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