Are Lawyers Entitled to
the Full Sweep of
Due Process Protections?
Introducing the FORUM FOR LAWYERS
for lawyers concerned not with themselves
but with justice
~Submissions by lawyers welcome~
NOTE: Your author requests the readers of this article to contact your legislators and petition the governor to set up a commission to investigate the unconstitutional practices of the Office of Bar Counsel and the Board of Bar Overseers.
Are Lawyers Entitled to the Full Sweep
of Due Process Protections?
BY BARBARA C. JOHNSON
Star Chamber . . . A court or group that engages in secret, harsh, or arbitrary procedure \1/— American Heritage Dictionary of the EnglishLanguage, 4th ed.. . . [The King's] courts did sometimes make "short shrift" of lawyers whose greatest crime was to dare to defend unpopular causes.— Cohen v. Hurley, 366 U.S. 117, 139 (1961) (dissent), overruled in Spevack v. Klein, infra
“‘The history of liberty is the history of due process.’”\2/ Due process is at the core of our American system of justice. It requires basic fairness in any procedure that can lead to punishment.\3/ It is nowhere to be seen at the Board of Bar Overseers or the Office of Bar Counsel.
In Cohen, infra, some 40 years ago, Messrs. Justice Black, Chief Justice Warren, and Justice Douglas eloquently warned that the important role that lawyers are to play in society makes it all the more imperative that they not be discriminated against and not be deprived of “the basic freedoms that are designed to protect the individual against the tyrannical exertion of governmental power.” Cohen v Hurley, 366 U.S. 117, 138 (1961) (Mr. Justice Black, with whom The Chief Justice and Mr. Justice Douglas concur, dissenting). [Cohen, a 5-to-4 decision, was overruled in Spevack v. Klein, 385 U.S. 511, 514 (U.S.N.Y. 1967).]\4/
Singling out “groups for special treatment with regard to certain constitutional privileges” is “clearly unconstitutional.”
Cohen., at 137 n. 13, citing Barsky v.
Board of Regents, 347 U.S. 442, 456-467 (1954).
“When the Founders of this Nation drew up our Constitution, they were uneasily aware of [the] English practice [of exercising the courts’ disciplinary powers “to make ‘short shrift’ of unpopular and uncooperative groups” both in England and] in the colonies prior to the Revolution. Particularly fresh in their minds was the treatment that had been accorded the lawyers who had sought to defend John Peter Zenger against a charge of seditious libel before a royal court in New York in 1735. These two lawyers had been summarily disbarred by the judges presiding at that trial for [filing Exceptions – old word for “objection” and “preservation of right to appeal” -- after being warned not to do so]. It is to the lasting credit and renown of the colonial bar that Andrew Hamilton, a lawyer of Philadelphia, defied the hostility of the judges, defended and brought about the acquittal of Zenger.” Cohen, at 140-141.39
FORUM FOR LAWYERS Such language throughout 15 pages of powerful dissents to the later-overruled majority report in Cohen gives one confidence that were the three high justices here today to examine the practices of our own BBO and OBC, they would likely conclude, “The practices and power of the BBO/OBC of the once great Commonwealth of Massachusetts are starkly similar to those of the justly vilified Star Chamber.”
The Court of the Star Chamber
The Star Chamber was established after an act in 1341. The Encyclopaedia Britannica, 11th ed. (1911), vol. XXV, p. 795. Over time, the composition and jurisdiction of the court became uncertain, but “[i]n practice its jurisdiction was almost unlimited.” Id., citing William Hudson, "Treatise of the Court of the Star Chamber," in vol. ii. of Collectanea Juridica. Certainly its jurisdiction had superseded that of the ordinary courts of law in cases where the ordinary courts were too weak to act. Encyc. Brit. 11th ed., vol. XXV, p. 795.
By 1529, exercising jurisdiction in that court was a president, chancellor, treasurer, bishop, two chief justices and two alternate justices. Id.
Although the court had been initially a court of appeal, Henry VIII, Chancellor Wolsey, and Archbishop of Canterbury Cranmer had encouraged plaintiffs to bring their cases directly to the Star Chamber, bypassing the lower courts entirely.
After the act of 1487, “the Star Chamber became the great engine of the royal tyranny” [id.] and within 25 years, under the leadership of Wolsey and Cranmer,\5/ it not only performed the very necessary and valuable work in punishing powerful offenders who could not be reached by the ordinary courts of law [id.], it also became a political weapon for bringing
actions against opponents to suppress opposition to royal policies of Henry VIII.
Originally open to the public, the Court of Star Chamber sessions came both to be held in secret and to represent the misuse and abuse of power by the king and his circle. “Its procedure was not according to the common law.” Id. There were no witnesses (it could proceed on rumor alone), no juries, no right of appeal, and punishment was swift, flexible, and severe to any enemy of the crown. (“It could apply torture; it could inflict any penalty but death.” Id.)
Between 1628 and 1640, the Court of Star Chamber became a substitute for Parliament and in the 1630s banned all "news books." Charles I made extensive use of the Court of Star Chamber to persecute dissenters, including Puritans who fled to New England. Star Chamber proceedings were used to gain not only arbitrary convictions, but also arbitrary acquittals for guilty parties whom the crown wished to protect. The abuses of the Star Chamber by Charles I were one of the rallying cries for those who eventually executed him in 1649.
In sum, because it “characteristically departed from common-law traditions . . . and . . . specialized in trying ‘political’ offenses, the Star Chamber has for centuries symbolized the disregard of basic individual rights.” Faretta v. California, 422 U.S. 806, 821 (1975).
The Petition of Discipline
and the Answer\6 /,\7/
The author of this article became the target of the BBO/OBC via a Petition for Discipline served on her in March of this year. She is being singled out because she is a lawyer exercising her First Amendment rights on her website, falseallegations.com, and in her pleadings, whether on or off her website. Griswold v. Connecticut, 381 U.S. (Conn.) 479, 487
FORUM FOR LAWYERS (1965), quoting Gitlow v. People of State of New
York, 268 U.S. 652, 666 (1925) (freedom of speech
and of the press, protected by First Amendment,
are fundamental personal rights and liberties
protected by due process clause of Fourteenth
Amendment from impairment by States). Snyder
v. Com. of Massachusetts, 291 U.S. 97, 105 (1934)
The OBC’s accusations against your author/-
publisher/attorney are vague. She allegedly
published confidential material on her website and
thereby harmed people, but the OBC has not
identified with any particularity the offending
language or the people allegedly harmed. Your
author contends that due process required
identification of the offending language in the
petition.\8/ (Count I)
Your author allegedly commingled funds,
but the OBC did not identify the amount of the
funds allegedly commingled. (Count II)
Your author was jailed in 1998 allegedly to
force payment of funds allegedly ordered to be paid
in 1995 by a nonexistent valid order. The OBC has
produced only a copy of a materially altered and/or
fabricated one. (Count III)
Count I swirls around a custody and paternity
case in which Johnson chastises a court for depriving
a man of his parental rights without due process and
equal protection. The Complainant was the child’s
mother, who ran for public office and on election
day, both blamed her loss on Johnson’s website and
filed the complaint at the Bar. For details, see
Count II involves a case on which Johnson did
some consulting and returned around 30 percent of
the aetainer because she had deeply discounted the fee. The wife of the indicted defendant wanted more
money returned and instead of going to the Fee
Arbitration Board, four months later went to the Bar. The Bar claimed that the money should have gone into the
IOLTA account.\9/ Johnson said not so, the money had been earned by the time the check was deposited into her own account. After the Bar let Johnson know that charges would be brought, Johnson placed her bill to the party and her re- sponses to Strauss-Weisberg on her website. For details, see falseallegations.com-bbo-drano90- answer-count-two-sano.doc.
Count III arises out of what Johnson claims were false allegations of contempt eight years ago. Johnson was in jail five years ago for 24 hours because she said No to the judge who had found her in contempt. For details, see falseallegations.com/ bbo-drano90-answer-count-three-lily.doc. The Complainant to the Bar was the judge.
Only the matter in Count I had been on Johnson’s website prior to the OBC’s so-called investigation. When it appeared the OBC would bring actions under questionable circumstances, Johnson uploaded the information complained-of in Counts II and III. (See “Bar War” documents on the author’s website.)
So it appears that Bar Counsel and the “Royals of the Judiciary” – the Supreme Judicial Court, which appoints the members of the Board and runs the quasi- judicial cadre -- want, in truth, to censor your author’s website, falseallegations. com, but that would be politically incorrect. So they brought the petition to censure Johnson instead. With arbitrary procedures and the absence of due process, cenSURing is much easier than cenSORing.\10/
Complaints Against the Judiciary
Some of the documents that offend the judiciary and consequently the BBO/OBC are the complaints filed against several judges, complaints by which your author as lawyer has been testing the concept of judicial immunity.\11/ To do so, one must describe with particular-
FORUM FOR LAWYERS ity those acts performed by the judges which were outside the scope of their judicial authority, acts that were never contemplated by a legislature. To do so, one must break the silence expected by the Bar . . . and one must rely on one’s First Amendment rights.
BBO General Counsel Fredrickson told Johnson that an attorney does not have First Amendment rights. He might be relying on two U.S. Supreme Court decisions of April 24, 1961.\12/ In them, two States “[refused to admit] lawyers to their respective Bars solely because those lawyers would not renounce their rights under the First Amendment.” Cohen, at 145.If, as the majority says, there is no constitutional difference between admission and disbarment proceedings, itCohen, at 143 n. 25 (dissenting note).
seems clear that lawyers may now be called in by a State and forced to disclose their political associations on a
penalty of disbarment if they refuse to do so.
That concern prompted Justice Black to warn us:The “law of the land” is [not] an accordion-like protection that can be withdrawn from any person or group of persons whenever the Government might prefer “‘proce- dures resulting in greater preventive certainty” if it can show some “reasonable” basis for that preference.Id., at 137-138 (dissent).
Outraged by the majority on the high bench, Mr. Justice Black wrote that they were allowing the courts of New York to exercise powers over Cohen which were “no different than those exercised over lawyers by the courts of England several hundred years ago. “ Id. at 138 \13 /
Disrespect for Lawyers TodayIf independence is denied lawyers, . . . they are likely to become nothing more than parrots of the views of whatever group wields govern- mental power at the moment. Wherever that has happened in the world, the lawyer. . . . has ceased to perform the highest duty of his calling and has lost the affection and even the respect of the people.Cohen, at 138-139 (emphasis supplied).
Well, Johnson is not a parrot. Nor is she about to become one.
The effect of the acquiescent lawyer is at the root of disrespect for lawyers in our culture today. The Code of Silence --“See no evil, Hear no evil, Speak no evil” -- is a two-edged sword. It hides incompetency and immorality on one side. But while doing that, it causes (a) the public’s disaffection for the legal community,\14/ (b) the public’s perception that all lawyers have conspired with the judge on the bench, and (c) the public’s unwavering belief that lawyers intend only to milk their clients’ cow dry.
Platform of court reform. Of course, your author has not stopped at complaining about the judiciary. During her campaign she railed also against 209A restraining orders and tried to rally support for doing away with judicial immunity.
But her seemingly seditious utter- ances\15/,\16/ -- utterances that challenge or criticize judicial decisions which neither acknowledge the evidence nor follow the law -- were unwelcome by the Royals of the Judiciary.
Given that sunshine is now a fashion able public policy, BBO/OBC has not cried “Sedition,” a concept that fell into desuetude after Alexander Hamilton encouraged jury nullification and obtained an acquittal for printer/ publisher John Peter Zenger in 1735 from a charge of seditious libel.\17/,\18/
FORUM FOR LAWYERS Composition of the Board
The Board is composed of 12 people -- nine lawyers and three laypersons – all appointed by the SJC. M. Ellen Carpenter, former colleague and partner of SJC Jus-tice Martha B. Sosman, is Chair of the Board. Carpenter’s moment of fame came after she – apparently -- designated herself as the hearing officer to preside over the disciplinary action against Attorneys Gary C. Crossen (former Judicial Nominating Council Chairman), Richard K. Donahue (former Massachusetts Bar Association president) and Kevin P. Curry (who were seeking evidence of impropriety by former judge Maria I. Lopez through her clerk).
Six of the other eight attorneys are ei ther managing or plain vanilla partners of influential lawfirms (meaning at least one former partner is now a judge) or past presidents or directors of various alphabet-soup associations and nonprofit corpora-tions – MDLA, AAML, ACTL, MBA, BBA, HCBA, NHBA, MBA (Maine), RIBA WMLS, MLAC. Several have served five-year terms on the Clients' Security Board, which oversees the disbursement of funds to clients victimized by attorney misappropriations, and several appear to have been on the BBO for more than one term. One or more have been on the Board of Editors of LW.
One is faceless in the news. The eighth has been nominating and providing resources for judges.
Of the three laypersons, one is a retired schoolteacher, another is an outpatient counselor and treatment coordinator at a local hospital, and the third is a medical doctor who loves piloting planes and chatting on the Internet about it.
The BBO is the quasi-adjudicatorial arm of the SJC. Michael Fredrickson is General Counsel, and has held that position since 1989. He has had or made the time to write three novels (the first re-
ceived modest kudos, the second was lesssuccessful, and the third is due out in January). General Counsel Fredrickson had to approve the Petition for Discipline before Bar Counsel Daniel Crane was allowed to file it across the hall at the BBO.
In addition to general counsel at the BBO, there is one associate general counsel and two assistant general counsel. The scope of their authority is unknown.
In addition to bar counsel at the OBC, the quasi-prosecutorial arm of the SJC, there is a slew of assistant bar counsel.
A Jury: To Be or Not to Be?
Action at Law or in Equity
Historically, in Massachusetts, attorney-discipline cases have been identified as being on the common-law side of the court, making a jury trial legally possible. Boston Bar Ass'n v. Greenhood, 168 Mass. 169, 183 (1897); In re Mayberry, 295 Mass. 155, 166, 168 (1936) (respondent not prejudiced by findings of single justice relative to “. . . jurors of low grade in respect to intelligence and character”), and In re Sleeper, 251 Mass. 6, 12 (1925).
Article XV of the Massachusetts Declaration of Rights is another source of Respondent Johnson’s right to a jury trial.\19/
Even “[a]ctions for declaratory judgment can . . . be heard by a jury if there are triable issues of fact and the judge determines that a jury traditionally would have determined those issues.” New Bedford Housing Authority v. Olan, 50 Mass.App. Ct. 188, 197 (2000). The significance of the New Bedford decision was that the facts of even equitable claims could be given to a jury. And after Dalis v. Buyer Advertising, Inc., 418 Mass. 220 (1994) and New Bedford, the Court in Rosati v. Boston Pipe Covering, Inc., 434 Mass.349, 350 (2001) further
FORUM FOR LAWYERS echoed the reasoning in those decisions.
As a result, Johnson moved for a jury trial. Initially it was denied by Special Hearing Officer [“SHO”] Herbert P. Phillips while Johnson was represented for a brief time by other counsel who was considerably more conservative than she and unwilling to test the BBO/OBC system.
Upon deciding to represent herself, Johnson filed a motion to reconsider her motion for a jury. Argument was heard at a pretrial conference in August 2003. SHO Phillips graciously agreed to reconsider the motion, gave Assistant Bar Counsel Strauss-Weisberg time to oppose, promised to make a decision within a week or 10 days after receipt of the opposition, and provided the parties with copies of the pretrial agreement and a schedule of due dates.
Within a day or two of the hearing, however, Johnson received a copy of the first-page of her motion with the endorsement “Denied” on it. It had been decided by the Chair Carpenter.
Notwithstanding all the authority for a jury trial, Carpenter wanted to avoid using jurors. What if they returned the “wrong” verdict? She had one particular impediment that the “Royals” of the Star Chamber did not have: she could not secure the verdict by scolding, fining, or imprisoning the jurors.\20/
Other than the power to scold, fine, or imprison jurors, who do not exist in the world of the BBO, Carpenter\21/ appears to have most of the powers that the Star Chamber did have: e.g., a say as to which witnesses may be subpoenaed to trial.
A respondent is further hampered by (a) there being no predictable rules of evidence, (b) there being no available records as to the admissibility of documents in past cases, (c) a unique interpretation of the scope of confidentiality and entitlement at the Bar, and (d) not
being able to take a deposition unless the witness is not subject to service of subpoena or unable to attend hearing because of age, illness, or other infirmity. Prior approval of the Board or the hearing panel or officer is, of course, required before the deposition may be taken.
Bar Counsel may take a deposition by “investigatory subpoena.” The respondent, or accused attorney, is not entitled either to know or to be present at a deposition taken prior to the petition for discipline issuing, but is entitled to be present after the petition issues [Rule 4.4(c)].
Common sense leads one to conclude reasonably that Bar Counsel will take depositions prior to the petition issuing. Privacy of the accused attorney is not considered by the rules. See Rule 4.7(a).
Upon the unexpected receipt of Carpenter’s ruling on the motion for a jury trial, Johnson immediately phoned Fredrickson both to inform him of the discrepancy and to query him as to how and why it occurred.
Much to Fredrickson’s credit, within a day, Carpenter wrote Johnson saying that she “acted precipitously.”
Johnson opined that Carpenter not only had “acted precipitously” but also had usurped the power of the SHO and had violated Board Rule 3.18(a).
Rule 3.18(a) requires the motion to be “submitted to a member of the Board for determination.” Fredrickson has not designated a Board member to receive Johnson’s motions. It appears he has designated himself or his administrative assistant.
That rule continues: “The Board member may refer the motion to the chair of the assigned hearing committee” [there is none] “or hearing panel” [there is none] “or to the special hearing officer” [there is one] for determination.” Carpenter is none of the named people.
FORUM FOR LAWYERS Waiting for a determination from SHO Phillips on the jury-trial motion, Johnson phoned Fredrickson again.
“That’s not going anywhere,” he said. “I’d be astonished if it did. . . . No way in hell you’ll get a jury trial.”
Such a response raises the question, then, Who is doing the decision-making? Who is at someone’s beck and call? Who is the someone? Secret, harsh, and arbitrary! Sounds like the Star Chamber to Johnson.\22/
Just after the author finished this article, she received notice of SHO Phillips' decision on the jury-trial motion. Denied, no discussion of the issues. Just denied.
Was it his decision or was he ordered to make it?
Civil or Criminal in Nature?
The dispute as to the nature of these “adversary proceedings” adds another dimension legally. The United States Supreme Court declared disbarment proceedings to be of a “quasi-criminal nature.” In re Ruffalo, 390 U.S. (Ohio) 544, 551 (1968); Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S.(N.J.) 423, 438 (1982) (Justice Brennan, concurring in the judgment).
The quasicriminal nature of the proceedings triggers article XII of the Declaration of Rights, allowing Johnson to present all proofs favorable to her, to meet witnesses against her face to face, to be fully heard in her defense, and not to be deprived of her property but by the judgment of her peers, which means a jury trial.
In contrast, the Massachusetts SJC and Fredrickson, the bulwark of the BBO privy council, deem disciplinary proceedings to be civil in nature and refuse to accept the Supreme Court’s decisions on the issue as the last word.
Notwithstanding the controversy over whether bar disciplinary proceedings are civil, criminal, or quasicriminal in nature, so long as they are on the common-law side of the court, attorneys are entitled to
a jury trial in a prosecution brought by the Bar Counsel.
The difference between the natures has other implications, too. The significance of the civil-criminal dichotomy is that a criminal defendant has a right not to testify, and cannot suffer an adverse ruling from not testifying. In a civil case, if the defendant does not respond, there is an adverse inference drawn, and if he were to answer, it would be against his or her interest. Brown v. U.S., 356 U.S. (Mich.) 148, 158-159 (1958); Baxter v. Palmi- giano, 425 U.S. (Cal.) 308, 318-319 (1976). This part of stare decisis, the Bar finds worthy of accepting. Those decisions which the Bar finds adverse to its humungous power, the Bar ignores.
. . . harsh, and arbitrary! Sounds like the Star Chamber to Johnson.
Motions to Dismiss\23/
Under Board Rule 3.18(b), all motions to dismiss the petition for discipline or any charges contained therein shall be determined by the Chair of the Board or the Chair’s designee. And this the Chair, Carpenter, did. She denied the two mo- tions by Johnson to dismiss.
One motion was to dismiss Count II on the grounds that the Parkers’ (pseudonym by the Bar) consent to the website publication of their story constituted a waiver of confidentiality.
The other was to dismiss Count III on the grounds that during the 5-8 year delay in bringing a disciplinary action, the tape of a necessary hearing was overwritten by the Commonwealth and an eyewitness has passed away.
Other grounds for dismissal were based on an ex parte communication having occurred between the judge and opposing counsel and a material document having been physically altered by what appears to be a combined effort by the local district court motion judge and the former opposing counsel. See the author’s website for pictures of the altered document.
FORUM FOR LAWYERS Motion for Protection Order
Which Applies: Rule 3.18(a) or 3.22(c)?
In Bar Counsel’s motion, Strauss- Weisberg did not distinguish between a protection order and an order of impoundment. Her motion was not only a motion for a “protective order” but also
Strauss-Weisberg and Bar Counsel failed to acknowledge and identify the standards to be followed when determining such potpourri motions as Bar Counsel’s, failed to show good cause, failed to follow the procedures for impoundment, failed to state the authority giving the Bar the right to censor Johnson’s website and stifle her political speech and free expression, failed to state the scope of the web- site censorship sought, failed to state how the censorship was to be implemented, failed to state the authority giving the Bar permission to override Johnson’s First Amendment rights, and failed to identify with sufficient particularity that which Bar Counsel wants to prevent disclosure and that which he wants to impound.
- a motion for impoundment
- a motion to censor Johnson’s website
- a motion to enjoin Johnson’s political and free speech and
- a motion for secret hearings
Secrecy, harshness, and arbitrariness sought! Sounds like the Star Chamber to Johnson.
Despite all the flaws in Bar Counsel’s motion, which would never pass muster before any judge in any superior court, Chair Carpenter allowed Bar Counsel and Strauss-Weisberg’s motion.
But according to Rule 3.18(a), non- dispositive motions are to be determined by the hearing panel or hearing officer, not by the Chair.
In response to Johnson’s inquiry about the noncompliance with Rule 3.18(a), Fredrickson pointed to Rule 3.22(c). But Rule 3.22(c), as well as 3.22(b)(2), pre- sumes that “the Board” issues a protective order. And Rule 3.22(b)(3) presumes the SJC issues the protective order.
None of the subsections of Rule 3.22 gives Ellen Carpenter the authority as Chair to rule on a motion for a protective order.
Fredrickson’s explanation was that the Chair can appoint herself to act for the Board.
“But the rules make a distinction between ‘the Chair’ and ‘the Board,’ and she’s not acknowledging that. Every word has meaning.”
“We’ve done it that way ever since I’ve been here,” Fredrickson said, in words for all intents and purposes.
“How long have you been there?”
“Well, you’ve been doing it wrong that long,” your author commented.
To a similar excuse in Cohen, Justice Black wrote:. . . This argument -that constitutional rights are to be deterrmined by long-standing practices rather than the words of the Constitution--is not, as the majority points out, a new one. It lay at the basis of two of this Court's more renowned decisions -Dred Scott v. Sandford, 19 How. 393 , and Plessy v. Ferguson, 163 U.S. 537 . But cf. Brown v. Board of Education, 347 U.S. 483 . The notion that a violation of the plain language of the Constitution can gain legal stature by long- continued practice is not one
FORUM FOR LAWYERS I can subscribe to. A majority group, as de Tocqueville observed, too often "claims the right not only of making the laws, but of breaking the laws it has made." De Tocqueville, Democracy in America, Vol. 1, at 261.Cohen, at 142 n.23 (dissenting).
If Rule 3.22(c) is as Carpenter and Fredrickson are interpreting it, Rule 3.22(c) is in conflict with Rules 3.18(a) and 3.18(b). If Rule 3.22(c) is interpreted literally in accordance with the words used and the definitions given in Rule 1.2, then the 12 Board members, people appointed from time to time by the SJC, must determine the motion.
Doing it Michael Wolsey and Ellen Cranmer’s way, the rules become arbitrarily interpreted and imposed. . . . harsh, and arbitrary! Sounds like the Star Chamber to Johnson.\24/
Motion to Preclude
And Chair Carpenter did with Bar Counsel’s motion for issue preclusion that which she did with Bar Counsel’s motion for a protective order: she usurped the power of Special Hearing Officer Phillips, as identified in Rule 3.18(a).
The motive was to preclude Johnson from showing that the lower-court orders were not only “bad,” they were based on fabricated facts and findings and on, literally, a materially altered document.
Mitigation, practicing lawyers call it. Mitigation. And the Board rules are written in contemplation that a respondent to a petition for discipline will have facts in mitigation. See Rule 3.15(f), which re- quires that mitigation be pled. Rule 3.15(f) is the equivalent, one presumes, of an affirmative defense, which means that it must be pled or it is forfeited. And Johnson pled it.
"There is something specially repugnant to justice in using rules of practice in such a manner as to debar a prisoner from defending himself, especially when the
professed object of the rules so used is to provide for his defense." Faretta v. California, 422 U.S. 806, 822-823 (1975), quoting 1 J. Stephen, A History of the Criminal Law of England, 341-342 (1883).
When Johnson phoned Fredrickson and asked when to expect the rulings on a pile of her own motions, he said, “They just went out. You’ll have them by tomorrow.”
“Denied, are they?”
“You didn’t expect anything else, did you?”
“I guess not. . . . As I’ve been saying, Due process went out the window a while ago. You really are running a Star Chamber there.”
“It’s due,” Fredrickson said, in a voice dripping with condemnation. “It’s due.”
The margins of your author’s rulebook are filled with Fredrickson’s words in red. There was no time to pull out a blank sheet of paper.The majority is holding . . . that lawyers are not entitled to the full sweep of due process protections because they had no such protections against judges or their fellow lawyers in England. But I see no reason why this generation of Americans should be deprived of a part of its Bill of Rights on the basis of medieval English practices that our Forefathers left England, fought a revolution and wrote a Constitution to get rid of.Cohen, at 142 (Justice Black, with whom Chief Justice Warren and Justice Douglas concurred, dissenting). Fearing that the majority opinion in Cohen implied that “a lawyer is not to have the protection of the First Amendment with regard to his private beliefs and associations whenever his exercise of those freedoms might interfere with his duty to ‘co-operate’ with a judge’” [id. at 145], they concurred:
FORUM FOR LAWYERS It seems to me that the majority takes a fundamentally unsound position when it endorses a practice based upon the artificial notion that rights and privileges can be stripped from a man in his capacity as a lawyer without affecting the rights and privi- leges of that man as a man.Id. at 145 (dissent).
: If the BBO wishes to behave as if it is above or outside the Law, and as if it has no qualms in destroying the basic civil liberties guaranteed to protect the innocent from unjust prosecution, or as the American equivalent of the English Star Chamber; let us treat it like the British treated the Star Chamber in 1641: let’s sweep the BBO/OBC away not by a violent revolutionary fervor but by a sane Executive Order or reasonable legislative action. That is, abolish the BBO in its present form.
Given that the alleged offenses can be considered common-law causes of action, there is no reason the attorney who allegedly offended the Bar rules against misconduct cannot be tried in a court of law.
If a jury finds an attorney guilty of a criminal charge or liable for a civil claim, the BBO may still step in and impose an appropriate punishment.
Would it not be better to spend the millions of dollars saved on teaching our schoolchildren about our State and federal constitutions and fundamental fairness?
NOTE: Your author requests the readers of this article to contact your legislators and petition the governor to set up a commission to investigate the unconstitutional practices of the Office of Bar Counsel and the Board of Bar Overseers.
1 “Star Chamber . . . ancient meeting place of the king of England’s councilors in the palace of Westminster in London, so called because of stars painted on the ceiling. The court of the Star Chamber developed from the judicial proceedings traditionally carried out by the king and his council, and was entirely separate from the common-law courts of the day. In the 15th cent., under the Lancastrian and Yorkist kings, the role of the council as an equity and prerogative court increased, and it extended its jurisdiction over criminal matters. Faster and less rigid than the common-law courts, its scope was extended by the Tudors. Under Chancellor Wolsey’s leadership (1515–29), the Court of Star Chamber became a political weapon, bringing actions against oppo- nents to the decrees and edicts of Henry VIII. Wolsey also encouraged petitioners to use the Court of the Star Chamber as a court of original jurisdiction, not as a last resort after the common-law courts had failed. Depositions were taken from witnesses, but no jury was employed in the proceedings. Although its sentences included a wide variety of corporal punishments, including whipping, pillorying, and branding, those convicted were never sentenced to death. The court remained active through the reigns of James I and Charles I. The traditional hostility between equity and common law was aggravated by the use made of the Star Chamber by the Stuarts as a vehicle for exer- cising the royal prerogative, particularly over church matters, in defiance of Parliament. It was abolished by the Long Parliament in 1641. In its later period the court was so reviled that Star Chamber became a byword for unfair judicial proceedings. The court’s harshness, however,
FORUM FOR LAWYERS
has been exaggerated.” The Columbia Encyclopedia, Sixth Edition. Copyright © 2003 Columbia University Press.
References cited by The Encyclopedia Brittanica for the history of the Star Chamber: Sir Thomas Smith, Commonwealth of England (1633); Lord Bacon, History of Henry VII, edited by J. R. Lumby (Cambridge, 1881); William Hudson, "Treatise of the Court of the Star Chamber," Collectanea Juridica, vol. ii; H. Hallam, Constitutional History of England (1876); W. S. Holdsworth, History of English Law (fol. 1902); G. W. Prothero, Statutes and Constitutional Documents 1559-1625 (1894); W. Busch, England under the Tudors (1895); S. R. Gardiner, History of England 1603-1642 (1883-84); D. J. Medley, English Constitutional History (1907); and A. V. Dicey, The Privy Council.
2 Nat Hentoff, “Orwellian Justice on Campus: Columbia University's Star Chamber,” Village Voice (N.Y.: November 8-14, 2000), reminiscing on what Supreme Court Justice William O. Douglas taught him.
4 “[L]awyers also enjoy first-class citizenship.” Spevack v. Klein, 385 U.S. 511, 516 (1967) (overruling Cohen v. Hurley).
5 The role of Cardinal/Chancellor Wolsey was played by Orson Welles in that classic film, Man for All Seasons. In that same film, Cranmer, Archbishop of Canterbury, was brilliantly portrayed by Cyril Luckham.
6 The petitioner is Bar Counsel Daniel Crane, the author of the petition was Assistant Bar Counsel Susan Strauss- Weisberg, and the requisite approval of the petition before it was filed in the BBO was given by BBO General Counsel Michael Fredrickson.
7 The BBO is the quasijudicial court. General Counsel of the BBO re
ports to the Board, which is appointed by the SJC. The OBC is the quasiprosecutorial arm. Bar Counsel of the OBC reports to the SJC.
8 Johnson filed a Motion for More Definite Statement, but it has yet to be acted upon.
9 The new “receipts and bookkeeping” rule – amended M.R.Prof.C. 1.15 -- which will allow the OBC/BBO to violate a lawyer’s right against self-incrimination would be unconstitutional under Spevack v. Klein, 385 U.S. (N.Y) 511, 517-518 (1967) (reversing disbarment: refusal of attorney to produce demanded financial records or to testify at judicial inquiry on basis that production of records and his testimony would tend to incriminate him was not ground for disbarment).
10 On her allegedly offending website, your author has published, primarily, pleadings filed in diverse state and federal courts.
Ironically, what appears to offend the OBC is the publication of Johnson’s prepetition responses to letters sent her by Weisberg. Given, however, that it is Johnson who holds the privilege of confidentiality, it appears that the OBC was displeased that Johnson waived her right to confidentiality.
11 In England, during a period when “[a] number of courts challenged the King’s Bench for authority” [Pulliam v. Allen, 466 U.S. (Va.) 522, 530 (1984)], judicial immunity originally protected only the “higher judges of the King’s courts.” Id., at 531.But in a writ of false judgment, the plaintiff shall have a direct averment against that which the Judges in the Inferior Court have done as Judges, quia recordum non habent; and with this accords 21 H. 6.34.49
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Floyd and Barker, 12 Co.Rep. 23, 77 Eng. Rep. 1305 (1607) (case of conspiracy).. . . in Floyd and Barker, 12 Co.Rep. 23, 77 Eng.Rep. 1305 (1607), Coke and his colleagues of the Star Cham- ber had declared the judges of the King's Bench immune from prosecution in competing courts for their judicial acts. In doing so, they announced the theory upon which the concept of judicial immunity was built.Pulliam, 466 U.S. at 530.
. Although the court in Pulliam iterated the history of judicial immunity, it did so ambiguously. For instance, the court in Pulliam failed to state what Barker did, what the conspiracy was about, who the co-conspirators were, and who Floyd was. The inescapable conclusion from Pulliam must be that the entire authority for the modern ‘doctrine" of judicial immunity is based on royal prerogative and edicts emanating from the Star Chamber, which was dissolved and outlawed in 1641, and remains a blot on the landscape of England’s juridical history.
. In fact, a copy of the 396-year-old report of Floyd and Barker, which may be seen on the author’s website, reveals that William Price was indicted by a grand jury. He pled not guilty, but was tried by a jury and convicted. After his execution, the jurors who convicted him “were charged in the Star-Chamber for conspiracy against him, and indicted and convicted.” Floyd, 12 Co. at 1306, 77 Eng.Rep. at 23.
. The report identifies Floyd only as “Rice ap Evan ap Floyd,” with nothing more and notes that the suit occurred after William Price was convicted in Judge Richard Barker’s court for murder and executed by the sheriff . The reason
Floyd sued Barker and others in the Star Chamber for conspiracy – at that time allowed for diverse reasons – is not revealed.
. The ruling chief justices, Popham and Coke (after whom Coke’s King’s Bench Reports are named), did not convict Barker. Instead, they established judicial immunity for the King’s judges. Their rationale was that if the judges were convicted, it would “trench to the scandal of the King himself.” Floyd, 12 Co. at 1307, 77 Eng.Rep. at 25.
. Despite the new declaration of judicial immunity, the Floyd report declares in a footnote that “in truth the whole set of Judges were then so corrupt that the King was forced to try [Judge Thorp] by commission.” Id.
. The report then ends with another note. . . Thomas Weyland, Chief Justice of the Common Bench, Sir Ralph Hengham, Justice of the King's Bench; and the other justices, were accused of bribery and corruption; and their causes were determined in Parliament, where some were banished, and some were fined and imprisoned.Floyd, 12 Co. at 1308, 77 Eng.Rep. at 25.
. The facts on which the judges were convicted are also not revealed, of course, in Floyd, the report of which was written by the chief justices of the most corrupt court in English history and ultimately caused the execution of the monarch.
. That medieval England in 1607 established judicial immunity to insulate its nobility from accountability does not highly support the continuation of that doctrine in Postrevolutionary America, it, instead, recreates the causes of the Revolution.
. That our high courts should use a
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doctrine established by the Star Chamber both to defy the public demand for accountability and to defeat article V of the Massachusetts Declaration of Rights, which guarantees us accountability by the judiciary, is unfathomable and shameful.
And that the practices of the BBO/OBC should mimic those of the Star Chamber should also be embarrassing to the Chief Justice of our high court.
12Konigsberg v. State Bar California, 366 U.S. 36 (1961). In re Anastaplo, 366 U.S. 82 (1961).
13 “The threat of disbarment and the loss of professional standing, professional reputation, and of livelihood are powerful forms of compulsion to make a lawyer relinquish the [Fifth Amendment] privilege.” Spevack v. Klein, 385 U.S. 511, 516 (1967) (overruling Cohen v. Hurley).
“[Such threats are] indeed as powerful an instrument of compulsion as 'the use of legal process. . . .” Spevack, at 16. In that case, the BBO can be sued for abuse of process because its “success” is through threats, not reason, adherence to rules, or fairness.
14Abounding in the probate and family courts are the parties, particularly men, who say, in so many words, “My lawyer says I should not bother ask for custody. I have no chance of getting it. . . . I should not bother ask for more visitation with my kids, I have no chance of getting it. . . . My lawyer does not voice my opinions in court. He wimps out. Why won’t he tell the judge my side of the story?” Some do not even ask for a hearing. They do not know they are entitled to one.
Why are lawyers speechless and spineless? Because they are afraid of retaliation by the courts, much as the unlawful and reprehensible retaliation being experienced by your author.
15 Hypocrisy in decisions is intolerable. Hypocrisy defies common sense. For instance, on
one hand, the SJC has declared that a claim of governmental immunity from suit is appealable under the doctrine of present execution because the order interferes with the “right” or “entitlement” to absolute immunity from suit and cannot be remedied on appeal from the final judgment. Fabre v. Walton, 436 Mass. 517, 521 (2002), citing Mitchell v. Forsyth, 472 U.S. 511, 524-526 (1985) and Brum v. Dartmouth, 428 Mass. 684, 688 (1999) ("The right to immunity from suit would be 'lost forever' if an order denying it were not appealable until the close of litigation ...").
On the other hand, the SJC has declared that an interlocutory order relating to a claim over which the court has no subject-matter jurisdiction is not appeal- able until after the defendant stands for trial on a noncrime. Gouin v. Commonwealth, 439 Mass. 1013 (2003); Meuse v. Commonwealth, 437 Mass. 1004, 1004- 1005 (2002).
In both Gouin and Meuse, there was neither a crime nor a detrimental effect in the Commonwealth, which means that Massachusetts did not have subject- matter jurisdiction either to charge or try the men. See In re Vasquez, 428 Mass. 842, 848-849 (1999), citing Strassheim v. Daily, 221 U.S. 280, 285 (1911).
It is inescapable that there is a right not to have to answer for so-called crimes that cannot be described. Art. XII, Declaration of Rights. To have to stand trial for an imagined crime results in losing that right, too, “forever.” Cf. Brum, supra.
In Meuse, the jury spoke: Meuse was not guilty.
In Gouin, the alleged violation of a foreign restraining order that was not domesticated in the Commonwealth was unconstitutional. That criminal charge was dismissed on Friday, September 19, 2003, by The Honorable Justice Thomas C. Horgan over the strenuous, persistent objection objection of the Suffolk D.A’s office, which unfortunately is unaccountable because of the protection afforded by prosecutorial immunity.
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Of course, Gouin contends that the SJC should have interpreted G.L. c. 209A, §5A, prior to the hearing, i.e., interlocutorily. It would have cost the Commonwealth considerable money to see that case through trial. It would have been wasted money. The jury would never have convicted on the facts. In fact, Judge Horgan said as much to the assistant D.A.
The facts: Gouin was at home to make the property available for a court- ordered appraisal. He was charged with violating a the out-of-state restraining order for being at home because his estranged wife arrived there without notice.
Judge Sally Kelly thought -- even though he was at home in accordance with a family court order – that was actionable and so did not dismiss the case when asked in February 2003 to do so. BUT Sally Kelly was formerly on the member of the BBO. She was well- mentored in Star Chamber “procedures. Could we have expected “more”?
16 Judges have acted outside the scope of their authority, e.g., by ordering parties in Probate & Family Court to pay the fees of guardians ad litem. That act contravenes G.L. c. 215, §56, which mandates that the Commonwealth “shall” pay the GAL’s fees. Those judges should be held accountable for acting outside the scope of their authority and violating the law.
Similarly, a judge has contravened G.L. c. 208, §30, by allowing the removal of children to a foreign State without either the consent of the noncustodial parent or a showing of just cause. Accountability should be mandatory and a remedy for the family be provided.
Similarly, a judge has contravened G.L. c. 209B, §5(a), the Massachusetts Child Custody Jurisdiction Act, by allowing the removal of the children to another State without a hearing at which the noncustodial parent would have the opportunity to cross-examine. Account- ability should be mandatory and a remedy for the family be provided.The American Colonists were not willing, nor should we be, to take the risk that '(m)en who injure and oppress the people under their administration (and) provoke them to cry out and complain' will also be empowered to 'make that very complaint the foundation for new oppressions and prosecutions.' The Trial of John Peter Zenger, 17 Howell's St. Tr. 675, 721- 722 (1735) (argument of counsel to the jury). To impose liability for critical, albeit erroneous or even malicious, comments on official conduct would effectively resurrect 'the obsolete doctrine that the governed must
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not criticize their governors.'New York Times Co. v. Sullivan, 376 U.S. 254, 300 (1964)(citations omitted).
17 “The problem confronting Zenger was that the truth was no defense to libel at that time. If Zenger argued that he was printing the truth, the court could rule his line of reasoning as irrelevant. As a matter of fact, the principle seemed to be: ‘The greater the truth, the greater the libel.’” Anonymous, at University of Houston Law Center, at www.law.uh.edu/teacher- /zenger.
The Zenger trial in 1735 was a landmark in the development of common law protection for free speech. Alexander Hamilton, Zenger’s successor counsel, was able to win an acquittal of Zenger by requesting that the jury not give a special verdict, which the court requested, but give a general verdict of not guilty on a charge of seditious libel, which the jury did. Edward Hudson, Freedom of Speech and Press in America (1963), p. 19. The court’s request of the jury adhered to the practice in England, where juries were permitted only to decide whether the defendant printed the allegedly libelous words.
As a result of the precedent set in Zenger and the reluctance of juries to support prosecutions for seditious libel, the common law of seditious libel in America became generally unenforceable. University of Missouri at Kansas City, www.law.umkc.edu/
18 Zenger, a newspaper publisher, had seen fit to criticize the government and was being tried for printing "many things derogatory of the dignity of his majesty's government, reflecting upon the legislature, upon the most considerable persons in the most distinguished stations in the province, and tending to raise seditions and tumults among the people thereof." Cohen, at 140 n. 18, quoting “Trial of John Peter Zenger,” 17 Howell's State Trials 675, 678 (jury decided that truth was a defense against libel), and citing Dictionary of American Biography, Vol. XX, at 648-649, for the story of Hamilton's successful defense of Zenger.
19 “Article XV. In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practiced, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners' wages, the legislature shall hereafter find it necessary to alter it.” Article XV of the Massachusetts Declaration of Rights, Part the First, Constitution of the Commonwealth of Massachusetts.
20“There is no room for wonder at any verdict that could be returned by a jury, when we consider what means the government possessed of securing it. The sheriff returned a pannel, either according to express directions, of which we have proofs, or to what he judged himself of the crown's intention and interest. If a verdict had gone against the prosecu- tion in a matter of moment, the jurors must have laid their account with appearing before the star-chamber; lucky, if they should escape, on humble retraction, with sharp words, instead of enormous fines and indefinite imprisonment.’”Cohen, 366 U.S. at 139 n. 16 (dissenting note), quoting Hallam, The Constitutional History of England, Vol. I (2d ed.), at 316 n. 15 for the proposition that juries then were controlled by the King’s men.
21 With the exception of Fredrickson allowing continuances earlier on and SHO Phillips moderating a pretrial conference, no one but Carpenter has, thus far, openly acted in the Johnson matter, so your author has no knowledge as to the powers the others on the Board have or exercise. For that reason, Johnson is aiming all the criticism at Carpenter. If anyone else is acting, he or she is doing so covertly..
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22 There is even some comic relief provided by the Board Rules. In accord- ance with Board Rule 3.5(b), Johnson has bound each of her pleadings with staples or in a three-ring binder when the ¾-inch staples were inadequate. But she since has been informed by Fredrickson’s “Le- gal Administrative Assistant” June D. Risk not to bind them.
But the real shot in the foot is that one simply cannot tell who is going to decide which motion or to whom a pleading should be submitted. Conse- quently, Johnson sends four copies of each pleading – one to the Assistant Bar Counsel (opposing counsel), one to the Chair, one to Fredrickson, and one to SHO Phillips.
Of course, so far, given the arbitrary nature of the BBO, SHO Phillips, al- though ostensibly properly appointed, has not been allowed to decide any motion filed, whether filed by Bar Counsel or by Johnson.
According to Rule 1.2, “the Board” appointed a “special hearing officer” to hear charges of misconduct because, “in view of the anticipated length of the hear- ing or for other reasons, the Board deter- mine[d] that a speedy and just disposition would be better accomplished by such appointment than by referring the matter to a hearing committee or panel of the Board.”
As this experience is playing out, the real reason for appointing only one person rather than a panel appears to be that it is easier for Carpenter and Fredrickson to control the course of events, for example, the decisions on the motions.
That is, it is easier to steamroll one man out in the burbs than it is to steam- roll a panel of people.
As Justice Black wrote, in words for all intents and purposes, the goal of a
tyrannical government is to deprive its citizens of independence. In that way, they become “nothing more than parrots of the views of whatever group wields govern- mental power at the moment.” Cohen, at 138.
And, of course, Johnson, has no knowledge as to who actually did appoint Phillips – whether it was the Board or Chair Carpenter or Fredrickson.
23 Count 2 of Bar Counsel’s petition in- volves a fee dispute between Johnson and a wife who sought Johnson’s consulting services on behalf of her husband, who was charged criminally. Johnson had received a retainer and after service was complete, returned the unused portion (around $3200). The couple wanted more back. A de minimus fee dispute arose.
The wife had previously given implicit or explicit permission (see website) to put their story on Johnson’s website, but Johnson did not do so.
It was only after the wife complained to the Bar that she wanted more money back that Johnson put up her bill to the couple and some of the information for her defense. The Bar then declared that publication to be an unwarranted publication.
Because the material facts are undis- puted, Johnson tried a motion to dismiss on the grounds that “[o]nce such a charge [of ineffectiveness of counsel] is made, the attorney-client privilege may be treated as waived at least in part, but trial counsel's obligation may continue to preserve confidences whose disclosure is not relevant to the defense of the charge of his ineffectiveness as counsel.” See Tasby v. United States, 504 F.2d 332, 336 (8th Cir.1974), cert. denied, 419 U.S. 1125, 95 S.Ct. 811 (1975).
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The motion with cites, including Com. v. Brito, 390 Mass. 112 (1983), Glenn v. Aiken, 409 Mass. 699 (1991), Com. v. Woodberry, 26 Mass.App.Ct. 636 (1988), and Darius v. City of Boston, 433 Mass. 274 (2001), are on Johnson’s website.
24 Johnson had seven days within which to appeal Carpenter’s decision. But it would have been futile. The BBO and OBC are the SJC’s offspring. Not only is Carpenter’s colleague and former partner sitting on the SJC bench, but the SJC has made unconscionable decisions on the few cases Johnson recently brought to that body. For details of author’s recent SJC cases, see
Barbara C. Johnson is an attorney in Andover, Mass., who champions the cause of court reform. She can be reached at 978-474-0833 or through her website, www.falseallegations.com.