In the Matter of Foster ( 2023 )


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    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.