Given the broad jurisdiction to enforce both criminal and civil laws, state attorneys general are sometimes called upon to engage in parallel proceedings that give rise to very specific eithical responsibilities. 

2007 WL 5022411 (Mass.Super.) (Trial Motion, Memorandum and Affidavit) Superior Court of Massachusetts.

Suffolk County

COMMONWEALTH,

v.

POWERS FASTENERS, INC.

No. 07-10802.

December 12, 2007.

Memorandum of Decision and Order on Defendant’s Motion to Dismiss Indictment or to Disqualify Prosecuting Counsel

INTRODUCTION

On July 10, 2006, Milena Del Valle was killed when a piece of the suspended ceiling in the I-90 connector tunnel fell on top of the car in which she was a passenger, The defendant, Powers Fasteners, Inc. (“Powers”) was the supplier of the epoxy used in the ceiling assembly involved in the accident. Immediately after the accident, the Attorney General opened a grand jury investigation into the design, construction, and maintenance of the relevant segment of the project known as the Big Dig. In November 2006, the Commonwealth, Massachusetts Highway Department (“MHD”), and Massachusetts Turnpike Authority brought a civil action for damages against Powers and fifteen other defendants1, alleging breach of contract, negligence, gross negligence, breach of warranty, contractual indemnity, common law indemnity, and a surety claim.2 The Attorney General’s office represents the Commonwealth and MHD. In March 2007, attorney Paul Ware of Goodwin Procter was appointed special assistant attorney general to prosecute the criminal case. The Commonwealth alleges that Powers represented that its Fast Set epoxy could be used for overhead loads although it knew that Fast Set was unsafe for such applications. On August 8, 2007, the grand jury returned one indictment charging Powers with manslaughter. Powers now moves to dismiss the indictment or, in the alternative, to disqualify prosecuting counsel.

Footnotes

1                 Commonwealth et al v. Bechtel Corp. et al, Docket No. SUCV2006-04933. The complaint was served in May 2007, and as of December 3, 2007, not all of the defendants have answered.

DISCUSSION

Powers asserts that the indictment should be dismissed because the Attorney General is barred from prosecuting this case because she has acted as counsel for parties in a civil action depending on the same facts. However, all of the authorities Powers relies on apply to a public prosecutor’s representation of a private party in a civil case who has an interest in a concurrent criminal case. When the Attorney General represents the Commonwealth in parallel criminal and civil cases, she represents the same public interest in both, without the dangers that come with concurrent representation of a private party.

1.  M.G.L. c. 12, § 30 does not prohibit the Attorney General from conducting both the criminal and civil cases.

M.G.L. c. 12, § 30 provides that “[n]o prosecuting officer shall receive any fee or reward from or in behalf of a prosecutor for services in any prosecution or business to which it is his official duty to attend, nor shall he be concerned as counsel or attorney for either party in a civil action depending upon the same facts involved in such prosecution or business.” Powers asserts that the second clause of the statute bars a prosecutor from bringing a civil case based on the same facts as a criminal

case. I disagree. The statute was written at a time when prosecutors also had private clients. They no longer do.3 Section 30 is properly read alongside sections 3 and 10 which provide, respectively, that the Attorney General “shall appear for the commonwealth and for state departments ... in all suits and other civil proceedings in which tile commonwealth is a party or interested      All such suits and proceedings shall be prosecuted or defended by him or under his direction” and “shall take

cognizance of all violations of law ... and shall institute or cause to be instituted such criminal or civil proceedings     as he

may deem to be for the public interest, and shall investigate all matters in which he has reason to believe that there have been such violations.” Section 30 has never been construed to prohibit parallel civil and criminal cases.

2                 The civil claims against Powers are negligence, breach of warranty, and common law indemnity.

As the SJC noted in Commonwealth v. Tabor, 376 Mass. 811, 819 (1978), “[t]he purpose of our statute is to guard the district attorney’s office from private interests and from private influence.” There is no private interest or private influence at work here.

In Commonwealth v. Hogan, 389 Mass. 450, 451 (1983), an attorney was appointed special counsel to a town, and performed an investigation that resulted in his bringing a civil claim for damages on behalf of the town. The same attorney testified at the grand jury in a criminal case depending on the same facts. Id. The defendants moved to dismiss the indictments, alleging that the indictments were “based on evidence which the Commonwealth obtained through the civil actions which were commenced improperly against them.” Id. The court slated that “[p]arallel civil and criminal proceedings are not objectionable per se” and declined to adopt a rule requiring that indictments be dismissed “[i]n the absence of any showing that the civil proceeding improperly contributed to the indictments against these defendants.” Id. at 452-453. Although  Hogan is factually different from the instant case, if the SJC had understood parallel civil and criminal cases to be barred by statute, it could have used Hogan as an opportunity to say so.

Far from being barred, parallel civil and criminal cases are explicitly allowed under the Massachusetts Rules of Professional Conduct. Rule 3.4(h) provides that a lawyer shall not “present, participate in presenting, or threaten to present criminal ...

charges solely to obtain an advantage in a private civil matter.” Comment 6 to that rule explains that “[t]he word ‘private’ has been added to make clear that a government lawyer may pursue criminal or civil enforcement, or both criminal and civil enforcement, remedies available to the government.” Despite Powers’s argument to the contrary, the civil and criminal cases are separate, not unified. Although the two cases both arise from the death of Milena Del Valle and depend on the same facts, they involve different defendants and different claims or charges with different elements, and will each come to a separate resolution. A resolution of the civil case in the Commonwealth’s favor does not depend on obtaining a criminal conviction against Powers.

The Attorney General is “empowered, and perhaps required ... to set a unified and consistent legal policy for the Commonwealth,” and has a “common law duty to represent the public interest.” Feeney v. Commonwealth, 364 Mass. 359, 364-365 (1977). Bringing the parallel criminal and civil cases is consistent with these roles.

2.  Powers’s right to a disinterested prosecutor has not been violated.

Article 12 of the Declaration of Rights requires “that a prosecutor be disinterested in the sense that the prosecutor must not be nor appear to be influenced, in his or her exercise of discretion, either by his or her personal interests or by a person or entity to whom the prosecution of a criminal case may or will bring significant benefits.” Commonwealth v. Ellis, 429 Mass. 362,

372 (1999). Relevant cases address only influence from private parties. Powers asserts that the Attorney General’s involvement in the civil case influenced her decision-making in the criminal case. There is no evidence that this is true.

A crucial difference between this case and the cases cited by Powers is that here, the Attorney General’s interests in the criminal and civil cases are identical. In Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 790 (1987), a private attorney represented handbag manufacturer Vuitton in a civil case seeking an injunction against counterfeiters. The counterfeiters were permanently enjoined from infringing on Vuitton’s trademark, but continued to do so. Id. at 791. The attorney who represented Vuitton in the civil case was appointed special prosecutor in a criminal contempt case against the counterfeiters. Id. In reversing the convictions, the Supreme Court held that “counsel for a party that is the beneficiary of a court order may not be appointed to undertake contempt prosecutions for alleged violations of that order.” Id. at 790. The

court explained that a prosecutor has an obligation to be impartial, whereas an attorney representing a private client has an obligation to pursue that client’s interest. Id. at 805. When the private client’s interests relate to the criminal case, “the prosecutor may be tempted to bring a tenuously supported prosecution if such a course promises financial or legal rewards  for the private client. Conversely, a prosecutor may be tempted to abandon a meritorious prosecution if a settlement  providing benefits to the private client is conditioned on a recommendation against criminal charges.” Id. “The concern that representation of other clients may compromise the prosecutor’s pursuit of the Government’s interest rests on recognition that a prosecutor would owe an ethical duty to those other clients.” Id. at 804. The Attorney General has no such conflict of interest. She represents the people of Massachusetts in both the civil and criminal cases.

Ellis prohibits even the appearance of influence on a prosecutor, and Powers does not present evidence that suggests it Although the Attorney General represents the Commonwealth and MHD in the civil suit, MHD is an arm of the Commonwealth and their interests are the same. Ellis dealt with the question of whether prosecutors were disinterested even though the Attorney General’s insurance fraud division was funded by the private insurance industry pursuant to statutes. 364 Mass. at 363-365. The SJC found that the prosecutors were disinterested, noting that “[a]ssistance in investigations and prosecutions does not translate into control, or ... even the appearance of control.” Id. at 377. The alleged influence came from the private sector. There is no private influence here.

3.  There has not been a Fourteenth Amendment due process violation.

Powers asserts, without citing cases, that a violation of the rule against interested prosecutors is also a violation of federal due process. This court need not reach that issue because, as discussed above, Powers has not shown that the Attorney General is an interested prosecutor here.

It is worth noting that the Supreme Court has not found automatic due process violations where the government brings criminal and civil cases against the same defendant based on the same facts. In United States v. Kordel, 397 U.S. 1, 3-6 (1970), the government pursued a civil case against a corporation on behalf of the FDA. The FDA then notified the corporation that the agency contemplated a criminal action against it. Id. The civil case was settled, and an indictment was returned eight months later. Id. The defendants argued that the government’s conduct “reflected such unfairness and want of consideration for justice as independently to require the reversal of their convictions.” Id. at 11. The Court held that there was no due process violation, noting that it was not a case “where the Government has brought a civil action solely to obtain evidence for its criminal prosecution ...” nor where special circumstances existed that would require reversal of the convictions. Id. at 11-12. Similarly, here, the Attorney General did not bring the civil case solely to obtain evidence for the criminal prosecution. Although the civil complaint was filed quite soon after the accident, perhaps due to statute of limitations concerns, the grand jury investigation was ongoing and discovery in the civil case had not yet begun when the indictment was returned.

4.  Powers has not shown that unauthorized persons were present in the grand jury room.

The presence of an “unauthorized” person before a grand jury will void an indictment. Commonwealth v. Pezzano, 387 Mass. 69, 72-73 (1982). Powers makes much of the fact that Jason Barshak, one of two assistant attorneys general who signed the civil complaint, appeared before the grand jury six times. However, Powers fails to demonstrate that Barshak was “unauthorized” to appear before the grand jury, especially in light of the fact that all of Barshak’s appearances happened after the civil complaint was filed. Mass. R. Crim. P. 5(c) provides that “attorneys for the Commonwealth who are necessary or convenient to the presentation of evidence ... and such other persons who are necessary or convenient to the presentation of evidence may be present while the grand jury is in session.” Barshak was carrying out his duties as assistant attorney general and, as such, was authorized to be in the grand jury room.

Powers alleges that grand jury material was improperly disclosed to unauthorized persons. However, Powers does not support this allegation. There is no evidence of any impropriety as to grand jury proceedings.

5.  There is no need to disqualify the attorney general’s office from prosecuting this case.