When 76 veterans died last spring of COVID-19 in the Holyoke Soldiers’ Home, the need to get to the bottom of what happened and why, and who was to blame, could hardly have been more clear. So when Governor Charlie Baker tapped a private attorney to conduct an independent investigation, it seemed like the moment for one of those no-stone-unturned independent probes that have made history here.
But a Boston Globe Spotlight Team review of Baker’s arrangement with former prosecutor Mark Pearlstein — including communications between the governor’s office and Pearlstein — raises troubling new questions about whether the investigation was truly independent. The legal contract between the Office of the Governor and Pearlstein’s law firm created an explicit attorney-client relationship, which could be used to keep their communications and other materials private and suggested Pearlstein was working for Baker, not the public.
Such a contract is unusual for someone portraying himself as an independent investigator in such a highly public matter, say many attorneys who have done such work.
“If you’re the independent investigator, you can’t have a lawyer-client relationship. Then what would ‘independent’ mean?” asked Boston attorney Lenny Kesten, who has commissioned and conducted several independent investigations.
Pearlstein told lawmakers this spring that he simply followed the facts where they led him. And where did they lead him? To conclusions that did not hold Baker and his health secretary to account for their actions in any way. Baker, for instance, interviewed and appointed a politically connected superintendent for the home with no health care experience — a man whose lack of fitness for the post was fully exposed by the pandemic.
A Spotlight Team report last month detailed the roles of Baker and Health and Human Services Secretary Marylou Sudders in the Holyoke tragedy and revealed several key omissions and errors in Pearlstein’s 174-page report, which ultimately pointed blame at lower-level officials.
Pearlstein, however, has maintained that he acted independently in the probe, in which he was asked to investigate what went wrong to prevent future tragedies.
“Our work was independent, it was objective, and we were proud to perform it pro bono as a service to the Commonwealth,” Pearlstein told the Globe in early June.
Pearlstein’s arrangement with the Baker administration contrasts sharply with another high-profile investigation this spring. When the City of Boston this year tapped attorney Tamsin Kaplan to probe domestic abuse allegations against the now-fired police commissioner Dennis White, she made clear her work did not establish a confidential “attorney-client” relationship with the city. Kaplan’s report found fault with former mayor Martin J. Walsh’s administration, disclosing that the city’s top lawyer tried to shut down the investigation.
By comparison, Pearlstein’s contract with the governor’s office said, “Our attorney-client relationship has commenced.”
Pearlstein and Baker both said the contract language was just legal boilerplate. But it raised questions about what was said between them and if the public will ever know.
For instance, Pearlstein conceded that he did discuss his report with Baker before it was public, contradicting claims he made in April. In response to questions from the Globe, he said last week that his previous “recollection had been incorrect” and that he had a virtual meeting with Baker and Lieutenant Governor Karyn Polito “shortly before the report was delivered.”
Baker’s spokesperson confirmed that the governor had been briefed “a few days before the report was released.”
Pearlstein’s report heavily criticized Soldiers’ Home superintendent Bennett Walsh and Francisco Ureña, who was Baker’s secretary of veterans’ services until he was forced to resign just before the report’s release. Walsh and other lower-level officials resigned as well.
Baker and Pearlstein insisted they are not allied in any way. Though both live in Swampscott, Pearlstein said he had never met the governor prior to the investigation, nor donated to his campaigns. Pearlstein’s report shows he interviewed Baker once as part of the probe and Sudders twice.
Neither Baker nor Pearlstein would say why the governor chose Pearlstein, who had never done a major investigation for a public official. But this month Lon Povich, Baker’s former chief legal counsel who worked with Pearlstein as federal prosecutors, said he had recommended Pearlstein.
“I have been practicing law in Massachusetts for more than 35 years and Mark is one of the finest lawyers I know,” said Povich. “He has been very successful in both the private and public sectors, and had a distinguished career in the United States Attorney’s Office where he led a number of sensitive and complex investigations. He was the right lawyer for this very difficult assignment.”
Baker and Pearlstein insisted he was free to find fault anywhere, but others familiar with such investigations say it’s common that lawyers hired for this work know implicitly to stop short of blaming the official who hired them — that is, if they want to be hired again for such prestigious assignments.
“Why would you hire someone who is going to blame you?” said a longtime political consultant who has been involved in hiring investigators. ”It doesn’t happen.”
Even if Pearlstein had no implicit bias, his legal contract with Baker explicitly defined his relationship with the governor in a way that suggests loyalty, several lawyers said.
“We look forward to a mutually rewarding relationship with you,” stated Pearlstein’s “letter of engagement” with the Office of the Governor, signed by Pearlstein and the governor’s chief legal counsel, Robert Ross. The letter, in the standard terms of Pearlstein’s firm, McDermott Will & Emery, stated, “We will represent you zealously and act on your behalf to the best of our ability.”
Some lawyers who have conducted these investigations avoid that kind of language. In many cases they explicitly describe their review as “independent.”
“The engagement letter is key,” said former Massachusetts attorney general Scott Harshbarger, who along with partner Edward Colbert of the firm Casner & Edwards has conducted numerous investigations.
Harshbarger’s engagement letters state upfront that the investigations will be independent. “We define the matter and make it clear we are free to follow the facts wherever they take us,” Harshbarger said. “We’re engaged to do an independent investigation.”
Nowhere in Pearlstein’s contract does he say his investigation is independent.
A report’s autonomy can be apparent in both the contract and the findings.
In the White probe, Kaplan produced a candid 19-page report that not only detailed disturbing allegations of domestic violence by White, it suggested the Boston Police Department had protected him, and it described apparent efforts to undermine her investigation, including an early attempt to end it by the Walsh administration.
Kaplan’s report asserted her autonomy: “My role as Independent Investigator does not include provision of any legal advice or representation and is not subject to any attorney-client or work product privilege.”
Investigative reports are often scrutinized for bias. In 2014, then-Governor Chris Christie of New Jersey hired a law firm to investigate the shutdown of toll lanes at the George Washington Bridge, after he was accused of ordering the closure to punish a mayor who didn’t endorse his reelection.
That report came under criticism when news emerged that lawyers in the probe had donated to Christie and failed to keep notes. The lawyers had cleared Christie, blaming an aide and two Christie confidants. Two of them sought the lawyers’ notes to defend themselves against criminal charges.
Attorney Paul F. Ware, of the law firm Goodwin Procter, who has conducted several major public investigations, said compiling a complete record is critical.
When he was picked by the state’s highest court to investigate patronage in the Probation Department, he received a rare designation: He was named an independent counsel and given power to subpoena witnesses and put them under oath.
His 2010 report came complete with interview transcripts, akin to a grand jury proceeding.
“If you want the evidence to speak, you investigate with subpoena power,” said Ware. “If you look at the probation report, the reason there are hundreds of quotations is because the witnesses were under oath.”
Pearlstein told the Globe he did not tape his interviews, but kept notes. He shared some of his interview summaries with the Baker administration, a state official said. When the Spotlight Team requested Pearlstein’s notes from Ureña’s interviews, Pearlstein said, “We are not sharing those work papers.”
The Baker administration also denied a request for Pearlstein’s interview notes, citing reasons including the lawyer-client privilege and the “work product doctrine,” as the records were prepared in anticipation of “foreseeable litigation.”
It’s unclear whether these records would actually be protected by a lawyer-client privilege, according to lawyers and court rulings. That privilege generally covers communications if the lawyer is providing legal advice, not acting as a fact-finder. Pearlstein told the Globe he did not provide private legal advice to the governor’s office.
In 2016 a judge ruled that reports by a lawyer hired by Phillips Exeter Academy in New Hampshire to investigate sexual-misconduct charges against a student was not confidential because she was hired to conduct an independent probe, not give legal advice. Further, the judge ruled that providing the reports to a third party waived any privilege.
Former Veterans’ Services secretary Ureña — who is facing two civil suits based largely on Pearlstein’s findings — said he wants to see Pearlstein’s original notes to help defend himself. He contends the report mischaracterizes his role and misquotes him.
Pearlstein said he stands by his report.
“As independent investigators, we carefully weighed [the] information that each witness provided during the 111 interviews we conducted, and what we learned from the more than 17,000 documents we reviewed,” he said in a statement.
When Pearlstein was asked why he didn’t probe the political connections that may have contributed to Walsh’s hiring, he told the Globe he didn’t see that as part of his assignment.
Pearlstein said he and his firm did the investigation for free as a public service during the pandemic — which clearly meant forgoing sizable fees from the Commonwealth. His firm has had significant business with the state — more than $450,000 in work for quasi-government agencies in the past decade, records show.
Campaign finance records show that lawyers at his firm have markedly stepped up donations. Within weeks after the report’s release, lawyers and others who reported McDermott Will & Emery as their employer donated $8,850 to Baker’s campaign. The number doesn’t count spouses who also donated.
Over the prior 10 years, employees from McDermott Will & Emery contributed around $13,000 to Baker.
Several lawmakers have called on Baker to testify before them about his role in the Holyoke tragedy. Baker has not directly responded, saying simply he looks forward to discussing legislative reforms to improve the Soldiers’ Home.
But one Democratic senator said the Pearlstein report left many unanswered questions that still need to be addressed.
“I’m calling for an investigation and full oversight hearing with the governor under oath,” said Senator Diana DiZoglio, who is a candidate for state auditor. “The Pearlstein report was independent in name only.”