Daly v. Commonwealth

*106 Brown, J.

(concurring). I am in full agreement with the majority opinion. But once again I am compelled to comment on the conduct of a member of the bar.

When it came to its motion for summary judgment, the Commonwealth was prepared to admit that the plaintiff would be entitled to payment for services rendered — if the special fund contained enough money to pay him. A mere six months earlier, however, in responses to the plaintiff’s requests for admissions, there was a seeming reluctance to admit anything. As one example, consider the response to a request for an admission that “The Plaintiff was responsible, at all times relevant to this action, for defending the Special Fund . .

“Defendant is without knowledge sufficient to admit or deny this request. Defendant has made a reasonable inquiry and the information known or readily obtainable by it is insufficient to enable it to admit or deny this request.

“Defendant states further, it is aware that Plaintiff had an arrangement with the Department of the Attorney General concerning Plaintiff’s representation of the Second Injury Fund. However, Defendant cannot admit or deny the specific terms of the arrangement as Defendant was not in privity of contract with the Plaintiff and the Department of the Attorney General.”

This from a document prepared by an assistant attorney general. I hasten to add that the office of the Attorney General has had its knuckles rapped before. See Lovell v. Superintendent, N. Cent. Correctional Inst., 26 Mass. App. Ct. 35, 41 (1988) (Brown, J., concurring). I reiterate here that, of all members of the bar, it is imperative that attorneys for the Commonwealth not only take care to behave themselves but that they set the standard by their exemplary conduct. Cf. Commonwealth v. Tirrell, 382 Mass. 502, 513 (1981) (Kaplan, J. dissenting); Commonwealth v. Felton, 16 Mass. App. Ct. 63, 66 (1983).