or mitigate[]
the offense." See Mass. R. Prof. C. 3.8 (d).
 76

Kaczmarek challenges some, but not all, of the factors

considered by the board, arguing that the board "ignore[d] the

nuances that distinguish this matter."

First, Kaczmarek argues that the board improperly

considered the number of rules violations in aggravation because

she committed only three acts of misconduct: (1) failing to

disclose potentially exculpatory information to the DAOs;

(2) misleading Bossé by telling him that "all relevant discovery

had been provided"; and (3) misleading Farrell when he inquired

about Ryan's subpoena for documents. This, however, understates

Kaczmarek's misconduct. We are not persuaded that Kaczmarek's

misconduct can be characterized as three discrete instances; it

is "neither possible nor logical to isolate each distinct

instance of wrongdoing. They infect each other." Matter of

Hayes, 39 Mass. Att'y Discipline Rep. (2023) (respondents'

multiple rules violations considered in aggravation).

Kaczmarek's deceit was protracted. See Matter of Griffith, 440

Mass. at 510 ("the length of time the respondent permitted his

[or her] concealment of information to stand" may be aggravating

factor). She "actively and intentionally" misled assistant

district attorneys and her colleagues at the AGO, failed to

correct Ballou's inaccurate and misleading statements, and

avoided learning anything more about the extent of Farak's

misconduct over the course of her involvement in the Farak
 77

investigation. It was appropriate for the board and the SHO to

consider Kaczmarek's multiple rules violations as aggravating.

See Matter of Saab, 406 Mass. 315, 326-327 (1989)

("consideration of the cumulative effect of several violations

is proper").

Kaczmarek next argues that the board erred in considering

her improper motive. The board found that Kaczmarek's primary

motivation was to contain the damage of Farak's misconduct to a

few cases in order to avoid further complications. Kaczmarek

maintains that this characterization of her motivation is not

supported by substantial evidence. We agree with Kaczmarek that

there was not substantial evidence that her intentional

misrepresentations were motivated by a desire to downplay the

extent of Farak's misconduct. The SHO found, however, that

Kaczmarek's "disturbing attitude" toward defense counsel

evidenced an improper motive. Kaczmarek was wholly

uncooperative and dismissive of Ryan's appropriate discovery

requests. She obstructed defense attorneys' access to important

exculpatory evidence. Indeed, Kaczmarek conceded at the hearing

before the SHO that she was "annoyed" that Ryan continued to ask

for access to evidence in the Farak case: "it's probably the

90th time he asked if he could see the evidence in the lab."

An attorney's motive can be relevant in determining the

proper sanction. See Massachusetts Bar Discipline, supra
 78

at 403. The SHO properly considered this factor in aggravation,

and we assign it some weight in our determination of her

sanction. See Matter of Finneran, 455 Mass. at 736 (improper

motive constitutes aggravation); Matter of the Disciplinary

Proceeding Against Schafer, 149 Wash. 2d 148, 170 (2003) (lawyer

who violated client confidences and was partly motivated by

vindictiveness found to have met standard for having selfish

motive).

Kaczmarek also takes issue with the board's consideration

of her experience as an aggravating factor. Specifically,

Kaczmarek argues that "her experience disclosing exculpatory

evidence to the defendant she was prosecuting did not provide

her with knowledge of how to handle disclosure to others." We

are wholly unconvinced that Kaczmarek's experience as an

attorney for thirteen years, her experience both as an assistant

district attorney and in private practice, and her eight-year

long tenure at the AGO did not provide her with the knowledge of

how to handle disclosures to others. Even more significant was

Kaczmarek's work on the Dookhan case. By the time Kaczmarek was

assigned to the Farak prosecution, she had already possessed an

intimate familiarity with the AGO's discovery policy adopted in

the case, because it was the same policy that she had used in

the Dookhan case. Kaczmarek's experience is properly considered
 79

aggravating. See Matter of Moran, 479 Mass. at 1022; Matter of

Luongo, 416 Mass. 308, 312 (1993).

In further aggravation, Kaczmarek exhibited a lack of

candor before the SHO; Kaczmarek's testimony was characterized

as "vague" and "dissembling." See Matter of Zankowski, 487

Mass. 140, 153 (2021) ("While an attorney is entitled to defend

against allegations of a petition for discipline, the hearing

[officer] may determine whether to credit the testimony and

evidence, and [the officer] may consider in aggravation any lack

of candor [he or she] finds"). Indeed, the SHO found a

remarkable number of instances in which Kaczmarek's testimony

was not credible: her failure to realize that the 2012

oxycodone case and the 2005 light cocaine case were potentially

exculpatory; her claim that she had no reason to review, and her

failure to review, the prosecution memorandum once Verner

returned it to her; her assertion that it was not her job to

identify and disclose exculpatory evidence to the DAOs for the

benefit of the Farak defendants; her claim that her September 10

e-mail message listing the mental health worksheets triggered

nothing in her mind; and her denial that the meeting on

September 10 with Foster, Verner, Reardon, Ravitz, and Mazzone

had occurred, wherein she informed everyone that everything in

Ballou's file had been turned over. The SHO found, on the basis

of these falsehoods, that Kaczmarek's testimony was not candid.
 80

Kaczmarek's striking lack of truthfulness is deeply troublesome

with respect to her capacity to practice law. See Matter of

Eisenhauer, 426 Mass. at 456.

Moreover, Kaczmarek misled Verner, Foster, and other

colleagues about what had been disclosed to the DAOs, something

the SHO labeled as "particularly disturbing" in an office where

colleagues must be able to rely on each other for accurate

information. We consider this, too, as aggravating. See Matter

of Ferris, 9 Mass. Att'y Discipline Rep. 110, 112 (1993) ("In

aggravation, the committee found that . . . the respondent

intentionally misled his clients for his own gain");

Massachusetts Bar Discipline, supra at 406 ("the extent of an

attorney's . . . manipulation in the course of the misconduct"

may be aggravating factor).

Additionally, the SHO found that Kaczmarek displayed no

remorse, admitted no wrongdoing, and showed no appreciation for

her role in what occurred. As it was with Foster, this was

properly considered by the board as aggravating. See

Eisenhauer, 426 Mass. at 456.

Finally, the board assigned weight to the gravity of the

harm and to the fact that Kaczmarek's intentional misconduct

directly caused this harm. Kaczmarek argues that the harm

caused by the AGO's failure to disclose exculpatory information

cannot be solely attributable to her because institutional
 81

failures and Farak's own misconduct were also contributing

causes. As discussed supra, each of the respondents played a

role in causing the harm. Accordingly, we do not find Kaczmarek

solely responsible. We do conclude, however, as the SHO did,

that she bears the greatest responsibility, as well as the

greatest culpability. Kaczmarek "knowingly failed" to produce

exculpatory evidence and made "materially false and

intentionally misleading" statements to the DAOs and to her

colleagues that all relevant discovery had been turned over.

See Matter of Pike, 408 Mass. 740, 741 (1990) ("intentional

abdication of . . . professional obligations" may warrant more

severe sanction).

Kaczmarek further maintains that the record contains

evidence of only thirteen convicted defendants, not thousands,

who were party to the consolidated case before Judge Kinder and

who were affected by their inability to access the mental health

worksheets and exculpatory evidence. We reject this

characterization of the harm for reasons we have already

discussed.

ii. Kaczmarek's sanction. To start, as noted by the

board, although they are not entirely unprecedented, there are

few disciplinary cases in Massachusetts against prosecutors.

See Matter of Dunne, 36 Mass. Att'y Discipline Rep. 143, 144

(2020) (in reciprocal discipline case, one-year suspension for
 82

prosecutor's misrepresentation to court and opposing counsel

that she did not possess tape recording of defendant's

conversations with his son, in violation of Fla. R. Prof. C.

3.3, 4.1, and 8.4 [d]); Matter of Marshard, 34 Mass. Att'y

Discipline Rep. 283, 286, 295 (2018) (one-month suspension for

prosecutor's meeting with represented witness without witness's

attorney, in violation of rules 4.2 and 8.4 [d], aggravated by

experience, lack of understanding of ethical obligations, lack

of candor, and misrepresentations to judge). In reviewing these

cases, we have come across none that is comparable to the facts

we have here. Although we consider whether the recommended

sanction is "markedly disparate from judgments in comparable

cases," see Matter of McBride, 449 Mass. at 163, when there are

no comparable cases,

"[w]e . . . must establish independently a sanction
adequate to address the seriousness of the misconduct, to
reassure the bar and the public that such conduct is
completely contrary to the oath of office taken by every
lawyer, and to underscore that, when it is uncovered, such
conduct will be treated with the utmost severity."

Matter of Foley, 439 Mass. at 339.

In determining what sanction to assign, "the primary factor

. . . is 'the effect upon, and perception of, the public and the

bar.'" Matter of Zak, 476 Mass. at 1041, quoting Matter of

Finnerty, 418 Mass. 821, 829 (2008). Our rules of professional

conduct "[e]xist to protect the public and maintain its
 83

confidence in the integrity of the bar and the fairness and

impartiality of our legal system." Matter of Zak, supra

at 1038.

As a result of Kaczmarek's intentional and egregious

misconduct, the due process rights of thousands of criminal

defendants were violated for a prolonged period based on the

withholding of exculpatory evidence. Kaczmarek failed in her

duties as a prosecutor by knowingly impeding access to evidence

and information. She made materially false and misleading

statements to the DAOs and her colleagues. Due to the gravity

of the harm, the multitude of serious aggravating factors, and

the lack of any mitigating factors, we adopt the board's

recommendation of disbarment for Kaczmarek.

4. Conclusion. For the reasons stated, we adopt the

board's recommendations of a suspension of one year and one day

for Foster and disbarment for Kaczmarek. For Verner, we

conclude that a public reprimand is appropriate. We remand to

the county court where a judgment consistent with this decision

shall enter.

So ordered.