Continued: The Bar War Against Barb  Some of the Motions  and Oppositions Barb Filed at the BBO [Board of Bar Overseers] from the most recent to the oldest  PLUS AN ORDER BY THE BBO CHAIR M. ELLEN CARPENTER ON DECEMBER 10, 2003


 

Trial that was scheduled for December 2, 3, 4, 9, 10, 11 aborted on December 2d, when the BBO hearing officer ordered the public out of the hearing room. Barb walked out, too.  She was entitled to an open hearing. That the Chair of the BBO has ordered ME not to write to the Board Members does NOT NOT NOT mean that other people may not write them!!! She is clearly troubled by the problems with the case not being kept secret. The reason for denying an important motion (the third one below the order) because I mentioned Jim Linnehan and Robyn Gerry-Sylvia's name in it is absurd!!!  RESPONDENT’S PETITION FOR BOARD RULE 3.59 REHEARING OR ALTERNATIVELY, MOTION TO VACATE UNLAWFUL BBO RULINGS MADE  DURING THE UNLAWFUL PROCEEDING ON 2 DECEMBER 2003 Now comes Respondent Barbara C. Johnson [“Johnson”] and files this Petition to Reopen the Record, pursuant to Board Rule 3.59, and Have a Rehearing. As grounds, Johnson states that her substantial rights were prejudiced by SHO Herbert P. Phillips and BBO Counsel Carol Wagner when they ordered the public out of what was to be a public hearing.   By so doing, Phillips and Wagner (a) violated constitutional provisions and Board Rule 3.22(b), (b) acted in excess of the Board’s statutory authority or jurisdiction of the agency, (c) based its action upon an error of law, (d) used unlawful procedure, (e) acted in an arbitrary or capricious manner, and (f) abused their discretion, or otherwise not in accordance with law.  Given Phillips’ excessiveness in “going off the record” during the pretrial hearing and Office of Bar Counsel Susan Strauss Weisberg’s subsequent distortion of what allegedly occurred at that hearing was sufficient to enhance Johnson’s fear of going forward for trial without any witnesses of her own present at the trial.  Without doubt, it was dangerous to stay in the arena with lions and a tyrannical puppet of the BBO without a public audience to bear witness as to what happened during the duel of a trial. In the alternative, Johnson moves to vacate any rulings made during the unlawful proceeding on 2 December 2003 and reschedule the hearing with the public invited. WHEREFORE, Respondent prays that this motion be ALLOWED.   Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice, of course, mandates that any procedure be fundamentally fair.  Respectfully submitted, 9 December 2003  RESPONDENT’S MOTION FOR CONFERENCE WITH  THE TWELVE (12) MEMBERS OF THE BOARD OF BAR Denied Now comes Respondent Barbara C. Johnson [“Johnson”] and moves to have a conference with all twelve members of the Board of Bar Overseers [“BBO”]. As grounds, Johnson states that legal reasoning is so absent from the decisions made by Chair M. Ellen Carpenter and Special Hearing Officer Herbert P. Phillips (with and without the continuing assistance of his acknowledged counsel, Assistant General Counsel Carol Wagner) that it is difficult to fathom that the other members of the Board are in accord with each and every one of the actions taken by the above-named folks in the instant case. Even setting aside the infractions of due process, equal protection, and M.G.L. c. 30A (State APA), so many of the Board’s own rules have been broken that an overwhelming number of appellate issues have been created.   Johnson believes, therefore, that it would be in the interest of “both” parties to narrow the issues and – despite the action taken by Phillips on Tuesday, December 2d, when he, upon collusion with Wagner, ordered the public to leave the room where the alleged hearing was to be held – hold a proper trial, not one designed to reach a predetermined result according to the BBO/OBC’s political agenda. Although Johnson is filing simultaneously with this motion a Petition to Reopen the Record, pursuant to Board Rule 3.59, on the grounds that Johnson’s substantial rights were prejudiced by SHO Phillips and BBO Counsel Wagner (a) violating constitutional provisions, (b) acting in excess of the Board’s statutory authority or jurisdiction of the agency, (c) basing its action upon an error of law, (d) using unlawful procedure, (e) acting in an arbitrary or capricious manner, and (f) abusing their discretion, or otherwise not in accordance with law, the requested hearing makes common sense.  It makes common sense given Phillips’ and Wagner’s and Carpenter’s unwillingness  to require the OBC to make more definite statements so that Johnson would know with more particularity the nature of the charges against her,  to allow her subpoenas,     to allow Johnson to present her defenses, including mitigation,  to stay on the record in the transcribed pretrial hearing when Johnson wanted to address an issue raised by Phillips or the OBC,   to allow, pursuant to Board Rule 3.22(b), the public to be in attendance at the hearing Given Phillips’ excessiveness in “going off the record” during the pretrial hearing and OBC Weisberg’s subsequent distortion of what allegedly occurred at that hearing was sufficient to enhance Johnson’s fear of going forward for trial without any witnesses of her own present at the trial.  Without doubt, it was dangerous to stay in the arena with lions and a tyrannical puppet of the BBO without a public audience to bear witness as to what happened during the duel of a trial. WHEREFORE, Respondent prays that this motion be ALLOWED.   Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice, of course, mandates that any procedure be fundamentally fair.  Respectfully submitted,   9 December 2003  . RESPONDENT’S MOTION FOR BBO TO REPORT ISSUE OF WHETHER M.G.L. 209C, §13, AS AMENDED, EFFECTIVE MARCH 31, 1998, HAS RETROACTIVE OR PROSPECTIVE EFFECT THIS IMPORTANT MOTION WAS DENIED BECAUSE IT HAS NAMES IN IT! it was also denied by the Chair when it was NOT NOT NOT within her power to do so!! Chair M. Ellen Carpenter broke the Board Rules again!  Now comes Respondent Barbara C. Johnson [“Johnson”] and moves that the Board of Bar Overseers [“BBO”] report to the Supreme Judicial Court the issue of whether M.G.L. 209C, §13, as amended, effective March 31, 1998, has retroactive or prospective effect or both. As grounds, Johnson states that without the answer to that question of law, this body, the BBO, which has no authority or jurisdiction to decide that question, cannot reach the answer to the question that the Bar Counsel’s petition raises.  The questions the Bar Counsel’s petition raises are, Did Johnson publish material or excerpts from material impounded by the Probate & Family Court prior to 31 March 1998?   And if so, by that publication, did she breach any section of the Code of Professional Conduct?   And if so, how?  For example, the Bar Counsel alleges that Johnson uploaded to her website an amended complaint for modification which she wrote in May 2000, two years after §13 had been amended and became effective.  Under amended §13, the complaint could have been impounded only upon a showing of good cause.  But no one ever went into Probate & Family Court to seek the impoundment the amended complaint.  And no one ever tried to make showing of good cause for impoundment. To write a complaint for modification properly, a lawyer must, above all, be concerned with the substance to be contained within the pleading.  A lawyer must (1) identify the order sought to be modified, (2) explain the circumstances supporting that earlier order, (3) explain how those circumstances have substantially changed, (4) identify that which is sought to be modified, in this case the custody of the minor child, and (5) explain how the client wants the old order to be modified. There is no prescribed time limit between the date of the early order and the date of the motion for a proposed new order.  Thus, in 2000, Johnson, on behalf of her client James Linnehan, sought modification of the 1988, 1992, and/or 1995 orders denying Linnehan either custody or visitation with his biological son.   The court had relied allegedly on diverse reports from diverse caseworkers\FN1/ who produced reports that were either the result of negligence or incompetence or bad faith or malice.  For 12 years, Linnehan did not see his son but in front of a caseworker for 40 minutes.  Johnson had a professional obligation to point out the serious flaws supporting the early egregious orders that deprived Linnehan of his constitutional rights and to set forth in detail the worthiness and merit of his claims.\FN2/ FN1Whether the caseworkers are called investigators or social workers or psychologists is irrelevant.  FN2To point out those flaws, she had to comment on those subjects, including but not limited to the following: the mother, Robyn Gerry Sylvia, o that Robyn conceived out of wedlock had special significance o that Robyn was living with a man (Joseph Fitzgerald) when she accused Linnehan of sexual abusing the child of her out-of-wedlock union with Linnehan o that the court-appointed investigator, Christopher Salt, knew that Robyn and the child lived with Fitzgerald, but failed to include that in his report  ( lie by omission) o that Robyn swore in her Complaint for divorce that the out-of-wedlock child was a child of a previous marriage (a lie) o that Robyn told different people different dates of her marriage o et cetera the subject child  each and every “report” recommending that Linnehan be deprived of any type of relationship with his son It is of such comments as those which appear in the margin at note 2 about which the OBC irresponsibly complains.\FN3/   One can only suspect that the OBC has not a clue as to what a complaint for modification requires substantively.  Also conclusions that counsel makes on previous so-called evidence are also not subject to protective or impoundment orders.  Lawyers are  both expected to know how to think and obligated to think.  FN3 Dishonestly, OBC Counsel Susan Strauss Weisberg accused Johnson of uploading to her website reports from Juvenile Court.  Johnson never uploaded such a report from any case to her website. While our society has grown Orwellian by many “Big Brothers” watching us, Mind Control is still not fashionable or desirable.  That Weisberg brought such a complaint to censure Johnson for making the public aware of the unscrupulousness of the court and its appointees and others, that Elizabeth Mulvey approved the filing of it, and that M. Ellen Carpenter allowed Weisberg’s motion to “impound Johnson’s thoughts and written conclusions” are such foolish decisions, there are no cases on point to cover the inanity of the situation.  Certainly Carpenter’s order is or, at least, should be reversible error.  Nor has the act of thinking evolved into an ethical breach of professional conduct. Given the statutory requirement to state the substantial change of circumstances [M.G.L. c. 209C, §20], a lawyer must incorporate the older material.  To do otherwise – that is, to not consider and discuss the early or, in the Linnehan case, the pre-March-31st-1998 material – would be malpractice!  And procedurally, the amended statute made the free use of the public records possible:  Prior to 31 March 1998, court records as itemized in §13 of G.L. c. 209C, governing out-of-wedlock paternity and custody disputes and the care and support of nonmarital children (a relatively modern juridical euphemism for “a child born out of wedlock”), were presumptively impounded, that is, the impoundment was not absolute.  Exceptions were allowed where there was good cause for public scrutiny.  Rule 7 of Trial Court.   And Rule VIII, Uniform Rules of Impoundment Procedure, has provided the factors to be considered.\FN4/ FN4 An order of impoundment may be entered by the court, after hearing, for good cause shown and in accordance with applicable law.  In determining good cause, the court shall consider all relevant factors, including, but not limited to, the nature of the parties and the controversy, the type of information and the privacy interests involved, the extent of community interest, and the reason(s) for the request.  Agreement of all parties or interested third persons in favor of impoundment shall not, in itself, be sufficient to constitute good cause. Paragraph 1, Rule 7 of Trial Court Rule VIII, Uniform Rules of Impoundment Procedure.  On 31 March 1998, an amendment of §13 became effective, and files in out-of-wedlock cases began to be treated the same as files in divorce cases.  After that date, the effect of the statute was inverted: the public was given a presumptive right of access to all court records itemized in §13.\FN5/   Restriction of access was deemed to be of constitutional dimension,\FN6/ and the burden of showing good cause was shifted onto the entity which wanted to deny access to the public.\FN7 /   Section 13 of G.L. c. 209C had been amended, and became effective 31 March 1998. FN5 because Rule 7 of the Uniform Rules must be implemented in accordance with applicable law, it supports the shift of the burden of showing “good cause” to the person seeking denial of public access.  Globe, 2002 WL 202464 at 4. FN6   “When a document in a court case is filed with the court, that document is presumptively available to the general public and the press as part of the general principle that judicial proceedings, both criminal and civil, are open to all.”  Globe, infra, 2002 WL 202464 at 2, citing generally Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 546 (1977) and Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 603-611 (2000). FN7 The denial of access to the files of a divorce case requires “a showing of overriding necessity.”  Globe Newspaper Co., Inc. v. Clerk of Suffolk County Superior Court  2002 WL 202464 at 4, No. 01-5588-F (Sup.Ct. Feb. 4, 2002) (Gants, J.), citing Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 509 (1984), and George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 279 So the primary questions to be answered by the SJC before the BBO can act on the petition against Johnson are ones of first impression:  Does the amendment have only prospective effect?  Does the amendment also have retrospective or retroactive effect?   Does the pre-amended version of §13 as well as the amended versions of the statute apply to Johnson’s uploaded post-2000 pleadings? Johnson contends that for consistency and logic, the amendment must operate retroactively as well as prospectively.  The motion judge, Prudence McGregor, held firm on prospective application only.  Johnson feels confident that Judge McGregor’s decision was seriously erroneous.  That judge simply gave the BBO the result it wanted.  Intellectually it was a deficient decision. WHEREFORE, Respondent prays that this motion be ALLOWED.   Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice, of course, mandates that any procedure be fundamentally fair.  Respectfully submitted, 8 December 2003  RESPONDENT’S MOTION TO DISMISS ALL COUNTS  ON GROUNDS OF BBO VIOLATING BOARD RULE 3.22(b) AND CONSTITUTIONAL RIGHTS TO A PUBLIC HEARING (DENIED 12/8/03) Now comes Respondent Barbara C. Johnson ["Johnson"] and moves that all counts be dismissed. As grounds, Johnson states that the Board of Bar Overseers violated Board Rule 3.22(b) when the Special Hearing Officer Herbert P. Phillips, aided and abetted by Assistant General Counsel Carol Wagner, order the public out of the room in which the trial against Respondent was taking place. Johnson was entitled to have a public trial, and the public had the right to participate in that trial. That Johnson used the first or given name "Robyn" when speaking of the co-complainant of Count I in her Opening Statement was harmless. Assuming no one knew who Robyn was, they still would not have known who she was because no surname was used. Assuming everyone in the room knew who Robyn was, because Robyn’s name has been on Johnson’s website, it did not matter whether her first and/or both her names were used. See Exhibit A, which is attached hereto this motion and which Johnson incorporates herein by reference. The Special Hearing Officer’s declaration that the hearing would not be held with the public in attendance was unjustified. That sanction, of ordering the public out of the room, deprived Johnson of her right to a public hearing under Board Rule 3.22(b) or public trial under the federal and state constitutions. Such a sanction against Johnson was excessive in that it far exceeded the harm, if any, done. Keene v. Brigham and Women's Hospital, Inc., 439 Mass. 223, 235 (2003) ("As a general rule, a judge should impose the least severe sanction necessary to remedy the prejudice to the [nonoffending] party"). Such a sanction was also improper against the public, who had a right to participate in the trial.  Further, the sanction imposed was for a spontaneous verbal order by SHO Phillips after the prosecuting assistant bar counsel (Susan Strauss Weisberg) interrupted Johnson’s Opening Statement. The order was not to mention the real name of the complainants to the BBO. The order was, of course, unlawful ab initio. Cf.Care and Protection of Edith, 421 Mass. 703, 705 (1996) (vacating the injunction restraining father of children subject to care and protection proceeding from discussing proceeding or criticizing government's handling of matter with media).  In Edith, the SJC held that an order imposing a prior restraint on the right of the children's father to comment on the judicial proceedings and on the conduct of the Department of Social Services was unlawful [id. at 705], stating (1) that the DSS did not identify a compelling State interest that needed protection [id. at 706], (2) that a general rule barring any parent from directly or indirectly revealing the names of children subject to a care and protection proceeding was insufficient to justify a restraining order [Edith, citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 611 n. 27(1982), and (3) that "there must be evidence and findings as to what effect the disclosure of the names of the particular children will or might have on them." Edith, at 706, citing Globe at 608; Commonwealth v. Martin, 417 Mass. 187, 193-194 (1994).  Here, of course, it was Johnson mentioning during her Opening Statement the first name of an adult public figure, Robyn, who had run twice for public office. There was no compelling State interest that needed protection. And there certainly was no evidence or findings as to what effect the disclosure of Robyn’s name would or might have on Robyn. In fact, the court in Edith noted that DSS had "before any order restricting disclosure had been entered, . . . published the children's names in the newspaper, as a form of notice, in connection with its decision to seek a waiver of the need for the parents' consent to the adoption of the children." Edith at 706. Given that there was no statutory requirement to publish the names of the children, the court wondered: "Nor is there any explanation why the department's publication of the children's names did not violate the same ‘compelling’ State interest in confidentiality that the department now asserts against the father." Id. Similarly here, in his pleadings, i.e., in public records, the Bar Counsel used, from time to time, the real names of the complainants, breaking the confidentiality that the BBO asserted during Johnson’s Opening Statement. Thus, SHO Phillips abused his discretion by arbitrarily, capriciously, or whimsically coming to his determined sanction with the advice and malicious counsel of BBO Asst. General Counsel Wagner [transcript, incorporated herein by reference]. SeeWeld v. Glaxo Wellcome Inc., 434 Mass. 81, 85 (2001); Keene, supra, at 235; Bolton v. Massachusetts Bay Transp. Authority, 32 Mass.App.Ct. 654, 657 (1992). WHEREFORE, Respondent prays that this motion be ALLOWED. Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice. Justice, of course, mandates that any procedure be fundamentally fair.  Respectfully submitted, 5 December 2003 EXHIBIT A Subject:  Barbara Johnson Hearing, 12/2/2003    Date:  Tue, 02 Dec 2003 18:04:05 -0500    From:  "John J. Xenakis" <john@fraternizing.org>      To:  fathers-l@home.ease.lsoft.com,           Berkshire_Fatherhood_Coalition@yahoogroups.com,           amoj_main@yahoogroups.com,           falseacc@lists.intnet.net,           Ex_husband_now_my_slave@yahoogroups.com,           ...,"Barbara C. Johnson"           <barbaracjohnson@WORLDNET.ATT.NET> I was extremely outraged by what happened at today's BBO hearing against Barbara Johnson. Barbara herself walked out of the hearing, and it's not clear whether there will be any more hearings. There were two main subjects discussed today: The fact that Barbara is being prevented from calling witnesses; and Barbara's actions with respect to a particular child abuse case. With regard to the second point, a father was accused of child sexual abuse by the mother in 1988 (long before Barbara got involved).  The mother was able to get testimony from experts, all of whom claimed that the father must have sexually abused the 2 yo boy.  The father's attorney was prevented from questioning or cross-examining any of these experts.  In addition, the mother lied under oath by claiming that there was no other man involved, when in fact she was sleeping with another man living with her and the child.  All of the "experts" received substantial payments for their statements, usually through insurance payments.  In other words, there was no evidence that the child was abused, and no evidence that the father abused the children, except from the mother, who perjured herself in other areas, and the experts, all of whom were paid to make their statements. Social workers have a body of experts that they can call on to get support for their allegations against fathers.  All of these experts get paid large sums of money for their opinions.  If they want to continue receiving those large payments, then they have to do what the social workers want, since otherwise they'll never be asked for their opinions again. When Barbara took on this case late in the 1990s, the father hadn't seen his son in 12 years, although of course the mother was receiving fat child support payments.  Barbara couldn't get the courts to review the experts' testimony, and so the father was going to continue to be kept from his son, based on opinions from experts who had been paid to offer the opinion they offered, and who couldn't be questioned or cross-examined. So Barbara resorted to putting all the details of the case on her web site, www.FalseAllegations.com .  The details included the name of both the father, who wanted to see his son, and the mother, who was now running for public office and who had perjured herself. That's the crime that Barbara is being accused of: She put those names on her web site.  That's it.  Nothing more serious than that.  (There are two other counts that weren't discussed today.) During Barbara's opening statement, Barbara was badgered constantly for using the names of the father and mother.  Barbara was supposed to use pseudonyms "John Jones" and "Jane Smith," or something like that.  That was easy for everyone else, because none of them had been involved in the case.  But Barbara has been involved in this case for years, and naturally is used to the real names of the people involved. Barbara avoided using the real names most of the time, but occasionally she slipped and used them.  The hearing officer, Herbert P. Phillips, kept interrupting her opening statement, and would go into long tirades against Barbara when she slipped and used the real name. Now wait till you hear what happened next.  It's absolutely incredible. Phillips decided to punish Barbara by ordering all of Barbara's supporters to leave the room.  Phillips' logic was that if Barbara was going to slip and use real names, then since these names are supposed to be secret, I and the other supporters were supposed to be prevented from hearing those names. Now get this:  Barbara was being accused of having those names on her web site, where billions of people can read them.  Phillips wanted to kick all of us out, to keep the names secret from the ten people in the room. That's the moronic logic that Phillips was using.  And when you hear logic like that you have to wonder what's going on.  Is Phillips a moron with an IQ of 60, and can't understand how ridiculous his orders are?  Or is Phillips a nasty, venal person who is willing to go to any lengths to prevent Barbara from keeping her license?  Those are really the only possibilities. Since Phillips obviously has an IQ over 60, it must be the second possibility.  There were five or six of us there to support Barbara.  Everyone else in the room was Barbara's enemy, and Phillips wanted to keep anyone supporting Barbara from even hearing what was going on. This absolutely infuriated me.  I was already pretty angry about the father who had been kept from seeing his son for 12 years, and I was already very suspicious of Phillips for having told Barbara that she wouldn't be able to call any witnesses. None of us had uttered so much as a peep up till then, but when Phillips ordered us to leave, I got up very angry.  I spoke directly to Phillips (who ignored me), and told him that his actions are absolutely outrageous, and that he should be ashamed of himself for pulling a stunt like that. At that point, Barbara said that if all of us had to leave, then she would leave as well. I repeated my statements to Phillips, expressing my contempt for his actions, and we all left. I have no idea whether there will be any further hearings. Since I assume that the Bar people are monitoring this mail list and all the other fathers' rights mail lists, I would like to address the following statement for Herbert Phillips to read: Mr. Phillips, up until late this morning, I was willing to be convinced that you were attempting to be balanced, or at least give the appearance of being unbalanced.  But what you did this morning, in throwing out Barbara's supporters, leaves you no credibility at all with me or other fathers.  Barbara is a near-70 year old woman, and it was perfectly obvious to you and everyone in that room that forcing her to use pseudonyms for names she's been using for years was a hardship on her, and it was also obvious that using one of the names was merely a slip of the tongue.  Furthermore, if those names are on her web site, then it's moronic to punish Barbara for using them in this hearing.  It's now clear that you're willing to use any means whatsoever to screw over Barbara.  Your actions were outrageous and contemptuous.  We all know what you're doing and why you're doing it, and you should be ashamed of yourself. John J. Xenakis Framingham 508-875-4266 john@fraternizing.org www.fraternizing.org RESPONDENT’S MOTION TO DISMISS CHARGE OF VIOLATION OF MASS. RULE OF PROFESSIONAL CONDUCT 1.5(a) Denied Now comes Respondent Barbara C. Johnson ["Johnson"] and moves to dismiss the charge of violation of Massachusetts Rule of Professional Conduct 1.5(a)(1-8) on the grounds that Petitioner failed to state a claim upon which relief may be granted. STANDARD OF REVIEW When deciding a motion to dismiss under either Federal or Massachusetts Rule 12(b)(6), the court must accept as true all well-pleaded factual assertions in plaintiff's complaint, and draw all reasonable inferences from those assertions in plaintiff's favor. Kiely v. Raytheon Co., 105 F.3d 734, 735 (1st Cir., 1997); Hogan v. Eastern Enterprise/Boston Gas, 165 F.Supp.2d 55, 57 (D. Mass., 2001). ). Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim that would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). Blank, 420 Mass. at 407. Nevertheless, the court may "eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets" [Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989) (internal quotations omitted)], as well as "subjective characterizations, optimistic predictions, or problematic suppositions." United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir., 1992 (internal quotations omitted).  ARGUMENT In this case, Petitioner has not only failed to state the following elements but also has been allowed by this so-called independent body to avoid stating the following elements of the claim of violation of Massachusetts Rule of Professional Conduct 1.5(a)(1-8). As a result, Petitioner failed not once but twice to state a claim upon which relief may be granted. There being no ground upon which relief may be granted, the claim must be dismissed.  Petitioner has failed to: 1. Declare what it was about a fee agreement that constituted an agreement to charge or collect an illegal or clearly excessive fee. 2. State how any money collected by Respondent was an illegal fee. 3. State that amount of money collected which was an illegal fee. 4. Identify which of the eight factors set forth by Bar Counsel contributed to the determination that any money collected by Respondent constituted an illegal fee. 5. State Bar Counsel’s rationale for determining that an illegal fee was collected. 6. State what amount of money collected, in Bar Counsel’s opinion, constituted an excessive fee. 7. State why any money collected by Respondent was excessive. 8. Identify which of the eight factors set forth by Bar Counsel were used to determine that any money collected by Respondent was excessive. 9. State how each of the factors contributed to the determination that any part of money collected by Respondent was excessive. 10. State the rationale behind the determination that an excessive fee was collected. To not dismiss this charge would be a violation of Johnson’s rights to due process and equal protection and actionable in this case under both the federal and State civil rights acts, namely, 42 U.S.C. sec. 1983, for which there is no immunity for any public official who knowingly deprives a citizen of his or her civil rights, and M.G.L. c. 12, sec. 11I, which forbids entities to threaten, coerce, or intimidate members of the public, of which Johnson is one. WHEREFORE, this motion must be allowed in the interest of fairness and justice. Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice. Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 29 November 2003 RESPONDENT’S MOTION TO DISMISS CHARGE OF VIOLATION OF MASS. RULE OF PROFESSIONAL CONDUCT 1.6(a) Denied Now comes Respondent Barbara C. Johnson ["Johnson"] and moves to dismiss the charge of violation of Massachusetts Rule of Professional Conduct 1.6(a) on the grounds that Petitioner failed to state a claim upon which relief may be granted. STANDARD OF REVIEW When deciding a motion to dismiss under either Federal or Massachusetts Rule 12(b)(6), the court must accept as true all well-pleaded factual assertions in plaintiff's complaint, and draw all reasonable inferences from those assertions in plaintiff's favor. Kiely v. Raytheon Co., 105 F.3d 734, 735 (1st Cir., 1997); Hogan v. Eastern Enterprise/Boston Gas, 165 F.Supp.2d 55, 57 (D. Mass., 2001). ). Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim that would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). Blank, 420 Mass. at 407. Nevertheless, the court may "eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets" [Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989) (internal quotations omitted)], as well as "subjective characterizations, optimistic predictions, or problematic suppositions." United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir., 1992 (internal quotations omitted).  ARGUMENT In this case, Petitioner has not only failed to state the following elements but also has been allowed by this so-called independent body to avoid stating the following elements of the claim of violation of Massachusetts Rule of Professional Conduct 1.6(a). As a result, Petitioner failed not once but twice to state a claim upon which relief may be granted. There being no ground upon which relief may be granted, the claim must be dismissed. Petitioner has failed to: identify that information relating to "JL" ["John Doe" in the petition] which Bar Counsel alleges was both confidential and revealed without JL’s consent; identify that information relating to "DS" and/or "HS" ["the Parkers" in the petition] which Bar Counsel alleges was both confidential and revealed without the consent of either one of them; identify that information relating to "RC" ["Lily" in the answer to the petition] which Bar Counsel alleges was both confidential and revealed without JL’s consent; identify the allegedly revealed information which Bar Counsel contends was not included in that consent, necessary given that JL has neither withheld consent nor complained about his story being put up on Johnson’s "educational website"; identify the allegedly revealed information which Bar Counsel contends was not included in that consent, necessary given that the "Parkers" gave their implicit if not explicit consent to their story being put up on Johnson’s "educational website";  identify the allegedly revealed information which Bar Counsel contends was not included in that consent, necessary given that "Lily" has neither withheld consent nor complained about her story being put up on Johnson’s "educational website." To not dismiss this charge would be a violation of Johnson’s rights to due process and equal protection and actionable under both the federal and State civil rights acts, namely, 42 U.S.C. §1983, for which there is no immunity for any public official who intentionally deprives a citizen of his or her civil rights, and M.G.L. c. 12, §11I, which forbids entities to threaten, coerce, or intimidate members of the public, of which Johnson is one. WHEREFORE, this motion must be allowed in the interest of fairness and justice. Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 29 November 2003  RESPONDENT’S MOTION TO DISMISS CHARGES OF VIOLATION OF  MASS. RULES OF PROFESSIONAL CONDUCT 1.9(a), (b1), (b2), (c1), and (c2) Denied Now comes Respondent Barbara C. Johnson ["Johnson"] and moves to dismiss the charges of violation of Massachusetts Rules of Professional Conduct 1.9(a), (b1), (b2), (c1), and (c2) on the grounds that Petitioner failed to state a claim upon which relief may be granted. STANDARD OF REVIEW When deciding a motion to dismiss under either Federal or Massachusetts Rule 12(b)(6), the court must accept as true all well-pleaded factual assertions in plaintiff's complaint, and draw all reasonable inferences from those assertions in plaintiff's favor. Kiely v. Raytheon Co., 105 F.3d 734, 735 (1st Cir., 1997); Hogan v. Eastern Enterprise/Boston Gas, 165 F.Supp.2d 55, 57 (D. Mass., 2001). ). Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim that would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). Blank, 420 Mass. at 407. Nevertheless, the court may "eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets" [Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989) (internal quotations omitted)], as well as "subjective characterizations, optimistic predictions, or problematic suppositions." United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir., 1992 (internal quotations omitted).  ARGUMENT In this case, Petitioner has not only failed to state the following elements but also has been allowed by this so-called independent body to avoid stating the following elements of the claims of violation of Massachusetts Rules of Professional Conduct 1.9(a), (b1), (b2), (c1), and (c2). As a result, Petitioner failed not once but twice to state a claim upon which relief may be granted. There being no ground upon which relief may be granted, the claim must be dismissed. Petitioner has failed to: identify the alleged former client with whom Respondent has a conflict of interest. identify the "other person" whom Respondent is allegedly representing. identify the other substantially related matter in which that alleged person's interests are materially adverse to the interests of the former client. Additionally, M.R.Prof.C. 1.9 reads: RULE 1.9 CONFLICT OF INTEREST: FORMER CLIENT (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.  (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client  1. whose interests are materially adverse to that person; and  2. about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter, unless the former client consents after consultation.  (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter, unless the former client consents after consultation:  1. use confidential information relating to the representation to the disadvantage of the former client, to the lawyer's advantage, or to the advantage of a third person, except as Rule 1.6, Rule 3.3, or Rule 4.1 would permit or require with respect to a client; or  2. reveal confidential information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.  Assuming that Bar Counsel is referring to Deborah Sano and/or her husband, Harry Sano, Jr. (called the "Parkers" by Bar Counsel in his petition for discipline) and assuming arguendo that the Sanos did not give their consent to publication on Johnson’s website, Johnson had a right under M.R.Prof.C. 1.6(b)(2) to "reveal, and to the extent required by Rule 3.3, Rule 4.1(b), or Rule 8.3 must reveal, such information … to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client. . . ." Given the nature of the controversy between the Sanos and Johnson and given that Johnson produced the email in which the Sanos gave heir consent to publication, Bar Counsel shall be unable to prove to anyone with a reasonable mind that Johnson violated any confidentiality rule.  Given also the blatant prejudice of the OBC, the BBO, including the Chair, and the SHO and the blatant trampling of Johnson’s rights to due process and equal protection, no honest fact-finder would consider the OBC’s claim to be anything more than a de minimus fee dispute. Further, but for the OBC’s and BBO’s dishonest policy of selective enforcement, a policy arising out of a political agenda and political corruption, an honest fact-finder and in this case, an honest Chair, would dismiss forthwith any claim of a violation under any subsection of Rule 1.9. CONCLUSION To not dismiss this charge would be a violation of Johnson’s rights to due process and equal protection and actionable under both the federal and State civil rights acts, namely, 42 U.S.C. §1983, for which there is no immunity for any public official who intentionally deprives a citizen of his or her civil rights, and M.G.L. c. 12, §11I, which forbids entities to threaten, coerce, or intimidate members of the public, of which Johnson is one. WHEREFORE, this motion must be allowed in the interest of fairness and justice. Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice. Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 29 November 2003 RESPONDENT’S MOTION TO DISMISS CHARGES OF VIOLATION OF  MASS. RULES OF PROFESSIONAL CONDUCT 1.15(a), (b), and (c) Denied Now comes Respondent Barbara C. Johnson ["Johnson"] and moves to dismiss the charges of violation of Massachusetts Rules of Professional Conduct 1.15(a), (b), and (c) on the grounds that Petitioner failed to state a claim upon which relief may be granted. STANDARD OF REVIEW When deciding a motion to dismiss under either Federal or Massachusetts Rule 12(b)(6), the court must accept as true all well-pleaded factual assertions in plaintiff's complaint, and draw all reasonable inferences from those assertions in plaintiff's favor. Kiely v. Raytheon Co., 105 F.3d 734, 735 (1st Cir., 1997); Hogan v. Eastern Enterprise/Boston Gas, 165 F.Supp.2d 55, 57 (D. Mass., 2001). ). Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim that would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). Blank, 420 Mass. at 407. Nevertheless, the court may "eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets" [Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989) (internal quotations omitted)], as well as "subjective characterizations, optimistic predictions, or problematic suppositions." United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir., 1992 (internal quotations omitted).  ARGUMENT In this case, Petitioner has not only failed to state the following elements but also has been allowed by this so-called independent body to avoid stating the following elements of the claims of violation of Massachusetts Rules of Professional Conduct 1.15(a), (b), and (c). As a result, Petitioner failed not once but twice to state a claim upon which relief may be granted. There being no ground upon which relief may be granted, the claim must be dismissed. Petitioner has failed to: 1. identify that property which Bar Counsel contends that Respondent has not kept safely; 2. identify how much -- if that property is money -- of it was not held separately from Respondent’s own property; 3. state the dollar value of those funds which Bar Counsel contends the "Parkers" are entitled to receive; 4. state the authority from whence the Office of Bar Counsel derives the power of a court of common law to hear contract cases. Additionally, M.R.Prof.C. 1.15(a), (b), and (c), of which Bar Counsel complains in 97, read: RULE 1.15 SAFEKEEPING PROPERTY (In effect through 12/31/03) (a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the State where the lawyer's office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of the receipt, maintenance, and disposition of such account funds and other property shall be kept by the lawyer from the time of receipt to the time of final distribution and shall be preserved for a period of six years after termination of the representation. (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.  (c) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.  Assuming that Bar Counsel is referring to money, there is no dispute between Deborah Sano and/or her husband, Harry Sano, Jr. (called the "Parkers" by Bar Counsel in his petition for discipline) as to the amount of money received by Johnson or as to the amount charged or the amount of money returned to the Sanos. There is no dispute as to records or as to receipts. There is no dispute as to accounting. There is only one dispute: After sending approximately $10,700 to Johnson, of which Johnson returned approximately one-third, Deb Sano decided she only wanted to pay for 1 hour and 36 minutes of Johnson’s time. As Abraham Lincoln explained it, "a lawyer’s time and advice are his stock in trade." In other words, lawyers bill for their time. The Sanos acknowledged this at the beginning of their relationship with Johnson. They denied it at the end . . . but the emails from the Sano family prove their delight with the services rendered by Johnson. No honest fact-finder would consider the OBC’s claim to be anything more than a de minimus fee dispute.  Further, but for the OBC’s and BBO’s dishonest policy of selective enforcement, an honest fact-finder, or in this case, an honest Chair, would dismiss forthwith any claim of a violation under any subsection of Rule 1.15. CONCLUSION To not dismiss this charge would be a violation of Johnson’s rights to due process and equal protection and actionable under both the federal and State civil rights acts, namely, 42 U.S.C. §1983, for which there is no immunity for any public official who intentionally deprives a citizen of his or her civil rights, and M.G.L. c. 12, §11I, which forbids entities to threaten, coerce, or intimidate members of the public, of which Johnson is one. WHEREFORE, this motion must be allowed in the interest of fairness and justice. Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice. Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 29 November 2003  RESPONDENT’S MOTION TO DISMISS CHARGE OF VIOLATION OF  MASS. RULE OF PROFESSIONAL CONDUCT 1.16(d) Denied Now comes Respondent Barbara C. Johnson ["Johnson"] and moves to dismiss the charge of violation of Massachusetts Rule of Professional Conduct 1.16(d) on the grounds that Petitioner failed to state a claim upon which relief may be granted. STANDARD OF REVIEW When deciding a motion to dismiss under either Federal or Massachusetts Rule 12(b)(6), the court must accept as true all well-pleaded factual assertions in plaintiff's complaint, and draw all reasonable inferences from those assertions in plaintiff's favor. Kiely v. Raytheon Co., 105 F.3d 734, 735 (1st Cir., 1997); Hogan v. Eastern Enterprise/Boston Gas, 165 F.Supp.2d 55, 57 (D. Mass., 2001). ). Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim that would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). Blank, 420 Mass. at 407. Nevertheless, the court may "eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets" [Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989) (internal quotations omitted)], as well as "subjective characterizations, optimistic predictions, or problematic suppositions." United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir., 1992 (internal quotations omitted).  ARGUMENT In this case, Petitioner has not only failed to state the following elements but also has been allowed by this so-called independent body to avoid stating the following elements of the claim of violation of Massachusetts Rule of Professional Conduct 1.16(d). As a result, Petitioner failed not once but twice to state a claim upon which relief may be granted. There being no ground upon which relief may be granted, the claim must be dismissed. Petitioner has failed to: identify that alleged client for whom Respondent allegedly terminated representation and to whom notice was not given; identify that alleged client to whom Respondent allegedly did not give reasonable notice of termination of representation; identify that alleged client to whom Respondent allegedly did not surrender papers or property; and identify that amount of an advance payment of a fee that has not been earned. Where Johnson never entered an appearance in any of the Sanos’ existing and proposed civil and criminal actions, there was no representation to terminate, making inapplicable to this situation M.R.Prof.C. 1.16(d), of which Bar Counsel complains in 97 (Count II): RULE 1.16 DECLINING OR TERMINATING REPRESENTATION (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned.  In fact, it was Johnson’s assistance in trying to find counsel for the Sanos of which Deb Sano later complained . . . after she decided she wanted more money returned than Johnson had already returned. The only property that was "original" was a few photographs, which Johnson did return to the Sanos and about which the Sanos did not complain. As for the return of advance payment, see Johnson’s motion to dismiss the claim under Rule 1.15, one of the numerous motions FAXed, emailed, and served contemporaneously with this one. The details are there. So Bar Counsel’s bringing of this claim under Rule 16(d) is bogus and malicious at best and one that arose out of a corrupt political agenda at worst. Further, but for the OBC’s and BBO’s dishonest policy of selective enforcement, an honest fact-finder, or in this case, an honest Chair, would dismiss forthwith any claim of a violation of Rule 1.16(d). CONCLUSION To not dismiss this charge would be a violation of Johnson’s rights to due process and equal protection and actionable under both the federal and State civil rights acts, namely, 42 U.S.C. §1983, for which there is no immunity for any public official who intentionally deprives a citizen of his or her civil rights, and M.G.L. c. 12, §11I, which forbids entities to threaten, coerce, or intimidate members of the public, of which Johnson is one. WHEREFORE, this motion must be allowed in the interest of fairness and justice. Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice. Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 29 November 2003  RESPONDENT’S MOTION TO DISMISS CHARGE OF VIOLATION OF  MASS. RULE OF PROFESSIONAL CONDUCT 3.4(c) Denied Now comes Respondent Barbara C. Johnson ["Johnson"] and moves to dismiss the charge of violation of Massachusetts Rule of Professional Conduct 3.4(c) on the grounds that Petitioner failed to state a claim upon which relief may be granted. STANDARD OF REVIEW When deciding a motion to dismiss under either Federal or Massachusetts Rule 12(b)(6), the court must accept as true all well-pleaded factual assertions in plaintiff's complaint, and draw all reasonable inferences from those assertions in plaintiff's favor. Kiely v. Raytheon Co., 105 F.3d 734, 735 (1st Cir., 1997); Hogan v. Eastern Enterprise/Boston Gas, 165 F.Supp.2d 55, 57 (D. Mass., 2001). ). Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim that would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). Blank, 420 Mass. at 407. Nevertheless, the court may "eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets" [Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989) (internal quotations omitted)], as well as "subjective characterizations, optimistic predictions, or problematic suppositions." United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir., 1992 (internal quotations omitted).  ARGUMENT Petitioner has not only failed to state the following elements but also has been allowed by this so-called independent body to avoid stating the following elements of the claim of violation of Massachusetts Rule of Professional Conduct 3.4(c). As a result, Petitioner failed not once but twice to state a claim upon which relief may be granted.  There being no ground upon which relief may be granted, the claim must be dismissed. Specifically, Petitioner has failed to identify each and every valid obligation under the rules of a tribunal that Respondent allegedly disobeyed, although the claim is made at 43 and 126 of Bar Counsel’s petition. Incorporating 43 and 126 of her Amended Answer, Johnson adds and/or reinforces and re-emphasizes that the Juvenile Court never had jurisdiction over Johnson, Johnson never received anything resembling a complaint filed in Juvenile Court against her, and that any order that emanated from Juvenile Court commanding that Johnson do something was void ab initio. Bar Counsel’s failure to name Judge Lawton as a proposed witness to explain  a. where the complaint was for the so-called case involving Johnson b. what he thought he was doing when he issued a piece of paper purporting to be an order c. what it was he was "saying" in that piece of paper purporting to be an order  d. under what authority was he acting e. whose poor recommendation he was following, or  f. to whose sales pitch he succumbed is fatal to Bar Counsel’s claim . . . perhaps not at the BBO, which has an unimpressive record in this action for decisions based on the law, but certainly in a "real" court of law.  And the orders from District Court, being unlawful as well as unclear and equivocal, were invalid, if not voidable or void ab initio. Under Labor Relations Commission v. Fall River Educators' Ass'n, 382 Mass. 465, 469 n. 5 (1981), as well as under Rule 3.4, a party need not comply with an improper order, making Mass.R.Prof.C. 3.4(c), of which Bar Counsel complains in 43 amd 126 (Counts I and III, respectively) inapplicable in the case at bar. It has been held that a civil contempt adjudication based on a violation of an unlawful court order cannot stand. See Fitchburg v. 707 Main Corp., 369 Mass. 748, 754 (1976); Stow v. Marinelli, 352 Mass. 738, 744-745 (1967), and cases cited. We shall assume with the parties, but do not decide, that a valid Commission order was an indispensible underpinning of the order of September 20 assessing a prospective fine of $20,000 for each day the strike thereafter continued, of the temporary restraining order, and of the final judgment.  Labor Relations Commission v. Fall River Educators' Ass'n, 382 Mass. 465, 469 n. 5 (1981).  Some of the fines ordered on March 22d, 1995, by Judge McGill in Concord District Court were daily in terrorem fines to compel compliance with a non-existent order allegedly issued on March 3d, 1995. As such, the March 22d order was based on a mirage and was, without doubt, invalid and could not survive. LaTrobe Steel Co. v. United Steelworkers Local 1537, 545 F.2d 1336, 1345-1348 (3d Cir. 1976) (a coercive civil contempt order does not survive if the underlying injunction is invalid). Now fast forward almost four years later, to December 1998. The exhibit to Bar Counsel’s petition is testament to this. In it, it clearly states that Johnson had filed a motion to quash and that the judge denied it on December 17th, 1998, and immediately found her in contempt and jailed her. This was not only an unjust order, it was an unjust imprisonment. There was no flagrant contempt, there was no need for immediate punishment, and Johnson was never given an opportunity – effective or ineffective – to defend herself, the contempt order was invalid. Sussman v. Com., 374 Mass. 692, 696 (1978). In Sussman, the Court held that where the attorney's conduct was not flagrant contempt, where there was no need for immediate punishment, and where the attorney was never given an effective opportunity to defend himself, the adjudication of contempt was procedurally invalid. The Court further held that where there was no contemptuous act or intent on part of the attorney, the adjudication was substantively invalid). Id. Where "[s]ummary punishment for direct contempt ‘is warranted only when essential to the orderly administration of justice,’" Judge McGill’s order was unlawful. Id., quoting Opinion of the Justices, 314 Mass. 767, 784 (1943).  A judge may only enforce "‘lawful orders essential to prevent a breakdown of the proceedings.’" Sussman v. Com., 374 Mass. at 695-696, quoting United States v. Wilson, 421 U.S. 309, 319 (1975). McGill’s order was anything but a lawful one. "[M]any of the due process safeguards available in criminal proceedings should apply to a contempt proceeding." Sussman v. Com., 374 Mass. at 696, citing e. g., Bloom v. Illinois, 391 U.S. 194 (1968), and Garabedian v. Commonwealth, 336 Mass. 119, 124-125 (1957). Moreover, M. R. Prof. C. 3.4(c), entitled "RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL" reads: A lawyer shall not:  (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;  Here, of course, Johnson did, numerous times in District Court, not only declare that she could not afford to pay, she also continually made "open refusal[s] based on an assertion that no valid obligation exist[ed]," because no order of March 3d existed and all the other orders, which arose out of that original non-existent order, were invalid. And as to Judge Lawton’s order: Johnson did not make an assertion in his court because she was never in his court. She, instead, wrote him a letter and also published it on her website for the public to see and study and form their own opinions. CONCLUSION To not dismiss this charge would be a violation of Johnson’s rights to due process and equal protection and actionable under both the federal and State civil rights acts, namely, 42 U.S.C. §1983, for which there is no immunity for any public official who intentionally deprives a citizen of his or her civil rights, and M.G.L. c. 12, §11I, which forbids entities to threaten, coerce, or intimidate members of the public, of which Johnson is one. WHEREFORE, this motion must be allowed in the interest of fairness and justice. Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice. Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 29 November 2003  RESPONDENT’S MOTION TO DISMISS CHARGE OF VIOLATION OF  MASS. RULE OF PROFESSIONAL CONDUCT 4.4 Denied Now comes Respondent Barbara C. Johnson ["Johnson"] and moves to dismiss the charge of violation of Massachusetts Rule of Professional Conduct 4.4 on the grounds that Petitioner failed to state a claim upon which relief may be granted. STANDARD OF REVIEW When deciding a motion to dismiss under either Federal or Massachusetts Rule 12(b)(6), the court must accept as true all well-pleaded factual assertions in plaintiff's complaint, and draw all reasonable inferences from those assertions in plaintiff's favor. Kiely v. Raytheon Co., 105 F.3d 734, 735 (1st Cir., 1997); Hogan v. Eastern Enterprise/Boston Gas, 165 F.Supp.2d 55, 57 (D. Mass., 2001). ). Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim that would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). Blank, 420 Mass. at 407. Nevertheless, the court may "eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets" [Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989) (internal quotations omitted)], as well as "subjective characterizations, optimistic predictions, or problematic suppositions." United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir., 1992 (internal quotations omitted).  ARGUMENT Petitioner has not only failed to state the following elements but also has been allowed by this so-called independent body to avoid stating the following elements of the claim of violation of Massachusetts Rule of Professional Conduct 4.4. As a result, Petitioner failed not once but twice to state a claim upon which relief may be granted. There being no ground upon which relief may be granted, the claim must be dismissed. .  Petitioner has failed in 44 – the only paragraph in which the rule is cited -- to: 1. identify each and every time that Respondent, in representing a client, allegedly used means of evidence-gathering which had no substantial purpose other than to embarrass, delay, or burden a third person; 2. identify each and every alleged third person who was embarrassed, delayed, or burdened by Respondent allegedly using means that had no substantial purpose other than to embarrass, delay, or burden that person; 3. identify the means allegedly used by the Respondent to embarrass, delay, or burden a third person; 4. identify each and every time that Respondent, in representing a client, allegedly used methods of obtaining evidence which violated the legal rights of such a person;  5. identify each and every alleged third person whose legal rights were allegedly violated by Respondent when obtaining evidence; 6. identify each and every bit of evidence that Respondent allegedly obtained by allegedly using methods that allegedly violated the legal rights of third persons;  7. identify each and every alleged evidence-gathering method by which Respondent allegedly violated the legal rights of alleged third persons;  8. identify each and every alleged evidence-gathering method by which Respondent allegedly violated the legal rights of alleged third persons;  9. identify the methods allegedly used by the Respondent to violate allegedly the legal rights of an alleged third person; and 10. for each and every alleged third person, identify the legal rights allegedly violated by the Respondent.  To prove a violation of M.R.Prof.C. 4.4, which reads, RULE 4.4 RESPECT FOR RIGHTS OF THIRD PERSONS In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.  Bar Counsel must prove those elements that the SHO has allowed him, ironically, not to prove, making dismissal mandatory at this junction. Moreover, in 44, Bar Counsel identifies three people by pseudonyms but two of these people were not named on Bar Counsel’s list of proposed witnesses, and although the third was the complainant herself, Bar Counsel has declared that Bar Counsel shall not call her as a witness. Therefore Bar Counsel, under any theory of law, cannot prove – regardless of the standard used by this body – that anyone has been harmed by Johnson. Further, although all three people are available to testify, all are subject to subpoena, and Johnson may under the rules of court subpoena the three people, Special Hearing Officer Herbert P. Phillips ["the SHO"] has forbidden Johnson to subpoena them as trial witnesses. And prior to knowing that the SHO was forbidding her to call these people as witnesses, Johnson informed him that she had subpoenaed them, after which the SHO precluded her from calling them To top it off, a Board member then refused to issue subpoenas for those people.  While the actions of the SHO and the Board member egregiously violated Johnson’s rights to due process and equal protection and a fair trial, the three people are now not available to testify during the Bar Counsel’s case-in-chief – two because they were not on Bar Counsel’s list of proposed witnesses and the other being someone the Bar Counsel fears to put on the stand. Thus a directed finding is mandated in Johnson’s favor. A directed finding is mandatory because Bar Counsel may not shift its burden onto Johnson.  CONCLUSION To not dismiss this charge would be a violation of Johnson’s rights to due process and equal protection and actionable under both the federal and State civil rights acts, namely, 42 U.S.C. §1983, for which there is no immunity for any public official who intentionally deprives a citizen of his or her civil rights, and M.G.L. c. 12, §11I, which forbids entities to threaten, coerce, or intimidate members of the public, of which Johnson is one. WHEREFORE, this motion must be allowed in the interest of fairness and justice. Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice. Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 30 November 2003  RESPONDENT’S MOTION TO DISMISS CHARGES OF VIOLATION OF  MASS. RULES OF PROFESSIONAL CONDUCT 8.4(c), (d), and (h) Denied Now comes Respondent Barbara C. Johnson ["Johnson"] and moves to dismiss the charges of violation of Massachusetts Rules of Professional Conduct 8.4(c), (d), and (h) on the grounds that Petitioner failed to state a claim upon which relief may be granted. STANDARD OF REVIEW When deciding a motion to dismiss under either Federal or Massachusetts Rule 12(b)(6), the court must accept as true all well-pleaded factual assertions in plaintiff's complaint, and draw all reasonable inferences from those assertions in plaintiff's favor. Kiely v. Raytheon Co., 105 F.3d 734, 735 (1st Cir., 1997); Hogan v. Eastern Enterprise/Boston Gas, 165 F.Supp.2d 55, 57 (D. Mass., 2001). ). Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim that would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). Blank, 420 Mass. at 407. Nevertheless, the court may "eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets" [Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989) (internal quotations omitted)], as well as "subjective characterizations, optimistic predictions, or problematic suppositions." United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir., 1992 (internal quotations omitted).  ARGUMENT Petitioner has not only failed to state the following elements but also has been allowed by this so-called independent body to avoid stating the following elements of the claims of violation of Massachusetts Rules of Professional Conduct 8.4(c), (d), and (h). As a result, Petitioner failed not once but twice to state a claim upon which relief may be granted. There being no ground upon which relief may be granted, the claim must be dismissed. .  Petitioner has failed in 42-43, 96, 99, 126 – the paragraphs in which the rules are cited -- to: 11. identify each and every occasion when Respondent’s conduct allegedly involved dishonesty; 12. identify each and every occasion when Respondent’s conduct allegedly involved fraud; 13. identify each and every occasion when Respondent’s conduct allegedly involved deceit; 14. identify each and every occasion when Respondent’s conduct allegedly involved misrepresentation; 15. identify each and every occasion when Respondent’s conduct was allegedly prejudicial to the administration of justice; and 16. identify each and every occasion when Respondent allegedly engaged in any other conduct that adversely reflected on her fitness to practice law.  To prove a violation of M.R.Prof.C. 8.4(c), (d), or (h), which read, RULE 8.4 MISCONDUCT  It is professional misconduct for a lawyer to:  (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;  (d) engage in conduct that is prejudicial to the administration of justice;  (h) engage in any other conduct that adversely reflects on his or her fitness to practice law.  Bar Counsel must prove those elements that the SHO has allowed him, ironically, not to prove, making dismissal mandatory at this junction. But Johnson needs specificity to prepare a defense to such general charges. She incorporates herein by reference the legal citations in her other motions regarding moving targets. She cannot fight general conclusions. Due process affords her the right to know specifically the charge alleged. Given that the BBO has deprived her of that right, the claims of violating Rules 8.4 (c), (d), and (h) must be dismissed forthwith. CONCLUSION To not dismiss this charge would be a violation of Johnson’s rights to due process and equal protection and actionable under both the federal and State civil rights acts, namely, 42 U.S.C. §1983, for which there is no immunity for any public official who intentionally deprives a citizen of his or her civil rights, and M.G.L. c. 12, §11I, which forbids entities to threaten, coerce, or intimidate members of the public, of which Johnson is one. WHEREFORE, this motion must be allowed in the interest of fairness and justice. Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice. Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 30 November 2003  RESPONDENT’S MOTION TO DISMISS ALL ALLEGATIONS OF VIOLATING  MASSACHUSETTS RULES OF PROFESSIONAL CONDUCT Denied Now comes Respondent Barbara C. Johnson [“Johnson”] and moves to dismiss all allegations of violating the following Massachusetts Rules of Professional Conduct:   M.R.Prof.C. 1.5(a)(1-8) M.R.Prof.C. 1.6(a) M.R.Prof.C. 1.9(a) M.R.Prof.C. 1.9(b)(1) M.R.Prof.C. 1.9(b)(2) M.R.Prof.C. 1.15(a-c) M.R.Prof.C. 1.16(d) M.R.Prof.C. 3.4(c) ? M.R.Prof.C. 4.4 M.R.Prof.C. 8.4(c) M.R.Prof.C. 8.4(d) M.R.Prof.C. 8.4(h)  Canon: DR 1-102(A)(5) Canon: DR 1-102(A)(6) Canon: DR 7-101(A)(3)  SJC 4:01, section 10 As grounds, Johnson states that the Office of Bar Counsel [“OBC”] cannot supply any relief to the alleged complainants in the above-referenced BBO action.  In fact, the complainants do not want to testify at the trial against Johnson.   In fact, the OBC does not want to call the complainants as witnesses.  The reason: there is overwhelming proof that the complainants have no credibility -- that their honesty will be impeached at time of trial – and that there is no evidence to support the shotgun allegations.  “Charge everything and hope a pellet or two sticks,” someone must have instructed the assistant bar counsel who wrote the petition for discipline.  As such, the OBC has no reason to go forward with the actions against Johnson except to retaliate against Johnson for her exercising her right to political speech and free expression. As further grounds, Johnson states that without live complainants, the OBC cannot prove any set of facts to support the OBC’s claims or prove that any harm was done to any of the alleged complainants.  The OBC has no reason to go forward with the actions against Johnson except to retaliate against Johnson for her exercising her right to political speech and free expression. In support of this motion to dismiss, Johnson states that she requested the Board of Bar Overseers to compel the OBC to provide a more definite statement of the accusations by Bar Counsel, who alleged that Respondent violated, from and after January 1, 1998, certain Massachusetts Rules of Professional Conduct and certain Canons. Specifically, Respondent moved that Bar Counsel answer the following questions.  Each question assumes that the statement would reflect the Bar Counsel’s post-investigation opinion.  Without the answers to the following, Respondent will face at trial a moving target.  Although there is a dispute in Massachusetts as to whether these proceedings are criminal or civil in nature the U.S. Supreme Court has spoken: they are quasicriminal in nature.  In re Ruffalo, 390 U.S. (Ohio) 544, 551, 88 S.Ct. 1222 (1968) (disbarment proceedings are “quasicriminal nature”).  Johnson’s request for a motion for a more definite statement was like a request for a bill of particulars.  “The purpose of a bill of particulars is to give a defendant reasonable notice of the nature and character of the crime charged.”  SeeCommonwealth v. Hare, 361 Mass. 263, 267-268 (1972); Rogan v. Commonwealth, 415 Mass. 376, 378 (1993); Commonwealth v. Vinnie, 428 Mass. 161, 167, cert. denied sub nom. Vinnie v. Massachusetts, 525 U.S. 1007 (1998).  Cf.  Commonwealth v. LePore, 40 Mass.App.Ct. 543, 550 (1996).  Cf. Com. v. Duda, 33 Mass.App.Ct. 922 (1992).  Her request, which sought answers to 51 questions [Exhibit A, attached hereto this motion], was denied by the special hearing officer.  Because Johnson will be prejudiced in her defense because the essential elements of the civil violations or quasicrimes were incorrectly stated, the Board must dismiss the petition forthwith.  Cf. G.L. c. 277, §§19-25, 35.  Ironically, where the OBC and the BBO insist that the charges are civil in nature, their conduct, as well as that of the complainants, is against them.  Specifically, because the OBC has refused to answer the questions and the BBO has refused to compel them, OBC’s refusal is equivalent to “taking the Fifth.” “[I]n civil cases, an adverse inference may be drawn against a party who invokes the Fifth Amendment privilege against self-incrimination.” Lentz v. Metropolitan Property and Cas. Ins. Co., , 437 Mass. 23, 26 (2002), citing Kaye v. Newhall, 356 Mass. 300, 305-306 (1969), Phillips v. Chase, 201 Mass. 444, 450 (1909). and Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). And “[u]nlike the criminal context, the invocation of Fifth Amendment privileges in a civil case may be used to draw a negative inference against the party refusing to testify.” Shafnacker v. Raymond James & Associates, Inc., 425 Mass. 724, 735 (1997).  Where, here, the complainants are refusing to testify, negative inferences must be drawn against them. Dismissal will save time and financial resources on both sides of the “v” because Johnson can be acquitted on the ground of variance between the allegations and proof where the essential elements of the charges – whether they are civil or quasicrimes -- continue to be incorrectly stated. WHEREFORE, this motion must be allowed in the interest of fairness and justice.  Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice mandates that any procedure be fundamentally fair. Respectfully submitted,  _________________________________ 28 November 2003 RESPONDENT’S MOTION TO DISMISS COUNT I ON THE GROUNDS THAT    WITHOUT AN ADJUDICATION BY AN ARTICLE III COURT, THERE CAN BE NO ETHICAL VIOLATION OF PROFESSIONAL ETHICS Denied Now comes Respondent Barbara C. Johnson [“Johnson”] and moves this court to dismiss Count I on the grounds that the Board of Bar Overseers does not have jurisdiction over First Amendment matters.   No one claims that he or she has been defamed by Johnson.  Nor has anyone sued Johnson for defamation.  No one has sought a declaratory judgment as to whether there is anything on Johnson’s website, falseallegations.com, which does not comport with the law on permissible First Amendment speech.  Assuming arguendo, however, that the BBO finds that there is an ethical violation, the website will still remain as it is and will, as anticipated, expand.  The anticipated predetermined finding of the BBO will not protect the public or improve the conditions of society.  The anticipated predetermined finding of the BBO will be the unlawful and unconstitutional deprivation of Johnson’s right to her property, to wit, her license, in retaliation against Johnson for exercising her political speech and free expression:  to wit, for exercising her right to criticize the judicial system and of those who sit on the benches across the Commonwealth.  Bar Counsel and the BBO appear also to have the ulterior motive of bringing charges for their own personal benefit.  If the charges against Johnson are typical of charges brought against attorneys, then the members of these entities are bringing them for their own job security.  Otherwise, there would be no reason to maintain these entities at the cost of tens of millions of dollars.  WHEREFORE, this motion must be allowed in the interest of fairness and justice.  Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice mandates that any procedure be fundamentally fair.  Respectfully submitted,   _________________________________  28 November 2003    RESPONDENT’S NOTICE TO BOARD OF BAR OVERSEERS AND THE SPECIAL HEARING OFFICER HERBERT P. PHILLIPS Denied Now comes Respondent Barbara C. Johnson [“Johnson”] to give notice that the order received at 11:30 this morning of Friday, 28 November 2003 is unconstitutional in that it dares outrageously to deny Johnson the ability to defend herself against the bogus charges by Bar Counsel.  It is one thing for the BBO via the Special Hearing Officer Herbert Phillips [“SHO”] to say Johnson cannot put testimony on at trial, but another to say that the BBO and/or the SHO may control who Johnson can call as a witness.  SHO’s several orders, particularly the one dated November 26th and received this morning, November 28th, are proof of the continuing malicious conduct of the BBO and Phillips to violate Johnson’s rights of due process.   Johnson may call any witness she wants by subpoena.   The BBO and/or the SHO may NOT dictate whom Johnson has the right to call as a witness.  G.L. c. 233 §1, which reads:          Chapter 233: Section 1 Issuance of summonses for witnesses  Section 1.  A clerk of a court of record, a notary public or a justice of the peace may issue summonses for witnesses in all cases pending before courts, agistrates, auditors, referees, arbitrators or other persons authorized to examine witnesses, and at all hearings upon applications for complaints wherein a person  may be charged with the commission of a crime; but a notary public or a justice of the peace shall not issue summonses for witnesses in criminal cases except upon request of the attorney general, district attorney or other person who acts in  the case in behalf of the commonwealth or of the defendant.  If the summons is issued at the request of the defendant that fact shall be stated therein. The summons shall be in the form heretofore adopted and commonly used, but may be altered from time to time like other writs. The statutory language is unambiguous and means that SHO Phillips cannot prevent Johnson from subpoenaing or calling witnesses.  Johnson has the power to subpoena witnesses under G.L. c. 233, §8.  Foster from Gloucester, Inc. v. City Council of Gloucester, 10 Mass.App.Ct. 284, 292 (1980), citing Bloom v. City of Worcester, 363 Mass 136, 162-163 (1973). Pursuant to G.L.c. 233, ss. 4-6, a person who fails, without sufficient excuse, to appear as a witness after being "duly summonsed" remains subject to the following:  liability "to the aggrieved party in tort for all damages caused by such failure" to appear; punishment by fine for contempt of court;  and the issuance of a warrant to bring him before the court to "answer for the contempt and also to testify in the case in which he was summonsed."   See, as to discretionary nature of an order to appear,   Bloom v. City of Worcester, 363 Mass. 136, 161 (1973 St. Leger v. Agency Rent A Car, Inc., 1993 WL 346464 *3 n. 3, 1993 Mass.App.Div. 170, n. 3 (1993).   See also Trial Handbook, Swartz, §11.1. See other cases under the statute.  Respectfully submitted,  28 November 2003  RESPONDENT’S MOTION TO AMEND NOVEMBER 24TH ORDER  REGARDING SUMMARIES OF TESTIMONY OF PROPOSED WITNESSES Denied Now comes Respondent Barbara C. Johnson ["Johnson"] and moves the special hearing officer of this quasicourt to amend its order of 24 November 2003. As grounds, Johnson states that beyond the fact that SHO Herbert P. Phillips ["SHO"] wanted to evaluate whether the proposed testimony was relevant, cumulative and/or duplicative, the order makes no sense.  For instance, Bar Counsel wants to introduce over 100 documents, all without calling witnesses. The Respondent herself is one of the alleged authors of those documents. The other documents are written by diverse authors on diverse subjects and invoking diverse third parties. Johnson wrote that she intends and does, indeed, intend to ask each witness (1) about what he/she wrote, if anything, and (2) about the subject in which that witness’s name is raised (it will not matter whether the witness wrote the document or whether the witness’s name was invoked by someone else). Johnson does not intend to ask others to opine on the words or thoughts of others.  In that way there will by NO repetition, nothing cumulative and/or duplicative. So the SHO’s conclusion was specious. The time for Johnson to write summaries of the testimony of 90-odd people on over 100 documents would take months. Such time is not available given the BBO’s rush to impale Johnson. So it is UNreasonable of the SHO to demand more precision from Johnson over the Thanksgiving holiday and weekend. It is also, of course, unconscionable and a total deprivation of Johnson’s right to a fair trial with all the indicia of due process. As for the SHO’s concern for relevancy: If the document is relevant, the witness’s testimony about the document shall be relevant. Johnson is also not interested in irrelevancies. If the document is not relevant, then the SHO should not admit it into evidence. If only parts of the document are relevant, then often the remainder of the document is redacted with BLACK "MAGIC MARKER." COUNT ONE If the merits of the underlying case in Count One are irrelevant, as the SHO wrote in ¶4, then almost every one of Bar Counsel’s proposed exhibits numbered 5 through 49 is irrelevant.  The merits of the underlying case of Count One are exactly the reason Johnson uploaded the public documents she did. The unscrupulousness of the courts, the abysmal failure to guarantee that due process and equal protection stay on the map of justice. The public deserved to know. The public still deserves to know. The public had a right to know. The public still has a right to know. The cases in both the State and Federal highest courts support Johnson’s position in entirety. For the SHO to admit the documents Bar Counsel offers and deny Johnson the opportunity to rebut – both with evidence and law -- the propositions for which Bar Counsel offers them would be reversible error. Johnson hopes that the legal community would become so incensed that the SJC would feel compelled to repeal its authority for the BBO/OBC to exist as those bodies exist today. COUNT TWO If the merits of the underlying "case" in Count Two are irrelevant, as the SHO wrote in ¶4, then almost every one of Bar Counsel’s proposed exhibits numbered 50 through 71 is irrelevant.  With as much patience as Johnson can muster at this moment, she states: the SHO just doesn’t get it! Count II is a fee dispute for a jury to decide. It is not an ethical issue. With that said, Johnson gave the Sanos an extremely detailed accounting and ultimately charged the Sanos – after discounting and/or not charging the Sanos for many, many more hours: 32.03 hours at $50 per hour = $1601.50 29.87 hours at $200 per hour = 5974.00 The Sanos wanted to pay Johnson for 1 hour 36 minutes. Bar Counsel must put in evidence to show that Johnson did not put it any work over 1 hour and 36 minutes. That Bar Counsel simply cannot do, given the abundance of emails to and fro the entire Sano family and Johnson. Johnson has a right to put on a defense, to show what evidence she had been given from the Sanos, the research she did, the advice she gave, and so on. All of that DOES, indeed, concern the merits of the multiple cases the Sanos wanted advice and counseling on from Johnson. So if the SHO deems the merits of the Sanos’ cases to be irrelevant, then the entire dispute is irrelevant, all the emails from all the parties should be deemed inadmissible on relevancy grounds, and Count II should be immediately dismissed. Were Count II dismissed, Johnson would have no need for the witnesses numbered #29 through #49 on her witness list. For the SHO to admit the documents Bar Counsel offers and deny Johnson the opportunity to rebut them – both with evidence and law -- would be reversible error. Johnson hopes that the legal community would become so incensed that the SJC would feel compelled to repeal its authority for the BBO/OBC to exist as those bodies exist today. COUNT THREE The original order of which Johnson was found in contempt never existed. It was a hoax. A corrupt judge. A corrupt opposing counsel. The subsequent fabrication of that order. The supplying of it to the higher courts. While the higher courts did issue decisions/orders/opinions. they were not based on truth. They were based on fabrication. Orders based on fraud are void ab initio and one is not obligated to comply with them. The only "merits" relevant to Count III are those which show the motive of the judge and of opposing counsel, Mark C. O’Connor, and his clients to commit fraud. For the SHO to admit the documents Bar Counsel offers and deny Johnson the opportunity to rebut them – both with evidence and law -- would be reversible error. Johnson hopes that the legal community would become so incensed that the SJC would feel compelled to repeal its authority for the BBO/OBC to exist as those bodies exist today. Surely that cannot be the legacy the SHO wants to leave behind him: the man who brought shame to the Bar when he could have done otherwise, and thus caused the dissolution of the BBO and OBC under a cloud of . . . . (Let history . . . and case #03-CV-12314 . . . fill in the blank.) CONCLUSION The SHO has ordered more expansive summaries. Time does not allow that. Respondent has to prepare for trial, review documents, prepare examinations, subpoena witnesses. Then the holiday weekend is upon us. Respondent plans to spend time with her extended families. If the SHO wants more expansive summaries, Respondent requests that he provide two or three samples of the type of summaries he would deem acceptable. At the prehearing conference, the SHO said a sentence or two was all that was necessary. And that was what Respondent provided. As for the other witnesses, SHO has precluded: Johnson will call them. She prefers to let the preclusion of her chosen witnesses to be part of the trial record. WHEREFORE, this motion must be allowed in the interest of fairness to the Respondent. Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice. Justice mandates that any procedure be fundamentally fair. Respectfully submitted, _________________________________ 24 November 2003 RESPONDENT’S MOTION TO COMPEL "LAURIE" OF THE REGISTRATION DEPARTMENT TO FURNISH THE ADDRESSES OF  EITHER THE RESIDENCE OR THE LAST OFFICE ADDRESS FURNISHED IN THE LAST REGISTRATION OF EACH OF THE LAWYERS IDENTIFIED AS RESPONDENT’S POTENTIAL WITNESSES Denied Now comes Respondent Barbara C. Johnson ["Johnson"] and moves to compel "Laurie" of the registration department to furnish the addresses of either the residence or the last office address furnished in the last registration of each of the lawyers identified in Respondent’s list of witnesses for whom she requested subpoenas three weeks ago, on or around 4th of November. As is customary amongst trial lawyers, Respondent wants to subpoena not only the breathing bodies of the listed persons to trial but also documents. Therefore the handful of subpoenas sent by a Board member are useless. There is no space left on the subpoena to insert the list of documents required. Therefore, given that Johnson communicated the latter to General Counsel, and was told she would be given an opportunity to let the Board know what she wanted on the subpoenas or space would be left open for my insertions – and did not get communicated to whoever had the need to know, that trial is scheduled to begin on Tuesday and Thanksgiving is between now and then, that Johnson had to make numerous requests (probably half a dozen times in total, counting those times also to the generally very receptive people in the registration department) and  that only today, the 24th, Johnson received the handful of whipsidoodle subpoenas. Because of the BBO’s inability to function competently and efficiently, Johnson shall be issuing, in accordance with Board Rule 4.6, her own subpoenas. She shall use the diverse addresses in the Lawyers Diary. If one or more of those addresses turns out to be no longer correct, Johnson will expect the correct address to forthcome immediately upon her request tothe Board. If the correct address does not forthcome forthwith, this will be still another appellate due-process and equal-protection issue, as well as more evidence in the federal case, 03-CV-12314-WGY, filed this week WHEREFORE, this motion must be allowed in the interest of fairness to the Respondent. Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice. Justice mandates that any procedure be fundamentally fair. Respectfully submitted, _________________________________ 24 November 2003  RESPONDENT’S OPPOSITION TO  BAR COUNSEL’S MOTION IN LIMINE TO PRECLUDE CONTESTING AUTHENTICITY Bar Counsel Is Being  Allowed to Prove Authenticity by Affidavit Now comes Respondent Barbara C. Johnson [“Johnson”] and opposes Bar Counsel’s Motion in limine to preclude contesting authenticity. As grounds, Johnson states the following: 1. Given that the record includes an imposter document, i.e., a fabricated document purporting to be an order of the court, the authenticity of the other documents is raised. 2. Given that Johnson had not seen many of the so-called court orders prior to the production by the Bar Counsel, via Susan Strauss Weisberg, Johnson cannot stipulate that they are authentic. 3. Given (a) that Deborah Wolf’s and/or Robyn Gerry-Sylvia’s complaints to the BBO – the complaints were scrambled and sent in one package -- included a letter from Bruce Lider, resulting in Johnson believing that Lider, too, had filed a complaint and (b) that Lider has since said he did NOT file a complaint, then Johnson must ask, Who wrote the letter purporting to be from Lider. 4. Given that none of Johnson’s webfiles is in pdf format – meaning the file cannot be altered -- and all can be downloaded and altered willy-nilly, Johnson cannot stipulate to the authenticity of those documents which Weisberg purports to be Johnson’s webpages. With all those reasons, Johnson cannot give a blanket stipulation.  And the time allowed for preparation for trial has been so short – given all the motions and other pleadings that have been necessary – that Johnson has not had time to read the several thousand pages of documents produced by Weisberg. Further, Johnson does not know even NOW which documents Weisberg wanted “protected” or “impounded” and despite Chair M. Ellen Carpenter, ignoring Johnson’s objections and allowing Weisberg’s potpourri and nonsensical motion, Johnson does not have a clue as to which documents they are or whether she has ever seen them.  And Weisberg has refused to list them . . . even on her list of proposed exhibits, the mysterious documents were not listed or identified individually: they were clustered into one heading here and there in the list.  Johnson does not know whether each of those headings includes 1, 2, 15, or 25 documents! Weisberg and Carpenter have used the word “protection” to WITHHOLD documents and INTERFERE with the very little discovery Johnson is entitled to under the nebulous Board Rules. Additionally, Johnson objects to Weisberg’s alternative motion, that Bar Counsel be allowed to authenticate the documents by affidavit.  The affidavits have no more indices of authenticity than do the questioned documents. Johnson states: “Bring on the witnesses” and have the authors authenticate the documents. Then there just MIGHT be a closer appearance of a fair trial. As it stands now, given the surreptitiousness, there no reasonable mind would accept the authenticity on a carte blanche basis.  And given the dishonesty of most of bar COunsel’s originally proposed witnesses, there is simply insufficient indicia of reliabiity.  It is, after all, Bar Counsel’s and Weisberg’s fear that their witnesses will be impeached that is keeping them from calling those witnesses to the stand at time of trial.  WHEREFORE, Johnson prays this “Court” deny Weisberg’s motion. Respectfully submitted, 20 November 2003  RESPONDENT’S  CONDITIONAL OPPOSITION TO  BAR COUNSEL’S MOTION FOR AUDIOVIDEOTAPED AND STENOGRAPHED PROCEEDINGS Now comes Respondent Barbara C. Johnson [“Johnson”] and opposes in part Bar Counsel’s motion for videotaped, audiotaped, and stenographed proceedings.  Specifically Johnson does not oppose videotaping and audiotaping of the proceedings. Johnson does object, however, to the reasons averred by Susan Strauss Weisberg [“Weisberg”] and Bar Counsel.as a basis for their request.  As for the court reporter finding it “impossible . . . to create a complete, accurate record”: that was caused because the Special Hearing Officer kept on telling the court reporter that the proceeding would “go off the record.”   He did this particularly after he asked Johnson a question.  It appeared he wanted the question on the record but did not want Johnson’s answer.  When Johnson tried to answer, he’d go off the record.  Or after Weisberg would give a monologue and Johnson wanted to argue the same issue, the SHO would order the proceeding be held “off the record.” Lastly, Johnson opposes being ordered to pay for the taping.  She has no money and is being forced into severe poverty as a result of the time being consumed to defend herself against truly false allegations by Bar Counsel and Weisberg and approved by Elizabeth Mulvey. WHEREFORE, Johnson prays this “Court” deny Bar Counsel and Weisberg’s motion. Respectfully submitted, 20 November 2003 MOTION TO VACATE ORDER TO WRITE PARAGRAPH SUMMARIES FOR EACH OF RESPONDENT’S PROPOSED WITNESSES WHERE BAR COUNSEL HAS NOT BEEN ORDERED TO WRITE PARAGRAPH SUMMARIES OF THE PURPOSE OF INTRODUCING  EACH OF 101 DOCUMENTS Denied Now comes Respondent Barbara C. Johnson [“Johnson”] and moves this court to vacate order to write paragraph summaries for each of respondent’s proposed witnesses where Bar Counsel has not been ordered to write paragraph summaries of the purpose of introducing each of 101 documents in its list of proposed documents.  As grounds, Johnson states the following:  that the order is patently unfair that Johnson still does not know exactly that with which she is charged\FN1/   FN1 When a rule of professional conduct is too broad, it denies a defendant the due process right of notice of the charge.   A defendant is constitutionally entitled “to reasonable notice of the nature and character of the crime charged.”  See Commonwealth v. Hare, 361 Mass. 263, 267-268 (1972); Rogan v. Commonwealth, 415 Mass. 376, 378 (1993); Commonwealth v. Vinnie, 428 Mass. 161, 167, cert. denied sub nom. Vinnie v. Massachusetts, 525 U.S. 1007 (1998).  Cf. Commonwealth v. LePore, 40 Mass.App.Ct. 543, 550 (1996).  Cf.Com. v. Duda, 33 Mass.App.Ct. 922 (1992).  "An essential principle of due process is that a statute may not proscribe conduct 'in terms so vague that men of common intelligence must necessarily guess at its meaning.'" Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127-28, 70 L.Ed. 322 (1926) ).  Where the grammatical structure of an attorney disciplinary rule lacks a clarifying interpretation by a State court forces an attorney to "guess at [the rule's] contours," and thus fails to "provide 'fair notice to those to whom [it] is directed.'" Gentile v. State Bar of Nev., 501 U.S. 1030, 1049 (1991), quoting Grayned v. Rockford, 408 U.S. 104, 112 (1972). that Bar Counsel – so Johnson understands from a writing by Susan Strauss-Weisberg and from a phone conversation with Michael Fredrickson – intends to put in his case only through documents and not through any witnesses that several times by motion, Johnson has sought more definite statements and each of her motions was denied that such an order to write summaries of anticipated testimony impinges of Johnson’s right not to disclose in advance her trial strategy\FN2/   FN2 Although Johnson is not represented by counsel, her right to defend herself in a competent manner is being interfered with by the Special Hearing Officer’s order to write witness summaries.  Weatherford v. Bursey, 429 U.S. 545, 554 n. 4 (1977) (Sixth Amendment right to assistance of counsel implicated when communication of defense strategy is revealed to prosecution). that to comply with such an order unexpectedly is harassing. burdensome, and harrowing that Johnson has cooperated fully and if Weisberg cannot figure out clearly to what the named witnesses will testify, then she could, as Jerry Williams used to say, get out of the “kitchen” that the order to write summaries is a backhand way of seeking Johnson’s work product and that is impermissible that paragraph summaries are necessary given that Bar Counsel has no intention of putting on witnesses at trial and intends to introduce at trial only documents, which Johnson cannot cross-examine that .the order is given at virtually the last minute, when Johnson is trying to tend to her few clients’ needs and prepare for a trial by ambush at the BBO office is unacceptable, particularly where no such demands are being put on Bar Counsel and his considerable staff. With all that said, and notwithstanding Johnson’s objections, Johnson states that each and every witness will testify to the following: what he or she knows that is relevant to this three-or-four-in one action how he or she learned what he or she knows when he or she learned what he or she knows where he or she was when he or she learned what he or she knows the source of his or her information if a document alleged to be written by the witness is introduced either by the Bar  Counsel or by Johnson contains a conclusion or opinion of the witness, then he or she will be asked by Johnson the basis of that conclusion or opinion, and any appropriate follow-up questions, as necessary what he or she observed, if anything what he or she heard, if anything what he or she felt or touched, if anything what he or she said, if anything what he or she smelled, if anything, and what he or she did, if anything, and of course, answer follow-up questions about relevant and material matters In sum, because this action is being treated by the BBO as a “document” case, the BBO prosecutor can conclude that the testimony of each witness will involve the subject matter of the document to which the witness is related in some way. Wherefore this motion to vacate a highly prejudicial order must be allowed. Respectfully submitted, RESPONDENT’S MOTION COMPEL BAR COUNSEL TO PRODUCE ORDER OF 3 MARCH 1995 AS IT ALLEGEDLY ACTUALLY APPEARED ON 3 MARCH 1995 AND NOT ON 22 MARCH 1995 As of November 24th, not acted upon Now comes Respondent Barbara C. Johnson [“Johnson”] and moves this court to order Bar Counsel to produce Judge Paul McGill’s alleged order of 3 March 1995 as it allegedly actually appeared on 3 March 1995 and not on 22 March 1995. As grounds, Johnson states that that alleged motion is the motion of which Johnson was found in contempt by Judge Paul McGill on 22 March 1995.  It is also the motion for which, ac-cording to Weisberg, Johnson failed to pay and because of that alleged failure was jailed on 17 December 1998. It did not appear in the box of documents produced by Susan Strauss-Weisberg.  Nor did it appear on her list on documents. If Weisberg does not produce the original document, which should be accessible to her, given the extraordinary power of this quasicourt, Weisberg cannot make under any theory of law a prima facie case on Count III of the Petition for Discipline and the Count must be dismissed.  Specifically, the non-existence of an original is proof that each and every one of Judge McGill’s orders after 3 March 1995 is void ab initio, if not voidable for fraud. In the alternative, Weisberg must reveal the location of the original document so that it may be inspected and examined by a document examiner. Further, if Weisberg cannot produce the original document or reveal the present location of the original for inspection and examination, by Wednesday, 12 November 2003, then Count III must be dismissed. WHEREFORE, this motion must be allowed in the interest of fairness and justice.  Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice mandates that any procedure be fundamentally fair.     Respectfully submitted, November 6, 2003 MOTION FOR BAR COUNSEL TO WRITE PARAGRAPH SUMMARIES  OF THE PURPOSE OF INTRODUCING EACH OF 101 DOCUMENTS Ignored Now comes Respondent Barbara C. Johnson [“Johnson”] and moves this court to order Bar Counsel to write paragraph summaries of the purpose of introducing each of 101 documents in its list of proposed documents. As grounds, Johnson states that the paragraph summaries are necessary given that Bar Counsel has no intention of putting on witnesses at trial and intends to introduce at trial only documents, which Johnson cannot cross-examine.  Wherefore this motion must be allowed. Respectfully submitted, RESPONDENT’S MOTION TO DISMISS COUNT I ON THE GROUNDS THAT WITHOUT WITNESSES, BAR COUNSEL CANNOT MAKE OUT PRIMA FACIE CASE FOR COUNT I Denied Now comes Respondent Barbara C. Johnson [“Johnson”] and moves this court to dismiss Count I on the grounds that without witnesses, Bar Counsel cannot make out a prima facie case for Count I under any theory of law.  Bar Counsel refuses to give the address of or serve on Robyn Gerry Sylvia or Brenden Linnehan a/k/a Sylvia to Respondent.  Respondent is not in law enforcement and does not have access to software that would provide addresses of those keeping their address secret.  Respondent will suffer prejudice by not being able to call Robyn or Brenden if Bar Counsel does not call them. Additionally, if Robyn and Brenden cannot be located, then Respondent will be forced to call between 6 and 10 witnesses not on the witness list she produced on or before November 3d to put in evidence that would be readily available from Robyn and Brenden. WHEREFORE, this motion must be allowed in the interest of fairness and justice.  Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 7 November 2003 RESPONDENT’S MOTION TO DISMISS COUNT II ON THE GROUNDS THAT THE FEE DISPUTE INVOLVES A FEE THAT IS NOT CLEARLY EXCESSIVE AND IT OUTSIDE THE JURISDICTION OF THE BOARD OF BAR OVERSEERS Denied Now comes Respondent Barbara C. Johnson [“Johnson”] and moves this court to dismiss Count II on the grounds that the fee dispute involves a fee that is not clearly excessive and is outside the jurisdiction of the Board of Bar Overseers. Without the Sanos as witnesses, the Board cannot make out a prima facie case for Count II  under any theory of law.  WHEREFORE, this motion must be allowed in the interest of fairness and justice.  Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 7 November 2003  LETTER TO WEISBERG SENT UNDER CAPTION Regarding the issue of my “authenticity” objections, as set forth in paragraph C of your letter dated 4 November 2003:  My objections to authenticity are perfectly valid.  In at least two instances, in Count III, a court document, to wit, an endorsed motion, and then its derivative were altered. The question of whether a document resembling the non-existent March 3d ever existed is a question for a jury.  Liacos, Handbook of Massachusetts Evidence (6th ed.), §12.7.1, p. 697.  Secondary evidence may not be considered if there is no evidence to warrant a finding that the original ever existed.  Id. Fauci v. Mulready, 337 Mass. 532, 540-543 (1958). If the document is "lost," a proponent – and that would be you -- bears the burden of proving that the order issued, and he must also prove its terms.  Employers' Liability Assur. Corp., Ltd. v. Hoechst Celanese Corp., 43 Mass.App.Ct. 465, 484 (1997), cert. denied 426 Mass. 1103 (1997), citing Markline Co. v. Travelers Ins. Co., 384 Mass. 139, 140 (1981).  “If the document was destroyed [in the instant case, this would be the altered derivative document] by the proponent [Mark O’Connor\FN1/], secondary evidence of the contents ordinarily will no be admitted, there being a presumption that if proponent destroyed the document it contained matter unfavorable to him.”  Com. v. Garriques, 55 Mass.App.Ct. 1107 (2002) (unpublished), citing Liacos, Handbook of Massachusetts Evidence §12.7.1 (7th ed.1999).  Liacos, Handbook §12.7.1 (6th ed. 1994), citing Capital Bank & Trust Co. v. Richman, 19 Mass.App.Ct. 515, 521-522 & n.7 (1985) and Joanne v. Bennett, 87 Mass. (5 App) 169 (1862). FN1 Bar Counsel would be the “derivative” proponent, given that Bar Counsel would be standing in the shoes of O’Connor. Further, Judge McGill did not author all of his own memoranda.  A young chemical engineer worked in Concord District Court one day a week during 1995 and authored memoranda for the judge. As to my objections to your use of my webpages:  They are irrelevant if you cannot or will not produce Robyn-Gerry Sylvia or Brenden Linnehan, a/k/a Brenden Sylvia or Deb Sano or Harry Sano and perhaps unnamed others – all those people who you infer suffered harm.  My webpages contain your Petition for Discipline, which is filled with hearsay and outrageous inaccuracies and untruths. It would be highly improper for you to try or for the fact-finder to allow you to put the testimony of the above people in through the webpages.  I need the humans to cross-examine.  As a publisher, I put both sides of a “story” on the web.  I allowed room for readers to make up their own minds.  But for a court of law, we need hard testimony, not speculation nor the periphrastic conclusions in your petition. My webpages are equivalent to other publications.  They contain hearsay and in some cases totem-pole hearsay.  The problem I find is that you want to offer the hearsay for the truth of the statement.  I presented the hearsay but not for the truth of the content of the hearsay.  In fact, I questioned those of Robyn’s statements which had been memorialized in diverse writings.  I then showed how she lied whenever it suited her.  You want to offer memorialized statements as truths. If you want to offer your letters, you must take the stand.  I have no idea whether you wrote them or those young men to whom you introduced me at the pretrial hearing last summer.  I have a right to cross-examine you on the paper.  This is known as “due process,” which is the cornerstone of our justice system.  I absolutely do not waive my constitutional rights to either procedural or substantive due process, and those include my right to cross-examine adversaries. If you want your words to be evidence, you are making yourself into a fact witness and should withdraw your appearance as prosecutor in this case. Lastly, I am somewhat bemused by you saying I have not identified the materials I shall use for mitigation.  Not knowing the purpose for your offering certain documents, I cannot state with particularity which of my documents I shall use for mitigation.  It is possible I shall need all or none of them for mitigation.  6 November 2003  RESPONDENT’S MOTION FOR BBO TO PAY FOR COST OF COPYING DOCUMENTS Now comes Respondent Barbara C. Johnson [“Johnson”] and moves this court to order the BBO to pay for the cost of copying documents to be supplied as part of discovery and for trial. As grounds, Johnson states that these four very frivolous actions have had a severe financial impact on Johnson.intends to call Weisberg as a trial witness for the purpose of showing the malice, bad faith, and arbitrariness of the initiation of the above-referenced actions against Johnson. WHEREFORE, this motion must be allowed in the interest of fairness.  Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 6 November 2003  RESPONDENT’S MOTION IN LIMINE TO PRECLUDE DRANO SERIES  AND ALL OTHER DOCUMENTS RELATED TO COUNT ONE  IF BAR COUNSEL IS NOT GOING TO CALL, OR ISSUE THE SUBPOENAS REQUESTED BY RESPONDENT FOR,  ROBYN GERRY-SYLVIA, BRENDEN LINNEHAN A/K/A BRENDEN SYLVIA, DEBORAH WOLF, BRUCE LIDER , JUDGE RONALD HARPER, CHRISTOPHER SALT, SANDRA FYFE, EILEEN KERN, JOHN “JACK” McCARTHY, ELI NEWBERGER, JOSEPH FITZGERALD AND JUDGE MARK LAWTON AS WITNESSES IN THE CASE Denied  Now comes Respondent Barbara C. Johnson [“Johnson”] and moves this court to preclude the admission of any and all Drano Series and all other documents related to Count One if Bar Counsel is not going to call, or issue the subpoenas requested by Respondent for, Robyn Gerry-Sylvia, Brenden Linnehan a/k/a Brenden Sylvia, Deborah Wolf, Bruce Lider , Judge Ronald Harper, Christopher Salt, Sandra Fyfe, Eileen Kern, John “Jack” McCarthy, Eli Newberger, Joseph Fitzgerald, and Judge Mark Lawton as witnesses in the case. As grounds, Respondent states that if the Bar Counsel does not call those alleged witnesses, each and every one of the Drano Series and the other documents related to Count 1 are irrelevant and immaterial. Further, given the shortness of time to prepare for trial following the receipt of discovery and all the wiggle room Bar Counsel has left for additions and subtractions to the lists produced, Respondent, who is a solo-practitioner, has no time to read the copies of the alleged copies of the Drano Series to check that they have not been materially altered as opponents and/or adversaries have done at least once by Mark C. O’Connor and perhaps also by Judge Paul McGill, and then the cruel and dishonest distortion by Assistant Bar Counsel Susan Strauss-Weisberg and/or Judge Alan Jarasitis, proving that Weisberg word is not to countenanced as honorable.  WHEREFORE, this motion must be allowed in the interest of fairness..  Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 5 November 2003  RESPONDENT’S MOTION IN LIMINE TO PRECLUDE ANY AND ALL DRANO SERIES AND ALL OTHER DOCUMENTS RELATED TO COUNT TWO  IF BAR COUNSEL IS NOT GOING TO CALL, ISSUE THE SUBPOENAS REQUESTED BY RESPONDENT FOR DEBORAH SANO, HARRY SANO, THEIR FOUR DAUGHTERS AND THE THREE SONS-IN-LAW, RICHARD SIMONS, WILLIAM SIMONS, OR TO ISSUE THE SUBPOENAS REQUESTED BY RESPONDENT FOR THE PERSONS IDENTIFIED ON RESPONDENT’S PROPOSED LIST OF WITNESSES AS WITNESSES 37 THROUGH 49 Now comes Respondent Barbara C. Johnson [“Johnson”] and moves this court to preclude the admission of any and all Drano Series and all other documents related to Count Two if Bar Counsel is not going to call, or issue the subpoenas requested by Respondent, Deborah Sano, Harry Sano, their four daughters and the three sons-in-law, Richard Simons, William Simons, and for the persons identified on Respondent’s proposed list of witnesses as witnesses 37 through 49 As grounds, Respondent states that if the Bar Counsel does not call those alleged witnesses, or issue the subpoenas requested by Respondent for those persons, each and every one of the Drano Series and the other documents related to Count 2 are irrelevant and immaterial. Further, given the shortness of time to prepare for trial following the receipt of discovery and all the wiggle room Bar Counsel has left for additions and subtractions to the lists produced, Respondent, who is a solo-practitioner, has no time to read the copies of the alleged copies of the Drano Series to check that they have not been materially altered as opponents and/or adversaries have done at least once by Mark C. O’Connor and perhaps also by Judge Paul McGill, and then the cruel and dishonest distortion by Assistant Bar Counsel Susan Strauss-Weisberg and/or Judge Alan Jarasitis, proving that Weisberg word is not to countenanced as honorable.  WHEREFORE, this motion must be allowed in the interest of fairness..  Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 5 November 2003  RESPONDENT’S MOTION IN LIMINE TO PRECLUDE DRANO SERIES  AND ALL OTHER DOCUMENTS RELATED TO COUNT THREE  IF BAR COUNSEL IS NOT GOING TO CALL, OR ISSUE THE SUBPOENAS REQUESTED BY RESPONDENT FOR,  MARK C. O’CONNOR, PAUL MCGILL AND WITNESSES ON RESPONDENT’S WITNESS LIST NUMBER 50-51,54-66,  69-88 Now comes Respondent Barbara C. Johnson [“Johnson”] and moves this court to preclude the admission of any and all Drano Series and all other documents related to Count Three if Bar Counsel is not going to call as witnesses in this case, or issue the subpoenas requested by Respondent for, Mark C. O’Connor, Paul Mcgill and witnesses on Respondent’s witness list numbered 50-51,54-66, 69-88. As grounds, Respondent states that if the Bar Counsel does not call those alleged witnesses, each and every one of the Drano Series and the other documents related to Count 3 are irrelevant and immaterial. Further, given the shortness of time to prepare for trial following the receipt of discovery and all the wiggle room Bar Counsel has left for additions and subtractions to the lists produced, Respondent, who is a solo-practitioner, has no time to read the copies of the alleged copies of the Drano Series to check that they have not been materially altered as opponents and/or adversaries have done at least once by Mark C. O’Connor and perhaps also by Judge Paul McGill, and then the cruel and dishonest distortion by Assistant Bar Counsel Susan Strauss-Weisberg and/or Judge Alan Jarasitis, proving that Weisberg word is not to countenanced as honorable.  WHEREFORE, this motion must be allowed in the interest of fairness..  Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 5 November 2003  RESPONDENT’S MOTION FOR REFERRAL BY BAR TO DISTRICT ATTORNEY FOR CRIMINAL PROSECUTION OF MARK C. O’CONNOR Denied Now comes Respondent Barbara C. Johnson [“Johnson”] and moves for referral by Bar to District Attorney for Criminal Prosecution of Mark C. O’Connor.  The details are found below.  The exhibits are attached to Respondent’s motion in limine to preclude admission at trial of any appeals court or supreme judicial court decisions. As grounds, Respondent states the following: 1. No appeals or supreme judicial court found a breach of ethics.  2. No appeals court knew that it was relying on an altered material document. 3. No supreme judicial court knew that no appeals court knew that it was relying on an altered material document. 4. A copy of the materially altered material document is attached hereto as Exhibit A. 5. Copies of diverse enlargements of the document and explanations are attached as Exhibits B and C and D and E. 6. On 3 March 1995, there was a hearing at Concord District Court. 7. On 7 March 1995, the clerk issued a notice of what occurred on 3 March 1995. [Exhibit F]  8. The oppositions identified as items 4 and 5 were received as the parties went up to the podium.  They are identified as items #81 and #82 on Bar Counsel’s list of proposed exhibits.  At the top can be seen “filed in court,” which was written by the clerk now deceased.  The judge treated those two oppositions as motions, but there not only had been no time to reply to them, there had not even been time to read them.  Due process was lacking. 9. The docket sheet [SSW’s item #72, Exhibits G and H attached hereto] for 3 March 1995 confirms that which Respondent has written above in 6-8 is true. 10. Bar Counsel did not produce a copy of Exhibit A. 11. Given that Bar Counsel did not produce a copy of Exhibit A, it is reasonable to conclude that it did not exist, just as Johnson has argued, contended, maintained since 1995 in diverse courts and in her responses to the Bar. 12. It does appear elsewhere.  Johnson shall not reveal where, for she fears its destruction.  13. Johnson does move in another motion filed simultaneously with this one that the Bar inform the Suffolk District Attorney’s office of the material alteration for criminal purpose and prosecution of Mark C. O’Connor, Esq.    O’Connor was and still is a partner of Rich May Bilodeau & Flaherty, whose client’s identification at that time was withheld.  His client, it was later learned was Tyco International, whose chief executive officer is currently on trial for defrauding his company of hundreds of millions of dollars.  14. Would such a man order O’Connor to materially alter a material document? 15. At the time of troubles during 1995, Johnson was seeking further documents (she had some – and still has them) that would prove the defendant company was defrauding the state and federal governments on numerous projects, including the Big Dig. 16. If the Bar refuses to allow this motion, then there is no hope that our judiciary and legal community shall crawl out of the sorry place in which it presently finds itself., a place where politics and self-dealing prevail over justice. WHEREFORE, this motion must be allowed in the interest of justice.  To do otherwise would be selective enforcement of the laws.  Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 5 November 2003 RESPONDENT’S MOTION TO REMOVE SUSAN STRAUSS-WEISBERG AS PROSECUTOR IN THIS CASE Denied Now comes Respondent Barbara C. Johnson [“Johnson”] and moves this court to remove Susan Strauss-Weisberg as counsel for Bar Counsel in this case. As grounds, Johnson intends to call Weisberg as a trial witness for the purpose of showing the malice, bad faith, and arbitrariness of the initiation of the above-referenced actions against Johnson. Because to testify truthfully, it is believed that Weisberg would have to testify against her client, the Bar Counsel. WHEREFORE, this motion must be allowed in the interest of fairness..  Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 5 November 2003  RESPONDENT’S RULE 4.5(a) REQUEST  FOR FULL BOARD (NOT THE CHAIR ALONE) TO ISSUE  SUBPOENAS  REQUIRING ATTENDANCE AND TESTIMONY AT TRIAL See November 24th motion  Now comes Respondent Barbara C. Johnson [“Johnson”], pursuant to Board Rule 4.5(a), and requests the Board, i.e., the full Board as defined in Board Rule 1.2, minus Elizabeth Mulvey, Chair M. Ellen Carpenter, and Special Hearing Officer Herbert Phillips, to issue subpoenas requiring attendance and testimony at trial. As grounds for excluding Mulvey, Respondent states that she understands that Mulvey was the reviewing member who approved the issuance of the petition for discipline of Respondent and for that reason recused herself from the case. As grounds for excluding Carpenter, Respondent states that Carpenter has shown herself willing to disregard the Board Rules and the common law whenever the noncompliance would favor Bar Counsel. As grounds for excluding SHO Phillips, Respondent states that he appears, if not to be a puppet of Carpenter, to be following the party line.  None of the few decisions has been accompanied by a memorandum containing supporting legal authority, which fact has robbed Respondent of any confidence in his summary decisions.  Respondent does not credit a rational basis to summary decisions, which state only a naked “Denied,” devoid of the clothing of reason. The grounds for the request are clear.  Respondent seeks to be able to defend herself against baseless charges and present evidence in mitigation. The subpoenas Respondent requests are the following: NOTE I am withholding the list of names so as not to risk people trying to avoid service of subpoenas.  There is a dispute.  I have been requested to write a summary paragraph of the anticipated testimony of 86 people.  I do not weant to do that.  It reveals strategy and that is not required. Daniel Crane and Susan Strauss-Weisberg wants to put her case in only through court papers and put on NO witnesse -- not even the the alleged complainants (the mother of a dad whom I represent) and the wife of a man whom she wanted me to represent.   I cannot cross-examine paper, so I moved that SHE produce summaries for each document she intends to introduce.  Given the extraordinary power the BBO has and given tht absolutely everything Bar Counsel wants, Bar Counsel gets -- MUCH LIKE LOLA -- I doubt "they " will not require Weisberg to write them. 5 November 2003 RESPONDENT’S MOTION IN LIMINE TO PRECLUDE ADMISSION OF ANY APPEALS COURT OR SUPREME JUDICIAL COURT DECISIONS Denied Now comes Respondent Barbara C. Johnson [“Johnson”] and moves in limine to preclude admission at trial of any appeals court or supreme judicial court decisions. As grounds, Respondent states the following: 1. No appeals or supreme judicial court found a breach of ethics.  2. No appeals court knew that it was relying on an altered material document. 3. No supreme judicial court knew that no appeals court knew that it was relying on an altered material document. 4. A copy of the materially altered material document is attached hereto as Exhibit A. 5. Copies of diverse enlargements of the document and explanations are attached as Exhibits B and C and D and E. 6. On 3 March 1995, there was a hearing at Concord District Court. 7. On 7 March 1995, the clerk issued a notice of what occurred on 3 March 1995. [Exhibit F]  8. The oppositions identified as items 4 and 5 were received as the parties went up to the podium.  They are identified as items #81 and #82 on Bar Counsel’s list of proposed exhibits.  At the top can be seen “filed in court,” which was written by the clerk now deceased.  The judge treated those two oppositions as motions, but there not only had been no time to reply to them, there had not even been time to read them.  Due process was lacking. 9. The docket sheet [SSW’s item #72, Exhibits G and H attached hereto] for 3 March 1995 confirms that which Respondent has written above in 6-8 is true. 10. Bar Counsel did not produce a copy of Exhibit A. 11. Given that Bar Counsel did not produce a copy of Exhibit A, it is reasonable to conclude that it did not exist, just as Johnson has argued, contended, maintained since 1995 in diverse courts and in her responses to the Bar. 12. It does appear elsewhere.  Johnson shall not reveal where, for she fears its destruction.  13. Johnson does move in another motion filed simultaneously with this one that the Bar inform the Suffolk District Attorney’s office of the material alteration for criminal purpose and prosecution of Mark C. O’Connor, Esq.   O’Connor was and still is a partner of Rich May Bilodeau & Flaherty, whose client’s identification at that time was withheld.  His client, it was later learned was Tyco International, whose chief executive officer is currently on trial for defrauding his company of hundreds of millions of dollars.  14. Would such a man order O’Connor to materially alter a material document? 15. At the time of troubles during 1995, Johnson was seeking further documents (she had some – and still has them) that would prove the defendant company was defrauding the state and federal governments on numerous projects, including the Big Dig. 16. If the Bar refuses to allow this motion, then there is no hope that our judiciary and legal community shall crawl out of the sorry place in which it presently finds itself., a place where politics and self-dealing prevail over justice. WHEREFORE, this motion must be allowed in the interest of fairness to the Respondent.   Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 4 November 2003  RESPONDENT’S MOTION FOR APPROVAL OF USE OF  UNINTERESTED PARTY FOR SERVICE OF SUBPOENAS As of November 24th, still not acted upon. Now comes Respondent Barbara C. Johnson [“Johnson”] and moves for approval of the use of an uninterested party for service of subpoenas. As grounds, Respondent states that the time taken to respond to essentially three frivolous actions into one has taken considerable time away from Johnson and has caused irreparable financial harm to Johnson.  Therefore the cost of service of subpoenas is burdensome.  WHEREFORE, this motion must be allowed in the interest of fairness to the Respondent.   Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 4 November 2003 RESPONDENT’S MOTION FOR COPIES OF TAPE OF ANY PROCEEDINGS  IN WHICH RESPONDENT TOOK PART AND  OF WHICH BAR COUNSEL HAS POSSESSION Susan wrote that she, too, does not have the tape of the proceeding on 17 December 1998. Now comes Respondent Barbara C. Johnson [“Johnson and moves for copies of tape of any proceedings in which Johnson took part and of which bar counsel has possession.  As grounds, Respondent states that there are proceedings of which Johnson does not have tapes and which no longer exist, at least, according to the courts.  Given that for Count III, Bar Counsel delayed bringing an action up to 5 years after a relevant proceeding occurred, the tape had already, according to a clerk, been overwritten.  Although Bar Counsel did not identify any tapes as being items his assistant, Susan Strauss-Weisberg, intends to use at trial, and where the Chair denied Johnson’s motion to dismiss on the grounds that one eyewitness has died and that the tape had been overwritten, Johnson has need of the tape(s). WHEREFORE, this motion must be allowed in the interest of fairness to the Respondent.   Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 4 November 2003  RESPONDENT’S SECOND MOTION FOR MORE DEFINITE STATEMENT OR IN THE ALTERNATIVE DISMISS THE PETITION FOR DISCIPLINE Denied by Special Hearing Officer Herbert P. Phillips Now comes Respondent Barbara C. Johnson [“Johnson”] and moves for more definite statement of the accusations by Bar Counsel, who alleged that Respondent violated, from and after January 1, 1998, certain Massachusetts Rules of Professional Conduct and certain Canons, specifically:  M.R.Prof.C. 1.5(a)(1-8)  M.R.Prof.C. 1.6(a)  M.R.Prof.C. 1.9(a)  M.R.Prof.C. 1.9(b)(1)   M.R.Prof.C. 1.9(b)(2)  M.R.Prof.C. 1.15(a-c)  M.R.Prof.C. 1.16(d)  M.R.Prof.C. 3.4(c)  M.R.Prof.C. 4.4  M.R.Prof.C. 8.4(c)  M.R.Prof.C. 8.4(d)  M.R.Prof.C. 8.4(h)  Canon: DR 1-102(A)(5)  Canon: DR 1-102(A)(6)  Canon: DR 7-101(A)(3)   SJC 4:01, section 10 Specifically, Respondent moves that Bar Counsel in his more definite statement be sure to answer the following questions.  Each question assumes that the statement will reflect the Bar Counsel’s post-investigation opinion.  Without the answers to the following, Respondent will face at trial a moving target.  Although there is a dispute in Massachusetts as to whether these proceedings are criminal or civil in nature the U.S. Supreme Court has spoken: they are quasicriminal in nature.  In re Ruffalo, 390 U.S. (Ohio) 544, 551, 88 S.Ct. 1222 (1968) (disbarment proceedings are “quasicriminal nature”).  Johnson thus contends that a motion for a more definite statement may be likened to a bill of particulars.  “The purpose of a bill of particulars is to give a defendant reasonable notice of the nature and character of the crime charged.”  See Commonwealth v. Hare, 361 Mass. 263, 267-268 (1972); Rogan v. Commonwealth, 415 Mass. 376, 378 (1993); Commonwealth v. Vinnie, 428 Mass. 161, 167, cert. denied sub nom. Vinnie v. Massachusetts, 525 U.S. 1007 (1998).  Cf.  Commonwealth v. LePore, 40 Mass.App.Ct. 543, 550 (1996).  Cf. Com. v. Duda, 33 Mass.App.Ct. 922 (1992).  Because Respondent can be prejudiced in her defense if the essential elements of the quasicrimes are incorrectly stated, Bar Counsel must either state his grounds with particularity, to prevent his having a moving target at time of trial, or the Board must dismiss the petition forth-with.  Cf. G.L. c. 277, §§19-25, 35.   Dismissal will save time and financial resources on both sides of the “v” because Respondent can be acquitted on the ground of variance between the allegations and proof where the essential elements of the quasicrimes continue to be incorrectly stated. SET I (re Rule 1.5) 1. Declare what it was about a fee agreement that constituted an agreement to  charge or collect an illegal or clearly excessive fee. 2. State how any money collected by Respondent was an illegal fee. 3. State that amount of money collected which was an illegal fee. 4. Identify which of the eight factors set forth by Bar Counsel contributed to the determination that any money collected by Respondent constituted an illegal fee. 5. State Bar Counsel’s rationale for determining that an illegal fee was collected. SET II (re Rule 1.5) 6. State what amount of money collected, in Bar Counsel’s opinion, constituted an excessive fee. 7. State why any money collected by Respondent was excessive. 8. Identify which of the eight factors set forth by Bar Counsel were used to determine that any money collected by Respondent was excessive. 9. State how each of the factors contributed to the determination that any part of money collected by Respondent was excessive. 10. State the rationale behind the determination that an excessive fee was collected. SET III (re Rule 1.6) 11. Identify that information relating to “JL” [“John Doe” in the petition] which Bar Counsel alleges was both confidential and revealed without JL’s consent. 12. Identify that information relating to “DS” and/or “HS” [“the Parkers” in the petition] which Bar Counsel alleges was both confidential and revealed without the consent of either one of them. 13. Identify that information relating to “RC” [“Lily” in the answer to the petition] which Bar Counsel alleges was both confidential and revealed without JL’s consent. 14. Given that JL has neither withheld consent nor complained about his story being put up on Johnson’s “educational website,” identify the allegedly revealed information which Bar Counsel contends was not included in that consent. 15. Given that the “Parkers” gave their implicit if not explicit consent to their story being put up on Johnson’s “educational website,” identify the allegedly revealed information which Bar Counsel contends was not included in that consent. 16. Given that “Lily” has neither withheld consent nor complained about her story being put up on Johnson’s “educational website,” identify the allegedly revealed information which Bar Counsel contends was not included in that consent. SET III (re Rule 1.9) 17. Identify the alleged former client with whom Respondent has a conflict of interest. 18. Identify the “other person” whom Respondent is allegedly representing. 19. Identify the other substantially related matter in which that alleged person's interests are materially adverse to the interests of the former client. SET IV (re Rule 1.15) 20. Identify that property which Bar Counsel contends that Respondent has not kept safely. 21. If that property is money, identify how much of it was not held separately from Respondent’s own property, 22. State the dollar value of those funds which Bar Counsel contends the “Parkers” are entitled to receive. 23. State the authority from whence the Office of Bar Counsel derives the power of a court of common law to hear contract cases. SET V (re Rule 1.16) 24. Identify that alleged client for whom Respondent allegedly terminated representation and to whom notice was not given. 25. Identify that alleged client to whom Respondent allegedly did not give reasonable notice of termination of representation. 26. Identify that alleged client to whom Respondent allegedly did not surrender papers or property. 27. Identify that amount of an advance payment of a fee that has not been earned. SET VI (re Rule 3.4) 28. Identify each and every valid obligation under the rules of a tribunal that Respondent allegedly disobeyed. SET VII (re Rule 4.4) 29. Identify each and every time that Respondent, in representing a client, allegedly  used means of evidence-gathering which had no substantial purpose other than to embarrass, delay, or burden a third person.  30. Identify each and every alleged third person who was embarrassed, delayed, or burdened by Respondent allegedly using means that had no substantial purpose other than to embarrass, delay, or burden that person.  31. Identify the means allegedly used by the Respondent to embarrass, delay, or burden a third person.  32. Identify each and every time that Respondent, in representing a client, allegedly used methods of obtaining evidence which violated the legal rights of such a person.  33. Identify each and every alleged third person whose legal rights were allegedly violated by Respondent when obtaining evidence.  34. Identify each and every bit of evidence that Respondent allegedly obtained by allegedly using methods that allegedly violated the legal rights of third persons.  35. Identify each and every alleged evidence-gathering method by which Respondent allegedly violated the legal rights of alleged third persons.  36. Identify each and every alleged evidence-gathering method by which Respondent allegedly violated the legal rights of alleged third persons.  37. Identify the methods allegedly used by the Respondent to violate allegedly the legal rights of an alleged third person.  38. For each and every alleged third person, identify the legal rights allegedly violated by the Respondent.  SET VIII (re Rule 8.4) 39. Identify each and every occasion when Respondent’s conduct allegedly involved dishonesty. 40. Identify each and every occasion when Respondent’s conduct allegedly involved fraud.  41. Identify each and every occasion when Respondent’s conduct allegedly involved deceit.  42. Identify each and every occasion when Respondent’s conduct allegedly involved misrepresentation. 43. Identify each and every occasion when Respondent’s conduct was allegedly prejudicial to the administration of justice. 44. Identify each and every occasion when Respondent allegedly engaged in any other conduct that adversely reflected on her fitness to practice law. SET IX (re Canon One: DR 1-102)  45. Identify each and every occasion when Respondent’s conduct was allegedly prejudicial to the administration of justice.  [Canon DR 1-102(A)(5) appears to be identical to Rule 8.4.] 46. Identify each and every occasion when Respondent allegedly engaged in any other conduct that adversely reflected on her fitness to practice.  Canon DR 1-102(A)(6) also appears to be identical to Rule 8.4.] SET X (re Canon Six: DR 6-101(A)(1)  47. Identify each and every occasion when Respondent allegedly handled a matter which she knew or should have known that she was not competent to handle, without associating with her a lawyer who was competent to handle it. SET XI (re Canon Six: DR 6-101(A)(2)  48. Identify each and every occasion when Respondent allegedly handled a legal matter without preparation  adequate in the circumstances.  SET XII (re Canon Six: DR 6-101(A)(3)  49. Identify each and every occasion when Respondent allegedly neglected a legal matter entrusted to her. SET XIII (re Canon Seven: DR 7-101(A)(3)  50. Identify each and every occasion when Respondent allegedly intentionally prejudiced or damaged her client during the course of the professional relationship, except as required under DR 7-102(B). SET XIV (re S.J.C. RULE 4:01  Section 10)  51. Identify each and every occasion when Respondent allegedly, as a condition of settlement, compromise or restitution, required the complainant to refrain from filing a complaint, to withdraw the complaint, or to fail to cooperate with the bar counsel. Respectfully submitted, 9 September 2003  RESPONDENT’S MOTION TO DISMISS COUNT II ON GROUNDS OF NO PRIVILEGE APPLIED TO DISPUTES BETWEEN CLIENT AND ATTORNEY Denied by Chair M. Ellen Carpenter, former partner of Judge Martha B. Sosman Now comes Respondent Barbara C. Johnson [“Johnson”] and moves that count II be dismissed on the grounds that privilege does not apply to fee disputes or malpractice claims between client and attorney. In support, Johnson states that beyond the de minimus fee dispute, Bar Counsel claims that Respondent violated the attorney-client privilege by publishing the bill and supplementary material on her website falseallegations.com, but the attorney-client privilege does not apply to fee disputes or malpractice claims between client and attorney, or even an attorney who has only consulted with the plaintiff, the complainant in the instant action. ARGUMENT Once 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);  Levin v. Ripple Twist Mills, Inc., 416 F.Supp. 876, 886-887 (E.D.Pa. 1976);  Lawson v. State, 492 P.2d 1113, 1116-1117 (Okl.Cr.App.1971);  8 J. Wigmore, Evidence s 2327(6), at 638 (McNaughton rev. ed. 1961);  S.J.C. Rule 3:07, as amended, --- Mass. --- (1981) ("A lawyer may reveal ... (4) Confidences or secrets necessary ... to defend himself ... against an accusation of wrongful conduct"). Com. v. Brito, 390 Mass. 112, 119 (1983).  “The defendant attorney, for example, will be entitled to testify to relevant statements by his former client unrestrained by the attorney-client privilege.”  Glenn v. Aiken, 409 Mass. 699, 706-707(1991), citing Commonwealth v. Brito, 390 Mass. 112, 119 (1983);  S.J.C. Rule 3:07, DR 4-101(C) (4), as appearing in 382 Mass. 778 (1981).  . . .  The defendant concedes that if a client assails his attorney's conduct the privilege as to confidential communications is waived because the lawyer has a right to defend himself.  See Commonwealth v. Brito, 390 Mass. 112, 119 (1983).  See also Tasby v. United States, 504 F.2d 332, 336 (8th Cir.1974), cert. denied, 419 U.S. 1125, 95 S.Ct. 811 (1975). Although it is true that an attorney may, in an effort to defend himself against allegations of misconduct, disclose confidential communications, the scope of that disclosure is not unlimited.  The Supreme Judicial Court has stated: "Once such a charge 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" (emphasis supplied). Commonwealth v. Brito, 390 Mass. at 119, 453 N.E.2d 1217, citing Tasby v. United States, 504 F.2d at 336.   That language suggests that the scope of counsel's obligation to preserve confidences when a charge of misconduct is made turns on whether the disclosure is relevant, material, or necessary to defend against the charge.  See Common- wealth v. Brito, 390 Mass. at 119.   See also S.J.C. Rule 3:07, DR 4-101(C), 382 Mass. 778 (1981). Com. v. Woodberry, 26 Mass.App.Ct. 636, 638 (1988).  In the instant case, the communication was primarily by email.  Bar Counsel has copies of all the emails.  Johnson put up those directly related to the charges.  She did also upload the date and the subject lines of the emails, but subject lines are not privileged, for there is no expectation of privacy. We accept, as a general principle, that a litigant may implicitly waive the attorney-client privilege, at least partly, by injecting certain claims or defenses into a case.  That is the basic premise underlying the concept of "at issue" waiver.  That premise has been accepted in Federal and State courts throughout the country, including the United States Court of Appeals for the First Circuit, see Greater Newburyport Clamshell Alliance v. Public Serv. Co. of N.H., 838 F.2d 13 (1st Cir.1988); the United States District Court for the District of Massachusetts, see Savoy v. Richard A. Carrier Trucking, Inc., 178 F.R.D. 346 (D.Mass.1998);  Sax v. Sax, 136 F.R.D. 541 (D.Mass.1991);  and the Massachusetts Superior Court.   It is also consistent with our decisions discussing exceptions to and waiver of the attorney-client privilege in other situations.  See, e.g., Commonwealth v. Goldman, 395 Mass. 495, 498-502, cert. denied, 474 U.S. 906, 106 S.Ct. 236 (1985); Commonwealth v. Brito, 390 Mass. 112, 119 (1983).  See also G.S. Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 269-273 (1991) (concerning discovery obligations of party who seeks to make evidentiary use of privileged communications). Darius v. City of Boston, 433 Mass. 274. 277-278 (2001). WHEREFORE, Respondent prays that this motion be ALLOWED.   Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice, of course, mandates that any procedure be fundamentally fair.  Respectfully submitted, 5 September 2003  RESPONDENT’S MOTION TO DISMISS COUNT III FOR DELAY AND LACK OF EXCULPATORY TAPE OF PROCEEDING IN 1998 Denied by Chair M. Ellen Carpenter Now comes Respondent Barbara C. Johnson [“Johnson”] and moves that Count III be dismissed. As grounds, Johnson states that in 124, the Bar’s averment that “[t]he court on that date [December 17, 1998] ordered the respondent jailed until she purged her contempt and complied with the subpoena duces tecum” is untrue. To prove definitively that the Bar’s averment is untrue, Respondent is in need of the tape of the proceeding of 17 December 1998, the date on which Respondent was unlawfully incarcerated.  Although the SJC has ruled, in In re Gross, 435 Mass. 445, 450-451 (2001), that “[m]ere delay in the commencement of disciplinary proceedings does not result in dismissal of the proceedings,” in that same case, the Court noted that in Matter of Kerlinsky, 406 Mass. 67, 76 n. 8 (1989), cert. denied, 498 U.S. 1027 (1991), “the delay in pursuing formal proceedings had prejudiced the respondent's defense, as two witnesses had died in the interim.”  Gross, at 450-451, citing Kerlinsky, at 75.   But because “the allegations against [Kerlinsky] were corroborated from other sources [Gross, at 451], “[his] inability to interrogate those witnesses was not substantially prejudicial.”  Kerlinsky, at 75. The instant case, however, can be distinguished from both Kerlinsky and Gross.  Reliable witnesses are unavailable.  One unreliable witness is the judge himself, Judge Paul McGill, and the other unreliable witness is opposing counsel, Mark C. O’Connor, whose principle (TYCO CEO) has since been named in 38 federal indictments.   Each of them appears to have participated in altering a document.  The court clerk has died in the interim.  That which happened is explained in 104 of Respondent’s Amended Answer and in some of the figures on pages 134-145.  For the hearing officer’s or the Chair’s convenience, excerpts of the relevant figures displaying the step-by-step alteration document are included herein on the following pages. FIGURE 1.  MOTION #157 AND COMMENTS Note the words "filed open court  3-03-95" at the top of the paper.  Note the two date-stamps, particularly the topmost one.  Are the numerals 22 or 03???  Then in Figure 2 look at the notice dated March 7th, 1995, and sent to both counsel.  Note that no order on Motion 157 is cited in the notice.  Look also at Figures 3-1 and Figure 3-2 for the events of March 3d and March 22d.  The alleged topmost endorsement does NOT appear in the list of events for EITHER date on the excruciatingly detailed docket sheet, where each handwritten endorsement was painstakingly typed onto the docket sheets. Respondent believes that at some later date -- AFTER she argued on March 22d that no such order  issued on March 3d and AFTER a diligent clerk had typed the March 22 endorsement into the docket sheet, McGill changed the little rubber wheel on his date-stamp and added the top endorsement.  If the lower endorsement had not already been on the page, he would not have had to squinch up his signature to avoid overwriting the words "After further."  If the upper endorsement had been on the page on March 3d, it would have appeared in the March 7th Disposition Notice.  It was not included in that notice.  If the upper endorsement had been on the page on March 3d, it would have appeared in the docket sheet entries for March 3d.  It is NOT in the docket sheet entries for March 3d.  If the upper endorsement had been on the page on March 22d, it would have appeared in the docket sheet entries for March 22d.  It is NOT in the docket sheet entries for March 22d.   In fact, it appears nowhere in the docket sheets.  Bar Counsel should report McGill to the Commission on Judicial Conduct.  He should be impeached.  Next look at another version of the endorsement on Motion 157 in Figure 4.  It was altered by opposing counsel, Mark O'Connor.   Proof exists in Figures 5, 6, 7, and 8.   Compare the scanned in images of the fabricated document with the original endorsed page.  Criminal charges should be brought against O'Connor.  FIGURE 2.  NOTICE OF DISPOSITION MADE ON MARCH 3D, 1995 Note that Motion #157, O'Connor's Motion for Payment of Paralegal Fees is not referred to on the notice.  Note also its absence from the entries for March 3d in the docket sheets. FIGURE 3-2.  DOCKET SHEET  FOR CONCORD DISTRICT COURT ACTION       FIGURE 4.  O'CONNOR'S FABRICATION OF NEW FIRST PAGE OF MOTION #157 Note the new elements:  The Paper number: 62.6, which does not appear on the CDC docket sheet, was assigned to the motion upon retransfer to Superior Court several months later in the Spring of 1995;  the Superior Court docket number: 92-7907;  the words "First 157," believed to be  O'Connor's handwriting on a Post-It;  the missing half of the top border of the caption (probably caused by the Post-It being on top of it);  a missing second endorsement, implying that this is what the first page of the motion looked like on March 3d, 1995;  the sticker identifying it as O'Connor's exhibit in Lily's deposition. Is this a fabricated page?  Yes, indeed.  See Figures 5 and 6. O'Connor had to fabricate it because Motion #157 never had only one endorsement on it. FIGURE 5.  ENLARGED ENDORSEMENT SECTION FROM O'CONNOR'S FABRICATED FIRST PAGE OF MOTION #157 Note the new elements mentioned above.  AND notice  the missing bottom loop in the "g" in the  word "hearing"   the missing bottom of the judge's signature,  dots, spots, and smudges at the top and bottom of the missing and whited out bottom endorsement of March 22d,  AND see how he forgot to white out the  tail M in McGill ... See the tail of the M between the words  "counsel" and "or."  To be sure, COMPARE it with Figure 1 above. FIGURE 6.  LARGER ENLARGEMENT FROM FAKED FIRST PAGE OF MOTION #157 FIGURE 7.  ZOOMED IN PICTURE OF DATE  ON TOPMOST ENDORSEMENT OF FAKED VERSION OF MOTION #157 Here the R in MAR has a loop in the top half, the 03 seems clear, and the tails of the two 9s are not broken.     FIGURE 8.  ZOOMED IN PICTURE OF DATE  ON TOPMOST ENDORSEMENT OF ORIGINAL MOTION #157 Here the R in MAR has NO loop in the top half, might be 22 rather than 03, and the tails of the two 9s ARE broken. Why the difference?  Was the date-stamp altered after it was added?  The location of the paper on the surface where it was stamped slightly different?  Paper not sitting on exactly the same bumps in the surface? TABLE 12.  HEARING OF 3 MARCH 1995 excerpt from an appeal with an appendix [A-page-numbers] Johnson had brought a motion for the court to enforce its order compelling defendants in the underlying case to produce documents.  [A233-234, 236-241, 247, 252, hearing of 3/3/95].  During argument, Johnson suggested: "[Just say,] Mr. O'Connor produce the documents the woman has requested. The court says she is entitled to them. Just give them to her." [A1358]. The court harkened not and denied Plaintiff's motions to reconsider the January 4th order and to depose nonparty witnesses outside the presence of opposing counsel [A1085-1099, 1115].  In contrast, the court allowed Defendants' combination oppositions which contained affirmative requests for attorneys fees [A1106, 1109]. That pleading and its supporting affidavit, prepared for service on March 1st, were served only on March 3d as the parties walked to the podium to address the court [A1102, 1105, 1108, 1111, 1113]. Plaintiff was denied the opportunity to meaningfully  respond or examine O'Connor either on his allegations or on the alleged expenses set out in these pleadings.  When the court failed to enforce its order, Johnson notified the court of her intent to appeal.  [A233-234]. She brought a petition in the nature of a writ of mandamus to a single justice at the SJC.  Also heard on March 3d was Motion #157,\FN1/ O'Connor's Motion for Paralegal Fees, which was also on that day improperly served on Johnson in court, and in which Defendants sought Plaintiff or her counsel to pay $261.25 for a paralegal purported to have been at the Concord facility on February 22d [A1100].  FN1  Throughout these hearings the District Court judge most often referred to the motions by their docket number.   So for the convenience of the readers, those numbers shall be used interchangeably where it seems appropriate.  In the transcripts, Johnson is "heard" to say that she did not know which motions he was talking about because she did not know the Paper numbers assigned to them.   Logically, Johnson must be believed, inasmuch as O'Connor did not file his motions until the parties were actually at their podiums.  That fact is noted ON the motions by the clerk.  On 3 March 1995, opposing counsel, O'Connor, simultaneously served on Johnson and filed in open court his clients' oppositions [Paper 162 at ADD-267-268 and Paper 159 at ADD-273-274] to Lily's two motions, Papers 151 and 152, respectively.  Neither Opposition Paper 162 nor Opposition Paper 159 stated the amount of money which opposing counsel was requesting for attorney's fees.                                [continued]  Without giving Johnson an opportunity even to read the two oppositions, the judge "allowed" them, leaving Johnson with no idea why her motions were denied.  [Sharp's brief at 8.]  NOTE Ten months later, in a memorandum issued on 13 December 1995,  the lower-court judge said for the first time that he found Paper 152 frivolous (at least it appears that might have been the motion to which he was referring). O'Connor never argued orally against them substantively before they were denied. And Johnson was given no opportunity to cross-examine O'Connor [Sharp's brief at 8].\FN2/  FN2  Johnson's claim that she had no notice was deemed by the lower court and by the appellate panel as having no merit [A216 (March 22, 1995) and OPINION at 4 and OPINION at 4 n.6].   It is well-settled that notice is central to due process. Neither Paper 162 nor Paper 159 stated the amount of money which opposing counsel was requesting for attorney's fees.  Eventually, when O'Connor's affidavit surfaced, it became clear that the affidavit, which appears at A276-277, was the source of the sums $504 and $216, which O'Connor sought for the two oppositions, respectively, and which totaled $720 [OPINION at 4].  But affidavits of counsel are NOT orders of a court!  At the very end of the hearing, the judge said that he was taking a "motion under advisement" [JRA-259, lines 18 and 19].  Johnson believes that was Paper 157 (the paralegal-fees motion). Thus, on March 3d, there was no Order commanding Lily to pay any money to anyone by any date [JRA-226 (Clerk's Notice dated 3/7/95); ADD-300 (docket sheet, entries for 3/3/95 and 3/22/95].  The court failed also to act on Johnson's concerns about O'Connor's conduct.  What Johnson did  on 3 March 1995 [A299 at entry 160; Cou-R/A A1114, A1148] was to file a request for re-transfer to the Middlesex Superior Court. TABLE 13.  END OF HEARING OF 3 MARCH 1995 At the very end of the March 3d session, O'Connor sought costs for appearing in court on both March 1 (the day he left and aborted the hearing) and that day, March 3.  [A258-259].  It could not have been clearer to the court that Johnson had received no notice to oppose O'Connor's requests for costs.  (O'Connor's oppositions and affidavits were given to Johnson as she approached the podium for the hearing.  [A269, 272, 275, 278, 281].)  The court misspoke -- called O'Connor's oppositions "motions" [id.] and said it was taking those "motions" under advisement. Johnson did have the tapes of most of the hearings transcribed by a certified reporter.    She never did, however, order the tape of December 17th, 1998, the day she was incarcerated.  The case was dead as a doornail by then and appeals were complete.  She never appealed the one-day incarceration.\ 1/   She would never get the day back or the insults, the demeaning, or the embarrassment expunged.  And it had already been written that the higher courts could not care less about the case.  It was simply just another sad day for justice.     FN1 Three weeks prior to being incarcerated, Johnson had begun creating her website, falseallegations.com.Three weeks prior to being incarcerated, Johnson had begun creating her website, falseallegations.com. NOTE After her incarceration, Johnson became increasingly proactive.  Her goal: to educate the public and cry out for the abolition of judicial immunity, which she believes is violative of article V of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts, an article that provides for accountability by “the several magistrates and officers of government” to all the people at all times.  Her political speech in pursuit of that goal was the catalyst for the bringing of the petition for discipline against Johnson. As a result of the unusual acts in Coughlin and Johnson (Coughlin had been bifurcated), the need for deposing the judge is critical, but (1) the BBO has already denied Johnson the opportunity to depose him and (2) the Commonwealth has destroyed exculpatory evidence by destroying or writing over the tape of the hearing on 17 December 1998.    Where the exculpatory evidence was destroyed by the Commonwealth, and the Commonwealth cannot prove its point by a judge who altered the endorsement on Motion #157, who prevaricated – provable by both judge-authored and clerk-authored documents\2/ -- in sundry decisions, and who had ex parte communication with the opposing counsel [see petition 122 on page 191 of the Amended Answer and Respondent’s answer for that paragraph on pages 191-192], the charge must be dismissed. Com. v. Ocasio, 434 Mass. 1, 5 n. 4 (2001); Com. v. DiBenedetto, 427 Mass. 414, 419 (1998).    FN2  For instance, the judge wrote that Johnson had not complied with discovery or pretrial orders.  That was absolutely untrue.  See Table 6 on page 129 of the Amended Answer. and Table 32 on pages 165-166.  See also the docket sheets interwoven as Figures 3-1 through 3-6 into the Amended Answer on pages  136-141. The dispute as to the nature of these “adversary proceedings” adds another dimension legally.    “Taking away a man's right to practice law is imposing a penalty as severe as a criminal sanction, perhaps more so.  The State should carry the burden of proving guilt.  The short-cut sanctioned today allows proof of guilt to be ‘less than negligible.’” Cohen v. Hurley, 366 U.S. (N.Y.) 117, 153-154, 81 S.Ct. 954, 974 (1961) (Mr. Justice BLACK, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting), quoting Grunewald v. United States, 353 U.S. 391, 424, 77 S.Ct. 963, 984, 1 L.Ed.2d 931. <>A few years later, the United States Supreme Court declared disbarment proceedings to be of a “quasicriminal nature” [In re Ruffalo, 390 U.S. (Ohio) 544, 551, 88 S.Ct. 1222 (1968)], which triggers article XII of the Declaration of Rights, allowing Johnson to present all proofs favorable to her, to meet the 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. Cohen v. Hurley, 366 U.S. (N.Y.) 117, 141-142, 81 S.Ct. 954, 968-969 (1961) (Mr. Justice BLACK, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting). And still later, in Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S.(N.J.) 423,  438, 102 S.Ct. 2515, 2524 (1982), Justice Brennan, concurring in the judgment, considered bar disciplinary proceedings to be quasicriminal in nature.   457 U.S. at 438, citing In re Ruffalo, 390 U.S. 544, 551, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117 (1968). But in Massachusetts, not too much has changed since Boston Bar Ass'n v. Greenhood, 168 Mass. 169, 183 (1897), when the Supreme Judicial Court wrote that “removal” proceedings are not criminal in nature because “[i]ts primary purpose is not punishment, but the preservation of the purity of the courts, and the protection of the public from attorneys who disregard their oath of office” . . .  but if this were true, there would be no judicial immunity and there would be no quasijudicial immunity.\3/  FN3It makes no sense to follow Bradley v. Fisher, 80 U.S. (13 Wall) 335, 348, 20 L.Ed. 646 (1872) (immunity of judges from liability for damages for acts committed within their judicial discretion applies even when a judge is accused of acting maliciously and corruptly) Notwithstanding the civil versus criminal controversy, assuming the proceeding is civil, the decisions, orders, memoranda.\4/ authored by a judge of questionable moral character, must be tested by the rules of evidence applicable to them in a civil trial and then the rules must be enforced. In re Ulmer, 268 Mass. 373, 400 (1929); Matter of Mayberry, 295 Mass. 155, 166-167 (1936); In re Troy, 364 Mass. 15, 25 (1973).\5/   FN4 Some of them – those written after Johnson’s incarceration -- were never sent to Johnson, and she saw them for the first time amongst the exhibits attached to Bar Counsel’s pleadings.  FN5 In Troy, at 25 n. 7, it was noted that in In re Ruffalo, 390 U.S. 544, 551, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), . . . the term [quasicriminal] appears to describe both Federal and State disbarment proceedings.  In  Ruffalo itself, there is no ambiguity: the court clearly wrote that disbarment proceedings are quasicriminal. Where Respondent is not being allowed to test those documents –- if the judge is not compelled to appear for deposition or for trial -- then Bar Counsel should be precluded from using them or this motion must be allowed. WHEREFORE, Respondent prays that this motion be ALLOWED.   Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice, of course, mandates that any procedure be fundamentally fair.   Respectfully submitted,   26 August 2003  RESPONDENT’S MOTION TO STRIKE BAR COUNSEL’S MOTION FOR PROTECTIVE ORDER AS TO COUNTS I AND II Denied Now comes Respondent Barbara C. Johnson [“Johnson”] and opposes Bar Counsel’s Motion for Protective Order, which is not only a motion for a protective order but also a motion for impoundment (WHEREFORE clauses A and B of Bar Counsel’s motion) a motion both to censor Johnson’s website  (WHEREFORE clause C of Bar Counsel’s motion) and enjoin Johnson’s political and free speech and  motion for secret hearings (WHEREFORE clause D of Bar Counsel’s motion) As grounds for not issuing a multipronged deceptively entitled motion for a protective order, Johnson states: that Bar Counsel has failed to specify which documents it has in its possession for Count 1 (completely severable from Counts 2 and 3) it has in its possession for Count 2 (a de minimus fee dispute case, completely severable from Counts 1 and 3) that Bar Counsel has failed to specify for which of those documents it has in its possession for Count 1, it seeks a protective order that Bar Counsel has failed to specify for which of those documents it has in its possession for Count 2, it seeks a protective order By such failures, the “motion officer” cannot possibly determine according to the applicable standards the motions for protection, impoundment, censorship, and secret proceedings without knowing (a) the specific documents involved, (b) the specific statements sought to be hidden from scrutiny, (c) the duration of such restrictions, (d) the law, constitution, and the rules of evidence. And the applicable standards differ, depending on what is being sought:  A. a protective order not to have to produce certain documents during discovery B. an impoundment order to seal certain records C. a censorship order to remove Johnson’s webpages from the marketplace of ideas D. an injunction to seal Johnson’s lips and make her pen run dry, or  E. a Kangaroo court or Star Chamber to keep the public from being able to scrutinize the justice – whether scrupulous or unscrupulous – being dispensed A. PROTECTIVE ORDER:  For instance, what documents does Bar Counsel not want to produce to Respondent?\1 / Given that Bar Counsel has both named generically a Universe of documents, many of which do not exist in the case, and been reticent to identify the documents in question makes it impossible for Respondent to argue whether there is good cause to justify not producing those documents to Johnson.  FN1  It appears from Bar Counsel’s motion that he has all the documents from Juvenile Court.  Johnson does not have all those documents.  Johnson was unable to get even the docket sheet from Juvenile Court.   She did receive a few years ago documents purporting to be docket sheets, but she has no idea whether they are complete or were abridged when the court computerized – something Judge Rudolph Kass was advocating in his address at an AAML seminar two years ago.  Significantly, of course, discovery has not yet been conducted in the disciplinary action.  Johnson has not yet made any formal requests.  Discovery requests are not due until October owing to the busy-ness of Bar Counsel’s staff – a bar mitzvah, a wedding, and an upcoming birth, and another few disciplinary actions against other attorneys.  So the motion for a simple, straightforward protective order to prevent requests that Bar Counsel might consider oppressive or unnecessary or irrelevant or improper on some other basis is premature.   See Cronin v. Strayer, 392 Mass. 525 (1984).  Simply put, there has been no evidence whatsoever of discovery abuse by Johnson, something protection orders are designed to prevent.  Id., at 536.   The only discovery abuse has been, in Johnson’s opinion, committed by the Assistant Bar Counsel who brought the petition of discipline against Johnson on behalf of Bar Counsel. B-1.    IMPOUNDMENT ORDER FOR DOCUMENTS FROM JUVENILE COURT:  There is no Massachusetts case interpreting Juvenile Court Standing Order 1-84.  There is no corresponding statute.  Courtrooms may be opened using judicial discretion.  The statutory scheme in G.L. c. 119 is designed primarily to save juvenile defendants and juvenile female sexual-assault victims from embarrassment and other problems.  In this case, the minor child was not a defendant and not a female.  The child was the three-year-old subject of a care and protection case, where both his mother and father were the alleged targets of any inspection.  Currently the Jones and Doe’s child is no longer a minor.  He has been emancipated.  Nothing occurred in Juvenile Court that would embarrass the youngster.  The total lack of evidence in that court is exactly the reason it is imperative to know what documents Bar Counsel allegedly has and what documents Jones, Johnson, and the public may be entitled to see and use.\2/ FN2  Disbarments proceedings have been regarded as 'civil and not criminal in character. Boston Bar Assn. v. Greenhood, 168 Mass. 169, 183; Matter of Ulmer, 268 Mass. 373, 392, . . . .  (And) the rules of evidence applicable to civil trials . . . (are) rightly enforced.'  Matter of Mayberry, supra, 295 Mass. at 166-167.  Collins v. Godfrey, 324 Mass. 574, 577-578.  But even if the proceedings were regarded as criminal or 'quasi-criminal' in nature, a respondent would have no right to be present, with or without counsel, or to cross-examine the persons being questioned at a preliminary stage of the proceedings that are investigatory and not accusatory.  In re Troy, 364 Mass. 15, 24-25 (1973) [emphasis supplied].   Without specificity by Bar Counsel, his motion must be stricken or denied.  It is woefully inadequate in meeting that which is required by to either sustain impoundment in Juvenile or to overcome it in Probate & Family Court. B-2.    IMPOUNDMENT ORDER FOR DOCUMENTS FROM PROBATE & FAMILY  COURT:  To overcome the presumptively open records in a domestic relations case and withhold them from the public, Bar Counsel must show good cause for the impoundment.  Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 604 (2000).\3/   “To determine whether good cause is shown, a judge must balance the rights of the parties based on the particular facts of each case.”  Sharpe, at 604, citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 599 (1978).  A judge must balance not only the interests of publicity and the defendant's right to fair trial [Sharpe, at 605, citing Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dep't, 403 Mass. 628, 638 (1988) (Wilkins, J., concurring), citing Uniform Rules on Impoundment Procedure (1988)], but also the parties' privacy concerns against general principle of publicity. Sharpe, at 605, citing H.S. Gere & Sons v. Frey, 400 Mass. 326,  at 329 (1987).    FN3 In the Sharpe abuse-prevention case under c. 209A, it was the deceased wife who had sought impoundment of her affidavits.  Id. at 597. “If there is good cause to impound documents, a judge is required to tailor the scope of the impoundment order so that it does not exceed the need for impoundment.” Newspapers of New England, Inc., supra.   How can any judge or person to whom judicial duties have been delegated determine the scope of an impoundment order without knowing which or the nature of the documents sought to be impounded?  And how can Respondent argue to keep open ghostlike, amorphous documents?  Weisberg’s/Crane’s motion is only harassing and burdensome.  It contains not a shred of information such a motion should contain.  Another issue is created by Jones and Doe never having been married: their case was a chapter 209C, not a chapter 208 case.   Years ago, documents of the wed were treated differently from those of the unwed.    For instance, in George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 279 (1985), which was about a chapter 208 case, was decided 13 years prior to G.L. c. 209C, §13, being amended, “the Court concluded ‘that the [divorce-case] documents at issue here may only be impounded on a showing of overriding necessity, which is based on specific findings,” citing Press Enterprise Co. v. Superior Court of California, 464 U.S. 501, 509 (1984).\4/    Because of the rising recognition of the right to equal protection regardless of marital status, one might argue that 209C parties are also entitled to the standard of overriding necessity.  Since 1985, the rights of children born out-of-wedlock have been declared equal to those born in wedlock.  And since then with the passage of the amendment to §13 of chapter 209C in 1998, the common law regarding public access to court documents -- and equal protection -- has been applied also to the nonmarital domestic relations cases.  FN4  We adopted this requirement of a showing of overriding necessity, in part, because of the great public interest in disclosure of all information relevant to misuse of authority and official wrongdoing.  H.S. Gere, 400 Mass. at 332, citing George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 279-280 (1985). Although Bar Counsel failed to mention the 1998 amendment to §13 of G.L. c. 209C in his motion, he relied on a decision that should be embarrassing to the judiciary.  That ignored amendment\ / puts on the prosecution the burden of showing that it has good cause to seek impoundment.  To meet that burden, Bar Counsel must cite facts.   Bar Counsel has cited no specific facts that would justify a protective order or impoundment. Respondent further contends that where the 1998 amendment to §13 of G.L. c. 209C is administrative or remedial, the amendment has retroactive as well as prospective effect, and Jones, Johnson, and the public are entitled to access to the entire file of his chapter 209C action.  Johnson sought the SJC to speak on the issue inasmuch as Bar Counsel disagreed with Johnson’s interpretation.  See Figure 1.  The SJC chose not to address it interlocutorily, but the issue cannot be avoided now. Whatever the interpretation eventually is, the entity doing the adjudicating must adhere to the procedure set out in the cases for determining the existence of either “good cause” or “overriding necessity.”  To make that determination, the motion officer must but will not be able to answer several questions raised by that obligation, because of the deficiency of Bar Counsel’s motion.  Which documents and when were they authored or created?  The motion officer does not know – as neither does Respondent – to which documents Bar Counsel is referring, the date of the documents sought to be impounded, the authors of the documents sought to be impounded, the content of the documents sought to be impounded.  How possibly can the motion court or a hearing officer fulfill its/his/her obligation to perform a balancing test without this basic information?  A reading of Figure 1 below explains the criticality of the date the documents were filed.  Respondent was not on the case until well after §13 was amended.  Everything she wrote is presumptively open.   Boston Herald v. Sharpe, supra.   Bar Counsel contends otherwise.  It is an issue of law and the BBO does not have the authority to interpret the amendment and announce whether it is to be applied retroactively and/or prospectively.  Such an undertaking by the BBO would be outside the scope of the authority of the agency and would dissolve the umbrella of immunity depended upon by those who consider themselves performing some quasijudicial function. Which parties had an expectation of privacy or a “privacy concern”?  John Jones wants public scrutiny of the evils done to him by the courts.  Jane Doe is a public figure, has run for public office twice (in 2001 and 2003), sought “front-page” headlines when she falsely accused public officials to the Bristol Country District Attorney, has done newspaper, radio, and television interviews and appearances.  Jane Doe’s displeasure is not with the website is not that it mentions her name but that the information on it is not favorable to her.  She has chosen, however, not to sue, because everything on is true.  On the day she lost the electio, she filed the complaint with the Bar.  Her complaint has nothing to do with Respondent’s ethics.  It has to do with Doe’s vindictiveness.  Doe also falsely accused the man who later became her husband of sexually abusing his children.  Her life is an open book.  What can Bar Counsel be considering as a document soaked in sufficient good cause to be impounded?   A wonderful man, Jones, was kept isolated from his son for 15 years by an unthinking, uncaring court . . . and the powers that be do not want that to come out.  Well, it has and will continue to come out.  Accountability is what is sorely needed in the judiciary.  That’s been Johnson’s goal.  Have someone in a black robe declare, We’ve made mistakes, we’ve got to fix them.  The suffering is pandemic. And concerns of the child, now 18 years of age, are unknown to Bar Counsel, because, it is believed, Bar Counsel has not communicated with him.  Figure1.  Excerpt from c. 211 §3 complaint to invoke superintendence Prior to 31 March 1998, court records as itemized in §13 of G.L. c. 209C, governing out-of-wedlock paternity and custody disputes and the care and support of children born out of wedlock, were presumptively impounded, that is, the impoundment was not absolute.  Exceptions were allowed where there was good cause for public scrutiny.  Rule 7 of Trial Court Rule VIII, Uniform Rules of Impoundment Procedure, has provided the factors to be considered.\1/ \1/ An order of impoundment may be entered by the court, after hearing, for good cause shown and in accordance with applicable law.  In determining good cause, the court shall consider all relevant factors, including, but not limited to, the nature of the parties and the controversy, the type of information and the privacy interests involved, the extent of community interest, and the reason(s) for the request.  Agreement of all parties or interested third persons in favor of impoundment shall not, in itself, be sufficient to constitute good cause. Paragraph 1, Rule 7 of Trial Court Rule VIII, Uniform Rules of Impoundment Procedure.  On 31 March 1998, an amendment of §13 became effective, and files in out-of-wedlock cases began to be treated the same as files in divorce cases.  After that date, the effect of the statute was inverted: the public was given a presumptive right of access to all court records itemized in §13.\2/  \2/   Because Rule 7 of the Uniform Rules must be implemented in accordance with applicable law, it supports the shift of the burden of showing “good cause” to the person seeking denial of public access.  Globe, 2002 WL 202464 at 4. Pre-3/31/98 pleadings Post-3/31/98 pleadings  Figure needs htmling               o                                        y o                    x      o     y            o          x                                    x Presumptive Impoundment Good cause required to open files  Presumptive Right of Access Good cause required to close files Key:   o =  Comment on fact from pre-3/31/98 pleading            x =  quoted phrase from pre-3/31/98 pleading            y =  quoted sentence from pre-3/31/98 pleading Note:  The number of o’s, x’s, and y’s in the figure is not intended to represent the number of o’s x’s, and y’s in the post-3/31/98 pleadings, i.e., the Amended Complaint.                                                                                            ^                                                                                 /|\                                                                          31 March 1998 Amendment of §13   Restriction of access was deemed to be of constitutional dimension,\3/ and the burden of showing good cause was shifted onto the entity which wanted to deny access to the public.   Section 13 of G.L. c. 209C had been amended, and became effective 31 March 1998. \3/ “When a document in a court case is filed with the court, that document is presumptively available to the general public and the press as part of the general principle that judicial proceedings, both criminal and civil, are open to all.” Globe, infra, 2002 WL 202464 at 2, citing generally Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 546 (1977) and Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 603-611 (2000). Johnson contends that for consistency and logic, the amendment must operate not only prospectively but also retroactively, and that having been opened for Bar Counsel, they must be declared open also to scrutiny by the public. \4/ \4/ The denial of access to the files of a divorce case requires “a showing of overriding necessity.” Globe Newspaper Co., Inc. v. Clerk of Suffolk County Superior Court  2002 WL 202464 at 4, No. 01-5588-F (Sup.Ct. Feb. 4, 2002) (Gants, J.), citing Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 509 (1984), and George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 279.  “The general rule is that statutory procedural changes properly apply to pending cases and to trials that concern events occurring before the enactment of the change.”  News Group Boston, Inc. v. Com., 409 Mass. 627, 630 (1991), citing Commonwealth v. Greenberg, 339 Mass. 557, 578-579 (1959) ("[s]tatutes relating merely to the remedy or procedure which do not affect substantive rights are generally held to operate retroactively").   “[R]emedial legislation that is concerned with practice, procedure and evidence but which does not affect substantive rights is treated as operating retroactively and is applied to pending actions or causes of action.” Wetherell v. Boston Mut. Life Ins. Co., 18 Mass.App.Ct. 614, 616-617 (1984) (internal citations omitted).  Where the Bar did not file a Complaint and treated the Linnehan case as a pending action, it waived any objection to applying the amended statute retroactively. (Waiver was not argued below.) Ordinarily, statutory, and thus regulatory, changes of substance apply only to events that occur after the change's effective date.  Child Support Enforcement Div. of Alaska v. Brenckle, 424 Mass. 214, 219 (1997), quoting from Hanscom v. Malden & Melrose Gaslight Co., 220 Mass. 1, 3 (1914).  To that general rule, however, there are several exceptions.  One such exception gives retroactive effect to "curative" changes, i.e., changes "designed to remedy mistakes and defects in the administration of government where the remedy can be applied without injustice."   Canton v. Bruno, 361 Mass. 598, 609 (1972), quoting from Graham & Foster v. Goodcell, 282 U.S. 409, 429 (1931) . . . ("[A]n amendment may apply retroactively if it is curative or remedial and intended to clarify rather than change the law");  2 Singer, Sutherland Statutory Construction §41:11, at 468 (6th ed. rev.2001). Figueroa v. Director of Dept. of Labor and Workforce Development, 54 Mass.App.Ct. 64, 70-71 (2002) [internal cites to out-of-state cases omitted].  Here, §13 was changed to conform with desired public policy.  It did not affect any of the elements on which the paternity and custody had been decided in the Probate & Family Court.  Neither did it have any impact on the Juvenile Court case, which had long since been closed. Given that the presumption of openness and the notion that the public must be able to scrutinize judicial proceedings is so consistent and unyielding, the entire record of the action from the date it was filed is required.  Thus where the amendment to G.L. c. 209C, §13, is administrative, this court must deem that the 1998 amendment operates retroactively.                  Further, even assuming arguendo that the amendment has no retroactive effect, where many wrongs were done Linnehan which prejudiced and deprived him of his rights to due process and equal protection under both the Federal and State constitutions during the pendency of the action, that defective judicial process warrants public scrutiny.  * * * In fact, equal rights and equal protection demand the records be open for all, for there is a “great public interest in disclosure of all information relevant to misuse of authority and official wrongdoing.” H.S. Gere, 400 Mass. at 332, citing George W. Prescott Publ., supra at 279-280.  Given this rationale, clearly the Legislature deemed the unamended §13 violative of due process  rights under the Fourteenth Amendment to the United States Constitution and arts. 1, 10, and 12 of the Massachusetts Declaration of Rights, and that on a balancing of opposing considerations, the unamended statute was unreasonable and as such unconstitutional.    Cf.In re Liquidation of American Mut. Liability Ins. Co., 434 Mass. 272, 282 (2001).               Given the relative weakness of the argument asserted by the Bar Counsel, the sufficiency of the public interest that motivated the Legislature to enact the 1998 amendment, and the narrow range of claimants who have been or will be affected by the statute as amended, this court must conclude that the retrospective application of G.L. c. 209C, §13 is reasonable and does not violate anyone’s constitutional guarantees of due process.  See In re Liquidation of American Mut. Liability Ins. Co., 434 Mass. at 287.   C. CENSORSHIP ORDER TO REMOVE FROM THE MARKETPLACE OF IDEAS:  Bar Counsel failed to identify what he wanted censored.  In fat, he carefully avoided the word because the word “censorship” is so politically loaded.   Notwithstanding Bar Counsel’s inadequate showing of anything to justify censorship, the “‘general principle of publicity,’ . . . [which] governs judicial proceedings in this Commonwealth,” was affirmed again in H.S. Gere & Sons, Inc. v. Frey, 400 Mass. 326, 329 (1987).  We adopted this requirement of a showing of overriding necessity, in part, because of the great public interest in disclosure of all information relevant to misuse of authority and official wrongdoing.  H.S. Gere, 400 Mass. at 332, citing George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 279-280 (1985).  Moreover, "[a]ny limitation on protected expression must be no greater than is necessary to protect the compelling interest that is asserted as a justification for the restraint." George W. Prescott Pub. Co. v. Stoughton Div. of Dist. Court Dept. of Trial Court, 428 Mass. 309, 311 (1998), quoting Care and Protection of Edith, 421 Mass. 703, 705 (1996).  It is apparent that any order seeking to enjoin  speech must be based on detailed findings of fact that (a) identify a compelling interest that the restraint will serve and (b) demonstrate that no reasonable, less restrictive alternative to the order is available." See also Oklahoma Publ. Co. v. District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977) (reversing court order enjoining media from publishing name or photograph of eleven year old boy accused of delinquency by reason of murder).  Prescott, 428 Mass. at 311, cites omitted.  D. AN INJUNCTION – PRIOR RESTRAINT or GAG ORDER -- TO SEAL JOHNSON’S LIPS AND MAKE HER PEN RUN DRY:  The vague and broadly crafted motion would operate as an unlawful prior restraint on Johnson’s speech.  Dangers are everywhere in its broad language designed to circumvent  procedural protections. E. KANGAROO COURT OR STAR CHAMBER TO KEEP THE PUBLIC FROM BEING ABLE TO SCRUTINIZE THE JUSTICE – WHETHER SCRUPULOUS OR UNSCRUPULOUS – BEING DISPENSED:   The motion must be stricken because it seeks to conduct proceedings in the manner akin to that of a Star Chamber.  Jones has already been the victim of Star Chamber and it is of that repeated occurrence of which Johnson complained in court and in public.  And it is her righteous indignation and complaining that is now reaping retaliation by the judiciary, through the OBC/BBO.   See Volterra, “A Massachusetts Star Chamber in Process,” 82 Mass.L.Rev. 347 (1998), cited in John D. v. Department of Social Services, 51 Mass.App.Ct. 125, 127 n. 5 (2001).  See also Commonwealth v. Mavredakis, 430 Mass 848, 859 (2000), in which the Court notes that “Article 12 and other similar State constitutional provisions evolved from a sense of disapproval of the inquisitorial methods of the Star Chamber and ecclesiastical courts in England.” Any motion that seeks to perpetuate a secret chamber here must not be countenanced by any judicial or quasijudicial officer, and must be stricken. WHEREFORE, Respondent prays that the Bar Counsel’s motion for a protective order be stricken.  Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice. Justice, of course, mandates that any procedure be fundamentally fair. Respectfully submitted, 26 August 2003    RESPONDENT’S MOTION TO DECLARE THAT DEBORAH SANO’S ALLEGED ATTORNEY-CLIENT PRIVILEGE WAS WAIVED AND THAT RESPONDENT HAD A RIGHT TO DEFEND HERSELF Denied by Chair M. Ellen Carpenter Now comes Respondent Barbara C. Johnson [“Johnson”] and moves that Deborah Sano’s (a/k/a Mary Parker by the Bar Counsel) attorney-client privilege, if any, be deemed waived and that Respondent has had a right to defend herself. As grounds, Johnson states (1) that on 12 December 1999, the Sanos gave implicit if not explicit permission to post their story on Johnson’s website [Exhibit A],  falseallegations.com, (2) that on 16 December 1999, Deborah Sano sent to four people a communication from her to Johnson regarding Johnson’s bill to the Sanos [Exhibit B], and (3) that on 20 December 1999, responded to Deb Sano [Exhibit C], (4) that on 28 December 1999, Johnson answered still another email from Deb Sano [Exhibit D], (5) that Respondent had a right to defend herself [law below], and (6) that “Such an incongruous result would be inconsistent with the object and purpose of the attorney-client privilege and a patent perversion of the rule.  When a client calls into public question the competence of his attorney, the privilege is waived." Tasby v. United States, 504 F.2d 332, 336 (8th Cir.1974), cert. denied, 419 U.S. 1125, 95 S.Ct. 811, 42 L.Ed.2d 826 (1975) (internal citations omitted).  In support of her motion, Johnson states the following:  The four people to whom Deborah Sano sent her letter were: Richard Simons, Esq., her husband’s criminal defense attorney Karen Schultz-Breda, , Esq., her niece David Hoose, Esq., an attorney whom the Sanos did not retain and  Kevin Reddington, Esq., a friend who happened also to be an attorney On 28 December 1999, Johnson, responding to Sano, wrote “Perhaps those four attorneys -- Simons, Schultz-Breda, Hoose, and Reddington -- will agree to act as a voluntary informal or complaint with the OBC/BBO” [Exhibit D].   Sano was clearly not writing to them in order to retain them as counsel in a fee dispute; they were merely citizens who happened to be lawyers. The attorney-client privilege is the client's privilege to waive.  Phillips v. Chase, 201 Mass. 444, 449 (1909).  McCooe v. Dighton, Somerset, & Swansea St. Ry., 173 Mass. 117, 118-119 (1899).  If a client chooses to waive the privilege of confidentiality, the attorney is under no further ethical obligation to keep the communications secret.  S.J.C. Rule 3:07, Canon 4, DR 4-101 (C)(1), (2), as amended, 382 Mass. 778 (1981).  District Atty. for Plymouth Dist. v. Board of Selectmen of Middleborough, 395 Mass. 629, 633-634 (1985). The purpose of the attorney-client privilege is to preclude an attorney from divulging confidential communications with the client.  S.J.C. Rule 3:07, DR 4-101(C), 382 Mass. 778 (1981).   The privilege, however, is not absolute and may be waived by the client either expressly or implicitly.  The defendant concedes that if a client assails his attorney's conduct the privilege as to confidential communications is waived because the lawyer has a right to defend himself.  See Commonwealth v. Brito, 390 Mass. 112, 119 (1983).  See also Tasby v. United States, 504 F.2d 332, 336 (8th Cir.1974), cert. denied, 419 U.S. 1125, 95 S.Ct. 811, 42 L.Ed.2d 826 (1975). . . . . . . The Supreme Judicial Court has stated: "Once such a charge 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" (emphasis supplied). Commonwealth v. Brito, 390 Mass. at 119, citing Tasby v. United States, 504 F.2d at 336.   That language suggests that the scope of counsel's obligation to preserve confidences when a charge of misconduct is made turns on whether the disclosure is relevant, material, or necessary to defend against the charge.  See Commonwealth v. Brito, 390 Mass. at 119.   See also S.J.C. Rule 3:07, DR 4-101(C), 382 Mass. 778 (1981). Com. v. Woodberry, 26 Mass.App.Ct. 636, 637 (1988).  In the instant case, the Sanos, in particular, Deborah Sano, ultimately complained about all the work performed by Johnson only after they received Johnson’s bill.\FN1/ . . .  The widely accepted principle, however, is that: "[A] client is not free to make various allegations of misconduct and incompetence while the attorney's lips are sealed by invocation of the attorney-client privilege.  Such an incongruous result would be inconsistent with the object and purpose of the attorney-client privilege and a patent perversion of the rule.  When a client calls into public question the competence of his attorney, the privilege is waived" (citations omitted). Tasby v. United States, 504 F.2d at 336.   See also 8 J. Wigmore, Evidence §2327(6), at 638 (McNaughton rev. 1961). Com. v. Woodberry, 26 Mass.App.Ct. 636, 637-638 (1988) [emphasis supplied]. WHEREFORE, Respondent prays that this motion be ALLOWED.   Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice, of course, mandates that any procedure be fundamentally fair. Respectfully submitted,      FN1    See textbox above paragraph 56 of the Amended Answer.  Note The OBC has copies of all the emails called out below. Look for the letter dated 11/6/99 from one of “Sarah’s Sisters” and the closing: “THANKS AGAIN FOR ALL YUR HELP”.  Look also on page 39 for another sister’s thanks: “Thank you for your time and we hope to hear from you soon, Pearl & Josh.”  Look at page 41 in textbox for “Know a few reporters who'd jump on this in a minute.  It's a damn potential front-page story.”  Look at textbox for email dated 12/12/99 from Deb Sano on page 51: “We will be forever grateful for your help and concern. You have given us great hope and re-instilled out courage to fight.”  And look also on page  95 on page 119, for Deb’s letter in which she wrote to Johnson:  Dear Barbara, Thanks. Know that your are not on our payroll anymore but would love to be able to keep you posted.  Who knows we may someday be a story on your wonderful educational web site. . . . We will be forever grateful for your help and concern. You have given us great hope and re-instilled out courage to fight. 26 August 2003  RESPONDENT’S MOTION TO PRECLUDE CHAIR FROM SITTING ON ANY COMMITTEE OR DECIDING ANY MOTION IN THESE ACTIONS Denied by Chair M. Ellen Carpenter Now comes Respondent Barbara C. Johnson [“Johnson”] and moves to preclude M. Ellen Carpenter [“Carpenter”] sitting on any committee or deciding any motion in the above-docketed actions. As grounds, Johnson states that Carpenter is biased against Johnson, acted outside the scope of her authority as well as “precipitously” when deciding one of Johnson’s motions, and is now heading the Judicial Response Task Force [“JRTF”], created to formulate responses to allegedly unfair or unwarranted criticism of the judiciary.   Obvious by its absence from the JRTF agenda is the reassurance that the task force will also consider that some criticism of the judiciary is, indeed, fair and warranted.  The consuming public has no means of seeking a remedy from a judiciary unlawfully protected from suit by the judicially created doctrine of judicial immunity.  The last thing the judges need is a powerful and well-financed advocate to add to their already infinite power.  And responsible lawyers with the requisite fearlessness have no forum other than the media to seek some form of remedy for their clients. In support of her motion, Respondent states: Given both Carpenter’s brief history on Respondent’s cases and Respondent’s firm conviction that the OBC/BBO is prosecuting her because of her public posture of seeking court reform and the abolition of judicial immunity, she believes that she and Carpenter are at crossroads, i.e., diametrically opposed philosophically and practically on the core issues before the Bar, and that it will be impossible for Carpenter to be keep her biases under control.  In further support of her motion, Respondent calls attention to Carpenter naming herself, the chair, as the decision-maker of two offensive motions by Bar Counsel – a motion for a protective order and a motion to preclude Respondent’s defenses and mitigation.  First, Board Rule 3.18 does not give the Chair, Carpenter, the authority to make decisions on the two aforementioned ostensibly nondispositive motions.  The usurping of power that is not hers is odious.  It  demonstrates her existing biases against Johnson.  Second, Carpenter is clearly on a career path toward a judgeship – Chair of the BBO and Chair of the JRTF – which means that she is going to favor those who can butter her bread.   Johnson is clearly not that person.  Johnson is uninterested in being treated as if she were the fly in Carpenter’s ointment . . . and that is inevitable if Carpenter is allowed to have any association with the disciplinary action(s) against Johnson. WHEREFORE, Respondent prays that this motion be ALLOWED.   Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice. Justice, of course, mandates that any procedure be fundamentally fair and that any fact-finders or law-deciders not have existing biases against one of the parties. Respectfully submitted, 25 August 2003  RESPONDENT’S MOTION FOR MORE DEFINITE STATEMENT Denied by Special Hearing Officer Herbert P. Phillips Now comes Respondent Barbara C. Johnson [“Johnson”] and moves for more definite statement of Counts I and II of the Petition for Discipline, that is, (a) to identify with specificity those webpages, statements, and phrases which Bar Counsel is claiming are sufficient to constitute a violation of the Professional Rules of Conduct and (b) to identify each person who Bar Counsel claims has been harmed by those webpages, statements, and phrases. “These are adversary proceedings of a quasicriminal nature.”  In re Ruffalo, 390 U.S. 544, 551 (1968) (disbarment of petitioner reversed).  “The charge must be known before the proceedings commence.  They become a trap. . . .”  Id.   “The absence of fair notice as to the reach of the grievance procedure and the precise nature of the charges deprived petitioner of procedural due process.”  Id.  at 552. WHEREFORE, Respondent prays that this motion be ALLOWED.   Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice. Justice, of course, mandates that any procedure be fundamentally fair.  Respectfully submitted, 25 August 2003  RESPONDENT’S MOTION TO RECONSIDER MOTION FOR TRIAL BY JURY This is one of the Drano Series previously uploaded.  July 20, 2003  RESPONDENT’S SUPPLEMENTAL BRIEF AND/OR REPLY  TO BAR COUNSEL’S OPPOSITION   \ / TO RESPONDENT’S MOTION TO RECONSIDER JURY TRIAL  This is one of the Drano Series previously uploaded. August 26, 2003 RESPONDENT’S MOTION FOR HYBRID REPRESENTATION Denied as moot.  Lynch had been allowed to withdraw Now comes Respondent Barbara C. Johnson [“Johnson”] and moves for permission to join her counsel in representing Respondent. As grounds for this application, Respondent states that where Bar Counsel has brought three cases in one, two of which are extremely complex, and her counsel has only limited time to familiarize himself with the cases and Respondent has only limited funds with which to pay him, it is necessary for Johnson to share the burden of representing herself. Given also that Respondent believes that this action has been brought in retaliation  against her for espousing her ideas for court reform and her belief that many – not all, but many – of the judiciary are intellectually corrupt, she fears that her counsel would be at risk himself were he to defend not only her but also her ideas before the Board.   Therefore containment is called for. Further, Respondent is not being kept in the “loop.”  For instance, Respondent appeared at the Office of Bar Counsel on Thursday, 12 June 2003, at 9:55 a.m. for a 10:00 a.m. conference, only to find after she arrived that the conference had been cancelled.   Written notice had evidently been sent out the day before, but it did not arrive in Andover before Respondent had left for Boston. Additionally, Respondent has not seen the memorandum possibly filed by Attorney Lynch …  AND Respondent heard at the OBC on Thursday, June 12th that a meeting was had between Lynch and Weisberg on Tuesday, June 10th,, but Respondent has no clue as to what was discussed. Given these recent events and occurrences, Respondent must retain some control of her defense.  It is too spooky to be left so in the dark about the mysterious workings of the OBC.  ARGUMENT Hybrid representation is founded on a well-settled doctrine and has often been allowed in this Commonwealth in both the civil and the criminal arenas.   Com. v. Kenney, 437 Mass. 141, 150 (2002), Commonwealth v. Molino, 411 Mass. 149, 153 (1991) ("Hybrid representation is not prohibited; appointment of counsel in any hybrid situation is left to the discretion of the trial judge").  WHEREFORE, she requests that this motion be allowed in the interest of fairness to the Respondent.   Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 22 June 2003  RESPONDENT’S APPLICATION FOR AUTHORIZATION  TO TAKE DEPOSITIONS Denied Now comes Respondent Barbara C. Johnson [“Johnson”] and applies, pursuant to Rule 4.11 of the Rules of the Board of Bar Overseers, for authorization to take depositions, with subpoenas duces tecum, of the following persons: 1. Retired Judge Ronald Harper 2. Judge Paul McGill 3. Judge Elizabeth O'Neill LaStaiti  4. Judge Prudence M. McGregor 5. Judge Roderick L. Ireland 6. Judge Francis X. Spina 7. Judge Rudolph Kass 8. Judge Kent Smith,  9. Judge George Jacobs 10. Deborah D. Wolf, Esq. 11. Bruce W. Lider, Esq. 12. Robyn Gerry-Sylvia 13. Michael Sylvia 14. Deborah Sano 15. Harry Sano As grounds for this application, Respondent states that depositions will make the proceedings in this action be more time- and cost-effective.  In support, Respondent states that Bar Counsel intends to use decisions by the divers justices against her and that Respondent cannot cross-examine pieces of paper.  Argument.  Given the dubious thought processes that were used in reaching those decisions, fundamental fairness requires that Johnson be allowed to go behind those pieces of paper.   Given also that Johnson is likely to be denied her request for a jury trial, for which the Rules of the BBO do not provide, she cannot rely on any hearing panelists keeping an open mind and not relying in blind faith on those pieces of paper just because they were signed by a clerk or judicial officer.  Therefore, it is imperative that Johnson be allowed to examine the individuals on the list.  WHEREFORE, she requests that this motion be allowed in the interest of fairness to the Respondent.   Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice.  Justice mandates that any procedure be fundamentally fair. Respectfully submitted, 11 June 2003