#109 Drano Series
 

       
    The Bar War Continues Against Barb 
    Barb Sued the  BBO
    [Board of Bar Overseers]
    in Massachusetts'
    Supreme Judicial Court.
    The Complaint was dismissed within a day or two, sua sponte.
    One half-hour later, she sued in U.S. District Court in Boston.
    Here is the Federal Complaint, the original amended by adding claims for money damages.

    Barb resents spending time on the battling with the BBO,
    because she could be helping people truly in need at this time.
    So Barb has taken the offensive. 


    CENSORSHIP
     came as the BBO's Christmas present
    this year.  The sender was Chair of the Board M. Ellen Carpenter, friend and former partner of Mass. SJC Justice Martha Sosman, and current partner of Christine Roach of the State Ethics Commission
    (Laughable, isn't it, folks?)

    And on New Year's Eve came the news that former Vice Chair of the BBO
    and now Appeals Court Judge Cynthia Cohen has joined the fray.

    Barb speculates that Cohen learned about this complaint against the Board of Bar and her friends Ellen (the Chair) and Danny (the Bar Counsel) for $15million.

    To retaliate against me, Cynthia Cohen* (with Judge Mel Greenberg 
    but not Judge Kass**)
    sanctioned a little old lady client*** of mine
    $29,000.  The jury verdict was in her favor, but the courts have whittled it away.
    ___________________________________________

    *  I had already embarrassed her former firm in two courts.

    ** Interesting.  Judge Kass, who had been on the original appellate panel backed off the negative Rule 27 decision.  Cohen should have recused herself. See the Rule 27 letter to Justices Cohen Greenberg, and Kass at Drano Series #88: drano88-abend-rule-27-letter-to-appeals-court.htm

    *** Where Did Justice Go? (Case #2, An Estate Owed Elderly Caregiver Payment for Services ) The decision in this old case is so badly reasoned that 
    I cannot help think it is a great example of how far the court will go to retaliate because I'm fighting JUDICIAL IMMUNITY.

     

     
    UNITED STATES DISTRICT COURT
    EASTERN DISTRICT OF MASSACHUSETTS

    ------------------------------------------------------------                     CIVIL ACTION: 03-CV-12314-WGY
    Barbara C. Johnson, Esq. 
                                                     Plaintiff 

    v. 

    Board of Bar Overseers of Massachusetts
    M. Ellen Carpenter, Esq., in her individual 
          and professional capacities, including her
          capacity as Chair of the Board of Bar 
    Overseers of Massachusetts
    Herbert P. Phillips, Esq., in his individual 
          and professional capacities,
    Office of Bar Counsel
    Daniel Crane, Esq., in his individual 
          and professional capacities,
    Commonwealth of Massachusetts, 
                                                      Defendants 
    ---------------------------------------------------------

    AMENDED VERIFIED COMPLAINT AND JURY DEMAND ON ALL COUNTS
    (Plaintiff incorporates by reference the attached exhibits
    with the same force and effect as if herein set forth)

    INTRODUCTION

    This case arises out of a Petition of Discipline by Bar Counsel Daniel Crane ["Crane"] against Plaintiff, Barbara C. Johnson, Esq. ["Johnson"]. Johnson asserts that she as both a citizen and an attorney is entitled to the full sweep of due process and equal protection of all the laws. 

    Johnson has brought two causes of action under 42 U.S.C. §1983, one under 42 U.S.C. §1985(3), and six for declaratory judgments. They are (1) a declaratory judgment (G.L. c 231A) that a bar disciplinary proceeding is a quasicriminal proceeding and that whether or not the proceeding is quasicriminal, respondents are entitled to a jury trial, (2) a declaratory judgment that the Rules of the Board of Bar Overseers are unconstitutional both facially and as applied for civil or quasicriminal proceedings, (3) a declaratory judgment that lawyers are entitled to the full sweep of due process and equal protection of all the laws, (4) declaratory judgment that §§ 9(1), 9(2), and 9(3) of Supreme Judicial Court Rule 4:01 are unconstitutional both facially and as applied (there is no scenario in which either the Board Rules or SJC Rule 4:01 §§9(1), 9(2), and 9(3) can be applied constitutionally), (5) declaratory judgment that §10 of SJC Rule 4:01 is unconstitutional both facially and as applied, (6) declaratory judgment that Rule 1.5 of the Mass. Rules of Professional Conduct is unconstitutional on the grounds that it is too vague and too broad, (7) violation of 42 U.S.C. §1983 (due process and equal protection clauses), and (8) violation of 42 U.S.C. §1985(3) (conspiracy), and (9) violations of 42 U.S.C.§1983 (refusing or neglecting to prevent). and (10) defamation by Daniel Crane and  the BBO.

    JURISDICTION

    1.  Jurisdiction of this court arises under 28 U.S.C. §§ 1331 (federal question), 1337 amount in controversy), 1343(a) (deprivation of civil rights and privileges, furtherance of conspiracy, equitable relief), and 1367(a) (supplemental jurisdiction); 42 U.S.C. §§ 1983 (civil action for deprivation of rights) and 1988 (proceedings in vindication of civil rights); and 18 U.S.C. § 1341 (scheme or artifice to defraud).

    2.  Jurisdiction of this court for the pendent claims is authorized by F.R.Civ.P. 18(a), and arises under the doctrine of pendent jurisdiction as set forth in United Mine Workers v. Gibbs, 383 U.S. 715 (1966).

    PARTIES

    1. Your Plaintiff, Barbara C. Johnson ["Johnson"], who resides at 6 Appletree Lane, Andover, Essex County, MA 01810-4102, is (1) an attorney licensed to practice law in the Commonwealth of Massachusetts, (2) an attorney admitted to practice in the United States District Court at Boston and the First Circuit Court of Appeals, (3) an Internet publisher located at falseallegations.com, and (4) the Respondent in actions entered in Board of Bar Overseers as Nos. C2-01-0091, C2-01-0090, C2-00-0078, C2-98-0580.

    2. Defendant Board of Bar Overseers of Massachusetts [“BBO”], located at 75 Federal Street, Boston, MA 02110, was established in 1974 by the Massachusetts SJC as an independent administrative body to ensure that the Canons of Ethics and Disciplinary Rules Regulating the Practice of Law are observed.  It allegedly investigates and prosecutes complaints against lawyers, and administers and recommends to the SJC appropriate disciplinary action. 

    3. Defendant M. Ellen Carpenter  ["Carpenter" or “Chair”], who is a resident of Massachusetts, has been, at all times relevant to this Complaint, (1) an attorney licensed to practice law in the Commonwealth of Massachusetts, (2) a partner of the lawfirm Roach & Carpenter, (3) chair person of the BBO, (4) a person who improperly conducted the affairs of the Commonwealth, and (5) accountable to Johnson and the people of the Commonwealth.\1/

      FN1 Com. v. Ellis, 429 Mass. 362, 371 (1999): "Article 5 [in Part the First, the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts], . . . provides that officers [including judges] of government `are at all times accountable to [the people].'" 
    4. Defendant Herbert P. Phillips  ["Phillips"], who resides at 2 Skipper Way, Gloucester, Essex County, MA 01930, has been, at all times relevant to this Complaint has been (1) an attorney licensed to practice law in the Commonwealth of Massachusetts, (2) a partner of the lawfirm Phillips Gerstein Holber & Channen, (3) Special Hearing Office at the BBO, (4) a person who improperly conducted the affairs of the Commonwealth, and (5) accountable to Johnson and the people of the Commonwealth.

    5. Defendant Office of Bar Counsel [“OBC”], located at 75 Federal Street, Boston, MA 02110, is the prosecutorial arm of the BBO and is also funded by annual registration fees.  It was established by the Supreme Judicial Court in 1974 as an independent administrative body to investigate and evaluate complaints against lawyers.  The OBC allegedly investigates, evaluates, and prosecutes complaints against lawyers.

    6. Defendant Daniel Crane  [“Bar Counsel”], who is a resident of Mas-sachusetts, has been, at all times relevant to this Complaint, (1) an attorney licensed to practice law in the Com-monwealth of Massachusetts, (2) Bar Counsel, (3) a person who improperly conducted the affairs of the Commonwealth, and (4) accountable to Johnson and the people of the Commonwealth.

    7. Defendant Commonwealth of Massachusetts [Commonwealth”] is a body politic that is formed by a voluntary association of individuals, and "is a social compact, by which the whole people covenants with each Citizen, and each citizen with the whole people, that all shall be governed by certain Laws for the Common good" [Preamble.  Massachusetts Constitution] and as an association, according to M.G.L. c. 4 §7, is a person for all purposes under all laws.

    FACTS 

    8. The BBO assembles from time to time a quasijudicial court. 

    9. The BBO’s General Counsel, who at all times relevant to this Complaint has been Michael Fredrickson, reports to “the Board.”

    10. The 12 members of the BBO are appointed by the SJC.

    11. Chair Carpenter is a friend and former colleague and partner of SJC Justice Martha B. Sosman.\2/

    FN2      The Executive Director of the State Ethics Commission is Christine Roach, past and present partner of the Roach & Carpenter lawfirm with BBO Chair Carpenter and also a former colleague and partner of SJC Justice Sosman. The commission governs the conduct of public employees and elected officials and is, ironically, responsible for enforcing and administering the conflict of interest and financial disclosure laws, which apply to those employees and officials.
    12. Bar Counsel Crane of the OBC reports to the SJC.

    13. On 24 January 2003, Bar Counsel filed a Petition for Discipline\3/ against Johnson 
    [Exhibit A, Docket Sheet].

    FN3      The Petition for Discipline had three counts: one count for each of three separate and distinct matters. For convenience, the first was the Linnehan matter, the second was the Sano matter, and the third was the Coughlin matter.
    14. The author of the petition was Assistant Bar Counsel Susan Strauss-Weisberg.

    15. According to General Counsel Fredrickson, the requisite approval of the petition before it was filed in the BBO was given by BBO member Attorney Elizabeth M. Mulvey,\4/ who became the Reviewing Board Member.

    4      Initially General Counsel Michael Fredrickson told Johnson that it was he who had "approved" the petition, but in October 2003, he told Johnson that it was Mulvey who approved the petition and that she was now recused from the case. Someone made the decision to follow Section 3.54 of the Board Rules.
    16. The Complainant of Count I\5/ was the child's mother, who ran for public office and on election day, both blamed her loss on Johnson's website and filed the complaint at the Bar.  In Count II,\6/ Bar Counsel averred (a) that Johnson commingled funds by depositing Sanos’ money into her personal rather than into her IOLTA account. [Pet.  ¶71], (b) that “the fees charged and collected by [Johnson] in the  [Sano] matter were clearly excessive” [Pet.  ¶82], and (c).that Johnson published confidential material re the Sanos without their consent. [Pet  ¶91].\7/
    5Count I of the petition swirls around Linnehan’s custody and paternity case about which Johnson filed a Complaint in federal court. In the Linnehan Complaint, Johnson chastised a judge for depriving the father of his parental rights for over a decade without due process and equal protection. Johnson published her answer to the BBO and OBC on her website at falseallegations.com/bbo-drano90-answer-count-one-linnehan.doc.

    6Count IIis concerned with a "consultation" matter. Johnson never made an appearance in court for any of the Sanos. The background: Four indictments had issued charging Deb Sano’s husband with sexual crimes and assault of the couple’s youngest and mentally challenged daughter. At the age of 15 months, the daughter suffered a stroke. At the time of the indictments, the daughter was around 28 years old chronologically but only around 1½ years old mentally. The daughter had been in the custody of the Department of Mental Retardation for around eight years. The parents had been restrained from seeing the daughter.

    The entire Sano family was pleased with Johnson’s services and sent emails to Johnson relaying their gratitude [Figures 1, 2, and 3 below]. And Complainant Deb Sano gave her consent to publication of the family story on Johnson’s website [Figure 3]. Whether Deb Sano’s consent was implicit or explicit is a fact for a jury to decide.

    Johnson received approximately $10,700, but realizing that the family faced considerable legal expense to defend against the criminal charges and to prosecute civil cases, Johnson deeply discounted her fees and in December 1999, returned approximately $3200 to Deb Sano.

    Deb Sano then complained to Johnson that she wanted to pay Johnson for only one hour and 36 minutes of time and to have Johnson return more money [Figure 4]. Johnson suggested to Deb Sano that the fee dispute be arbitrated. Instead of responding to Johnson’s offer to participate in arbitration, Deb Sano complained four months later – around April 2000 -- to the Bar.

    7After Weisberg let Johnson know that charges would be brought, Johnson placed her bill to the Sanos and her responses to Weisberg on her website, at falseallegations.com/bbo-drano90-answer-count-two-sano.doc, so that the public could decide for themselves whether Johnson’s fees were excessive. More offensive is that the BBO puts up on its Internet that disciplinary proceedings are pending and then alleges that Johnson violated Bar rules when defending herself against false accusations.


    17. Johnson averred (a) that she had already earned the money by the time she deposited it into her personal account [Am.Ans. ¶ 71], (b) that her fees were not excessive [Am.Ans. ¶82], and (c) that Johnson had the consent given by Deb Sano to publish the story on her website and published only those parts relevant to the dispute initiated by Sano [see Figure 1 following para 74 below, excerpt from an email dated 12 December 1999 at 19:03].

    18. In both Counts I and II of his petition, Crane averred that Johnson published confidential material on her website and thereby harmed people.\8/ 

    8Griswold v. Connecticut, 381 U.S. (Conn.) 479, 487 (1965), quoting Gitlow v. People of State of New York, 268 U.S. 652, 666 (1925) (freedom of speech and of the press, protected by First Amendment, are fundamental personal rights and liberties protected by due process clause of Fourteenth Amendment from impairment by States). Snyder v. Com. of Massachusetts, 291 U.S. 97, 105 (1934) (same).
    19. In Count III,\9/ Crane alleged that Johnson was jailed to force payment of funds allegedly ordered on 3 March 1995 to be paid.  Pet.  ¶124.
    9Count III arose out of a whistleblower, wrongful termination case. During its prosecution in March 1995, eight years ago, Johnson was found in contempt of a non-existent order. Am.Ans. ¶ 108, 111, et al. After the labyrinthine proceedings of a Rube Goldberg remand case -- up and down the ladder of the courts several times -- the finding of contempt against Johnson was not vacated. On 17 December 1998, Johnson was ordered to jail because she said No to Judge Paul McGill, who had found her in contempt. She remained jailed for 24 hours. The Complainant of Count III in the petition was Judge McGill.
          "The validity of the contempt order … depends on the correctness of the underlying discovery order." Greater Newburyport Clamshell Alliance v. Public Service Co., 838F.2d 13 (1st Cir. 01/29/1988), citing Hanley v. James McHugh Const. Co., 419 F.2d 955, 957 (7th Cir. 1969).

    20. Not only was Crane’s allegation untrue [Am.Ans. ¶124], but he knew it was un-true: his own exhibit to the petition proves otherwise.

    21. Crane wanted to put in his case for Count I through documents including, but not limited to, (a) the written complaint of the mother, Robyn, and Attorney Deborah Wolf and (b) letters from Assistant Bar Counsel to Johnson.

    22. Crane wanted to put in his case for Count II through documents including, but not limited to, (a) the written complaint of the wife, Deb Sano and (b) letters from Assistant Bar Counsel to Johnson.

    23. Crane wanted to put in his case for Count III through documents including, but not limited to, (a) the judicial memoranda, decisions, and orders from the labyrinthine proceedings for his case-in-chief\10/ and (b) letters from Assistant Bar Counsel to Johnson.

    10 Assistant Bar Counsel Susan Strauss-Weisberg ["Weisberg"] wrote Johnson saying that she might not call any witnesses for the Bar Counsel’s case-in-chief [Exh. B].
    24. In Count I, Crane (a) did not identify with any particularity the offending language or the people allegedly actionably harmed and (b) had no intention of calling the mother-candidate, Robyn Gerry-Sylvia, or Linnehan son, Brenden, now in his majority – despite the fact that they were named in the OBC’s proposed list of witnesses.

    25. In Count I, Crane also intentionally misrepresented that Johnson put onto her web-site documents Johnson had not put on her website.

    26. In Count II, Crane failed to identify (a) how much of the amount Johnson charged the Sanos is excessive and (b) the task(s) for which they allege Johnson overcharged the Sanos.

    27. In Count II, Crane also intentionally failed to acknowledge in the Petition for Discipline any of the facts or documents whatsoever in mitigation, although the OBC’s agents had copies of (a) each and every email sent from all the Sanos to Johnson and each and every email Johnson sent to the Sanos and three of their married daughters and sons-in-law, including (b) the email in which Deb Sano had given her consent to publication of the family’s story on Johnson’s website [Pet. ¶91] and (c) the detailed, itemized accounting Johnson provided the Sanos.

    28. In Count III, Crane intentionally failed to acknowledge in the Petition for Discipline any of the facts or documents whatsoever in mitigation, although the OBC’s agents had scoured and copied each and every document in each and every file in or arising out of the Cough-lin matter (including that involving Mark C. O’Connor and Johnson) in Concord District Court, Middlesex Superior Court, the Appeals Court, and the SJC.

    29. To force the disclosure of the facts raised in  ¶¶26 and 28 above and other necessary facts, Johnson filed motions for more definite statements, Weisberg opposed one of them; and SHO Phillips denied them [Papers 48 (8/26),  69 (9/9/03) xx (11/4/03); the opposition in Paper  62 (9/9/03); the denials in Papers 79 (9/16/03) and YY (11/18/03)]

    30. Without witnesses, no cross-examination by Johnson was, will, or would be possible, for Johnson cannot cross-examine a piece of paper. 

    31. Johnson moved for authorization to take depositions and was denied [Paper 18 (06/24/03)]. 

    32. The Board Rules also do not allow discovery, e.g., interrogatories or depositions, by a Respondent [Exh C]. 

    33. At the first prehearing conference, the BBO, through Assistant General Counsel Carol Wagner, informed Johnson that M.G.L. c. 30A, the Administrative Procedure Act, applies to BBO proceedings.

    37. On 4 November 2003, Johnson filed a motion, pursuant to Board Rule 4.5(a), requesting the issuance of subpoenas [Paper 90 (11/04/03)].  That motion was ultimately denied but for a few subpoenas, which were not produced until a few days before trial.  (See ¶142, infra). 

    34. Board Rule 4.5, Hearing for Subpoenas, provides that a respondent “may” request the assigned factfinder or the entire Board to issue subpoenas but it is not mandatory that a respondent request those entities to issue subpoenas, leaving it open to the respondent to choose whether to ask one of the named entities to issue subpoenas or to issue the subpoenas as a litigant does in a court with a judge who has been sworn in under oath to perform his or judicial duties.

    38. Massachusetts G.L. c. 30A, §12(3) gives any party to the adjudicatory hearing 

    the right to issue subpoenas in the name of the agency conducting the proceeding. The party may have such subpoenas issued by a notary public . . . make written application to the agency, which shall forthwith issue the subpoenas requested.
    39. But BBO General Counsel, Michael Fredrickson, on Monday, 10 November 2003, informed Johnson that the Board Rules 4.5 and 4.6 overrule M.G.L. c. 30A, so that the State Administrative Procedure Act does not apply to BBO proceedings.

    40. Fredrickson intimated, in that November 12th conversation, in words for all intents and purposes, Do not bother to serve subpoenas because the special hearing officer will not allow your witnesses to testify if the BBO does not want to hear from them.

    41. While a sitting justice may, indeed, allow or disallow proposed witnesses to testify, Johnson was left with the impression  -- because he inferred wrongly that c. 30A and Board Rules 4.5 and 4.6 were in conflict ---- that Johnson should expect that most of the witnesses she wanted to subpoena would not be allowed to testify.\11/  (See ¶142, infra).

    11Johnson has the right to summons and call witness under G.L. c. 233, §§ 1-6. Com. v. Graves, 35 Mass.App.Ct. 76, 84 ( 1993).


    Ulterior Motive of Bad-Faith Prosecution and Selective Enforcement: 
    First Amendment Rights

    41. The OBC selectively prosecutes attorneys about fees and fee disputes [Exh.D, a letter from Asst. Bar Counsel Arcos to a member of the complaining public].

    42. The OBC chose Johnson for “selective prosecution, even though the fee dispute was de minimus.

    43. On 7 November 2003, Bar Counsel pregnantly denied the selective prosecution of Johnson and forewent proceedings against other attorneys for similar or related misconduct. [Paper 110, Motion to Strike Affirmative Defenses (11/07/03)].

    44. Assistant Bar Counsel Christa Arcos, an agent for the OBC, wrote to a member of the public, fee disputes are not generally within the jurisdiction of this office”[Exh.D].

    45. On 27 October 2003, approximately 10 months after the petition for discipline was 
    served, Bar Counsel identified to Johnson the webpages of which he complains: namely, Drano ##5, 9,12, 14, 15, 17, 20, 21, 22, 23, 24, 25, 26, 28, 31, 32, 37, 39, 42, 43, 44, 65, 66, 69, 70, 72, 73, 80, 81, 82, 83, 84a  [Paper xx, (October 27, 2003, Bar Counsel’s Preliminary Disclosures].

    46. The ulterior motive of the Bar Counsel is to censor Johnson’s website, and arises from Johnson’s exercise of her First Amendment right to political speech and free expression, as well as her right and obligation to see that justice is done, by publishing on her website information related to the unscrupulous acts of the now-retired Judge Ronald D. Harper and other court-appointed persons.

    47. Well aware of their untempered, extraordinary powers, the BBO and the OBC concluded that it is easier to cenSURe Johnson than to cenSOR the website. 
     

    Motion for Trial by Jury

    48. Through her counsel, Johnson moved for a jury trial, and it was denied by Special Hearing Officer [“SHO”] Herbert P. Phillips [Papers 20 (6/24/03) and 28 (7/03/03)].

    49. Upon deciding to represent herself, Johnson filed a motion to reconsider her motion for a jury [Paper 35 (7/22/03)]. (This motion was uploaded to Johnson’s website.)

    50. Argument was heard at a pretrial conference on 22 July 2003.  SHO Phillips graciously agreed to reconsider the motion, gave Assistant Bar Counsel Weisberg time to oppose, promised to make a decision within a week or 10 days after receipt of the opposition, and provided the parties with copies of the pretrial agreement and a schedule of due dates within a day or two of the hearing [¶3 of Paper 40 (7/23/03)].

    51. Within a day, however, of the pretrial conference, Johnson received a copy of the first-page of her motion with the endorsement “Denied” on it.  It had been decided by the Chair Carpenter [Papers 43, 3 of document entitled “Order” (7/25/03)].

    52. Other than the power to scold, fine, or imprison jurors, who do not exist in the 
    world of the BBO, Carpenter appears to have most of the powers that the Star Chamber did have: e.g., the power to dictate which witnesses may be subpoenaed by a respondent to trial. 

    53. Upon the unexpected receipt of Carpenter’s ruling on the motion for a jury trial, Johnson immediately phoned Fredrickson both to inform him of the discrepancy and to query him as to how and why it occurred. 

    54. Much to Fredrickson’s credit, within a day, Carpenter wrote Johnson saying that she “acted precipitously” [Paper 46 (7/29/03)]. 

    55. Carpenter not only had “acted precipitously” but also had usurped the power of the SHO and had violated Board Rule 3.18(a).

    56. Rule 3.18(a) required the motion to be “submitted to a member of the Board for determination.”  Fredrickson had not designated a Board member to receive Johnson’s motions.  It appeared that he designated himself or his administrative assistant. 

    57. Rule 3.18(a) required the designated Board member to refer Johnson’s motion for determination to the chair of the assigned hearing committee, but there was no committee; or to the hearing panel, but there was none; or to the special hearing officer, but it was not referred to Phillips.  Instead, Carpenter decided the motion.

    58. On the same day – 29 July 2003 -- that Carpenter wrote the “acted precipitously” letter, Bar Counsel decided to put into the record some opposition to Johnson’s motion to reconsider the denial of trial by jury, but Bar Counsel and Weisberg did that not by a formal pleading, but by a letter [Paper 45 (7/29/03)].

    59. Subsequently, Johnson supplemented her brief in reply to Bar Counsel’s opposition to her motion for a jury trial [Paper 53 (8/26/03)].  (Johnson uploaded this supplemental brief to her website Drano Series.)

    60. Waiting for a determination from SHO Phillips on the jury-trial motion, Johnson phoned Fredrickson again. “That’s not going anywhere,” he said.  “I’d be astonished if it did. . . . No way in hell you’ll get a jury trial.”

    61. Fredrickson was correct.  Within a day or two after Johnson’s call to Fredrickson, SHO Phillips denied Johnson’s Motion to Reconsider Motion for Trial by Jury [Paper 78 (9/16/03)].

    62. Such a response raised the question, then, Who was doing the decision-making?  Who is at someone’s beck and call?  Who is the someone? 

    63. The secret, harsh, and arbitrary process resembles that of the Star Chamber.\12/

    12There is even some comic relief provided by the Board Rules. In accordance with Board Rule 3.5(b), Johnson bound each of her pleadings with staples or in a three-ring binder when the ¾-inch staples were inadequate. But she since has been informed by Fredrickson’s "Legal Administrative Assistant" June D. Risk not to bind them [Exh. C (8./25/03)].

    64. Pursuant to Rule 1.2, someone – ostensibly “the Board” -- appointed Special Hearing Officer Phillips to hear charges of misconduct because “in view of the anticipated length of the hearing or for other reasons.

    65. The pretext for appointing a Special Hearing Officer was “that a speedy and just disposition would be better accomplished by such appointment than by referring the matter to a hearing committee or panel of the Board.”  See Board Rule 1.2.

    66. The real reason for appointing only one person rather than a panel appears to be that it is easier for Carpenter and Fredrickson to control the course of events, for example, the decisions on motions.\13/ 

    13 Justice Black wrote, in words for all intents and purposes, the goal of a tyrannical government is to deprive its citizens of independence. In that way, they become "nothing more than parrots of the views of whatever group wields governmental power at the moment." Cohen, at 138.
    67. Johnson has no knowledge as to who actually did appoint Phillips – whether it was the Board or Chair Carpenter or Fredrickson or some as-yet-unidentified personage.

    68. Johnson does not know in advance who is going to decide the motions she submits.


    Another Violation of Rule 3.18(a) by the Chair Deciding Nondispositive Motions

    69. Johnson filed (1) a Motion for Order that Board Rule 3.18(a) Is to Be Followed, so 
    as to Preclude Chair from Deciding Ostensibly Nondispositive Motion [Paper 49 (8/26/03)] and (2) a Motion to Preclude Chair from Sitting on any Committee or Deciding any Motion in These Actions [Paper 50 (8/26/03)].

    70. Bar Counsel opposed the two motions named in 69 immediately above [Papers 63 and 64 (both 9/09/03)].

    71. Chair Carpenter decided both motions to preclude described in 69 [Papers 74 and 75 (both 9/10/03)].


    Another Rule 3.18(a) Motion, Finally Decided by SHO Phillips 

    72. One of Johnson’s motions was to declare Count II on the grounds (a) that the consent by the Sanos, or Parkers (Bar-supplied pseudonym), to publication of their story on Johnson’s website constituted a waiver of confidentiality [Paper 51 (8/26/03)] and (b) that Johnson had a right to defend herself (more infra).

    73. Bar Counsel opposed the motion for a declaration of waiver of confidentiality [Paper 65 (9/09/03)].

    74. The alleged implicit or explicit permission or consent had been given Johnson in an 
    email  on 12 December 1999 from the wife [Figure 1].
     
     

    Subject: RE: Accounting finished
    Date: Sun, 12 Dec 1999 19:03:58 –0500
    From: "dsano" dsano@bcn.net
    To: "Barbara C. Johnson" barbaracjohnson@worldnet.att.net

    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.

    <Numerous paragraphs redacted>

    We will be forever grateful for your help and concern. You have given us great hope and re-instilled out courage to fight.

    <Redaction>

     D&H
    Figure 1

    75. At the time, Johnson had not published the Sano story on her website.

    76. Johnson published her bill to the Sanos and some of the information for her defense only after the wife complained to the Bar that she wanted more money back than Johnson had returned. 

    77. The Bar then declared the publication to be an unwarranted publication.

    78. Johnson disagreed that publication of the bill and some of the surrounding facts were unwarranted.  She had a constitutional right to defend herself, and where the BBO made the disciplinary proceeding public on their Internet website, Johnson had and still has the right to defend her reputation publicly.

    79. SHO Phillips denied Johnson’s motion to declare Deb Sano’s consent to publication constituted a waiver of confidentiality [Paper 80 (9/16/03)].

    Motions to Dismiss: Under Board Rule 3.18(b)

    80. Under Board Rule 3.18(b), all motions to dismiss the petition for discipline or any charges contained therein are to be determined by the Chair of the Board or the Chair’s designee.

    (a) Motion to Dismiss Count II: Privilege Does Not Apply in Attorney-Client Disputes

    81. Another of Johnson’s motions to dismiss Count II was on the grounds that privilege did not apply to disputes between a client and an attorney and that Johnson had a right to defend herself [Paper 59 (9/05/03)]. 

    82. Despite Bar Counsel not opposing Johnson’s motion re the privilege in an attorney-client dispute, Chair Carpenter issued a summary denial of Johnson’s motion to dismiss Count II [Paper 60 (9/08/03)].\14/

    14The reasonable conclusion is that Carpenter upholds privilege in the face of a fee dispute.
    83. Subsequently Johnson filed a motion to reconsider the motion to dismiss on grounds that privilege did not apply to disputes between attorney and client [Paper 70 (9/10/03)].

    84. The Chair then allowed the motion to reconsider but issued another naked denial of Johnson’s second motion to dismiss Count II on the no-privilege grounds [Paper 82 (9/30/03)].

    Motion to Dismiss Count III: Prejudicial Delay

    85. The other motion was to dismiss Count III on the grounds that during the 5-8 year delay in bringing a disciplinary action, the tape of a hearing  was overwritten by the Commonwealth and an eyewitness passed away [Paper 52 (8/26/03)].\15/  A tape of that hearing would have contained exculpatory evidence.

    15 Johnson’s contention was that although confidences must not be disclosed if they are not relevant to the defense, they may be disclosed if they are relevant to the defense of the charge. See Tasby v. United States, 504 F.2d 332, 336 (8th Cir.1974), cert. denied, 419 U.S. 1125, 95 S.Ct. 811 (1975). In such circumstances, "the attorney-client privilege may be treated as waived at least in part." Id. at 336.

    The motion to dismiss also included State legal citations, including Com. v. Brito, 390 Mass. 112 (1983), Glenn v. Aiken, 409 Mass. 699 (1991), Com. v. Woodberry, 26 Mass.App.Ct. 636 (1988), and Darius v. City of Boston, 433 Mass. 274 (2001).

    86. Bar Counsel’s opposition did not address the issue of the prejudice resulting from the loss or destruction of the tape of a critical proceeding five years ago\16/ or the death of a critical eyewitness within the intervening five years [Paper 67 (9/9/03)].

    16 The critical proceeding occurred on 17 December 1998.

    87. Chair Carpenter denied the motion to dismiss Count III and then added that the determination as to whether there was prejudicial delay was one for SHO Phillips to make [Paper 71 (9/10/03)]. 

    88. Johnson did plead laches as an affirmative defense.

    89. Other grounds for dismissal of Count III were based on an ex parte communication having occurred between the judge and opposing counsel [Pet. ¶122]and a material document having been physically altered by what appears to be a combined effort by the local district court motion judge and the former opposing counsel  [See Figures 7(a-e)]. 

    90. Carpenter and Phillips did not address the issue of the ex parte communication.

    Motion for Protection Order: Which Applies: Rule 3.18(a) or 3.22(c)?

    91. In Bar Counsel’s motion, Weisberg did not distinguish between a protection order and an order of impoundment as to Counts I and II [Paper 13 (5/29/03)].

    92. Bar Counsel’s motion, written by Weisberg, was not only a motion for a “protec-tive order” but also 

    • a motion for impoundment 
    • a motion to censor Johnson’s website 
    • a motion to enjoin Johnson’s political and free speech and 
    • a motion for secret hearings 
    93. Weisberg and Bar Counsel failed to do the following:
    a. failed to acknowledge and identify the standards to be followed when determining such potpourri motions as Bar Counsel’s,

    b. failed to show good cause, failed to follow the procedures for impoundment,

    c. failed to state the authority giving the Bar the right to censor Johnson’s website and stifle her political speech and free expression, 

    d. failed to state the scope of the website censorship sought, 

    e. failed to state how the censorship was to be implemented, 

    f. failed to state the authority giving the Bar permission to override Johnson’s First Amendment rights, 

    g. failed to identify those documents which Bar Counsel wants to prevent disclosure and those which he wants to impound, and

    h. failed to provide copies to Johnson of those documents which Bar Counsel wants to prevent disclosure and those which he wants to impound.  . 

    94. Johnson opposed Bar Counsel’s potpourri motion on Counts I and II [Paper 55 (8/27/03)].

    95. Johnson also moved to strike the motion for a protective order [Paper 54 (8/26/03)] not only because of its inherent flaws but also because the common law supported Johnson’s contentions regarding impoundment, §13 of c. 209C, First Amendment, and censorship.

    96. Bar Counsel did oppose Johnson’s motion to strike the protective order [Paper 66 (9/9/03)].

    97. Despite all the flaws in Bar Counsel’s motion for a protective order , Chair Carpenter allowed Bar Counsel and Weisberg’s motion for a so-called protective order [Paper 73 (9/10/03)] and denied Johnson’s motion to strike [Paper 72 (9/10/03)].

    98. But according to Rule 3.18(a), nondispositive motions are to be determined by the hearing panel or hearing officer, not by the Chair.

    99. In response to Johnson’s inquiry about the noncompliance with Rule 3.18(a), Fredrickson pointed to Rule 3.22(c). 

    100. But Rule 3.22(c), as well as 3.22(b)(2), presumes that “the Board” issues a protective order. 

    101. And Rule 3.22(b)(3) presumes the SJC issues the protective order. 

    102. We’ve done it that way ever since I’ve been here,” Fredrickson replied, in words 
    for all intents and purposes.\17/

       17 To a similar excuse in Cohen, Justice Black wrote:
    . . . This argument -- that constitutional rights are to be determined by long-standing practices rather than the words of the Constitution -- is not, as the majority points out, a new one. It lay at the basis of two of this Court's more renowned decisions -- Dred Scott v. Sandford, 19 How. 393 [1857], and Plessy v. Ferguson,

    163 U.S. 537 [1896]. But cf.Brown v. Board of Education, 347 U.S. 483 [1954]. The notion that a violation of the plain language of the Constitution can gain legal stature by long-continued practice is not one I can

    subscribe to. A majority group, as de Tocqueville observed, too often "claims the right not only of making the laws, but of breaking the laws it has made." De Tocqueville, Democracy in America, Vol. 1, at 261.

    Cohen, at 142 n.23 (dissenting).

     103. Johnson reminded Fredrickson that none of the subsections of Rule 3.22 gives Ellen Carpenter the authority as Chair to rule on a motion for a protective order.

    104. Fredrickson’s explanation was that the Chair can appoint herself to act for the Board.

    105. Johnson told him, in words for all intents and purposes having the meaning, “But the rules make a distinction between ‘the Chair’ and ‘the Board,’ and she’s not acknowledging that.  Every word has meaning.”

    106. Johnson “asked Fredrickson, “How long have you been there?”

    107. Fredrickson replied, “Since 1989.”

    108. Johnson commented to him, “Well, you’ve been doing it wrong that long.”

    109. If Rule 3.22(c) is as Carpenter and Fredrickson are interpreting it, Rule 3.22(c) is in conflict with Rules 3.18(a) and 3.18(b). 

    110. If Rule 3.22(c) is interpreted literally in accordance with the words used and the definitions given in Rule 1.2, then the 12 Board members, people appointed from time to time by the SJC, must determine the motion. 

    111. Johnson had seven days within which to appeal Carpenter’s decision.  But it would have been futile:

    a. Johnson’s views on the need for judicial accountability and the need for court reform are well-known to the courts,
    b. the BBO and OBC are the SJC’s offspring,
    c. Carpenter’s colleague and former partner is sitting on the SJC bench that appointed her to the Board, and
    d. Johnson had recently brought a few cases to the SJC, but the SJC made what Johnson perceived to be unconscionable decisions on those few cases.\18/    .

    18For details of author’s recent SJC cases, see

    • falseallegations.com/drano88-abend-rule-27-letter-to-appeals-court.htm
    In Abend v. Myerson et al, the jury awarded approximately $250,000, but despite the trial judge having dismissed the counterclaim, he allowed the subtraction of a sum requested in the counterclaim. In effect, that ruling allowed "Gimbels" to lessen its debt to Abend by a sum "Macy’s" had given her.

    To top it off, SJC Justice Roderick L. Ireland unjustifiably, if not viciously, awarded the multimillion dollar defendant estate attorneys’ fees for a Rule 27.1 appeal. Johnson believes the award was to smite Johnson’s crusade to abolish judicial immunity. Abend is little, old, still hard-working lady over 70 years old whom the decedent did not pay for her extraordinary services she rendered to him for the last five years of his life, when he was failing from ill health (cancer, diabetes, etc.). He also did not pay into employer social security for her. Shame on the courts.
     
     
    N0TE
    On 31 December 2003, about a week after this amended appeal was filed seeking $$$ millions from her old working buddies, , new Appeals Court Judge Cynthia Cohen, who had been VICE CHAIR OF THE BBO BEFORE HER RECENT APPOINTMENT TO THE APPEALS COURT  and Judge Mel Greenberg ORDERED ABEND to pay the insurance lawyers $29,000. 

    Mind you, Ladies and Gentlemen, it is Abend whom the jury believed.
    It is from a jury award of $250,000 that the judges -- in different ways -- began subtracting.

    The last two deductions have nothing to do with Abend  or ith justice.  They have everything to do with getting Johnson.

    • falseallegations.com/drano87-gordon-rule-27-letter-to-appeals-court.htm
    In Cholfin v. Gordon, Gordon represented that he was Cholfin’s lawyer and put an attorney’s lien on her case, but he was not her lawyer. When Gordon moved to compel her phone number, Judge James McHugh wrote in his decision that Gordon should look it up in the phone book. And although Judge McHugh also declared the case ready for trial, Judge Wendi Gershengorn curiously. if not suspiciously (her husband is a well-known doctor), gave Gordon the summary judgment sought by his malpractice-insurance lawyers. Gershengorn found Cholfin’s case to be frivolous. Cholfin appealed but got no relief.

    Proposition: Let any lawyer put a lien on any stranger’s case. The higher courts do not mind the serious transgression of either the defendant lawyer or the rascally judge.
    • falseallegations.com/drano94-restraining-order-in-another-state.htm
    The court refused to stop a trial of for a non-existent crime and wrote, in effect, let the man appeal after conviction. (This occurs when a DA misuses a previously uninterpreted and badly-written statute to hold onto a nonmeritorious case and then the SJC refuses to interpret it BEFORE trial.) Fortunately, a second district court judge chastised the ADA and dismissed the case after the 211:3 did not work.

    Fortunately, a jury acquitted another of Johnson’s clients – Meuse -- in minutes after a 5-day trial because of a similar circumstance . . . where the Court refused to interpret the statute and stop the unlawful prosecution.

    The Courts and the DAs have no right to complain of a cut budget. They waste the money that could be put to better use. They, like the Katzenjammer Kids, brought it upon themselves., and likely shall continue to do so until the legislature is better-informed in the practice of law and there is serious court reform.
    Motion to Preclude 

    112. Bar Counsel also brought a motion to preclude Johnson from contesting the allegations of Count III of Petition for Discipline [Paper 12 (5/22/03)].

    113. Johnson opposed Bar Counsel’s motion for preclusion [Paper 57 (8/29/03)] and Bar Counsel replied [Paper 68 (9/09/03)].

    114. Chair Carpenter allowed Bar Counsel’s motion for issue preclusion of allegations of 
    Count III [Paper 76 (9/10/03)] and then corrected her order [Paper 77 (9/11/03)].

    115. In allowing the motion to preclude, Carpenter usurped the power of Special Hearing Officer Phillips, as identified in Rule 3.18(a).

    116. The motive of Carpenter and likely persons unidentified was to preclude Johnson from showing that the lower-court orders were not only “bad,” they were based on fabricated facts and findings and on, literally, a materially altered document [see Figures 2(a-e)].
     
     


    Figure 2(a):
    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??? \19/


    19 AFTER Johnson 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 had to have 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.

    If the notations "62.6" and "92-7907" were on the page on March 3d, they would have been there on March 22d, but they are not.

    Bar Counsel should have reported McGill to the Commission on Judicial Conduct.  Next look at another version of the endorsement on Motion 157 in Exhibit 2(b).  It was altered by opposing counsel, Mark O'Connor.   Compare the scanned in images of the fabricated document with the original endorsed page.  Criminal charges should be brought against O’Connor.
     



    Excerpt from Figure 2(b). 
    Newly fabricated endorsement. Note the "
    missing bottom loop of the "g" in "hearing" l
    and the tail of the "M" in "McGill" still 
    between the typed words "counsel" and "or." 
     
     
     
     


    Excerpt from Figure 2(c).
    Enlargement of endorsement. The tail of the "M"
    between "counsel" and "or" is more visible as well
    the other residual marks – left over from the days
    of "White-out."


    Excerpt from Figure 2(d).  Compare the date stamp with that in Figure 2(e) 


    Excerpt from Figure 2(e)

    117. The Board Rules are written in contemplation that a respondent to a petition for dis-cipline will have facts in mitigation. 

    118. Rule 3.15(f) requires that mitigation be pled.  Rule 3.15(f) is the equivalent, one presumes, of an affirmative defense, which means that it must be pled or it is forfeited.  And John-son pled mitigation.\20/

    20"There is something specially repugnant to justice in using rules of practice in such a manner as to debar a prisoner from defending himself, especially when the professed object of the rules so used is to provide for his defense." Faretta v. California, 422 U.S. 806, 822-823 (1975), quoting 1 J. Stephen, A History of the Criminal Law of England, 341-342 (1883).
    119. When Johnson phoned Fredrickson and asked when to expect the rulings on a pile of her own motions, he said, “They just went out.  You’ll have them by tomorrow.”

    120. Johnson question him, “Denied, are they?”

    121. Fredrickson responded, “You didn’t expect anything else, did you?”

    122. “I guess not. . . .  As I’ve been saying, Due process went out the window a while ago.  You really are running a Star Chamber there.”

    123. “It’s due,” Fredrickson said, in a voice dripping with condemnation.  “It’s due.”\21/

    21 The majority is holding . . . that lawyers are not entitled to the full sweep of due process protections because they had no such protections against judges or their fellow lawyers in England. But I see no reason why this generation of Americans should be deprived of a part of its Bill of Rights on the basis of medieval English practices that our Forefathers left England, fought a revolution and wrote a Constitution to get rid of.

    Cohen, at 142 (Justice Black, with whom Chief Justice Warren and Justice Douglas concurred, dissenting). Fearing that the majority opinion in Cohen implied that "a lawyer is not to have the protection of the First Amendment with regard to his private beliefs and associations whenever his exercise of those freedoms might interfere with his duty to ‘co-operate’ with a judge’" [id. at 145], they concurred.

      It seems to me that the majority takes a fundamentally unsound position when it endorses a practice based upon the artificial notion that rights and privileges can be stripped from a man in his capacity as a lawyer without affecting the rights and privileges of that man as a man.

    Id. at 145 (dissent).


    The Trial Closes In

    Substantive Issues

    124. Five weeks prior to the scheduled trial, Crane through Assistant Bar Counsel Weisberg informed Johnson in words for all intents and purposes that he wanted to censor 32 of her Drano Series website files [see §45, supra] and that he would likely call no witnesses to trial.

    125. Two weeks prior to trial, on 18 November 2003, the BBO withheld and/or denied exculpatory evidence from Johnson, specifically, 

    a. the BBO denied Johnson’s motion for copies of tape of any proceedings in which respondent participated, specifically of the hearing of 17 December 1998, and of which Crane was in possession.[Paper 98 (11/4/03); DENIED 11/18/03]

    b. the BBO denied Johnson’s Motion in Limine to Preclude Admission of Any Appeals Court or Supreme Judicial Court Decisions Denied [Paper 96 (11/4/03)]

    c. the BBO withheld from Johnson the original of the alleged order of 3 March 1995, of which Judge Paul McGill found Johnson in contempt

    i. the BBO withheld it by denying Johnson’s motion to compel the production of it from OBC.  Johnson wanted the alleged order as it allegedly actually appeared on 3 March 1995 and not on 22 March 1995  [Paper  93 (11/6/03); DENIED 11/18/03].

    ii. The noncompliance with that phantom order formed the basis of Bar Counsel’s allegation that Johnson violated some Rule of Professional Conduct.

    Johnson’s Attempt to Narrow the Issues

    126. Throughout the month of November 2003, Johnson filed many motions with the goal to narrow the issues for trial, given that (a) the BBO had denied her motions for more definite statements, (b) it was not substantially clear with what Johnson was being charged, (c) Bar Counsel Crane’s petition arose from three entirely unrelated matters – different people, different eras, different underlying matters:

    • a custody and paternity action ongoing from 1988 into 2002 (seven successive counsel)
    • a fee dispute from 1999
    • a whistleblower case from 1994-1998
    127. Bar Counsel and the BBO refused to inform Johnson with sufficient particularity of that which she was being charged.

    128. Because the charges were insufficiently particular, or vague, Johnson listed as potential trial witnesses all those people named in the 32 website files identified by Bar Counsel in his list of 100-plus trial exhibits plus those she would need for her defense and impeachment purposes.

    129. SHO Herbert Phillips ordered Johnson to provide witness summaries of each of the witnesses named by Johnson in her list of proposed trial witnesses. 

    130. Given that the order came so close to trial, the order was burdensome and harassing to Johnson.

    131. SHO Herbert Phillips did not order Crane to provide summaries of each of his proposed trial exhibits. 

    132. Given that Crane was using the documents in lieu of witnesses, the documents were in fact the OBC and Bar Counsel’s de facto witnesses.

    133. Johnson filed a Motion for Bar Counsel to Write Paragraph Summaries of the Purpose of Introducing Each of 101 Documents [Paper 97 (11/7/03)].  Johnson’s purpose in filing the motion was to be able to learn the reason Crane was offering each of his 101 documents. 

    134. At a prehearing conference on 17 November 2003, Phillips told the stenographer repeatedly that the proceeding was “off the record” when Johnson spoke.

    135. Without explanation, on 18 November 2003, Phillips denied Johnson’s motion for paragraph summaries of Crane’s documents ,and thus did not order Crane to write paragraph summaries of his documents, which were quasi-witnesses. 

    136. In ordering Johnson to write witness summaries and not ordering Crane to write document or quasiwitness summaries, Phillips treated the Bar Counsel and Johnson in a disparate manner.

    137. The motions Johnson filed in order to narrow the issues for trial were:

    • Motion in Limine to Preclude Use of Chalk at Trial [Paper 112; DENIED without prejudice 11/18/03].
      •  
    • 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 [Paper 100 (11/5/03); DENIED by Phillips on 11/18/03].

    • 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 Her Proposed List of Witnesses As Witnesses 37 Through 49 [Paper 101 (11/5/03); DENIED by Phillips on 11/18/03].

    • 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 [Paper 102 (11/5/03); DENIED by Phillips on 11/18/03].
      •  
    • Motion to Dismiss Count I on the Grounds That Without Witnesses, Bar Counsel Cannot Make Out Prima Facie Case for Count I  [Filed 11/7/03); docketed 11/10/03; DENIED 12/1/03 by M. Ellen Carpenter, signed by June Risk on her behalf]
      •  
    • 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  [Filed 11/7/03); docketed 11/10/03; DENIED by M. Ellen Carpenter, signed by June Risk on her behalf on 12/1/03].
      •  
    • Motion to Dismiss All Allegations of Violating Massachusetts Rules of Professional Conduct Denied  [Paper filed 11/28/03; docketed 12/1/03, DENIED by M. Ellen Carpenter, signed by June Risk on her behalf on 12/1/03]
      •  
    • 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 [Paper filed 11/28/03; docketed 12/1/03; DENIED by M. Ellen Carpenter, signed by June Risk on her behalf on 12/1/03 ]
    138. On or around 20 November 2003, Johnson filed “Respondent’s Summaries of Testimony of Expected Witnesses Ordered over Respondent’s Objections” and argued that until she knew the purpose of Crane’s 100-plus exhibits, she could only give general summaries.

    139. On 20 November 2003, Johnson filed a “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 [Paper 113].   Phillips denied Johnson’s motion on 24 November 2003.

    140. On 24 November 2003, Phillips ordered Johnson again to supply witness summaries. 

    141. On or around 24 November 2003, Johnson filed a Motion to Amend November 24th Order Regarding Summaries of Testimony of Proposed Witnesses.  That motion was denied by Phillips.

    142. On or around 29 and 30 November 2003, Johnson filed the following eight motions to dismiss  the charges of alleged violations of diverse Massachusetts Rules of Professional Conduct.   Each motion was summarily denied by M. Ellen Carpenter.  All were docketed and endorsed “DENIED” on 12/1/03  by June Risk, legal administrative assistant, on Carpenter’s behalf:

    • Mass. Rule of Professional Conduct 1.5(a)
    • Mass. Rule of Professional Conduct 1.6(a)
    • Mass. Rules of Professional Conduct 1.9(a), (B1), (B2), (C1), and (C2) 
    • Mass. Rules of Professional Conduct 1.15(a), (b), and (c)
    • Mass. Rule of Professional Conduct 1.16(D) 
    • Mass. Rule of Professional Conduct 3.4(c)
    • Mass. Rule of Professional Conduct 4.4 
    • Mass. Rules of Professional Conduct 8.4(c), (D), and (H) 
    Procedural Issues: BBO Deprived Johnson of Her Right to Call Witnesses

    143. Relying on Board Rule 4.5 not precluding Johnson, the Respondent, from causing service of her own subpoenas and not conflicting with M.G.L. c. 30A, Johnson filed on 4 and 5 November 2003 three motions regarding the subpoenas: one discussed in 37, supra; the second a Motion for Approval of Use of Uninterested Party for Service of Subpoenas As of November 24th, Still Not Acted Upon.  [Paper 91 (11/4/03); DENIED by Phillips on 11/18/03]; and the third, entitled, “Rule 4.5(a) Request for Full Board (Not the Chair Alone) to Issue Subpoenas Requiring Attendance and Testimony At Trial” [Paper 90; DENIED  by Phillips on 11/18/03].

    144. Whereas other motions had been decided on the same day or a day after they were filed, Johnson’s subpoena-related motions were not acted upon.  So, on 9 November 2003, Johnson wrote the BBO Registration Department and sought the home addresses of 37 lawyers and judges to be used to effect service.  The letter, too, was ignored.  After several phonecalls pursuing a response, Johnson learned the letter with the embedded list had been given to the “head” of the department: “Laurie.”

    145. On 24 November, 2003, Johnson filed 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.  The motion was ignored by the BBO and by Phillips.

    Miscellaneous Issues

    146. During the next month, Johnson filed several motions, the purpose of which is self-explanatory and which fall into a miscellany category: 
     

    • Motion for Referral by Bar to District Attorney for Criminal Prosecution of Mark C. O’Connor  [Paper 99 filed on 11/5/03; DENIED by Phillips on 11/18/03],
    • Motion to Remove Susan Strauss-Weisberg As Prosecutor in This Case [Paper 95 filed on11/5/03; DENIED by Phillips on 11/18/03],
    • Letter to Weisberg Sent Under Caption [Paper filed on 11/6/03]
    • Motion for BBO to Pay for Cost of Copying Documents [Paper 94 (11/6/03); DENIED by Phillips on 11/18/03],
    • Motion to Recuse Special Hearing officer Herbert P. Phillips [DENIED by Phillips 12/1/03].

    The Trial Was Upon Us

    147. A week before trial, on Monday, 24 November 2003, Johnson received notice that the Bar Counsel was denied for the first time two motions: Bar Counsel’s Motion in Limine to Preclude Contesting Authenticity  [DENIED by Phillips on 11/24/03] and Bar Counsel’s Motion for Videographed and Audiographed Proceedings [DENIED by Phillips on 11/24/03].

    148. For the BBO, Phillips denied Bar Counsel’s Motion for Videographed and Audiographed Proceedings because Johnson had only “conditionally opposed” it: “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”  (See exhibits in addendum.).

    149.   Phillips denied it because he understood Johnson wanted the proceedings to be videographed and audiographed. 

    150. Also on 24 November 2003, Johnson received an order stating, “The merits of the underlying cases in Counts One and Two are irrelevant to this proceeding and testimony on these issues is excluded.”  (See Figure 3.)


    Figure 3. Paragraph 4 of Order of 24 November 2003 by Phillips

    151. The merits of the underlying case of Count I constituted Johnson’s defense that public scrutiny is necessary to guard against unscrupulous judicial proceedings and that it was because of unscrupulous judicial proceedings (a) that James Linnehan had not seen his son in 12-15 years (depending on when counted from), (b) that he had never been given an opportunity to examine those adverse to him and the child, (c) that he had never been given an opportunity to take the stand, (d) that there never had been evidentiary hearing for any purpose during those years, (e) that he had seven lawyers, consecutively, trying to reunite father and child, and none was able to overcome the unscrupulousness of the courts.

    152. The merits of the underlying matter of Count II – a fee dispute for consulting --  constituted Johnson’s defense that the fee was reasonable, that it was not excessive, that she had the written consent of the people to publish their story on her website (although Johnson did not publish anything until AFTER Crane through Weisberg informed Johnson the OBC was going forward with a petition).

    153. That same order of 24 November 2003, included another order regarding retroactivity.  ”  (See Figure 4.)


    Figure 4. Paragraph 5 of Order of 24 November 2003 by Phillips

    154. On or around 6 March 2003, Johnson filed, pursuant to M.G.L. c. 211 §3, a Com-plaint in the Nature of a Petition for a Writ Of Certiorari and to Invoke the General Superintendence of the Court on the issue of retroactivity of M.G.L. c. 209C §13 in the underlying case of Count I of the Petition for Discipline. 

    155. Crane had intervened in that case, the Linnehan case, and sought records he stated were confidential under M.G.L. c. 209C §13 prior to and after its amendment becoming effective on 31 March 1998.

    156. Johnson did not represent Linnehan in 1998.

    157. Johnson made an appearance in that case when she wrote a Complaint for Modification and then an Amended Complaint for Modification during the Spring of 2000.

    158. In the Amended Complaint for Modification, Johnson used pre-1998 information because the standard so requires, the standard being the necessity to show how the circumstances out of which the original order arose substantially changed, making a new order appropriate.

    159. Ultimately, Johnson posted the Amended Complaint for Modification on her website, falseallegations.com.

    160. It is the posting of the Amended Complaint for Modification on her website of which Bar Counsel has complained, contending that the material within the presumptively public record is confidential and privileged.   Johnson contends otherwise.

    161. In the BBO case, Johnson moved for the BBO to report the issue to the Supreme Judicial Court.

    162. As grounds, Johnson contended that the BBO was without jurisdiction and/or authority to decide the issue of law, to wit, whether the amendment had retroactive or prospective effect..  Johnson contended that it looked backward and forward.  Bar Counsel disagreed.

    163. Because Bar Counsel contends that c. 209C §13 looks only forward, he brought the charges against Johnson for uploading allegedly presumptively impounded materials to her website.  (See at 12/8/03 in the addendum, Johnson’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.) 

    164. Phillips’ same order of 24 November 2003, included another order regarding harm.   (See Figure 5.)


    Figure 5. Paragraph 6 of Order of 24 November 2003 by Phillips

    165. To put in evidence of mental or emotional harm, Bar Counsel had the burden or was obliged to put on the human being who allegedly suffered the mental or emotional harm, but wanted to put that evidence in through his prosecutor’s letter to Johnson.

    166. And on 24 November 2003, Johnson received an order allowing Bar Counsel to prove authenticity by affidavit (See Figure 6), by which they would be allowed to overcome Johnson’s objection on the grounds that Weisberg would become a fact witness for Counts I and II and that Johnson needed a human to cross-examine.


    Figure 6. A Second Order of 24 November 2003 by Phillips

    167. There was at least one known materially altered document in the underlying case that was the subject of Count III.

    168. Bar Counsel Crane through Weisberg averred that certain documents had been up-loaded to Johnson’s website that had never been uploaded to her website.

    169. Bar Counsel Crane through Weisberg averred that certain documents were privileged and confidential but were not.

    170.  Bar Counsel Crane through Weisberg averred that certain documents were filed in Juvenile Court but were not.

    171. Authenticity was an issue for the trial.

    172. There were considerable number of falsities – not typographical errors or inadver-tent slip-ups – in the Petition for Discipline regarding the documents Bar Counsel was going to offer at trial.

    173. Johnson was entitled to examine the authors of the documents before the documents were accepted as evidence. On or around 28 November 2003, Johnson filed a Notice to Board of Bar Overseers and the Special Hearing Officer Herbert P. Phillips which reads as in Figure 7:
     
     


    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, magistrates, 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 sum-monses 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.
    Figure 7. Notice to Board of Bar Overseers and
    the Special Hearing Officer Herbert P. Phillips 

    174. At 11:30 on the morning of Friday, 28 November 2003, Johnson received seven subpoenas issued by Board of Bar Member Attorney Janet Kenton-Walker.  Johnson was not being allowed to subpoena documents along with the persons to the hearing.

    175. On 2 December 2003, Herbert Phillips served in hand on Johnson his order quashing all subpoenas not issued by the Board.  .  (See Figure 8.)


    Figure 8. An Order of 2 December  2003, by Phillips

    176. Trial had been scheduled for December 2, 3, 4, 9, 10, and 11, 2003.

    177. The proceeding began on 2 December 2003.

    178. On 2 December 2003, Assistant Bar Counsel Weisberg gave her Opening Statement.

    179. On 2 December 2003, two of Johnson’s witnesses appeared and Phillips asked whether they were here because of Johnson’s subpoenas, and when they said, Yes, Phillips excused them and told them the subpoenas were invalid and they could leave.

    180. On 2 December 2003, Johnson began her Opening Statement.

    181. In the middle of Johnson’s Opening Statement, Weisberg objected when Johnson mentioned the names of the complainants and anticipated witnesses. 

    182. Weisberg claimed there had been a protective order on 10 September 2003 that precluded Johnson from mentioning their names.

    183. Johnson knew of no such order regarding mentioning the names orally, but attempted to identify the persons without using their real names, by substituting the words “man,” “woman,” “male,” “female,” etc. 

    184. A few times, she slipped by saying the first name of a complainant, viz., Robyn.

    185. Phillips was then prodded literally and physically and encouraged and advised by Assistant General Counsel Carol Wagner, who had admitted at the prehearing conference on 17 November 2003 that she was his counsel, to order the small audience composed of members of the public out of the courtroom.

    186. Phillips then ordered the public audience from the hearing room on the first day of the scheduled trial.

    187. A member of the public immediately stood to express his outrage,\22/ Phillips refused to rescind his order to the public to leave, Johnson asked him to reconsider, Phillips refused (saying her paralegal could stay), Johnson told Phillips she did not trust him and the she feared staying without witnesses (discounting her “paralegal,” for he was vulnerable to the BBO later saying that he was not a “long-arm” witness), and then Johnson walked out with the last of the public to leave. 

    22 See entry for 12/5/03. That person wrote an unsolicited letter; it is attached to Johnson’s Motion to Dismiss All Counts on Grounds of BBO Violating Board Rule 3.22(B) and Constitutional Rights to a Public Hearing.
    188. Johnson was entitled to a hearing open to the public.

    189. Johnson filed a Motion to Dismiss All Counts on Grounds of BBO Violating Board Rule 3.22(b) and Constitutional Rights to A Public Hearing.  It was denied on 8 December 2003 [filed 12/5/03; denied 12/8/03, signed “per Board Chair” by Michael Fredrickson].

    190. On 8 December 2003, Johnson filed a Motion for BBO to Report Issue of Whether M.G.L. 209c, §13, As Amended, Effective March 31, 1998, Has Retroactive or Prospective Effect.

    191. The motion cited in ¶190 was denied by the Chair M. Ellen Carpenter because there were names in it.

    192. Chair M. Ellen Carpenter again usurped power that was not hers: she did not have the authority under the Board’s own rules to decide the motion cited in ¶190.

    193.  On 9 December 2003, Johnson filed a Petition for Board Rule 3.59 Rehearing or Alternatively, Motion to Vacate Unlawful BBO Rulings Made During the Unlawful Proceeding on 2 December 2003.  The Petition was denied on 12 December 2003 by Phillips.

    194. On 9 December 2003, Johnson also filed a Motion for Conference with the Twelve (12) Members of the Board of Bar 2003 [Denied on 12/12/03 by Phillips].

    195. On 12 December 2003, Johnson filed a Motion to Reconsider 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 [docketed 12/15/03; reconsideration allowed, but decision to deny motion for new hearing or vacate rulings, denied 12/15/03, signed “per Herbert Phillips” by Michael Fredrickson].

    COUNT 1: DECLARATORY JUDGMENT
    (that Bar disciplinary proceeding is a quasicriminal proceeding and that whether or not the proceeding is quasicriminal, respondents are entitled to a jury trial)

    196. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 195 above with the same force and effect as if herein set forth. 

    197. There are two actual controversies: (1) whether a Bar disciplinary proceeding is a quasicriminal proceeding and (2) whether attorney respondents, including Johnson, are entitled to a jury trial, regardless of whether the proceeding is quasicriminal or civil.

    198. By denying Johnson the right to trial by jury, she has been deprived of her rights under article XV of the Mass. Declaration of Rights.

    199. The United States Supreme Court declared disbarment proceedings to be of a “quasi-criminal nature.” In re Ruffalo, 390 U.S. (Ohio) 544, 551 (1968); Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S.(N.J.) 423,  438 (1982) (Justice Brennan, concurring in the judgment). 

    200. The quasicriminal nature of the proceedings triggers article XII of the Massachusetts Declaration of Rights, allowing Johnson to present all proofs favorable to her, to meet witnesses against her face to face, to be fully heard in her defense, and not to be deprived of her property but by the judgment of her peers, which means a jury trial.

    201. In contrast, the Massachusetts SJC and Fredrickson, the bulwark of the BBO privy council, deem disciplinary proceedings to be civil in nature and refuse to accept the United States Supreme Court’s decisions on the issue as the last word.

    202. Notwithstanding the controversy over whether bar disciplinary proceedings are civil, criminal, or quasicriminal in nature, so long as they are on the common-law side of the court, attorneys are entitled to a jury trial in a prosecution brought by the Bar Counsel.\23/

    23 The difference between the natures has other implications, too. The significance of the civil-criminal dichotomy is that a criminal defendant has a right not to testify, and cannot suffer an adverse ruling from not testifying. In a civil case, if the defendant does not respond, there is an adverse inference drawn, and if he were to answer, it would be against his or her interest. Brown v. U.S., 356 U.S. (Mich.) 148, 158-159 (1958); Baxter v. Palmigiano, 425 U.S. (Cal.) 308, 318-319 (1976). This part of stare decisis, the Bar finds worthy of accepting. Those decisions which the Bar finds adverse to its humungous power, the Bar ignores.

    In the instant case, Johnson has been forthright and wants to testify, but the difference might be significant to other lawyers confronting the Board.

    203. Historically, in Massachusetts, attorney-discipline cases have been identified as being on the common-law side of the court, making a jury trial legally possible.  Boston Bar Ass'n v. Greenhood, 168 Mass. 169, 183 (1897).\24/
    24 In In re Mayberry, 295 Mass. 155, 166, 168 (1936), however, the Court found that the respondent was not prejudiced by the findings of a single justice rather than by jurors because the ". . . jurors [were] of low grade in respect to intelligence and character." In re Sleeper, 251 Mass. 6, 12 (1925).
    204. Article XV of the Massachusetts Declaration of Rights is another source of Respondent Johnson’s right to a jury trial.\25/
    25 Article XV. In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practiced, the parties have a right to a trial by jury; and this method of