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A state disciplinary office argued before a federal appeals court to reinstate disciplinary charges against a Boston federal prosecutor who withheld exculpatory evidence, prompting a judge to release purported mobsters from prison. At issue was the extent of the federal courts’ role in lawyer disciplinary cases. On September 10, the U.S. Court of Appeals for the First Circuit heard oral arguments in In re Auerhahn, the Massachusetts Office of the Bar Counsel’s appeal of a ruling by a three-judge panel. In September 2011, the panel, consisting of District of Massachusetts judges George O’Toole Jr., William Young and Rya Zobel, declined to impose disciplinary sanctions against Assistant U.S. Attorney Jeffrey Auerhahn. The 2-1 ruling did not indicate which two judges were in the majority. The bar counsel’s office sought a two-year suspension for Auerhahn based on a 2007 letter from Chief Judge Mark Wolf of the District of Massachusetts. Wolf found that Auerhahn failed to disclose that a government witness had recanted some statements about two alleged mobsters’ actions in a Boston murder. He determined that Auerhahn’s misconduct occurred between 1991 and 1993 during the prosecutions of Vincent Ferrara and Pasquale Barone. The conduct was disclosed to the court in August 2002. Michael Sullivan, then-U.S. attorney for the District of Massachusetts, convinced Wolf to let the U.S. Department of Justice’s Office of Professional Responsibility investigate first. In 2005, the OPR made two findings: First, Auerhahn had acted in reckless disregard of discovery obligations by failing to document a cooperating witness’s statements. Second, Auerhahn exercised poor judgment by not complying with a court order to submit his notes from meetings with the cooperating witness. Sullivan privately disciplined Auerhahn with a written reprimand. Wolf was assigned the bar counsel’s complaint as chief judge, and he tapped the three-judge district court panel to handle the case. The bar counsel’s office, in its appellate brief, claims that the case raises questions about the burden of proof that applies in bar discipline proceedings in federal court in Massachusetts and the court’s application of professional conduct rules. It also challenges the district court panel’s rejection of misconduct charges that were supported by probable cause. “Without notice to bar counsel or affording her the opportunity to be heard, the panel appointed to conduct a hearing and render a decision on the petition improperly eliminated sua sponte all charges of misconduct pertaining to the respondent’s violation of the trial court’s order to turn over notes during the Barone trial,” stated the brief. The bar counsel’s office also faults the panel for not allowing it to produce evidence that the notes had been withheld, arguing that such evidence would have supported two misconduct charges. Auerhahn, in his brief, claims that the bar counsel, Constance Vecchione, has no standing to bring the appeal because she’s not a party to the case. That means, he argues, that the First Circuit has no jurisdiction over his case. In the event that the First Circuit rules that it does have jurisdiction, Auerhahn makes four other arguments in his brief. First, he argues that the clear and convincing standard is the appropriate burden of proof in attorney disciplinary proceedings. Second, he argues that the bar counsel did not appeal any of the panel’s four orders dismissing evidence about the notes. Third, he asserts that the panel properly interpreted its local rules and the applicable disciplinary standards. Finally, he maintains that there was no error in the panel’s decision. Judges Juan Torruella and Jeffrey Howard sat on the panel, along with Seventh Circuit Judge Kenneth Ripple, who sat by designation. Torruella asked first assistant bar counsel Nancy Kaufman to address the standing issue. “This court has supervisory authority to correct errors made by the district court in the application of and the interpretation of its disciplinary rules,” Kaufman said. “There is no reason why bar counsel doesn’t have the right to bring this matter to the court in our view.” Judge Howard then asked what would happen if bar counsel had just investigated but not been appointed. “Would the complaining witness in that case have standing?” Howard asked. Kaufman said no. She went on to argue, “There’s nothing that says that bar counsel can’t take an appeal to this court where there has been a decision by a panel of the lower court that misconstrues rules of professional conduct that eliminates charges found to be supported by probable cause, without explanation, for no reason at all, without any notice.” During oral argument time for amicus curiae the Massachusetts Association of Criminal Defense Lawyers Inc., Peter Krupp of Boston’s Lurie & Krupp said he was “here to address the recurring problem of nondisclosure of Brady material.” The Supreme Court’s 1963 ruling in Brady v. Maryland imposes “an absolute obligation to disclose exculpatory evidence,” Krupp said, adding, “If this case does not result in discipline, prosecutors will rightly feel they will never be subject to discipline for a Brady violation.” Auerhahn’s lawyer, Michael Ricciuti, a partner in K&L Gates’ Boston office, said that the bar counsel misunderstood the local rules. Ricciuti said District of Massachusetts Local Rule 83.6 says the bar counsel’s role is to investigate, prosecute and make recommendations to the court. “The rule nowhere says she has the right to appeal,” he said. Isn’t that included in the word ‘prosecute?’ ” Torruella asked. Ricciuti replied, “Section 11 of that rule reserved to the district court control of that proceeding. It said expressly that the district court retained to itself control over that proceeding. There was an option for bar counsel to request [district court] en banc review.”

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