#119, Drano
Series
The Bar War Continues:
Barb's Proposed Findings of Fact and Rulings of Law
in the Bar's Action Against Her
COMMONWEALTH OF MASSACHUSETTS
BOARD OF BAR OVERSEERS____________________________
BAR COUNSEL B.B.O. File No. C2-01-0091
Petitioner No. C2-01-0090
No. C2-00-0078
v. No. C2-98-0580BARBARA C. JOHNSON
Respondent
____________________________
Proposed Findings of Fact and Rulings of Law: Introduction
Given the unusual circumstances under which the so-called trial in this case took place, Johnson has prepared this document in four parts plus subparts.
Part I-A: Proposed SubsidiaryFindings of Fact from Trial Transcript 3
Part I-B: Proposed Rulings of Law from Trial Transcript 10
Part I-C: Proposed SubsidiaryFindings of Fact and Rulings of Law from Trial Exhibits 21
Part II-A: Proposed Subsidiary Findings of Fact for Count I – "Jones" 36
Part II-B: Proposed Rulings of Law for Count I 43
Part III-A: Proposed Subsidiary Findings of Fact for Count II -- "Parkers" 50
Part III-B: Proposed Rulings of Law for Count II 62
Part IV-A: Proposed Subsidiary Findings of Fact for Count III – "Lily" 65
Part IV-B: Proposed Rulings of Law for Count III 73
Part V-A: Proposed Ultimate Findings of Fact from Canons and Disciplinary Rules 76
Part V-B: Proposed Rulings of Law for Canons and Disciplinary Rules 80
Part VI: Proposed Findings of Fact and Rulings of Law from Affirmative Defenses 89
Part I reflects Bar Counsel’s facts as entered into evidence at trial through the exhibits introduced by Bar Counsel. Johnson treats those facts as if she had been at the trial and had objected to them in a timely manner.Subparts A of Parts II, III, and IV reflect the subsidiary facts that Johnson would have put into evidence if she had been allowed to do so and if the public had not been ordered out of the hearing room. In the alternative, given that all of them are derived from her Amended Answer, which is part of the record and are not offered by surprise, Respondent moves that this body take them under the doctrine of judicial notice. Cf. M.G.L. c. 30A §11(5).
Subparts B of Parts II, III, and IV reflect the proposed rulings of law pertaining to Counts 1, 2, and 3, respectively.
Part V contains those ultimate findings of fact and rulings of law that apply to the Canons and Disciplinary rules.
Part VI contains those ultimate rulings of law that apply to Respondent’s Affirmative Defenses.
~~~~~~~~~~~~~~~ Part I-A: Proposed Subsidiary Findings of Fact from Trial Transcript
1. A month prior to trial, Johnson filed requests for subpoenas and permission to use an uninterested party for service. SHO Phillips dragged his feet and did not act on her motion until after she caused half of her intended subpoenas to be served by a constable. [Transcript, I:8-9].
2. On Day 1 of trial, SHO Phillips quashed Johnson’s subpoenas; he quashed any subpoena not issued by the board and any subpoena requiring the production of documents. [Transcript I:5-6].
3. On Day 1 of trial, SHO Phillips announced that on 10 September 2003, three months prior to trial, Chairperson Ellen Carpenter had issued a protective order requiring the parties to use the pseudonyms at all times for persons in Counts 1 and 2 [Transcript, I:13, 47], and declares Johnson in violation of that order [Transcript, I:47-48].\fn1/
fn1 The order “has been intentionally violated by the respondent because she refuses to allow the pseudonym that we have agreed to use for Mr.Blank to be John Jones. ” [Transcript, I: 47]. Johnson never agreed to using pseudonyms. She had been ordered to amend her Answer by substituting for the real names the pseudonyms used by the Bar Counsel in Counts 1 and 2 of the Petition for Discipline.
4. At trial on Day 1 of trial, Assistant Bar Counsel Susan Strauss-Weisberg admitted to Phillips that there was no list of people whose names were subject to a protective order, but Phillips intentionally refused to acknowledge Weisberg’s admission:HEARING OFFICER: Do you happen to know whether that name [Complainant’s male roommate circa 1988-1989] is on a protection list, Miss Weisberg?
5. Where there is no list of names, Johnson saying Joseph’s name was not an "inadvertent slip. "It was no "slip" at all, of any kind.MS. WEISBERG: No, we don't actually have a list. We have documents that are protected. That's a name that appears -- I believe the evidence will show that that name is a name that appears in documents that Miss Johnson published on her web site. So they are out there in the public domain.
HEARING OFFICER: I'm going to assume that was an inadvertent slip, Miss Johnson. No more of those. I'm going to have the record redact that name, (name redacted).
MS. JOHNSON: Well, he exists. He's a real person. He's not on any protective list. He has as much accountability as we do with our lives.
[Transcript, I: 56-57, emphasis supplied].
6. SHO Phillips threatened Johnson be saying "No more of those." It is not the statement of a fair-minded man, given the context of the conversation.
7. When Johnson inadvertently used the Complainant’s name again, Phillips ordered the public out of the room. Johnson went with them.
HEARING OFFICER: No. I'm removing the people from the room.
[Transcript, I:61-65, emphasis supplied].MS. JOHNSON: I'm leaving, too, then. Good-bye.
FROM THE FLOOR: I think it's absolutely outrageous.
HEARING OFFICER: Let the record show that the protective order, the protective order has not been adhered to, and Miss Johnson has elected, along with some people that are supporters of hers, to leave this hearing. The hearing will proceed without her.
FROM THE FLOOR: You should be ashamed of yourself.
MS. WEISBERG [sic, read "HEARING OFFICER"]: The hearing will proceed without Miss Johnson.
MS. WEISBERG: Mr. Phillips, may I be heard, please?
HEARING OFFICER: Yes.
MS. WEISBERG: Before everyone leaves . . . I would suggest, if I may, that if Miss Johnson were willing to refer to these parties as she has, by father, mother, and child . . .
HEARING OFFICER: I have not asked Miss Johnson to leave the room. I have asked the people who are in attendance in the room, other than the counsel and the direct assistance of counsel, like a paralegal or an assistant that you might have at your counsel table, to leave the room because of the protective order. So, therefore --
. . . MS. JOHNSON: I'm not staying with you alone, Mr. Phillips.
HEARING OFFICER: I told you you could have your paralegal with you.
MS. JOHNSON: No. I want them all.
HEARING OFFICER: We made an agreement, and there was a protective order.
MS. JOHNSON: Bye.
8. Phillips continued in Johnson’s absence to assert that the mythical protective order was in effect. [Transcript, I: 67-68].
HEARING OFFICER: Let the record show that Miss Johnson continuously was using the names of the real parties and was not adhering to the protective order, and I had given her advanced warning that I was going to remove the other participants or the other attendees in the room to preserve the sanctity of the protective order, that she herself, Miss Johnson, would be allowed to stay in the room to continue to defend herself and present her own evidence and to rebut whatever bar counsel had, but she has now elected to adjourn herself, perhaps permanently, from this proceeding along with her attendees. And, therefore, the hearing will continue on, and bar counsel will now-- I see it's now ten minutes to one. I'm not sure we should just take a recess. I think we'll take a recess now, we'll adjourn back here at quarter of two, and bar counsel could then put in her case in principal.
[Transcript, I:65-66, emphasis supplied].9. Before everyone left the room, SHO Phillips KNEW that there was no such protective order. Weisberg had already informed him of that fact [see Transcript, I: 56]. Phillips continued lying about a so-called agreement and the non-existent protective order until the end. Only Phillips can explain his claiming that he wanted "to preserve the sanctity" of a protective order that did not exist. The only protective order was that for unidentified documents. There never was, as Weisberg confirmed, a list of people whose names were protected.
10. Phillips’ proclamation that Johnson "continuously was using the names of the real parties" is contrary to Weisberg’s observation that Johnson had been referring to them as "father," "mother," and "child. " [Transcript, I:63].
11. After the lunch break on Day 1 of trial, Phillips repeated his demonstrated dishonesty and admitted that the rules had not even been promulgated yet:
Just for the record, I just wanted to state on the record and recap what happened before we recessed for the lunch break. The respondent, Barbara Johnson, was in the middle of her opening statement, and we had given -- The Chair had given Barbara Johnson a reminder on the motion for protective order which had been allowed by Chair Ellen Carpenter on September 10th, 2003, with respect to the impoundment matters and confidentiality and things that were going to be in that vein, and that we were going to insist that the pseudonyms be used in lieu of the real names, especially since the hearing was open to the public and [67] . . . And that we wanted to preserve the nature and spirit and intention of the protective order. [Transcript, I:66-67, emphasis supplied]. Here is Phillips admission that the rules had not even been promulgated yet.When respondent in her opening statement started to mention the real names of some of the parties, the Chair admonished her she should not do this because that was going to be in violation of the protective order, and she indicated that she would use the name male or female, if the case may be.
She continued on one or two other occasions to continue to use the real names, and, again, we, the Chair warned her, and finally it was told to her that if she did not adhere to the rules that were going to be promulgated regarding the protective order that the attendees would be asked to leave the room. . . .
12. The man "from the floor" spoke at some length and power. His protestations were redacted from the record; i.e., they are not included in the transcript. Whether that part of the tape – assuming there was a "tape" – was erased is unknown, for no copy of a tape was supplied Johnson. [Transcript, I:62-64]. Phillips admitted this, in part, [Transcript, I:68]: "One of the gentleman in the back of the room was quite boisterous to the Chair and to the proceedings, and I believe they all walked out in tandem." The man was not boisterous, and his words, if they had been included, would have shown that he was not boisterous.
13. SHO Phillips asked the public which of them were witnesses subpoenaed by Johnson and then told them that Johnson’s subpoenas were invalid and quashed and that they were excused. Johnson’s subpoenas were indeed valid and the witnesses should not have been excused. [Transcript, I:13-16, 43-44].
14. An "investigator," Alan Brown, a percipient witness with Bar Counsel’s office was not included in Phillips’ sequestration order. Brown was not on Bar Counsel’s witness list, and his affidavit was, in fact, incomplete and inaccurate. [Transcript, I:16-20].
15. Although on page 22 of the trial transcript, Phillips claimed to be talking, but he was not: Assistant General Counsel Carol Wagner of the BBO was whispering to Phillips. [Transcript, I:22-23]. "My identity is that of board counsel. I'm not a member of Bar Counsel's office. I'm a member of the general counsel's office to the Board of Bar Overseers. As such, my role is to advise the Board of Bar Overseers as their counsel and their hearing officers. I want to state that for the record. I do not want to have a discussion about it. " [Transcript, I:23].
16. Phillips was getting instructions midtrial from Assistant General Counsel Carol Wagner and possibly also from others by cellphone in the next room when Wagner and Phillips took breaks. For instance, Phillips’ language reveals that Phillips was confused as to whether he was the Chair, whether Wagner was speaking for the Chair, whether both Wagner and he were speaking for the Chair. The words certainly make clear that someone else was helping Phillips run the show:
. . . The respondent, Barbara Johnson, was in the middle of her opening statement, and we had given -- The Chair had given Barbara Johnson a reminder on the motion for protective order which had been allowed by Chair Ellen Carpenter on September 10th, 2003, . . . and that we were going to insist that the pseudonyms be used in lieu of the real names, especially since the hearing was open to the public and [67] . . . And that we wanted to preserve the nature and spirit and intention of the protective order. When respondent in her opening statement started to mention the real names of some of the parties, the Chair admonished her she should not do this because that was going to be in violation of the protective order, . . .
She continued on one or two other occasions to continue to use the real names, and, again, we, the Chair warned her, and finally it was told to her that if she did not adhere to the rules that were going to be promulgated regarding the protective order that the attendees would be asked to leave the room. . . .
Well, she finally used the first name of, the [68] real first name of one of the parties, and the Chair then ruled that the people that were part of the public participation would have to remove themselves from the proceeding. Barbara Johnson said that she would also leave if they were leaving. And I don't have the exact words because there was a dialogue that went on. One of the gentleman in the back of the room was quite boisterous to the Chair and to the proceedings, and I believe they all walked out in tandem.
And we, we, the Chair, said to Barbara Johnson that certainly the proceeding was going to continue on this afternoon and that bar counsel was going to be able to present her evidence, her exhibits, et cetera, and that certainly Barbara Johnson as a party was expected to be here, and she said she was not going to be here, and we saw her leave with her public participants.
[Transcript, I:66-68, emphasis supplied].17, Phillips distorted the record: Bar Counsel wanted to use affidavits rather than witnesses. Prior to trial, Johnson had objected often and strenuously, orally and in writing, on the grounds that she could not cross-examine a piece of paper. According to Phillips, there was a "ground rule" in place. [Transcript, I:72].
18. There was no alleged ground rule regarding affidavits.
19. Johnson’s subpoena of Deborah Wolf was quashed by Phillips.
20. The allegations of confidential material were general, speculative, bald assertions. No words, phrases, statements were pointed out as being confidential. [Transcript, I:74].
21. The so-called protective order of September 2003 did not contain the title or description of of one document. It could have applied to one document or a 1000 documents.
[Transcript, I:76-77].
22. ABC Weisberg admits that she, in so many words, is playing the Thought Police. Drano Number 23, is "not a pleading from either the probate case or the federal case. It is a pleading that came from the mother's divorce case. It is not an impounded record. . . . Bar counsel's allegations include the publication of sensitive personal information with an impermissible purpose, irrespective of whether the source is impounded." [Transcript, I:101-102, marked as Trial Exh. 24].
23. ABC Weisberg has not defined what an "impermissible purpose" is and has no proof whatsoever of pleading being published for an "impermissible purpose."
24. The chalk is unreliable. It is speculation by ABC Weisberg. She has no proof that the text she wrote on the chalk was derived from the sources she identified.
25. The second version of a chalk is a surprise. ABC Weisberg does not distinguish between documents which she claims are impounded and those which she claims contain personal or confidential material. Johnson points out that all material in each court opinion contains personal information. These opinions are public records and publishable.
26. Chalk B is a document that was not produced until after the OBC’s case-in-chief had concluded [Transcript, I:106-107].
27. ABC Weisberg admitted she would provide the court a new chalk "when the case concludes," allowing the SHO to conclude that the chalk was still inaccurate and that Johnson was correct in asserting the chalk was inaccurate and unreliable.
MS. WEISBERG: What I did in order to demonstrate that the source of the information on the Internet postings I have just offered derived at least a part from confidential or impounded documents, I have listed by each Drano number what the text is that I say was derived from a confidential document or an impounded document, then listed the source record and what court it is in. What I would like to do when the case concludes is submit to you a second version of this chalk with the exhibit numbers collated. But it is intended to give you a road map into what bar counsel says the source of this information is. That is the source from the impounded records only. There's plenty of other information on that web site that's not impounded, but is still personal or confidential.
[Transcript, I:106-107]. General accusations such as those spoken here by Ms. Weisberg are insufficient to justify any disciplinary action. The Fascistic approach to censorship is frightening. Impending 21st century book-burning.28. A chalk is not an exhibit, is not evidence. [Transcript, I:108].
29. None of the pleadings numbered Exh. 45 or of the exhibits from the juvenile court was uploaded to Johnson’s website.
30. Bar Counsel admits that Johnson did not post a single impounded record from juvenile proceedings on her website. [Transcript, I:118].
MS. WEISBERG: I think that's an important [118] question. I want to be clear about it. We do not contend that Ms. Johnson posted a single impounded record from the juvenile proceedings on her web site. What she did was quote from and summarize the contents of those records. That is, the source of the information she quoted and summarized in the pleadings that she posted was impounded juvenile records. She did post, however, an electronic copy of her amended complaint for modification filed in the paternity proceedings in the probate court, also impounded, as you will see from the order of Judge McGill [sic, read Judge XXXXX] that I have introduced in evidence, although she did not in her Internet posting include the attachments you will see on the court copy. Transcript, I:117-119].What I have handed you now are attested copies of the records on file in the juvenile and probate courts from which the information on the web postings was derived. In other words, if Miss Johnson receipts in one of her Drano series that such and such a person filed a 51-A affidavit and started a care and protection, that information comes from the actual affidavit on file in the proceeding.
31. There is no proof that the source of information regarding the 51-A report or the existence of a care and protection action was the source of information for Johnson. In fact, Johnson was never in Juvenile Court and never received documents from juvenile court.
32. Phillips’ assertion that Johnson knew the trial was continuing in her absence is untrue:
Johnson "certainly knows we are to convene tomorrow morning at ten o'clock. And if there [126] is anybody that hears from her, you will tell her that. If anybody in this room, bar counsel or if general counsel's office hears, she is certainly to know we're going to be back here at ten o'clock tomorrow. Now we stand adjourned.
[Transcript, I:125-126, II:35-36]. Phillips had absolutely no basis to prevaricate once again. Johnson’s supporters, seeking entrance to the trial, had gone to the BBO on both Tuesday and Wednesday, and were told diverse things: there is no trial ongoing (on Tuesday), and the public is not allowed (on Wednesday). Johnson had no way of knowing whether the trial progressed from the time Johnson’s opening statement was interrupted.33. The BBO’s efforts to censor Johnson’s website and preclude Johnson from publishing the hearings in this action is unconstitutional prior restraint of speech
[Transcript, II:27]Bringing unscrupulous judicial or quasijudicial activity to the public is evidence that she is meeting her professional obligation of Johnson not evidence of redissemination of confidential material. [Transcript, II:28]. The allegation that confidential information was being disseminated is too general and unspecific to sustain any claim, whether under common law or the Code of Professional Ethics. To use the Code to hide the fraud and conspiracy of the BBO and OBC and certain others is unimpressive except as a quasicriminal and possibly criminal act. The distortion of truth by the OBC and the BBO and their staff and members must not be countenanced in this Commonwealth by anyone.34. There is no protected information that is disseminated on Johnson’s website. If there is, Bar Counsel and his assistant certainly have not pointed specifically to any such information: a name, a phrase, a statement. The complainant of Count I ran for public office twice. That she conceived children out of wedlock is not confidential information. The birth certificates of the children are vital records. Her marriage certificate is a public vital record. Bill Clinton’s sexual adventures were not private. He was a public figure. We do not rename him Eddie before publishing stories of his sexual adventures. The story remains Bill and Monica, not Eddie and Monica. Robyn Gerry-Sylvia is as much an out-of-wedlock mother as are all the mothers in each and every adoption case memorialized in court opinions, and her name can be made as public as each and every OOW mother in the Commonwealth. [Transcript, II:28-29].
35. Where the "Parkers" anticipated and looked forward to their family story being uploaded to Johnson’s website, there is no issue, as ABC Weisberg suggested, that public dissemination of confidential, privileged or sensitive personal information with no substantial purpose other than to burden or embarrass another. [Transcript, II: 30-31].
36. Where the Parkers complained about Johnson’s fee gave her unfettered license to disseminate any information, the rules permit discretionary disclosure of otherwise confidential information, to refute or defend against a claim of misconduct, but only to the extent reasonably necessary. (Bar counsel's position certainly is that putting this up in a public way was not necessary to the defense.)
~~~~~~~~~~~~~~~
Part I-B: Proposed Rulings of Law from Trial Transcript 1. Error of law re subpoenas: SHO Phillips, relying allegedly on SJC Rule 4:01, Subparagraph 22 (1), and BBO Rule 4.5, allowed seven subpoenas to issue without documents. Johnson’s requests were ignored. [Transcript I:5-6].
Chapter 233, Section 1, is a statute. Board Rules 4.5 and 4.6 are rules. The rules under Massachusetts Bonding & Ins. Co. v. Commissioner of Ins., 329 Mass. 265 (1952) and Berkowitz, another discipline case a little later than that. A rule has the force of law of any other rule from any other agency, but a rule does not have the force of law as a statute.
Even assuming arguendo that the board rule has the force of law equal to that of a statute, Board rules 4.5 and 4.6 are silent as to what to do in a situation such as this. Rule 4.5 says a respondent may request the hearing panel or officer or the committee, whoever, for subpoenas. It fails to say a respondent must. It is silent. There is no conflict between Chapter 233, Section 1, Section 8, Section 10, and the board rule. Simply, the board made an additional possibility that if the respondent wants, they can ask the person. [Transcript I:8].
2. Deprivation of equal protection: A month prior to trial, Johnson filed requests for subpoenas and permission to use an uninterested party for service. SHO Phillips dragged his feet. It was after half of Johnson’s subpoenas before she got Phillips’ order quashing her subpoenas. [Transcript, I:8-9].
3. Phillips repeated prevarication despite having been informed of the truth: SHO Phillips KNEW that there was no such court order protecting the names of any individuals before the public and Johnson left the hearing room [Transcript, I:65-66, emphasis supplied]. Weisberg had already informed Phillips him of that fact [see Transcript, I: 56]. Phillips continued lying about a so-called agreement and the non-existent protective order until the participating public and Johnson left the room. Only Phillips can explain his claiming that he wanted "to preserve the sanctity" of a protective order that did not exist. The only protective order was that for unidentified documents. (That was one of many, many reasons Johnson opposed Bar Counsel’s motion.) There never was, as Weisberg confirmed, a list of people whose names were protected.
Further, Phillips’ proclamation that Johnson "continuously was using the names of the real parties" is, it should be noted, contrary to Weisberg’s observation that Johnson had been referring to them as "father," "mother," and "child. " [Transcript, I:63].
Given, therefore, the demonstrated repeated dishonesty of Phillips, Johnson feared that were she to stay with only her paralegal present, Phillips could later slur the integrity of her paralegal. She could not risk that. Her only protection against Phillips’ dishonesty lay in the attending public.
At Transcript, I:66-67, Phillips also admitted that the rules had not even been promulgated yet. Creating new rules as the hearing proceeded and telling Johnson she was violating them is, without doubt, a deprivation of Johnson’s constitutional rights to due process and equal protection..
4. BBO alters the tape of the proceeding: The protestation from a man "from the floor," who spoke at some length with conviction and honesty and power about being ordered to leave the hearing room was redacted from the record [Transcript, I:62-64]. Phillips acknowledged the man from the floor [Transcript, I:68]: "One of the gentleman in the back of the room was quite boisterous to the Chair and to the proceedings, and I believe they all walked out in tandem." In fact, the man "from the floor" was not boisterous, and his words, if they had been included, they would have shown that he was not being boisterous.
Given also that Johnson was not present while so-called evidence was being taken, Johnson does not know whether the record was further altered.
5. Issue Preclusion: See Part IV-B.
6. Phillips Allowed Bar Counsel to Use Affidavits for Authentication over Johnson’s Objections: Phillips distorted the record again. Bar Counsel wanted to use affidavits rather than witnesses. Prior to trial, Johnson had objected often and strenuously, orally and in writing, on the grounds that she could not cross-examine a piece of paper. According to Phillips, there was a "ground rule" in place. [Transcript, I:72]. Who made this alleged ground rule? when? how? It certainly was not reached in Johnson’s presence.
Johnson’s subpoena of Attorney Deborah Wolf, a complainant, was quashed by Phillips. In fact, Phillips allowed Bar Counsel to call no witnesses and quashed all Johnson’s witness subpoenas.
The allegations of confidential material were general, speculative, bald assertions. No words, phrases, statements were pointed out as being confidential. [Transcript, I:74].
7. Neither the OBC nor the BBO has a right to censor a lawyer’s rights to free speech and political expression.
8. General accusations such as those spoken here by Ms. Weisberg are insufficient to justify any disciplinary action. The Fascistic approach to censorship is frightening. Impending 21st century book-burning.
9. Trial Exhibits 45 and 46 cannot be considered by the SHO, or must be stricken. It is one thing for Weisberg to gather the documents now marked Trial Exhibits 45 and 46 from diverse courts and introduce them into evidence in a trial held by the BBO, but it is another thing to assert that Johnson ever saw the documents.
In fact, on Transcript, I:117-118, Weisberg admits that Johnson did not post on her website – as Johnson has always asserted – "a single impounded record from juvenile proceedings." [Transcript, I:118]. Paul J. Liacos, Handbook of Massachusetts Evidence, §2.5, p. 34 (Boston, MA: Little, Brown & Co. 1994) (6th ed., Brodin & Avery, eds.), citing Lucia v. Water & Sewer Commissioners of Medford, 332 Mass. 468 (1955); Lewis v. Sumner, 54 Mass. (13 Metc) 269 (1847), for the proposition that judicial admission "may be made . . . (b) by the opening statement of counsel at trial; (c) by remarks or statements made by counsel during the trial").
The documents in Exhibits 45 and 46 are hearsay and have no relevancy and no evidentiary value in the disciplinary action. [Transcript, I:113].
10. Bar Counsel admits that Johnson did not post a single impounded record from juvenile proceedings on her website.
Weisberg made a "judicial admission binding upon [her] client." Liacos, Handbook of Massachusetts Evidence, at §2.5, p. 34, citing Lucia v. Water & Sewer Commissioners of Medford, 332 Mass. 468 (1955); Lewis v. Sumner, 54 Mass. (13 Metc) 269 (1847), for the proposition that judicial admission "may be made . . . (b) by the opening statement of counsel at trial; (c) by remarks or statements made by counsel during the trial").
MS. WEISBERG: I think that's an important [118] question. I want to be clear about it. We do not contend that Ms. Johnson posted a single impounded record from the juvenile proceedings on her web site. What she did was quote from and summarize the contents of those records. That is, the source of the information she quoted and summarized in the pleadings that she posted was impounded juvenile records. She did post, however, an electronic copy of her amended complaint for modification filed in the paternity proceedings in the probate court, also impounded, as you will see from the order of Judge McGill [sic, read Judge XXXXX] that I have introduced in evidence, although she did not in her Internet posting include the attachments you will see on the court copy. To contend that to quote or summarize a court proceeding is a violation of a disciplinary rule is insane. Johnson is not going to waste time here, other than just say George Orwell’s 1984 has indeed landed. Thought police, Big Brother, Mind Police . . . all those dangers which those of us who had good education were taught to guard against. Looks like Weisberg, Crane, Carpenter, Phillips, all slipped through humanity’s defenses. Those historic proceedings had "become naturally available notwithstanding the impoundment order" of the juvenile court. Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 541 (1977).In the Linnehan case, the information "had become bland": the child was now a teenager, the unwed mother conceived soon thereafter again out–of-wedlock, she accused another man – her new husband, a widower with three children – also of sexual abuse of his children from his first marriage, DSS became involved again on another §51A mandatory report against the other man. . Ottaway, 372 Mass. at 541.
11. There is no proof that the source of source of information regarding the §51A report or the existence of a care and protection action was the information for Johnson. In fact, Johnson was never in Juvenile Court and never received documents from juvenile court.
What I have handed you now are attested copies of the records on file in the juvenile and probate courts from which the information on the web postings was derived. In other words, if Miss Johnson receipts in one of her Drano series that such and such a person filed a 51-A affidavit and started a care and protection, that information comes from the actual affidavit on file in the proceeding. Transcript, I:118-119.The absurdity of Bar Counsel’s gratuitous conclusions tests any reasonable person’s credulity. For instance, Linnehan knew there was a §51A affidavit, because he was notified by DSS that the unwed mother of his child had complained of him. As a result of discovery performed by his lawyers and his meeting with sundry individuals, he learned that Eileen Kern, who had seen the child – if memory serves – one time and mindlessly and irresponsibly made a report to DSS under §51A.
Johnson did not have to procure that information from juvenile court, as Weisberg suggested. There were multiple sources of that information – all sources outside the courts.
NOTE
Johnson opines here that it is one thing to be wrongly accused of doing something,
but it is another to be charged with rank nonsense
by people of sheer stupidity or out of their sheer malice.The OBC’s ABC Weisberg did not consider the possibility of differential diagnoses, i.e., alternative explanations for certain happenings. Such limited thinking detracts from the profession. Such limited thinking detracts from performance. Such limited thinking extinguishes respect.
Also §51A input forms are generally redacted. It usually takes a humungous court fight to get 51As in relatively unredacted form. None of the attorneys working for Linnehan worked that hard, which is why he had six of them, the last – Fairbanks – having been disbarred for other reasons.
It would be a travesty of justice were this SJC "affiliated entity" to rely on Weisberg’s speculative and unreliable chalk as identifying the source of Johnson’s pleadings and webpages.
12. The "‘general principle of publicity', . . . governs judicial proceedings in this Commonwealth."
"Publicity prevents abuses of a single judge's power." Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 855 (1980), citing In re Oliver, 333 U.S. 257, 268-270. This "`general principle of publicity', . . . [which] governs judicial proceedings in this Commonwealth," was affirmed again in H.S. Gere & Sons, Inc. v. Frey, 400 Mass. 326, 329 (1987). "We adopted this requirement of a showing of overriding necessity, in part, because of the great public interest in disclosure of all information relevant to misuse of authority and official wrongdoing." H.S. Gere, 400 Mass. at 332, citing George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 279-280 (concluding "that the documents at issue here may only be impounded on a showing of overriding necessity, which is based on specific findings"). .
There is a well-established common law right of access to the judicial records of civil proceedings. See Nixon v. Warner Communications, Inc., [435 U.S. 589], 597 (1978) ("the courts of this country recognize a general right to inspect and copy public records and documents" [footnotes omitted] ); Ottaway Newspapers, Inc. v. Appeals Court, [372 Mass. 539], at 546 (affirming "with emphasis" general principle of publicity in the absence of statutory limitation on access to judicial records). The presumption of access facilitates "the citizen's desire to keep a watchful eye on the workings of public agencies," permits the media to "publish information concerning the operation of government," Nixon v. Warner Communications, Inc., supra at 598, and supports the public's right to know "whether public servants are carrying out their duties in an efficient and law-abiding manner." George W. Prescott Publ. Co. v. Register of Probate for Norfolk County, supra at 279, quoting Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). Access to otherwise unrestricted records of judicial proceedings may therefore be viewed as an essential component of the general principle of publicity: "the public often would not have a 'full understanding' of the proceeding and therefore would not always be in a position to serve as an effective check on the system" if it were denied access to judicial records. Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 502 (1st Cir.1989). See New Bedford Standard-Times Publ. Co. v. Clerk of the Third Dist. Court of Bristol, 377 Mass. 404, 417 (1979) (Abrams, J., concurring) ("greater access to information about the actions of public officers and institutions is increasingly recognized as an essential ingredient of public confidence in government").
Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 605-606.Where the repeated abuses by the judges of their power in the "John Jones’" cases, Respondent asks whether they would have been committed if public scrutiny had been allowed and if judges and those they appoint to investigate, evaluate, or determine custody and visitation issues were not given, respectively, judicial and quasijudicial immunity, perhaps Linnehan would not have lost knowing his son for the past 15 years. The tragedy is irremedial. Such denial of due process must be disclosed so that, at least with a little luck, similar tragedies will not occur.
Where in George W. Prescott Publ., supra at 278, the SJC refused to impound private information in a divorce case in which the husband at the time held two public positions, this "quasi-court" must refuse to impound the information in this out-of-wedlock paternity and custody action.\fn1/Cf. Roberts v. Noon, 23 Mass.App.Ct. 596 (1987) (child was entitled to assert right to support after age of 18 in same manner as children of divorced parents under like circumstances).
fn1 Petition reminds the Court here of Robyn Gerry-Sylvia’s candidacy for town selectman during at least part of the complained-of publication period.It follows that if the Bar Counsel wants to use the so-called impounded records to buttress Bar Counsel’s argument that Johnson published materials that were impounded, then in order to preserve Respondent’s rights to equal protection, the released records have had to be declared released and open to Respondent and the general public nunc pro tunc to the time Johnson first published any Jones matter.In fact, equal rights and equal protection demand the records be open for all, for there is a "great public interest in disclosure of all information relevant to misuse of authority and official wrongdoing." H.S. Gere, 400 Mass. at 332, citing George W. Prescott Publ., supra at 279-280.
Given this rationale, clearly the Legislature deemed the unamended §13 violative of due process rights under the Fourteenth Amendment to the United States Constitution and arts. 1, 10, and 12 of the Massachusetts Declaration of Rights, and that on a balancing of opposing considerations, the unamended statute was unreasonable and as such unconstitutional. Cf. In re Liquidation of American Mut. Liability Ins. Co., 434 Mass. 272, 282 (2001).
Given the relative weakness of the argument asserted by the Bar Counsel, the sufficiency of the public interest that motivated the Legislature to enact the 1998 amendment, and the narrow range of claimants who have been or will be affected by the statute as amended, this "quasi-court" must conclude that the retrospective application of G.L. c. 209C, §13 is reasonable and does not violate anyone’s constitutional guarantees of due process. See In re Liquidation of American Mut. Liability Ins. Co., 434 Mass. at 287.
Keeping the records open would lessen the injustice of secrecy surrounding the workings of the Bar Counsel and Respondent and the public the scrutiny warranted and considered desirable by the cases and constitutions in this Commonwealth and of our nation. It would also go a long way in restoring confidence in the courts.
As to Johnson’s political speech: the powers-that-be are surging forward to retaliate against Johnson for her outspokenness regarding the disintegration of justice in our judicial system, particularly in the Probate & Family Court Department, and for seeking the abolition of judicial and quasijudicial immunity. To censure Johnson because of her outspoken advocacy of court reform and the abolition of judicial and quasijudicial immunity is easier than to censor Johnson’s website, the latter being politically incorrect and violative of Johnson’s First Amendment rights. In such a cunning way, were Johnson censured, her credibility and effectiveness would be diminished. Such an act should not be countenanced. It’s dishonorable.
13. The pleadings in Exhibit 46 are not impounded, for M.G.L. 209C, §13, as amended, effective March 31, 1998, has retroactive effect.
Without the answer to the question of whether M.G.L. 209C, §13, as amended, effective March 31, 1998, has retroactive or prospective effect or both, 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\fn2/ 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.\fn3/
fn2 Whether the caseworkers are called investigators or social workers or psychologists is irrelevant.It is of such comments as those which appear in the margin at note 2 about which the OBC irresponsibly complains.\fn4/ 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 To point out those flaws, she had to comment on those subjects, including but not limited to the following:
- the mother, Robyn Gerry Sylvia,
- that Robyn conceived out of wedlock had special significance
- 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
- that the court-appointed investigator, Christopher Salt, knew that Robyn and the child lived with Fitzgerald, but failed to include that in his report (a lie by omission)
- that Robyn swore in her Complaint for divorce that the out-of-wedlock child was a child of a previous marriage (a lie)
- that Robyn told different people different dates of her marriage
- et cetera
- the subject child
- each and every “report” recommending that Linnehan be deprived of any type of relationship with his son.
fn4 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.\fn5/
fn5On 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.\fn6/ Restriction of access was deemed to be of constitutional dimension,\fn7/ and the burden of showing good cause was shifted onto the entity which wanted to deny access to the public.\fn8/ Section 13 of G.L. c. 209C had been amended, and became effective 31 March 1998.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.fn6 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.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:fn7 “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).
fn8 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.
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.
- Does the amendment have only prospective effect?
- Does the amendment also have retrospective or retroactive effect?
- Does the pre-amended version of §13as well as the amended versions of the statute apply to Johnson’s uploaded post-2000 pleadings?
^
Pre-3/31/98 pleadings Post-3/31/98 pleadings o y
o x o y o
x x
o y o oPresumptive Impoundment
Good cause required to open filesPresumptive Right of Access
Good cause required to close filesKey: o =Comment on fact from pre-3/31/98 pleading
x =quoted phrase from pre-3/31/98 pleading
y =quoted sentence from pre-3/31/98 pleadingNote: The number of o’s, x’s, and y’s in the figure is not intended to represent the number of o’s x’s, and y’s in the post-3/31/98 pleadings, i. e. , the Amended Complaint.
/|\
31 March 1998 Amendment of §13Figure 1
14. The BBO’s efforts to censor Johnson’s website and preclude Johnson from publishing the hearings in this action is unconstitutional prior restraint of speech. [Transcript, II:27].
Bringing unscrupulous judicial or quasijudicial activity to the public is evidence that she is meeting her professional obligation of Johnson not evidence of redissemination of confidential material. [Transcript, II:28]. The allegation that confidential information was being disseminated is too general and unspecific to sustain any claim, whether under common law or the Code of Professional Ethics. To use the Code to hide the fraud and conspiracy of the BBO and OBC and certain others is unimpressive except as a quasicriminal and possibly criminal act. The distortion of truth by the OBC and the BBO and their staff and members must not be countenanced in this Commonwealth by anyone.
<>15. Where the Parkers complained about Johnson’s fee gave her unfettered license to disseminate any information, the rules permit discretionary disclosure of otherwise confidential information, to refute or defend against a claim of misconduct, but only to the extent reasonably necessary. (Bar counsel's position certainly is that putting this up in a public way was not necessary to the defense. ) Deborah Sano’s (a/k/a Mary Parker by the Bar Counsel) waived any attorney-client privilege, and that Respondent has had a right to defend herself.As grounds, Johnson states (1) that on 12 December 1999, the Sanos gave implicit if not explicit permission to post their story on Johnson’s website [Exhibit A], falseallegations. com, (2) that on 16 December 1999, Deborah Sano sent to four people a communication from her to Johnson regarding Johnson’s bill to the Sanos [Exhibit B], and (3) that on 20 December 1999, responded to Deb Sano [Exhibit C], (4) that on 28 December 1999, Johnson answered still another email from Deb Sano [Exhibit D], (5) that Respondent had a right to defend herself [law below], and (6) that "Such an incongruous result would be inconsistent with the object and purpose of the attorney-client privilege and a patent perversion of the rule. When a client calls into public question the competence of his attorney, the privilege is waived. " Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974), cert. denied, 419 U.S. 1125, 95 S.Ct. 811, 42 L.Ed. 2d 826 (1975) (internal citations omitted).
On 28 December 1999, Johnson, responding to Sano, wrote "Perhaps those four attorneys will agree to act as a voluntary informal or complaint with the OBC/BBO" [Exhibit D]. Sano was clearly not writing to them in order to retain them as counsel in a fee dispute; they were merely citizens who happened to be lawyers.
The attorney-client privilege is the client's privilege to waive. Phillips v. Chase, 201 Mass. 444, 449 (1909). McCooe v. Dighton, Somerset, & Swansea St. Ry., 173 Mass. 117, 118-119 (1899). If a client chooses to waive the privilege of confidentiality, the attorney is under no further ethical obligation to keep the communications secret. S.J.C. Rule 3:07, Canon 4, DR 4-101 (C)(1), (2), as amended, 382 Mass. 778 (1981). District Atty. for Plymouth Dist. v. Board of Selectmen of Middleborough, 395 Mass. 629, 633-634 (1985).The purpose of the attorney-client privilege is to preclude an attorney from divulging confidential communications with the client. S.J.C. Rule 3:07, DR 4-101(C), 382 Mass. 778 (1981). The privilege, however, is not absolute and may be waived by the client either expressly or implicitly. The defendant concedes that if a client assails his attorney's conduct the privilege as to confidential communications is waived because the lawyer has a right to defend himself. See Commonwealth v. Brito, 390 Mass. 112, 119 (1983). See also Tasby v. United States, 504 F.2d 332, 336 (8th Cir.1974), cert. denied, 419 U.S. 1125, 95 S.Ct. 811, 42 L.Ed. 2d 826 (1975). . . . Com. v. Woodberry, 26 Mass.App.Ct. 636, 637 (1988). In the instant case, the Sanos, in particular, Deborah Sano, ultimately complained about all the work performed by Johnson only after they received Johnson’s bill. \FN1/. . . The Supreme Judicial Court has stated: "Once such a charge is made, the attorney-client privilege may be treated as waived at least in part, but trial counsel's obligation may continue to preserve confidences whose disclosure is not relevant to the defense of the charge of his ineffectiveness as counsel" (emphasis supplied). Commonwealth v. Brito, 390 Mass. at 119, citing Tasby v. United States, 504 F.2d at 336. That language suggests that the scope of counsel's obligation to preserve confidences when a charge of misconduct is made turns on whether the disclosure is relevant, material, or necessary to defend against the charge. See Commonwealth v. Brito, 390 Mass. at 119. See also S.J.C. Rule 3:07, DR 4-101(C), 382 Mass. 778 (1981).
. . . The widely accepted principle, however, is that: Com. v. Woodberry, 26 Mass.App.Ct. 636, 637-638 (1988) [emphasis supplied].
"[A] client is not free to make various allegations of misconduct and incompetence while the attorney's lips are sealed by invocation of the attorney-client privilege. Such an incongruous result would be inconsistent with the object and purpose of the attorney-client privilege and a patent perversion of the rule. When a client calls into public question the competence of his attorney, the privilege is waived" (citations omitted). Tasby v. United States, 504 F.2d at 336. See also 8 J. Wigmore, Evidence §2327(6), at 638 (McNaughton rev. 1961).
FN1 See textbox above paragraph 56 of the Amended Answer. 16. Quashing Johnson’s trial subpoenas was unconstitutional, and deeming the serving of them aggravation would be unconstitutional and proof of OBC’s and BBO’s conspiracy to cover up the truth and the collusion to discipline Johnson. [Transcript, II: 32-34].Note
The OBC has copies of all the emails called out below.
Look for the letter dated 11/6/99 from one of "Sarah’s Sisters" and the closing: "THANKS AGAIN FOR ALL YUR HELP".
Look also on page 39 for another sister’s thanks: "Thank you for your time and we hope to hear from you soon, Pearl & Josh."
Look at page 41 in textbox for "Know a few reporters who'd jump on this in a minute. It's a damn potential front-page story. "
Look at textbox for email dated 12/12/99 from Deb Sano on page 51: "We will be forever grateful for your help and concern. You have given us great hope and re-instilled out courage to fight. "
And look also on page 95 on page 119, for Deb’s letter in which she wrote to Johnson:
Dear Barbara, Thanks. Know that your are not on our payroll anymore but would love to be able to
keep you posted. Who knows we may someday be a story on your wonderful educational web site. . . .
We will be forever grateful for your help and concern. You have given us great hope and re-instilled out courage to fight.
17. In her opening statement, ABC Weisberg failed to indicate that Respondent would not establish a defense. That failure is a binding judicial admission. Liacos, Handbook of Massachusetts Evidence, at §2.5, p. 36, citing Cohen v. Suburban Sidney-Hill, Inc., 343 Mass. 217 (1961), where judge properly granted directed verdict for defendant. Given the intimidation by BBO here to exit the trial, Johnson is entitled to a directed verdict in her favor on all counts. Id., at §2.8.1, p. 43, and cases gathered (judicial notice of records of court as to case in issue).
~~~~~~~~~~~~~~~
Part I-C: Proposed Findings of Fact & Rulings of Law from Trial Exhibits The acceptance into evidence of the documents offered by Bar Counsel was an abuse of discretion.
Unless something in the record provides a basis for determining that allegations of that type are themselves wholly without merit — and nothing of that character appears here — it is extremely difficult to see how such allegations can be sensibly resolved without an evidentiary proceedings. Benoit v. Benoit (Lawyers Weekly No. 11-052-04) (McHugh, J., sitting as single justice) (Appeals Court) (Docket No. 04-J-50) (March 23, 2004). [Exhibit D, Benoit, slip opinion].An abuse of discretion is defined as a view or action "that no conscientious judge, acting intelligently, could honestly have taken." Davis v. Boston Elevated Ry., 235 Mass. 482, 497, 502 (1920); Long v. George, 296 Mass. 574, 578-579 (1937). In Benoit, supra, slip op. at 1, the court asked the question similar to the one Johnson asks here: "[T]he question is whether any ‘conscientious judge, acting intelligently, could honestly have’" entered the order precluding Johnson from calling witnesses and offering evidence in her defense or refusing Johnson’s demand to cross-examine her accusers. See Massachusetts Assoc. of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 266 (2001), quoting from Davis, at 497 and 502.
"In assessing whether a judge has abused his discretion, ‘we do not simply substitute our judgment for that of the judge, rather, we ask whether the decision in question "rest[s] on whimsy, caprice, or arbitrary or idiosyncratic notions.’" Massachusetts Assoc., 434 Mass. at 266, quoting Boulter-Hedley v. Boulter, 429 Mass. 808, 811 (1999).
In United States v. Outboard Marine Corp., 789 F.2d 497, 502 (7th Cir.1986), quoting from Kern v. TXO Production Corp., 738 F.2d 968, 971 (8th Cir.1984), two cases cited by Silverstein v. Microsystems Software, Inc., 57 Mass.App.Ct. 1114, (2003) (unpublished), the courts wrote, "the very concept of discretion supposes a zone of choice within which the trial court may go either way [in granting or denying the motion]") (brackets in original).
Johnson contends that the remarkable difference between what Bar Counsel and Johnson was allowed to introduce for evidence deprives the fact-finder of a "zone of choice." Implied in a "zone of choice," she also contends, is the requirement that all choices must be fundamentally fair. Finding, as the hearing officer and the BBO Chair did, allowing absolutely everything Bar Counsel wanted and denying absolutely everything Johnson wanted, was not fundamentally fair.
Certainly to burden Johnson with orders guaranteeing that she would be disciplined when the circumstances are such that discipline was and is not warranted but the desire to retaliate against Johnson for publicly demanding court reform and accountability by the judiciary and a court’s failure to consider the consequences of its order(s), whether inadvertent or intentional, is an act done against public policy. An act done against public policy is void ab initio in order to effectuate public policy or accomplish justice. See Massachusetts Mun. Wholesale Elec. Co. v. Town of Danvers, 411 Mass. 39, 55 (1991).
Exh. ##1-6
- Affidavit of Deborah D. Wolf
- Affidavit of Alan Brown
- Affidavit of Deborah T. Sano
- 4 Affidavit of Marguerite Rinone
- 5 Affidavit of Richard Simons
- 6 Affidavit of William Simons
Phillips Allows Bar Counsel’s Use of Affidavits for Authenticity over Johnson’s Objections:Bar Counsel wanted to use affidavits rather than witnesses. Prior to trial, Johnson had objected often and strenuously, orally and in writing, on the grounds that she could not cross-examine a piece of paper. According to Phillips, there was a "ground rule" in place. [Transcript, I:72]. Who made this alleged ground rule? when? how? It certainly was not reached in Johnson’s presence.
When Phillips dragged his feet in responding to Johnson’s motion for the BBO to issue subpoenas on Johnson’s behalf, Johnson caused subpoenas to be served on her percipient or potential trial witnesses. Phillips then quashed all of Johnson’s subpoenas.
Exh. 1, Affidavit of Deborah D. Wolf, Exh. 49 (4-10-01 Letter, Wolf to respondent) and Exh. 50 (4-17-01 letter, respondent to Wolf ): Deborah Wolf had motive to lie in her complaint to this body and in her letter to Johnson. She billed the Commonwealth with fraudulent purpose for her alleged services as attorney for RGS and JL’s son. Had Johnson not been denied a public trial, she would have made, at the very least, an offer of proof that had Wolf testified,
Exh. 3, Affidavit of Deborah T. Sano: Deborah Sano was the complainant of Count II. Given the abundance of disputed so-called evidence from Sano -–which came into evidence not only through her letters to the OBC but also through the letters of the prosecuting OBC attorney – Susan Strauss-Weisberg – Johnson was entitled to cross-examine BOTH Deborah Sano AND Weisberg. Weisberg was the equivalent of an assistant district attorney. Johnson knows of no criminal trial in which an ADA testifies against a defendant. And it is rare, very rare, indeed, that a prosecuting or defense counsel in a civil trial testify… but that is what the BBO – Phillips, Wagner, Carpenter, et al – allowed Weisberg to do, i.e., testify via her own correspondence to the respondent. By so doing Weisberg was allowed to improperly vouch for her own witness, Deborah Sano. "Vouching for a witness occurs when an attorney ‘expresses a personal belief in the credibility of a witness ... or indicates ... knowledge independent of the evidence before the jury verifying a witness's credibility.’" Com. v. Morales, 440 Mass. 536, 549 (2003).
- Wolf would have admitted that she had not seen or met with the minor child since the time when he was a toddler – if, indeed, she had even seen him then.
- Wolf would have had to admit that when she informed the Probate & Family Court that the youngster was afraid to see his father – as late as the year 2000 – she was lying.
- Wolf would have had to admit that the youngster thought his father was dead and that the youngster did not even have a memory of meeting with a person by the name of Deborah Wolf.
- Wolf would have had to admit that when she billed for meeting with the boy, Wolf had actually only met with Robyn, the boy’s mother.
It is never proper for an attorney to vouch for a witness's credibility. Commonwealth v. Chavis, 415 Mass. 703, 713 (1993), and cases cited. See Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989). However, it is permissible to comment and draw inferences regarding the evidence at trial, Commonwealth v. Chavis, supra, and cases cited, or to point to the logical reasons a witness's testimony should be believed, Commonwealth v. Rolon, 438 Mass. 808, 816 (2003). Com. v. Koumaris, 440 Mass. 405, 414 (2003). See also Com. v. Marangiello, 29 Mass.App.Ct. 259, 260 (1990) (reversed and remanded for new trial, where prosecutor's possible vouching for credibility of accomplice who had entered plea agreement was potentially so prejudicial to defendant as to require new trial).Weisberg’s correspondence, in which she asserted Sano’s complaint to be true, was vouching. One could argue that Weisberg’s letters to Johnson were "permissible comment" containing "inferences." but to introduce them as evidence morphs the letters into impermissible vouching.
Exhs. 2 and 4, Affidavits of Alan Brown and Marguerite Rinone: Alan Brown and Marguerite Rinone might very well have downloaded webpages from Johnson’s website, but given that the webpages are html files and not pdf files, the files can be modified. Because those html files can be changed, it is unknown as to whether they were changed by Brown or Rinone or others at the OBC. Given the unreliable information the OBC personnel, such as Weisberg, has passed on to the BBO, it is not known to Johnson whether changes were made. The 1000s of downloaded pages were too many for Johnson to review, given the short amount of time available to review the documents provided Johnson, it is impossible for Johnson to state with certainty whether the html files were changed before they were printed and/or copied and produced as exhibits to the BBO and entered as exhibits.
Exhs. 5-6, Affidavits of Richard Simons and William Simons, and Trial Exhs. 74, 75, and 75A: Johnson was entitled to cross-examine the father and son on their affidavits, and the father on his letter to Johnson. Exclusion of the conversation between William Simons and his client(s) – namely, Deb and/or Harry Sano – was prejudicial. Cf. Com. v. Allen, 22 Mass.App.Ct. 413, 423 (1986) (exclusion of a partial transcript of the victim’s telephone conversation was prejudicial to defendant given the victim’s strong and unequivocal identification testimony at trial), and cases gathered. See arguments under Exhs 17-41 and Chalk B, infra.
Exhs. 7-11, Home pages: See argument at Exhs. 2 and 4. Objections on hearsay and relevancy grounds.
Exhs. 12-14, the Store: Objections on hearsay and relevancy grounds.
Exhs. 17-41 AND Chalk B: The allegations of confidential material were general, speculative, bald assertions. No words, phrases, statements were pointed out as being confidential. [Transcript, I:74]. Drano Series files that were exculpatory were omitted from those Drano files entered into evidence by Assistant Bar Counsel on behalf of the Bar Counsel. For example, Drano #84 was omitted.
Drano #84 contains a series of letters from Johnson to Weisberg in response to the Complaint filed by Deb Sano in 1999. It was a bill dispute. Deb Sano had given Johnson a little more than $10,700. Feeling sorry for her and her family, Johnson did not charge for many things she did -- discounted many charges -- and sent her back a little more than $3100. Sano wanted more money back and Johnson asked her what parts of the bill she disputed. Instead of giving Johnson a reasonable response, Sano complained to the Bar. The Bar Counsel did find an arithmetic error of a little more than $300. Johnson sent Sano a check for the amount.
Omitting critical, exculpatory evidence is violative of the doctrine of completeness.
The rule of completeness permits the opponent to put before the trier of fact the context of the fragmentary statement admitted, as well as any prior or subsequent contradictions, modifications, or explanations made at the same time. P.J. Liacos, Massachusetts Evidence §3.12, at 105 (6th ed.1994). Com. v. Carmona, 428 Mass. 268, 272 (1998), citing Liacos, Massachusetts Evidence §3.12. "Under the rule of verbal completeness, when a party places in evidence part of what was said or written at a particular time, the other party may add what has been omitted to give a full picture." Kobayashi v. Orion Ventures, Inc., 42 Mass.App.Ct. 492, 498 (1997), quoting Commonwealth v. Watson, 377 Mass. 814, 825-831 (1979) and citing Evans v. Multicon Constr. Corp., 30 Mass.App.Ct. 728, 741 (1991); Liacos, Massachusetts Evidence § 3.12 (6th ed.1994).Omitting the exculpatory documents violates the rule of completeness. Allowing Weisberg to place one fragmentary statement after fragmentary statement and fragmentary conclusion after fragmentary conclusion in Chalk B as if they were evidence of wrongdoing is reversible error.
In order to be admitted under the doctrine of verbal completeness, the additional portions of the statement must be (1) on the same subject as the admitted statement; (2) part of the same conversation as the admitted statement; and (3) necessary to the understanding of the admitted statement. Commonwealth v. Clark, 432 Mass. 1, 14 (2000). The purpose of the doctrine is to prevent one party "from presenting a fragmented and misleading version of events by requiring the 'admission of other relevant portions of the same statement or writing which serve to "clarify the context" of the admitted portion.’" Commonwealth v. Garrey, 436 Mass. 422, 436 (2002), quoting Commonwealth v. Carmona, 428 Mass. 268, 272 (1998). Com. v. Eugene, 438 Mass. 343, 350-351 (2003)."Under the rule of verbal completeness, when a party places in evidence part of what was said or written at a particular time, the other party may add what has been omitted to give a full picture.... That principle does not open the gate for everything in a document or statement. There is always the test of relevance." Gallagher v. Turner Const. Co., 55 Mass.App.Ct. 1107 (2002) (unpublished), quoting Kobayashi v. Orion Ventures, Inc., 42 Mass.App.Ct. 492, 498 (1997).In sum, where a statement qualifies, explains, contradicts, adds, or puts into context statements adduced by the opposition, it becomes admissible under the doctrine of verbal completeness. Cf. Commonwealth v. Nichols, 53 Mass.App.Ct. 1110 (2002) (unpublished).
In Com. v. Bianchi, 435 Mass. 316, 327-328 (2001),
pages of a suicide note "were not admissible under the doctrine of verbal completeness, because they [were] not the same statement or writing as the two pages admitted in evidence. The only relationship between the pages was that the paper was from the same pad. The second set of pages does not in any way "clarify the context" of the first set of pages. Accordingly, they are not admissible under the doctrine of verbal completeness. Id., citing Commonwealth v. Carmona, 428 Mass. 268, 272 (1998), quoting Commonwealth v. Robles, 423 Mass. 62, 69 (1996). In Robles, the court held, "When a party introduces a portion of a statement or writing in evidence the doctrine of verbal completeness allows admission of other relevant portions of the same statement or writing which serve to ‘clarify the context’ of the admitted portion.... The rule prevents a party from presenting a fragmented and misleading version of events to the finder of fact."Exclusion of the omitted, exculpatory Drano fileswas prejudicial. Cf.Com. v. Allen, 22 Mass.App.Ct. 413, 423 (1986) (exclusion of a partial transcript of the victim’s telephone conversation was prejudicial to defendant given the victim’s strong and unequivocal identification testimony at trial), and cases gathered. As in Allen, "the evidence excluded [is] obviously relevant to a principal issue. The need for the evidence could be considered critical in order to assure the defendant a fair trial." Id. at 423.
Johnson is entitled to explain, contradict, modify, and/or add what Bar Counsel through William Simons, Deborah Wolf, and the webpages either put into evidence or omitted from evidence, in order "to give a full picture." Kobayashi v. Orion Ventures, Inc., 42 Mass.App.Ct. 492, 498 (1997), quoting Commonwealth v. Watson, 377 Mass. 814, 825-831 (1979) and citing Evans v. Multicon Constr. Corp., 30 Mass.App.Ct. 728, 741 (1991); Liacos, Massachusetts Evidence §3.12 (6th ed.1994).
To put the pages in without the "missing" evidence and without showing the purpose of these pleadings from the state and federal courts was prejudicial to Johnson. To intimidate Johnson into leaving the alleged trial by banishing the public from the hearing room was improper and prejudicial to Johnson.
The intimidation did, however, appear to be planned, given Phillips’ and Wagner’s choice to ignore Weisberg’s admission that none of the pleadings were from Juvenile Court and that they were being offered to show what Weisberg subjectively believed to be offensive. Offensive to one person may not be offensive to another. Such is the case here. The pleadings show the continual lies of Robyn Gerry-Sylvia and proof of those lies (the purpose, particularly, of Drano ##22, 23, 24, and 25, which were accepted as Trial Exhibits 23, 24, 25, and 26).
In shaded italic Comic Sans type below, Johnson states what Weinberg did not state, to wit, the purpose of the documents offered and accepted as trial exhibits.
5 An Amended Complaint Based on the Deprivation of Parental Rights
Suit against doctor, court investigator, mental-health counselor, psychologist, social worker, trial court and child protective serviceLinnehan was exercising his First Amendment right to petition to the federal court. Johnson had a right to publish the pubic record. Johnson also had an obligation to expose the unscrupulousness of the state courts throughout the course of the Linnehan proceedings.
Linnehan and Brown 9 Opposition to Motion to Dismiss on Immunity Grounds Another pleading in Linnehan’s federal court case. Same rights, same obligations.
Linnehan and Brown 12 Opposition to Motion for Judgment on the Pleadings on Grounds of Sovereign Immunity: A Creative Look at Its Unconstitutionality. It Could Change the Way Massachusetts Treats Its Citizens Another pleading in Linnehan’s federal court case. Same rights, same obligations.
Linnehan and Brown 17 Opposition to Motion for Judgment on the Pleadings Another pleading in Linnehan’s federal court case. Same rights, same obligations.
Linnehan and Brown 20 Jim's Story: The Devastating Story People Have Been Waiting For Another pleading – Linnehan’s affidavit -- in his federal court case. Same rights, same obligations.
Linnehan and Brown 21 Opposition to Eileen Kern's Motion for Judgment on the Pleadings Another pleading in Linnehan’s federal court case. Same rights, same obligations.
Linnehan and Brown 22 Amended Complaint A complaint for modification of child custody. Brought to expose Robyn’s dishonesty, the reversible errors of Judge Ronald Harper’s court(s), and Robyn’s lack of fitness to remain the custodial parent. Another public record, not impounded, given the amended §13 of G.L. c. 209C. Same rights, same obligations.
Linnehan v. Robyn Gerry Sylvia Paternity Case 23 AFFIDAVIT OF ROBYN GERRY-SYLVIA IN HER DIVORCE CASE Another public record, not impounded. Purpose to show how Robyn changed the facts to suit her purpose.
Bar Counsel Is Playing Censorship Police: the Thought Police
MS. WEISBERG: Next is Drano Number 23. It is not a pleading from either the probate case or the federal case. It is a pleading that came from the mother's divorce case. It is not an impounded record. If I may add, however, my case does not depend on the information being impounded. My case -- Bar counsel's allegations include the publication of sensitive personal information with an impermissible purpose, irrespective of whether the source is impounded.[Transcript, I:101-102, marked as Trial Exh. 24]. Bar Counsel has no evidence that the information was uploaded with an impermissible purpose. The only evidence that can be properly gleaned from Robyn’s affidavit is that Robyn is a liar: that she identified Linnehan’s child as being a "child from a previous marriage." She was never married to Linnehan. The inference is that her husband did not know the truth. The inference is also that Robyn’s complaint to the Bar about Johnson is equally as fallacious.Robyn Gerry-Sylvia v. Michael R. Sylvia Divorce Case 24 AFFIDAVIT OF MICHAEL R. SYLVIA IN HIS DIVORCE CASE Another public record, not impounded. Purpose to show that Linnehan’s son had moved seven times, which proved that the stability that Robyn claimed the boy had was non-existent. Robyn had lied to the court and to the diverse therapists that her husband played the role of father to the boy. In truth, her husband did not live with the boy but for two or so years before Robyn accused him, too, of sexually abusing his children born of the union with his deceased wife.
Robyn Gerry-Sylvia v. Michael R. Sylvia Divorce Case 25 Complaint Another public record, not impounded. Purpose to show that Robyn told the divorce court that Linnehan’s son was from a prior marriage. Interesting is that it demonstrates she even lied to her husband about her background and that of the child.
Robyn Gerry-Sylvia v. Michael R. Sylvia Divorce Case 26 Obituary of a Grandfather Who Longed to See His Grandson Before He Died . . . AND THE LETTER OF THE PSYCHOLOGIST WHO RECOMMENDED DENIAL OF GRANDPARENTS' VISITATION That the OBC should find offensive for whatever reason an obituary of Linehan’s dad is remarkable! Or maybe the OBC simply did not want the inhumane recommendation of a psychologist that the very fine, respectable grandfolks should not see their grandchild.
Linnehan Grandparents v. Robyn Gerry Sylvia 28 Jim's Family Pictures: This site is dedicated to Brenden Linnehan so that he can see his family and particularly his dad! And what is so terrible that a child get to see his own family, a child that has never known a family to call his own?
Linnehan related 31 Plaintiff James Linnehan's Opposition and Combined Memorandum in Support of His Opposition to Children's Hospital's and Eli Newberger's Motion to Dismiss Another public record from federal court. Same rights, same obligations.
Linnehan and Brown 32 Linnehan's Opposition and Memorandum in Support of Opposition to Jack McCarthy's Motion to Dismiss Another public record from federal court. Same rights, same obligations.
Linnehan and Brown 34 Renegade Juvenile Court Judge Orders Impoundment of Materials Being Sued on in Federal Court. The outrageous order is reminiscent of edicts issued by tyrants, autocrats, and sociopaths who have climbed to the pinnacle of power in countries other than OUR U.S. of A. My disgust at Lawton’s order is self-evident. Deborah Wolf’s so-called complaint was nothing that even remotely resembled a complaint. She wanted Juvenile Court to order me to remove files that allegedly had info deriving from Juvenile Court. None of my material was derived from Juvie court. I did not upload Juv. Ct. documents and Judge Lawton had no jurisdiction over me. If he had, he would have taken further action. He did not, because he could not.
Linnehan related 37 Letter to Judge Mark E. Lawton about Order to Impound Reports of Social Workers, Psychologists, and Eli Newberger-Childrens Hospital and Certain Documents on This Website Worth reading.
Linnehan related 42 Letter to Chief Judge Martha P. Grace, Juvenile Court, and Chief Judge Sean M. Dunphy, Probate & Family Court Deborah Wolf and Bruce Lider were trying to get the Probate and Family Court action into Juvenile Court. It did not belong there. The "higher" judges agreed with me…only because they had no excuse legally to disagree with me.
Linnehan related 66 Petition for Interlocutory Relief for Temporary Child Custody
This petition is unlikely to be successful. The court will likely say that relief will be available after final judgment, but it WON'T BE. The child will be too old and will likely leave the home of the mother and go to points unknown. The father does not want to risk losing track of him.In either event, the petition shows the format -- at least in Massachusetts -- to be used for such an interlocutory appeal. It may also work in other States. The law, primarily from the United States Supreme Court, is good in all States.
DENIED on 12/27/01 without hearing or explanation.As predicted, the petition was unsuccessful. As I wrote in my Drano Table, I uploaded the petition so that pro-se-ers could see the format to use for such a petition. The purpose of the petition was clearly to have a higher court review what had occurred below.
Linnehan domestic relations case 70 Complaint in the Nature of a Petition for a Writ of Certiorari and to Invoke the General Superintendence of the Court
In Massachusetts, this is the only way to "appeal" a denial by a single justice in the Appeals Court to give relief from the application of the Massachusetts Child Support Guidelines where a father has no visitationThis file, too, had a dual purpose. To educate those of the public who had to learn how to write a 211:3 petition and to possibly convince the highest court in the Commonwealth to help Linnehan.
Linnehan v. the mother of his child and the court 72 Reply of Brown and Linnehan to Defendants' Appellee Briefs
The Primary arguments are immunity and state action, i.e., whether the defendants were state actors.This file, too, had a righteous purpose. To teach those of the public who had a need to know how to reply to appellee briefs.
Linnehan & Brown against Evil Evaluator ELi Newberger et al
in the multibillion $,$$$,$$$,$$$ sex-abuse industry81 The Bar War: Barb's Second Response to the Complaint by Robyn (mother of Jim Linnehan's child) to the Office of the Bar Counsel and/or Board of Bar Overseers This file had the purpose of teaching lawyers that they do NOT have to let the OBC/BBO intimidate them, that they should speak out, that they should do "right" by their clients and not wimp out and be fearful of retaliation by the judiciary and by the OBC/BBO acting on behalf of the judiciary.
Barb's fight for her First Amendment rights continues 82 The Bar War: Barb's Second Response to the Complaint by Deborah D. Wolf (the child's Juvenile-Court-appointed attorney) to the Office of the Bar Counsel and/or Board of Bar Overseers This file, too, had the purpose of teaching lawyers that they do NOT have to let the OBC/BBO intimidate them, that they should speak out, that they should do "right" by their clients and not wimp out and be fearful of retaliation by the judiciary and by the OBC/BBO acting on behalf of the judiciary.
Barb's fight for her First Amend- ment rights continues against the court-appointed attorney 83 The Bar War: Barb's Response to the Complaint by the Office of the Bar Counsel Same purpose as that for Drano ##81 and 82.
Barb's fight against Bar Counsel 84a The Bar War: To come. Banned in Boston by the Board of Bar Overseers, commandered by the Massachusetts Supreme Judicial Court This was to keep the public and lawyers informed as to the lengths the OBC/BBO would go to, to infringe on a lawyer’s right to free speech and political expression.
Barb's fight against Bar Counsel
and the Sanos
Exhs. 42-44, 51-53, 66-73: Given that Johnson responded to each and every one of Weisberg’s letter to respondent, the BBO must consider why Weisberg did not include Johnson’s responses. The only reasonable conclusion that can be drawn is that Weisberg was hiding (1) the truth and (2) other exculpatory evidence. There are problems with these exhibits. In Exhibits 51-53 and 66-73, ABC Weisberg is again vouching for the complainants. Johnson was entitled to cross-examine the accusers -- Deb Sano, Robyn Gerry-Sylvia, and Judge Paul McGill – and other witnesses with personal knowledge.
And the completeness doctrine has been violated again by Weisberg and Bar Counsel by Exhibits 42, 43, and 44 being accepted into evidence.
66 4-7-00 letter with grievance and other attachments, bar counsel to respondent
67 4-19-00, letter with attachments, respondent to bar counsel51 Letter with grievances and other attachments, bar counsel to respondent Exh. 45 (A-V Impounded records, Matter of Brenden Linnehan). Exhibits 45 and 46 cannot be considered by the SHO, or must be stricken. It is one thing to gather the documents now marked Trial Exhibits 45 and 46 from diverse courts and introduce them into evidence in a trial held by the BBO, but it is another thing to assert that Johnson ever saw the documents. The documents are hearsay and have no evidentiary value in the disciplinary action. [Transcript, I:113].
52 6-26-01 letter with attachments, respondent to bar counsel
53 6-28-01 letter with attachments, respondent to bar counsel68 8-3-01 letter, bar counsel to respondent
69 9-11-01 letter, respondent to bar counsel70 5-6-02 letter, bar counsel to respondent
71 5-8-02 letter, respondent to bar counsel72 5-23-02 letter, bar counsel to respondent
73 6-29-02 letter, respondent to bar counsel42 8-2-02 letter, bar counsel to respondent
Missing response from respondent to bar counsel43 12-13-02 letter, bar counsel to respondent
Missing response from respondent to bar counsel44 12-20-02 letter, bar counsel to respondent
Missing response from respondent to bar counselNone of the pleadings numbered Exh. 45 or any of the exhibits from the juvenile court were uploaded to Johnson’s website.
Exh. 46 (A-I Impounded records, Linnehan vs. Gerry). It is Johnson’s contention that none of these documents are impounded. See the argument #13 of Part I-B on pages 15-18, supra, about M.G.L. c. 209C, §13, as amended, effective 31 March 1998.
Exhs. 56, 59-65: There is a certain irony here. The public was ousted from what was supposed to be a public trial because Johnson said a complainant’s given name, Robyn, from which no one individual could be identified. It appears that it is, however, permissible for Weisberg to mention the surname as well as the initial of a given name of another complainant. Johnson contends that she was, of course, entitled to cross-examine Deb Sano.
Given that Johnson was not counsel to Harry Sano for the four indictments against him, she can only presume that Exhibit 56 was offered for the purpose of countering Deb Sano’s disparaging remarks about Richard Simons, who is the son of Retired-Judge William Simons and who represented Harry in the criminal case. Without being able to cross-examine Richard Simons and Harry and Deb Sano, Johnson was deprived of her state and federal constitutional rights to cross-examine witnesses against her.
Johnson objects, of course, also to the docket of Harry Sano’s criminal case on the grounds of hearsay and relevancy. Johnson never saw the docket sheets and never made an appearance in the Pittsfield court on Harry Sano’s behalf.
55 Indictment face sheets (4) Exh. 74 (12-23-02 letter, William Simons to respondent), Exh. 75 (Audiocassette of 12-26-02 voice mail message), and Exh. 75-A (Transcription of audiocassette with affidavit): Johnson objects to the deprivation of an opportunity to call William Simons and Deb Sano to the stand as trial witnesses.
56 Docket entries, Commonwealth vs. Sano (this is about Harry Sano)
59 12-16-99 letter, Sano to respondent (from D. Sano)
60 12-20-99 e-mail, respondent to D. Sano
61 12-29-99 e-mail, respondent to D. Sano
62 1-9-00 e-mail, D. Sano to respondent
63 1-11-00 e-mail, respondent to D. Sano
64 2-2-00 e-mail, D. Sano to respondent
65 2-2-00 e-mail, D. Sano to respondentExhs. 76-103: Johnson objects to the acceptance into evidence of Exhs. 76-103 for the following reasons:
- Johnson’s motion to dismiss on the grounds of laches as well as the statute of limitation had been denied.
- The exculpatory tape of the hearing on 17 December 1998 had been destroyed (allegedly overwritten) by the district court,
- a critical eyewitness had died, and
- Johnson was precluded both
Johnson incorporates herein by reference her motions related to Count III and all her arguments therein, including but not limited to the ground (a) that contempt may not be found in where there was no order to violate and (b) that an unlawful order is void ab initio. Johnson also incorporates herein her arguments presented in Parts IV-A and IV-B, supra.
- from using her evidence of fraud and fabrication of evidence by O’Connor and Judge McGill and
- from calling O’Connor, the judge, and Darlene Boylan, and others to the stand as trial witnesses.
76 District Court docket entries, Coughlin vs. HMM Associates, Inc. Exh. 105 (Prior Discipline Record): Johnson objects on the ground of relevancy, laches, and statute of limitations. common sense, and fundamental fairness.
77 District Court docket entries, O'Connor vs. Johnson
78 Superior Court docket entries, Coughlin vs. HMM Associates, Inc.
79 Appeals Court docket entries, Coughlin vs. HMM Associates, Inc.
80 Appeals Court docket entries, HMM Associates, Inc. vs. Johnson
81 2-24-95 District Court endorsed Emergency Motion to Reconsider
Order of 1-4-95
82 District Court endorsed Emergency Motion and Memorandum to
Depose Nonparty Witnesses and Former Employees of Defendant
Corporations Outside the Presence of Defense Counsel
83 3-3-95 Motion for Payment of Paralegal Fees
84 3-3-95 Affidavit of Darlene M. Boylan
85 Opposition to Plaintiff's Emergency Motion to Depose Nonparty
Witnesses and Request for Costs Including Attorney's Fees
86 Opposition to Plaintiff's Emergency Motion to Reconsider Order of
1-4-95 and Request for Costs Including Attorney's Fees
87 District Court Affidavit of Mark C. O'Connor
88 District Court judgment
89 Motion to Strike Plaintiff's Request for Retransfer and Dismiss Action
90 Memorandum and Orders Re: Contempt and Dismissal
91 District Court Amended Judgment
92 District Court Memorandum and Order of Dismissal
93 District Court Memorandum and Orders
94 District Court Memorandum and Orders
95 Motion to Strike Plaintiff's Second Request for Retransfer
96 Appeals Court Memorandum and Order, Coughlin vs. HMM
Associates, Inc.
97 Memorandum and Order Pursuant to Rule 1:28, HMM Associates, Inc.
98 Appeals Court Order, Coughlin vs. HMM Associates, Inc.
99 7-16-98 letter from McGill to Elaine Whitfield Sharp
100 District Court Notice and Orders Re: Hearing
101 District Court Finding of the Court
102 District Court Order, 12-17-98
103 District Court Order, 12-18-98Chalk B Drano Sources Internet Posting thru 5-1-01110
Were Weisberg to be allowed to use her proposed chalk, it would be an abuse of discretion. The so-called data contained in the chalk is for the most part FALSE. Use of the chalk would contribute to creating an extremely lengthy trial, for Johnson would then have the both the need and the right to go over each and every statement alleged in it (1) to be on Johnson’s website and (2) to constitute a breach of confidentiality or privacy and/or (3) to constitute a breach of an impoundment order and/or protective order and/or a statute or rule. Weisberg’s legal conclusions are specious and have infected the chalk, making it unusable.
For instance, 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.\fn1/ See Figure 1, supra at page 34. Restriction of access was deemed to be of constitutional dimension,\fn2/ and the burden of showing good cause was shifted onto the entity which wanted to deny access to the public.\fn3/ Section 13 of G.L. c. 209C had been amended, and became effective 31 March 1998.
fn1 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 Newspaper Co., Inc. v. Clerk of Suffolk County Superior Court, 2002 WL 202464 at 4, No. 01-5588-F (Sup.Ct. Feb. 4, 2002).So the primary questions to be addressed by this quasicourt and sent to the SJC for interpretation are ones of first impression: Does one or both versions of the statute apply to Johnson’s uploaded post-2000 pleadings? And, does the amendment have only prospective effect or does it also have retrospective or retroactive effect? Johnson contends that for consistency and logic, the amendment must also operate retroactively. The motion judge (McGregor, J.) to whom Weisberg brought her request for access in New Bedford Probate & Family Court held firm on prospective application only. Logically the court was wrong. Unfortunately the SJC refused to address the issue when Johnson brought it to it via a petition pursuant to G. L. c. 211 §3. The issue is, nevertheless, a question of first impression.fn2 “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).
fn3 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.
^
Pre-3/31/98 pleadings Post-3/31/98 pleadings o y
o x o y o
x x
o y o oPresumptive Impoundment
Good cause required to open filesPresumptive Right of Access
Good cause required to close filesKey: o =Comment on fact from pre-3/31/98 pleading
x =quoted phrase from pre-3/31/98 pleading
y =quoted sentence from pre-3/31/98 pleadingNote: The number of o’s, x’s, and y’s in the figure is not intended to represent the number of o’s x’s, and y’s in the post-3/31/98 pleadings, i. e. , the Amended Complaint.
/|\
31 March 1998 Amendment of §13Figure 1
If Johnson is correct in concluding that the amended section has retroactive application as well as prospective, any decision the BBO reaches based on the section being effective only prospectively will be reversible error. And it is will be caused by Weisberg’s specious conclusion on which her chalk rests!
Because it would take the better part of a week working alone to look up each purported quotation and write it up, Johnson objects to the chalk in toto being used at time of trial.Incorrect Chalk "Drano Sources Internet Postings through May 1, 2001"MS. WEISBERG: What I did in order to demonstrate that the source of the information on the Internet postings I have just offered derived at least a part from confidential or impounded documents, I have listed by each Drano number what the text is that I say was derived from a confidential document or an impounded document, then listed the source record and what court it is in. What I would like to do when the case concludes is submit to you a second version of this chalk with the exhibit numbers collated. But it is intended to give you a road map into what bar counsel says the source of this information is. That is the source from the impounded records only. There's plenty of other information on that web site that's not impounded, but is still personal or confidential. [Transcript, I:106-107]. General accusations such as those spoken here by Ms. Weisberg are insufficient to justify any disciplinary action. The Fascistic approach to censorship is frightening. Political intimidation. Political prisoners. Give us a phrase! Give us a word! Give us a statement! Not just bald assertions. The conduct of Bar Counsel and his assistant borders on criminal, it is so outrageous.The Hearing Officer’s ignorance of the law is brightly shining. Chalks are not exhibits. They are not evidence. That he even considered accepting it as evidence is indicative of his ignorance of the law and the deprivation of Johnson’s rights to a fundamentally fair trial. [Transcript, I:108].
~~~~~~~~~~~~~~~
Part II-A: Proposed Findings of Fact for Count I 1. The respondent, Barbara C. Johnson, Esq., is an attorney duly admitted to the Bar of the Commonwealth on December 22, 1987.
2. From at least 1999 to date, the respondent has owned and maintained an Internet web site at the address http://www.falseallegations.com.
3. Since at least 1999, the respondent has posted on her web site, among other things, information regarding allegations of child sexual abuse and copies of pleadings in her own and other cases involving allegations of such abuse.
4. Respondent uses the web site to "sell answers to "`simple questions,'" and "various types of `consulting services' at hourly rates." She informs website visitors that she provides "`legal representation' pursuant to written fee agreements.'" Her website was and still is intended to be a giving back to the people who have been victimized by the courts and who cannot afford legal representation. The website was only one of several steps Respondent took to effect her intended retirement for many reasons from the practice of law.
5. Since 1999, the respondent has represented John Jones (a pseudonym) in matters related to Jones's minor child, William (a pseudonym).
6. "William was born in 1985. From and after 1988, William was the subject of a care and protection proceeding (C & P action) in the Bristol County Juvenile Court (juvenile court)."
7. Respondent never appeared for Jones in the Care & Protection action and never was an attorney of record in that action.
8. William was the subject a proceeding not only for paternity but also for custody. Without the demand for custody of the child, the Probate and Family Court would not have had exclusive jurisdiction over Jones's action.
9. Respondent has sufficient information to form the belief that Jones's visitation rights were terminated in Juvenile Court without any due process such as a hearing at which he could confront accusers and/or defend himself, and that Jones's repeated efforts for a decade to obtain review and redetermination under chapter 119 by a process with the indicia of due process were also denied.
10. Jones and Jane were never married to each other.
11. Jane married Robert Brown (a pseudonym) on 29 August 1989. Jane and Brown had a child, David Brown (a pseudonym), born on 4 May 1990 (assuming the birth certificate is certified by a government vital records unit than received from Jane). Jane and Robert Brown subsequently separated and are now divorced.
12. In 1994, Jane Doe told her own divorce lawyer, Moira Tierney, that William born out of a marital union between herself and Jones: "I assumed complete responsibility for raising [Brown's] children and my child from a previous marriage" [see Trial Exhibit 24 (Drano #23), ¶6 of Jane's affidavit, filed on 11 July 1994 in in Bristol County Probate & Family Court];
13. Jane Doe told Brown, her husband, that William was born out of a marital union between herself and Jones [see Trial Exhibit 24 (Drano #23), ¶6 of Jane's affidavit, filed in the Doe-Brown divorce file in Bristol County Probate & Family Court].
14. In 1988, Jane Doe told Christopher Salt that she had "no live-in boyfriend" [CS 7/1/88 report at 25], causing Salt to write, with the exception of Mr. Fitzgerald, who babysat William, "there appears to be no significant males in [William's] life other than Mr. [Jones]." Id. at 3.
15. In her affidavit filed in the Bristol County Probate & Family Court in New Bedford, Jane claimed to have married Brown on "August 28, 1988 after living together for approximately two years" [Jane's affidavit at 1]. Compare this with the 1989 date on her marriage certificate, Trial Exhibit 47.
16. In 1992, Jane Doe told Eli Newberger, a doctor at Children's Hospital, that she had married Robert Brown "in August 1988" [EN 9/8/92 report at 4, ¶2]
Jane, a truly evil woman, lied on several matters:18. Jane and Robert Brown were separated by 1991, re-united for a short period, and then separated again.
- According to her marriage certificate [Tr. Exh. 47], she married Brown on 29 August 1989
- but she told Newberger she was married in August 1988 and
- she wrote in her divorce affidavit [Trial Exhibit 24] that she married on 28 August 1988;
- in 1988, she told Christopher Salt that she had "no live-in boyfriend" [CS 7/1/88 report at 25; see ¶14 supra],
- but she was living with Mr. Fitzgerald at that time [CS 7/1/88 report at 25], and
- she also affianced in Tr. Exh. 24 that she had been living together with Brown for two years before she married, which would have been 1986 through 1988, had the 1988 marriage date been accurate [see ¶15 supra], and
- because of Jane’s lies, Salt concluded "there appears to be no significant males in [William's] life other than Mr. [Jones]" [CS 7/1/88 report at 3] and therefore accused Jones of sexually molesting his son.
19. In 1994, Jane initiated divorce proceedings, which resulted in a judgment nisi in November 2001, after seven arduous years.
20. On page 2 of Brown's affidavit filed in the divorce case, he corroborates Jones's assertions: "My wife has moved with her son [William] at least seven or eight times." Neither the Juvenile nor the Probate & Family Courts cared. They never allowed Jones to give or take evidence.
21. William has lived with his mother, Jane, and his half-brother David, and has been known not in one community but in seven or eight or more communities as William Brown.
22. Alleged psychologist Jack McCarthy so-called report(s) are but letters to one or two attorneys and "To Whom It May Concern" of only a few lines in length.
23. Alleged psychologist McCarthy did NOT treat William, and did, in fact, see William only one time for a few minutes with his mother Jane;
24. Respondent has not possessed reports from McCarthy containing privileged, confidential and personal information of a highly sensitive nature about William, David, and Jane.
25. Respondent only has copies of a few short letters authored by McCarthy and containing purposefully false information and bills sent to Jones for alleged services.
26. Respondent has never known any more about David than his date of birth and information as to whom his father is, and has never inquired of any potential source of David.
27. On or around May 2000, Respondent filed a complaint for modification and an amended complaint for modification for Jones in a paternity and custody action.
28. In May 2000, the respondent commenced an action on behalf of Jones and another client in the United States District Court.
29. In or about the fall of 2000, the respondent posted on her web site a copy of her amended complaint for modification in the paternity and custody action.
The amended complaint for modification was then not under impoundment.30. Respondent never posted on her website a copy of a psychologist's report on any individual.
31. Respondent posted the amended complaint, Jones's affidavit, federal-court pleadings, and Doe-Brown divorce pleadings.
32. Respondent posted certain materials on her website but none had been impounded.
33. Respondent denies posting materials from an affidavit of Eileen Kern, who reported the sexual abuse allegations against Jones pursuant to G.L. C.119, §5. Respondent has no knowledge of an affidavit by Kern written at that time.
34. Respondent quoted the shaded phrases in the following paragaphs:
35. Other than Salt, there were in 1988 no "social workers and other clinicians who conducted court-ordered sexual abuse and parenting assessments."
- Salt drew no negative conclusion from [Jane] having left Maine with [William] while a court order allowing [Jones] visitation was operative [CS, depo at 13-17]. Instead, he [Christopher Salt] held to his belief that [Jane] had "justification" to disobey the Maine court order [CS, depo at 15, lines 7 and 4] by fleeing and hiding with [William] in Massachusetts [CS depo at 16].
- To Christopher Salt, [Jane] claimed to have "no live-in boyfriend" [CS7/1/88 report at 25], but Salt knew this to be untrue, viz., Salt knew that [Jane] and [William] shared an apartment for about three months with Joseph Fitzgerald, who was the tenant of record [id. at 17]. [Jane] and the divorced Fitzgerald, Salt wrote, "dated a few times and have remained good friends" [id.] and with the exception of Mr. Fitzgerald who baby-sat [William], "there appears to be no significant males in [William's] life other than Mr. [Jones]" [id. at 25].
- Salt's conclusion that [Jones] had to be the perpetrator of the suspected sexual abuse because there was no male around except [Jones] and because [William] feared men was specious [CS 7/1/88 report at 25; CS depo at 28].
- Salt further insisted that even though "there was no diagnosis of sexual abuse, the possibility is not to be eliminated. His fear and anxiety about his father had been confirmed[;] he had undergone a traumatic experience and now suffered from post-traumatic stress" [CS depo at 34].
- By 1991, Salt updated his report -- a "parenting" assessment -- and submitted it to the court in January 1992. [Since Respondent wrote this, she received the docket sheet from the OBC and it is not clear that the report was ever filed in court.] Again Salt recommended that [Jones] be denied visitation with his son [CS 1/5/92 report at 16]. The court accepted Salt's recommendation.
- The complaints allegedly made by [William] were communicated to Salt by [Jane] and not by [William]. Salt irrationally accepted as truth [Jane] 's assertion that [William] at 6 years of age believed that his therapist (Ferreira) conspired with [Jones] so that [Jones] could take him to his house. And given that his assignment was to investigate the parents, it was grossly negligent to accept without a visit to [Jane] and [William's] home environment [Jane] 's assertion that "her husband Michael is very important to [William] and that Michael treats her son as if he were his own" [CS 1/5/92 report at 2; also 15].
- Specifically Salt himself lied in that report of 5 January 1992 to Judge Harper: he wrote that Reuben Ferreira had acknowledged that [William's] visiting [Jones] "might well be detrimental." Salt's statement was false because Salt never spoke to Ferreira at that time.
- Salt's goal, it appears, was to continue to win favor with a judge (now retired) from whom he had received 30 or 40 assignments for reports [CS depo at 8-9]. Of the 60 court investigations that Salt had performed in two-and-a-half years [id. at 8], he found abuse in all but three [id. at 10] and all were done for the Bristol County Juvenile Court "except for one or two" [id. at 8].
36. Respondent knows of no 1992 report from DSS nor of a 1992 report from the nonprofit corporation for which the mandatory reporter, Eileen Kern, worked. Kern claimed in the U.S. District Court case that she had nothing to do with the "Jones" case after 1988.
37. The so-called evaluation by the team headed by Eli Newberger was not filed in any court by him, a fact relied upon by Newberger in the U.S. District Court case to assert that there could be no state action.
38. Respondent posted on her website the "amended complaint for modification, federal pleadings and other materials," but does not recall the dates of so doing.
39. Respondent identified William as "William Jones," a name by which he was NOT known in any Massachusetts community in which he lived with his mother.
40. Jane conceived both her children out of wedlock and then falsely accused both fathers of sexual abuse. See ¶¶12-17, supra, for Jane’s propensity to lie whenever it suited her agenda.
41. Respondent’s postings did not describe, among other things, the history and details of the abuse allegations against Jones.
42. Where William was never evaluated or treated by any therapist, whether properly credentialed or competent or not, Respondent never identified any "therapists who had evaluated or treated William, the particulars of his evaluations and therapy, and the therapists" findings concerning the abuse and ensuing trauma to William."
43. Viewing a child for 30 minutes, give or take 15 minutes, does NOT constitute evaluation or therapy.
44. Respondent never sought or obtained anything from Juvenile Court, for she was never an attorney of record in that court.
45. Respondent never sought permission to post anything on her website because any material she posted was already open to the public pursuant to G.L. c. 209C, sec. 13, as amended 31 March 1998.
46 Jane was a candidate for elected town office" until 3 April 2001, the same date of her complaint against Respondent with the Bar, not 2 April 2001. Respondent has no information regarding when Jane announced her candidacy.
47. Respondent posted on her web site an array of photographs provided by Jones, including photographs of William between the ages of about one and three.
48. Respondent posted photographs of the infant and toddler William, and announced (a) that Jane was a candidate for public office in Fairhaven, but does not recall how long the announcement remained on her website, (b) that Jane lost her bid for public office in Fairhaven. and (b) that Jane was an out-of-wedlock mom.
49. Respondent might have identified William as William Brown at some point, but that she changed the name when it was called to her attention. Respondent does not recall in which file the name William Brown appeared or when she changed it.
50. Respondent received notice of complaints to the OBC by Jane and by Deborah Wolf.
51. Respondent did not receive notice of a complaint by William; if she did, she did not recognize it as such. Respondent admits that she submitted responses to the OBC. Respondent neither removed any of the material related to John, Jane, or William nor was she requested to remove any material
52. Jones is not a party to this petition.
53. Jones has no control over Respondent's website.
54. Respondent was never a party, an intervenor, or a third party to any action in Juvenile Court.
55. Respondent was not properly served with a copy of that order; instead, on 1 May 2001, a private attorney FAXed Respondent a copy of the order, which can be seen on Respondent's website at http://www.falseallegations.com/drano34-juvenile-ct-order.htm,
56. On 7 May 2001, Respondent was served with a pleading which, although entitled "Verified Complaint for Equity Relief," was not cognizable as a Complaint and in which neither Jones nor Respondent is named as a defendant,
57. Respondent has never been inside New Bedford Juvenile Court, has never filed an appearance in a case in New Bedford Juvenile Court, has never been served with a Complaint filed against her in New Bedford Juvenile Court,
58. At no time has Juvenile Court had personal jurisdiction over Respondent or subject-matter jurisdiction over what is on her website.
59. No pleadings from the Juvenile Court have ever have been on the Respondent’s website.
60. On 29 May 2001, Respondent wrote the New Bedford Juvenile Court and uploaded it to her website at http://www.falseallegations.com/drano37-impoundment-Lawton.htm.
61. Respondent publishing the quotes noted in ¶34 above. The exact quotes are comprised of the following words and phrases, none of which can be deemed sufficient to "embarrass" or "burden" Jane or William as Bar Counsel contends:
62. What was embarrassing to Jane was Respondent's published opinion after reviewing all the pleadings, some of which were written by Jane herself or on her behalf by her lawyer, that Jane is both manipulative and a liar. Respondent is entitled to publish her own opinions, and they were expressed not in bad faith or with malice but to further the truth and expose both the contamination by Jane of the judicial process and the corruption of justice in the Jones case.
- "justification" [CS, depo at 15, lines 7 and 4]
- "no live-in boyfriend" [CS 7/1/88 report at 25],
- "dated a few times and have remained good friends" [CS 7/1/88 report at 17],
- "there appears to be no significant males in [William's] life other than Mr. [Jones]" [id. at 25].
- "there was no diagnosis of sexual abuse, the possibility is not to be eliminated. His fear and anxiety about his father had been confirmed[;] he had undergone a traumatic experience and now suffered from post-traumatic stress"[CS depo at 34].
- "parenting"
- "her husband Michael is very important to [William] and that Michael treats her son as if he were his own" [CS 1/5/92 report at 2; also 15].
- "might well be detrimental" [CS 1/5/92 report]
- "except for one or two" [CS depo at 8].
63. Respondent and Assistant Bar Counsel Susan Strauss-Weisberg had communicated several times by letter and several times telephonically. Weisberg's tone and manner became increasingly hostile after Respondent's positions against judicial immunity and for court reform became publicly known during Respondent's gubernatorial campaign in 2002. In fact, after the campaign, Weisberg's friendliness came to an end and she sounded, instead, hellbent on bringing charges.
64. Weisberg was concerned about the photographs of Jones' child when he was an infant. Respondent does remember saying that she herself could not imagine how a child in a train engineer's costume and riding a plastic train or a child eating birthday cake, or that pictures of the Jones family in church or on the ski slopes would be offensive.
65. On or about December 19, 2002, the respondent posted on her web site her answers to the requests for investigation filed by Jane and Wolf, with William's name only redacted.
66. Except for removing the announcement of Jane Doe's loss of the election when the news became stale, Respondent has not removed any other material relating to John Jones, Jane Doe, William Jones, Robert Brown, and Christopher Salt.
67. Respondent had a valid obligation was to the state and federal constitutions and to stare decisis where it is well-settled that that the public is entitled to scrutinize the judicial process where the conduct of the court is unscrupulous.
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Part II-B: Proposed Rulings of Law for Count I The Limitation of the Juvenile Court Impoundment Rule
1. Respondent further states that the Juvenile Court rule "only imposes a requirement of confidentiality on the [records], and not on witnesses or persons outside the [court]." In re Enforcement of Subpoena, 436 Mass. 784, 797 (2002). "Nothing in the impoundment order prevents the witness from "speak[ing] publicly about the proceedings before the commission and about these proceedings." Id.
An order impounding the papers filed with this court in this matter is not a gag order on the witness or a prior restraint on his speech, and he has in fact spoken out publicly concerning this matter on many occasions without repercussion. His desire to speak out, however, does not compel this court to open its files on the matter.In re Enforcement of Subpoena, 436 Mass. 784, 797 (2002). Therefore Respondent's summarizing events is not violative of any rule or regulation or statute. Indeed, Respondent was simply exercising her free-speech rights, and it is the Bar Counsel who is attempting to interfere with those First Amendment rights of the Respondent.2. Where the so-called evaluation by the team headed by Eli Newberger was not filed in any court by him, a fact relied upon by Newberger in the U.S. District Court case to assert that there could be no state action, Juvenile Court Standing Order No. 1-84 does not apply.
3. Juvenile Court has no jurisdiction over torts.
4. Juvenile Court had neither personal jurisdiction over Respondent or subject-matter jurisdiction over her website. Therefore Respondent had no legal obligation to follow Judge Mark Lawton's order.
5. The document served upon Respondent by Judge Mark Lawton was not accompanied by a summons, and is not a Complaint. It does not comport with any known set of rules of civil procedure, and most certainly not with the Massachusetts Rules of Civil Procedure.
- The problems with the document are the following:
6. Respondent had a moral obligation not to follow the unlawful order. See the Principles of the Nuremberg Tribunal (1950).
- The complaint served on Respondent does not contain a short and plain statement of the claim showing that the pleader is entitled to relief. Mass.R.Civ.P. Rule 8(a)(1);
- the complaint served on Respondent is not simple, concise and direct, as Mass.R.Civ.P. 8(e)(1) requires. The purpose is to inform a defendant of what the plaintiff's claim is and the grounds upon which it rests. Conley v. Gibson, 355 U.S. 41 (1957);
- the complaint served on Respondent does not set out the facts in separately numbered paragraphs, as required under Mass.R.Civ.P. 10(b). Vigor v. Chesapeake and Ohio Railroad Co., 101 F.2d 865 (7th Cir. 1939). Newman v. Commonwealth of Massachusetts, et al., 115 F.R.D. 341 (D. Mass. 1987); see also Mmoe v. Commonwealth of Massachusetts, 393 Mass. 617 (1985) (dismissal of a complaint for failure to meet the pleading requirements of Rule 8 is, as Rule 41(b)(2) provides, a matter of discretion for the judge and defendants are entitled to the proper exercise of that discretion). Kuehl v. Federal Deposit Insurance Corporation, 8 F.3d 905 (1st Cir. 1993) (plaintiff ordered to submit amended complaint conforming to the concise pleading requirements of Fed.R.Civ.P. Rule 8(a)(2));
- the facts in the complaint are not set out clearly, unequivocally and directly so as to enable me to respond directly and intelligently. Coburn v. Moore, 322 Mass. 204 (1948); Stoney v. Soar, 322 Mass. 408 (1948);
- the complaint is verbose, argumentative, redundant, and contains material that is both impertinent and scandalous. Martin v. Hunt, 28 F.R.D. 35 (D.Mass. 1961);
- claims founded on separate transactions or occurrences must be stated in separate counts. Mass.R.Civ.P. 10(b). Feutz v. Massachusetts Bonding and Insurance Co., 85 F.Supp. 418 (E.D. Mo. 1949).
The Nuremberg tribunal held that the defendants could not escape responsibility for these acts by pointing to their domestic law obligations; they had a privilege under international law to violate domestic law in order to prevent the ongoing crimes against humanity that their country was perpetrating through them. Id. We echo this explanation. United States v. Maxwell, 254 F.3d 21, 2001.C01.0000266 at ¶54 <http://www.versus-law.com> (2001). Respondent contends that although Bar Counsel invokes Juvenile Court Standing Order No. 1-84 to justify his petition against Respondent, that Order allows the perpetuation of crimes against humanity by overriding our state and federal constitutional rights to due process and the equal protection of our laws.Respondent therefore did not, of course, comply with the offending order. She chose the moral, the high road. She had learned of the unscrupulousness of the Harper court and was obligated to make the lack of any due process whatsoever in the Juvenile Court since 1988 known to the public. The nexus between Jones having lost his son for 15 years and perhaps forever and Harper's unscrupulousness was clear.
But for that Standing Order allowing secrecy, coupled with judge-made judicial immunity allowing judges to scoff at the moral obligation to act responsibly and be accountable, Juvenile Court Justice Ronald Harper's arrogance against Jones was enabled and his unscrupulous and malicious acts were hidden from public scrutiny. He was able to perpetuate a crime against humanity in the penumbra of a Kangaroo Court sanctioned not by the people but by some politically appointed committee at some time in the recent past.
In the context of the Jones case, Standing Order No. 1-84 is too broad to accomplish the stated goal of privacy. There are less onerous alternative means, means which are narrowly tailored to serve a compelling State interest, to accomplish the desired privacy.
And Respondent knew and knows that Jones is not the only parent victimized by unscrupulous and court-sanctioned malicious and corrupt acts hidden by Standing Order No. 1-84.
So Respondent's moral choice was clear. She had to stand on the side of Principles, to stand against judicial crimes against humanity. She had to risk again being called bombastic by a sitting justice for invoking the Nuremberg Principles. She had not been spouting bombast. She was facing the stark reality of the absence of justice in our courts, particularly those dealing in domestic issues. She had to act in the moment.
Justice Harper's choice was also clear. He had a moral choice [See Principle IV of the Nuremberg Tribunal]: to follow due process or do the reprehensible act of denying any indicia of due process, such as a hearing to Jones, and keep the fact deep-sixed in the darkness defined by the Standing Order. He morally abused his discretion, if not legally abused it.
Like Harper, Justice Lawton and the Bar Counsel and any agent of his have had a moral choice: to apply the Standing Order or to allow disclosure, or sunshine, of the unscrupulous acts of the Harper Court and make the judiciary take responsibility for the unconscionable conduct of the Juvenile Court in the Jones case.
If the Nuremberg Principles, particularly Principle IV, which addresses crimes against humanity, apply to member states of the United Nations, to which Secretary of State Colin Powell announced on Meet the Press (9 February 2003) he would hold the body politic in Iraq, why should they not apply also to the Commonwealth of Massachusetts? Certainly the maintenance of judicial independence must fall in the face of a crime against humanity.
What was embarrassing to Jane was Respondent's published opinion after reviewing all the pleadings, some of which were written by Jane herself or on her behalf by her lawyer, that Jane is both manipulative and a liar. Respondent is entitled to publish her own opinions, and they were expressed not in bad faith or with malice but to further the truth and expose both the contamination by Jane of the judicial process and the corruption of justice in the Jones case.
Respondent further states that she did not know about Standing Order I-84 prior to receiving the FAX from Attorney Deborah Wolf of Judge Lawton's ex parte order, for she had had no Juvenile Court experience and therefore had had no need to become familiar with it. When she became aware of Standing Order I-84, she recognized that as a lawyer she was charged with having had constructive notice of it.
But she admits that it was to her more important morally and legally to have full disclosure and public scrutiny of an unscrupulous court than to be blindly obedient to a Standing Order that indiscreetly eclipsed sunshine in the court arena.
In fact, Standing Order I-84 is conceptually outdated: "[I]in Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, (1984), the Supreme Court applied the right of access doctrine to the fruits of pretrial civil discovery." George W. Prescott Pub. Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 281 (1985). This is exactly the type of material Respondent was using in Jones' other cases. The "impoundment of materials uncovered during pretrial civil discovery . . . was permissible, under the First Amendment, only if based "on a showing of good cause." Seattle Times at 2209-2210 (not sanctioning automatic impoundment).
Here, in a domestic relations case in which the party is a public figure, "the First Amendment requires that [Standing Order I-84] permit interested parties to challenge the routine impoundment of these records." Prescott, 395 Mass at 281, citing Seattle Times, 104 S.Ct. at 2209-2210. "Moreover, when such a challenge is made, the trial judge is required either to make sufficient findings which justify the impoundment,... or to grant public access to the documents." Prescott Pub. , 395 Mass. at 281, citing Press-Enterprise Co. v. Superior Court of Riverside County, 464 U.S. 501, 104 S.Ct. 819, 824 (1984).
A sound judicial discretion in this context requires a showing by the party seeking impoundment of "good cause" and a determination by the court that the scope and duration of an order impoundment is no greater than necessary. Converge, LLC v. Hickox, No. 01-5005-L2, 2001 WL 1692072 *2 (Mass.Super. Dec. 27, 2001) (Agnes, J.), citing H.S. Gere & Sons v. Frey, 400 Mass. 326, 329 (1987) (Impoundment Rules 2 and 7 requires motion for impoundment accompanied by affidavit, hearing, and showing of "good cause").And here, Respondent did not challenge the Order in Juvenile Court because, first, she was unfamiliar with the Order, and even had she known of it, she, second, would have concluded a challenge would have been futile. She was aware, however, that it is well-settled that "[j]udicial proceedings are subject to the `general principle of publicity.'" New Bedford Standard- Times Pub. Co. v. Clerk of Third Dist. Court of Bristol, 377 Mass. 404, 410 (1979).
There is, in sum, a general principle of publicity, strong although not absolute, regarding Court records and proceedings, a principle rooted in the Constitution of the United States, the Constitution of the Commonwealth, the common-law and the Trial Court Uniform Rules on Impoundment Procedure. Demeo v. Geoghan, 2001 WL 1902397, (Mass.Super. January 5, 2001) (McHugh, James, III, J.), citing Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 546 (1977), quoting Commonwealth v. Blondin, 324 Mass. 564, 571 (1949), cert. denied, 339 U.S. 984 (1950).Respondent adds that the Standing Order not only cannot pass "the test of ‘strict scrutiny’ that is to be applied to statutes that implicate fundamental liberty interests" [Blixt v. Blixt, 437 Mass. 649, 668 (2002) (dissenting, Sosman, J.)], it also cannot pass the rational basis test for upholding the Standing Order in the face of the total absence of due process and equal protection in the history of the Jones' cases. Doe v. Commissioner of Transitional Assistance, 437 Mass. 521 (2002) (rational basis, rather than strict scrutiny, is the standard of review which governs an equal protection challenge to a state statute).
Impoundment of Documents under the Federal and State Constitutions and Common Law
6. Courts may impound documents under certain circumstances, but that an order has issued which commands Respondent to do something without either a proper complaint being filed and a hearing with all the indicia of due process is of some consternation. Such a hearing would, of course, only be possible in a court with both subject-matter jurisdiction and personal jurisdiction over Respondent.
7. Under Ottoway Newspapers, Inc. v. Appeals Court, 372 Mass. 539 (1977), Respondent may bring suit to vacate the impoundment order, but then that buys a suit for the Juvenile Court. With all due respect, Respondent suggests that the hearing officer go to her website and see if there is any file there which the BBO believes it has a right to order removed, or references to documents which it believes it has the authority to impound.
8. In Ottoway, 372 Mass. at 551, the Supreme Judicial Court pondered "how one might go about asserting the alleged illegality of an impoundment order entered in an action to which one was not a party" and answered, "a publisher has standing to maintain suit to vacate an impoundment order entered in a separate action." Of course, in Ottaway, the SJC was dealing with the Superior Court and not Juvenile, and came out four-square in favor of the "general principle of publicity": "it is only in a clearly meritorious case that impoundment can be contemplated." This is not one of them.
9. Given that the purpose of the statutes designed to protect juveniles who are subjects of litigation and not their mothers, and there is nothing on Respondent’s website which would stigmatize [the child] (he is not even known in his community as "William Jones"], there is neither reason nor justification to issue an impoundment order. To call documents "in from the cold" after so many years raises other issues, such as staleness.
10. "Publicity prevents abuses of a single judge's power." Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 855 (1980), citing In re Oliver, 333 U.S. 257, 268-270. This "`general principle of publicity', . . . [which] governs judicial proceedings in this Commonwealth," was affirmed again in H.S. Gere & Sons, Inc. v. Frey, 400 Mass. 326, 329 (1987).
We adopted this requirement of a showing of overriding necessity, in part, because of the great public interest in disclosure of all information relevant to misuse of authority and official wrongdoing.H.S. Gere, 400 Mass. at 332, citing George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 279-280.Moreover, "[a]ny limitation on protected expression must be no greater than is necessary to protect the compelling interest that is asserted as a justification for the restraint." George W. Prescott Pub. Co. v. Stoughton Div. of Dist.Court Dept. of Trial Court, 428 Mass. 309, 311 (1998), quoting Care and Protection of Edith, 421 Mass. 703, 705 (1996).
It is apparent that any order seeking to enjoin speech must be based on detailed findings of fact that (a) identify a compelling interest that the restraint will serve and (b) demonstrate that no reasonable, less restrictive alternative to the order is available." See also Oklahoma Publ. Co. v. District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977) (reversing court order enjoining media from publishing name or photograph of eleven year old boy accused of delinquency by reason of murder).Prescott, 428 Mass. at 311, cites omitted.Thus, on the facts here, there being no lawful basis to prohibit Respondent from putting public records on her website or to prohibit her from exercising her First Amendment rights, Respondent may rest on the statement that she did not publish any material or quote any sentences or parts thereof which she knows to be privileged, confidential, or otherwise protected.
It would be, of course, very helpful to both Deborah Wolf’s client, Robyn, and Wolf herself, if Wolf would advocate her client's claim in a clear, concise, and simple manner without overstating details and losing the forest for the trees.
It is "`no longer open to doubt that the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.'" Nebraska Press Association et al. v Stuart, Judge, et al., 427 U.S. 539, 1976.SCT.42322 at ¶47 <http://www.versuslaw.com>, quoting Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707 (1931). See alsoGrosjean v. American Press Co., 297 U.S. 233, 244 (1936).
Massachusetts General Law c. 209C §13, as amended, effective 31 March 1998, being procedural in nature, has retroactive effect.
11. The posting of the amended complaint for modification filed in 2000 was not in violation of G.L. c. 209C, §13.
12. An order to remove material from Respondent’s website would have been an unlawful exercise of censorship by the Commonwealth and violative of Respondent's First Amendment rights.
13. Respondent publishing the quoted the following words and phrases as noted in ¶34 of her proposed findings of fact. None of which may be deemed sufficient to "embarrass" or "burden" Jane or William:
Due Process and Equal Protection
- "justification" [CS, depo at 15, lines 7 and 4]
- "no live-in boyfriend" [CS 7/1/88 report at 25],
- "dated a few times and have remained good friends" [CS 7/1/88 report at 17],
- "there appears to be no significant males in [William's] life other than Mr. [Jones]" [id. at 25].
- "there was no diagnosis of sexual abuse, the possibility is not to be eliminated. His fear and anxiety about his father had been confirmed[;] he had undergone a traumatic experience and now suffered from post-traumatic stress"[CS depo at 34].
- "parenting"
- "her husband Michael is very important to [William] and that Michael treats her son as if he were his own" [CS 1/5/92 report at 2; also 15].
- "might well be detrimental" [CS 1/5/92 report]
- "except for one or two" [CS depo at 8].
14. It is reasonable to conclude that OBC Weisberg did not want Jane on the witness stand, because Weisberg knew that Respondent would have been impeached Jane with aplomb. Where Jane lied continuously throughout each process in the juvenile and the probate and family courts, and Respondent had supplied to ABC Weisberg considerable evidence of Jane’s lying, Weisberg could not take the chance and put Jane on the stand.
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Part III-A: Proposed Subsidiary Findings of Fact for Count II 1. Respondent has considerable information on her website regarding fees for non-clients as well as for prospective clients.
2. "Richard Parker," a retired school teacher of Japanese extraction, was facing four indictments for attacking his daughter "Sarah" in the shower and for burning her with a cigarette while in a car, as well as for raping her twice. He and his family prefer NOT to call Sarah mentally retarded. They prefer to say she was "mentally challenged" from "a series of massive strokes which left her with partial paralysis and serious learning disorders and a lack of language skills (she was monosyllabic).
3. The Parkers' troubles began in 1992, seven years earlier than Bar Counsel avers.
4. Just weeks after Sarah left the Parkers' home to live in Specialized Home Care, "complaints" were made, parental access to Sarah was restricted, and resolution did not occur until mid-1994.
5. The Parkers denied any misconduct toward Sarah. They suspected that Sarah might have been sexually abused by someone living at her residential placement.
6. Mary made her initial contact with the respondent by e-mail, and most of all her communications with the respondent were by e-mail correspondence. Mary and her husband phoned Respondent on occasion. Mary compulsively wrote Respondent about every communication she had with her family, for example, her four daughters, her niece Karen, and other lawyers.
7. On or around or between October 31 and November 1, 1999, Mary informed the respondent about, among other things, Sarah's disabilities and placements, the allegations and criminal charges against Richard, the no-contact order against her and Richard, and their legal representation by Richard Simons and Karen Schultz-Breda. Mary told the respondent that she and her family considered the allegations against Richard to be false and that they feared for Sarah's safety.
8. Mary also informed Respondent not only about the facts written in ¶56 of both the Petition and Respondent’s Amended Answer but also about other facts not stated by Weisberg.
9. Respondent advised Mary that she had to review all available documents from the criminal and protective services cases in order to determine whether she could assist the Parkers.
10. Respondent denies that she "told Mary in writing that her fee would be $1.00 per page for this service."
11. Respondent received a phonecall from Mary on 1 November 1999 (see accounting to Mary; Respondent believes this was entered into evidence as Trial Exhibit 58). Respondent has no independent memory of the phone conversation, it now being over four years prior to this writing. It is likely, however, that Respondent told Mary to see her pricing.htm page on her website, but Respondent cannot state that definitively.
12. Respondent received a check dated 11/4/99 and in the amount of $350. Respondent has no memory of counting the pages of the documents Mary sent, but Mary wrote in her complaint to the Bar that Respondent reviewed "about 500 pages of materials and responding to emails over a 3- week period."
13. Respondent asked for and received additional information from Mary, answered questions posed by Mary, and provided advice and recommendations to Mary about the criminal and protective services proceedings." See the box below ¶65 in Respondent’s Amended Answer for the strategy and conclusions of Respondent on the "Parker" case.
14. Respondent told Mary during this period that there were or would be additional charge for those services.
15. Mary acknowledged having read and signed the fee agreement.
16. All those services are mentioned in the agreement as well as on Respondent's pricing.htm page. It is disingenuous of Bar Counsel and Weisberg to think that a client or potential client would not understand that a lawyer would indeed charge for providing legal or consulting services.
17. On or around 11 November 1999, the respondent informed Mary that she had completed her review of the Parkers' documents. At that time the respondent provided Mary with additional recommendations. Among other things, the respondent recommended that depositions be taken in the protective-services action and that she be retained to take the depositions.
18. In her communication to Mary on 11 November 1999, the respondent told Mary that her total charges for all her services to that point, including reading and reviewing the documents and providing strategy recommendations, amounted to $750 for 15 hours of work at a rate of $50 per hour. The respondent further informed Mary that the Parkers then owed her $400 for those services.
19. Mary agreed to those charges and sent the respondent a check numbered #5743, dated 11/12/99 and in the amount of $400. The respondent received that check on or around 16 November 1999.
20. Between about 11 and 13 November 1999, Mary asked the respondent to clarify certain recommendations. Mary also asked the respondent what she required as a retaining fee for further services. The respondent advised Mary that her fees would depend on such factors as the degree of future participation of the Parkers' existing counsel and the time required for her to take the recommended depositions.
21. On or around 13 November 1999, the respondent informed Mary that she would accept an initial retainer of $10,000. That same day, the respondent sent Mary a written fee agreement providing, among other things, for her representation of the Parkers in the criminal and protective-services cases at a rate of up to $200 per hour for her legal services.
22. At the time that the respondent agreed to the $10,000 retainer and forwarded her fee agreement, she represented to Mary that she would place the retainer in an escrow account, withdraw and apply the funds to pay fees for services actually rendered, and notify the Parkers of the charges through interim and final billings.
23. Respondent and the Parkers never reached an agreement regarding the nature and scope of further services. The Parkers had the attorney-client fee agreement, which they had signed, and had read the pricing.htm page.
Respondent's intentions to charge for services rendered could not have been clearer. The Parkers were not illiterate. Both were retired school teachers and were running their own retail business. Mary knew how to ask questions and was not shy. Had she or her husband or her three daughters who were not mentally challenged had any doubts about Respondent's fee structure, it is reasonable to assume they would have asked for clarification.24. Respondent kept timeslips. If she had no time slips for a task, she did not charge for the task.
25. From about 13 through 30 November 1999, Respondent and Mary continued to exchange e-mail communications.
26. In those communications, Respondent replied to questions and discussed her possible role in the cases in relation to the Parkers' existing attorneys.
27. During that period, Mary advised the respondent that Simons was questioning the respondent's recommendations and that they were considering whether to engage other defense counsel.
28. Respondent’s records show that she spoke once to Attorney Richard Simons – although she has no independent memory of that conversation -- and spoke to contacted the other attorneys to determine their availability to represent Richard Parker and their interest in representing him.
29. Respondent provided Mary with additional explanations of her recommendations and copies of cases supporting her recommendations.
30. Respondent has sufficient knowledge and information to form the belief that Mary did, indeed, understand that the respondent would be charging for those services prior to execution of the written fee agreement.
31. During November 1999, the Parkers scheduled a meeting with the respondent for 9 December 1999.
32. Respondent has no independent memory as to whether she orally informed Mary that "she was or would be charging the Parkers for clearing or arranging her schedule to accommodate this meeting," but it is unlikely that she did, given that Respondent knew that the tasks she would charge for were already outlined in the fee agreement on her pricing.htm page on her website. It is disingenuous of the Bar Counsel and Weisberg to expect that an attorney before performing each task would remind the client she or he would be charging for that performance. The Parkers clearly knew Respondent was not working with or for them pro bono.
33. On or about 22 November 1999, Respondent received a $10,000 check representing the Parkers' retainer payment.
34. The $10,000 represented payment for legal services to the Parkers.
35. On or around 24 November 1999, Respondent deposited the $10,000 retainer check into her personal account.
36. At the time Respondent placed those funds into her personal account, she had earned the money, and was therefore justified in putting it into her personal account.
37. Respondent used that personal account for both business and personal purposes.
38. Respondent did not commingle any portion of the Parkers' funds with her own funds in her personal account, for the value which she estimated for her services up until that point in time exceeded $10,000, but when she deeply discounted the fees to the Parkers, because she knew the they were facing considerable fees for Richard's criminal defense, the total fees she was charging them was less than $10,000. Respondent then sent them a check for the difference. That check was in the amount of was $3,174.50.
39. Respondent never sought the Parkers' permission to hold any portion of their retainer in a non-trust account, because at that point it was unnecessary, given that the estimated value of the services already rendered exceeded $10,000.
40. A retainer is designed to cover the fees of a lawyer as services are rendered. A daily or weekly accounting is not required, nor was it ever promised.
41. Example one, the so-called trust account -- IOLTA -- which contains interest from the retainers of all attorneys is managed by a trustee who has never informed Respondent when he/she uses that interest for any purpose.
42. Example two, Attorney E. Chouteau Merrill was named as a trustee of an escrow account containing $43,000 of marital property and was not to remove it without permission of the court, but she did -- over $13,000 of it. Two courts -- Probate & Family Court and the Appeals Court -- refused to do anything. Chouteau -- then about to become a judge -- said she was busy and made a forgivable mistake for misrepresenting -- lying -- to the court that she had permission of the parties to remove the money. Note that the parties are not the court and that removal without the permission of the court was not only a contempt of the court but a criminal contempt.
43. Example three, Attorney Gerald L. Nissenbaum, replacing Chouteau as trustee after she became a judge, has also removed funds from that escrow account without permission of the court.
44. Respondent does not tolerate selective enforcement of laws Hypocrisy and corruption are unacceptable. Respondent deposited into her personal account only money that was hers. It was only her later decision to give a refund to the "Parkers" which make it seem as if she had not earned that money by the time she deposited it.
45. Respondent received a signed fee agreement from the Parkers, but never signed it herself or executed any other fee agreement with the Parkers. As Respondent wrote the Parkers, she did not do so because it never became clear on which cases the Parkers wanted her to represent them or what types of tasks they wanted her to do beyond the consulting she was doing at the time.
46. Respondent incorporates herein by reference all the emails received and sent to the Parkers and their family members, including but not limited to those emails and excerpts from emails she embedded into her Amended Answer.
47. Because their Attorney Richard Simons' father is a retired Superior Court judge and likely has considerable influence in the Pittsfield legal and/or judicial community, Respondent told the Parkers to keep Simons as Richard Parker's criminal defense counsel.
48. As to Richard Simons' opinion of Respondent: the only information Respondent received about his opinion of Johnson was the information contained in emails from Mary Parker. Respondent excerpted the relevant emails and put them in "textboxes" in Respondent’s Amended Answer. Respondent incorporates herein by reference those email excerpts in Respondent’s Amended Answer.
49. "Mary" had sought Respondent's advice regarding her and her husband's interaction with Simons. Respondent incorporates herein by reference those email exchanges between Mary and Respondent about Simons. All of them were produced to Weisberg, but none – so it seems -- were offered into evidence by Weisberg.
50. On or around 3 December 1999, Mary notified the respondent that she and her husband were canceling the fee agreement and discharging the respondent effective immediately. Mary asked the respondent to provide an itemized bill, deduct any additional charges from the $10,000 retainer, and return the unused balance.
51. By 3 December 1999, the Parkers had paid the respondent a total of $10,750.
52. Respondent was not paid pursuant to a written fee agreement but under the theory of quantum meruit, payment for services rendered.
53. Respondent could not continue responding to each and every question all the Parkers -- the mother and three daughters -- their niece, their lawyer -- for $750. There is not a lawyer in the profession would be able to provide such services for $750. The emails were incessant. Respondent tried to determine from the logorrheic Mary Parker and her daughters what services they wanted Respondent to perform. Respondent sought an advance payment of $25,000 and received $10,000. Until the Parkers would make that determination, Respondent could not sign the written fee agreement, the first paragraph of which read as follows:
54. The respondent thereafter prepared a bill showing total fees of $7,575.50 for services to the Parkers from 1 November through 1 December 1999, including $1,601.50 for 32.03 hours at $50 per hour and $5,974.00 for 29.87 hours at $200 per hour. After credits for the Parkers' payments, the bill showed a refund due the Parkers in the amount of $3,174.50.
- We, Mary and Richard H. Parker, Jr., 76 East Street, Great Barrington, MA 01230 (the "Clients"), hereby agree to retain the law firm of Barbara C. Johnson, 6 Appletree Lane, Andover, MA 01810-4102 (the "Firm"), in connection with In the Matter of the Guardianship of ASarah Parker, in Berkshire County Probate and Family Court, Docket No. 99-P-0237, and Commonwealth v. Richard H. Parker, Jr., in Berkshire County Superior Court, Indictments 990434-990437.
- It became clear from the Parkers’ correspondence that they did not want Respondent to make an appearance on either of those two cases, and Respondent did not want to make an appearance in cases in the distant courts, which is why she recommended to them to continue with Attorney Simons or select a successor counsel.
- But it is also clear that they wanted to use Respondent as a consultant. Their pleasure with Respondent's performance is unmistakable. See Respondent's emails, a sister's Thank You letter, and Mary's Thank You letter after the attorney-client relationship had ended. For consulting, Respondent was entitled to be paid on a quantum meruit basis, i.e., payment for services rendered, not as a payment pursuant to a written fee agreement.
55. On or around 12 December 1991, the respondent sent Mary her bill and a check for $3,174.50 drawn on her personal account. The respondent retained the balance of the Parker payments.
56. Respondent’s bill to the Parkers set forth time and tasks aggregated by date and listed the e-mail communications between the respondent and the Parkers.
57. Respondent’s bill itemized the claimed time spent by the respondent on specific tasks included in the daily aggregates.
58. On the bill, the tasks are broken down where possible. For the one entry where the task was not broken down, the total funds sought for the 20.53 hours are $1349, a charge made up of 18.38 hours at $50 an hour, equaling $919.00, and of 2.15 hours at $200 an hour, equaling $430.00. The total of $1349 resulted after a deduction for 10 minutes, a typographical error Respondent noted while writing the rightmost column when preparing her answer.
59. Respondent did not duplicate charges for the same services.That which appears to have been done is to list the same email twice in the entry for November 24th when she was putting the emails into chronological order. The time spent was the time spent, despite the inadvertent mistake of listing the heading of an email twice.
60. Because the email which reads 11:11 was put first in the list, before the later entries, Respondent believes she must have in haste mistaken the email as having been completed at 11 in the morning rather than 11 at night -- since all computer-supplied the times are in military format, which makes 11:00 p.m. into 23:11:17 hours.
61. Respondent’s bill to the Parkers was accurate.
62. Respondent incorporates as if set forth herein by reference her emails (see the excerpts from Respondent's emails), the pricing.htm page both on her website at http://www.falseallegations.com/pricing.htm, and, of course, the bill itself.
63. The Parkers sent Respondent $10,000 because they knew that further consultation with her would be charged at $200 per hour. Their emails to Respondent set out their pleasure with the services which Respondent rendered to them: one of Mary's Thank You letters, a sister's Thank You letter and Mary's Thank You letter after the attorney-client relationship ended.
64. Where Mary has -- according to Mary herself -- a very close relationship with her neice Karen Schultz-Breda, Karen's bias for her aunt is clear. Respondent believes that June Edwards, Mary's sister who wrote the check for $10,000 and given to Respondent, is Karen's mother and if not Karen's mother, another aunt. Where Mary and her husband were short of money to pay legal fees and June Edwards was at risk for not getting the money back from Mary, Karen had an ulterior motive, it is believed, to get the $10,000 returned to her mother/aunt Edwards. One way to accomplish that was to force Respondent to return the money to Mary, who then would have it to return to June Edwards.
65. Simons was Mary's criminal defense counsel. His ulterior motive was to get paid for his services. One way to accomplish that was to force Respondent to return the money to Mary, who then would have it to give to Simons.
66. Amongst other facts, Mary and her husband were vacillating at that time whether they wanted to continue retaining Simons for representation of Mary's husband. Mary wrote in successive emails to Respondent the following:
67. Simons did not like Mary. She was troubled about this, and wrote the following to Respondent:
- "He [Simons] is OUT. Got the feeling from Karen that she is surprised we didn't do it before this. Rather excited about having Hoose o the case."
- "If he is willing to work with you then fine but if not he has to be out. And then how do we fire him. It is tops on [my husband's] list tomorrow to talk with Simons and get a definite answer."
- "If after all that we cannot work with Simons we need to get back to Hoose with papers and $20,000 and from what we gathered an open unlimited pocket book."
68. Respondent states that Mary wrote her, on or around 20 December 1999, the following: "We need to resolve this matter immediately as we have major expenses to meet. We feel that you owe us a balance of $6425.50."
- "What it boils down to is that Simons thinks that I(Mary) am a loose canon and he doesn't know how to deal with me. My questions are good but irrelevant at this time.
- "Simons has read all the material we have sent him. He just doesn't know how to deal with me. Karen is working on being a mediator between Simons and myself. In the long run R is the one with the most to lose. He has an appointment with Simons on Dec 13, 1999 without me. I will still coach R as to questions and comments when he sees Simons."
69. Respondent mailed another $343 dollars to Weisberg to send to Mary when an arithmetic error was discovered.
70. Respondent wrote Mary asking what her problems with the bill were.
71. Respondent suggested voluntary arbitration conducted by the four attorneys to whom Mary wrote in lieu of responding to Respondent.
72. Respondent received from the Office of Bar Counsel a document purporting to be a complaint submitted by the "Parkers;" however, the complaint is dated 13 March 2000 and date-stamped received by the Office of Bar Counsel on 16 March 2000.
73. In or around May 2002, Bar Counsel Daniel Crane did not inform the respondent of an arithmetic error in her bill in the amount of $343 in the Parkers' favor." Respondent has never, in fact, been able to communicate with Bar Counsel, although she did on several occasions leave a voice message for him, but he never gave her the courtesy of a return phone call. Respondent remitted another $343 to the Parkers indirectly through Weisberg.
74. Respondent has never had any direct communication, either telephonically or in writing, with Bar Counsel Daniel Crane.
75. Respondent has spoken with Assistant Bar Counsel Weisberg on numerous occasions over the past several years and on at least two occasions had oral communication regarding the "Parker" matter with Weisberg, but Respondent has no independent memory of the dates on which she and Weisberg spoke.
76. Weisberg often told Respondent that she would finish her investigation soon, and when asked by Respondent -- checking on the new status of the charges -- whether charges were going to issue, Weisberg on several occasions said, in words for all intents and purposes, "I did NOT say that charges would issue."
77. Daniel Crane never cautioned Respondent about a thing. And although evasive and noncommital and consistently maintaining that the decision to bring charges would not be hers, Weisberg sounded friendly, and to Respondent's complaints that the Bar's actions were excessively time-consuming and were interfering with her obligations to other people, Weisberg was sympathetic. Respondent at all times, therefore, held out hope that charges would not be brought.
78. Weisberg's tone and manner became increasingly hostile after Respondent's positions against judicial immunity and for court reform became publicly known during Respondent's recent gubernatorial campaign. In fact, after the campaign, Weisberg's friendliness came to an end and she sounded, instead, hellbent on bringing charges.
79. Amongst the documents Respondent posted on her web site on or around 19 December 2002, were the Parker bill, correspondence between her and Mary, and copies of her responses to Weisberg regarding the Parkers' alleged request for investigation.
80. Specifically the documents Respondent uploaded to her website regarding the Parker situation were
81. Respondent states that given that the Bar's cover letter informed Respondent that the proceedings were public, it made logical sense that the documents concerning the factual circumstances out of which the Bar's Petition arose could also be made public. Either a subject is public or it is not.
- the original bill, dated 12 December 1999,
- an email dated 20 December 1999 to Mary in response to one of her emailed letters,
- a letter dated 28 December 1999 to Mary Parker in response to one of her emailed letters,
- a letter dated 19 April 2000 to the Bar in response to the Complaint,
- a link to the annotated bill (dated 19 April 2000) replete with all the emails (in entirety) cited in the original bill, about which Weisberg improperly threatened, coerced, and intimidated Respondent not to upload and which were never uploaded, and
- a letter dated 8 May 2000 to the Bar, and
- a letter dated 11 September 2001 to the Bar.
82. Respondent’s posted materials disclosed nonconfidential information.
83. Respondent contends that Mary and her husband waived their privacy when they revealed their problems to friends, acquaintances, and family members. The history and particulars of the sexual abuse allegations against the husband were made public by the law-enforcement and judicial systems as well as by the State agencies. At all times, Respondent published only facts favorable to the Parkers or facts reflecting their position on all matters.
84. Because of her mental challenge, Sarah has no knowledge whatsoever of the website and even if she did learn of it, would not be able to understand it. Her vocabulary is limited to words of one syllable, and she has no knowledge of the concepts of time or space. The members of Mary's family are like the family members of other defendants. Their names and visages are known and often disseminated on television and in newspapers and magazines.
85. Nothing published by Respondent about the Parkers, their family members, or their attorney, Richard Simon, was untrue, which is why no one has sued Respondent for defamation.
86. Respondent never sought the Parkers' permission to disclose or disseminate . . . information about them on her website, because on 12 December 1999, after their relationship had ended, Mary Parker wrote to Respondent: "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. . . ."
87. Respondent never sought the permission of anyone authorized to consent for Sarah before posting information about Sarah on her web site," but obtained permission from the Parkers to disclose or disseminate their family story on her website (see ¶86 immediately above).
88. Respondent received a letter from Retired Judge William Simons, who represented he was the Parkers' counsel. In his letter, William Simons did not make demand on the respondent for the immediate removal of their "confidential and personal information from the web site," but literally "ordered" her to remove the material. Given that the retired judge, once again simply a practicing attorney, no longer had the authority to order Respondent to do anything, Respondent took offense at what she perceived as a blatant, impolitic attempt to intimidate Respondent.
89. Respondent has no independent memory as to when she received the letter from William Simons.
90. Respondent does not deny leaving a reactive message on William Simons' answering machine, but does not remember her exact words. About the only thing she definitely remembers, however, is that she stated she was pleased that he, Simons and his clients, agreed that there was no defamation, because everything posted was true.
91. Respondent has not removed any information about the Parkers or their family from her web site, but the uploaded information was and is neither confidential nor personal.
92. The fees Respondent charged and collected in the Parker matter were not "clearly excessive."
93. Taking each of the eight facts in Rule 1.5(a) one at a time, Respondent states the following:
- Her fee was fixed according to a schedule (Factor #8).
- Respondent had devised a price schedule for online customers. The lowest rate was $50 per hour, which is far lower than the fee customarily charged in the locality for similar legal-consulting services (Factor #3). Specifically, Respondent's schedule was: $50 per hour for reviewing papers, $200 per hour for research, and $200 per hour for strategizing. Most of the tasks performed for the Parkers fell into the "strategizing" category.
- The amount involved was $7232.50. Respondent was providing consulting services rather than representation, and more than one case was involved: one was the criminal case, one was to be brought on behalf of Sarah, one was an existing guardian case. Given that Respondent did not ultimately represent the Parkers nor was privy to any of the cases after contact between her and the Parkers ended, Respondent does not know what results were obtained. (Factor #4). See other results in item "e" below.
- There was no time limitation imposed by the client or by the circumstances, although the level of the family's anxiety -- evidenced by both the number and timing of emails sent by the Parkers to Respondent -- was great, time was considered of the essence (Factor #5).
- The length of the professional relationship with the client was between 10/31/99 and 12/4/99 (Factor #6), and the nature of the relationship with the client was, in addition to reviewing the work done in both the existing criminal and civil cases, researching, and strategizing, supportive (Factor #6). In her experience, Respondent learned that clients who become educated about their cases fare better than those kept in ignorance of the legal process and that clients who are put at ease fare better than those who are in a constant state of anxiety. That the entire family was relieved of some of their pressure is revealed by the words of thanks from "Mary" and her daughters.
- Respondent's experience, reputation, and ability in performing services in the area of false allegations is significant, as attested to on her website www.falseallega-tions.com (Factor #7).
- The likelihood that the acceptance of the three Parker matters would preclude Respondent from performing services for others depended on the scope of the consulting services sought and the other lawyers the Parkers retained to defend and prosecute the other cases (Factor #2). Respondent never intended to take the criminal case. Father Parker had legal counsel, Richard Simons, the retired judge's son, but the Parkers, particularly Mary, were displeased with Simons the Younger at the time Mary and her daughters contacted Respondent. The bad-mouthing of Respondent was the way, at least so it appears from Mary's emails, by which Simons turned the Parkers against Respondent.
- The guardianship case had already caused great difficulty for the Parkers. The deposition of a monosyllabic mentally challenged 28-year-old woman with the mental age of a 1- to 2-year-old toddler was ludicrous. The woman's guardian (Attorney Timothy Carlson) went along with the deposition and apparently tried to take notes of the woman's grunts, groans, and movements of her body and appendages. The so-called deposition transcript resembled white pages on which chickens ran across, a transcript of hieroglyphs. On this evidence, Father Parker was impaled and the Parkers were precluded from seeing their child. The court, the Department of Mental Health ["DMH"], the GAL, all had ignored all evidence of differential diagnoses. And remarkably, the Parkers' lawyers were telling them the guardianship case was not a civil action.
- The second civil case was yet one which the Parkers' niece, Schultz-Breda, was going to institute, one against the DMH for the failure to provide proper care of the young Parker woman. It was unknown the amount of assistance Schultz-Breda would be seeking.
- During the 4-1/2 weeks, the time and labor required was 61.90 hours. The novelty and difficulty of the questions involved were noteworthy. See
94. It is reasonable to conclude that the cases involved difficult, if not novel, questions of both fact and law, and the skill requisite to perform the legal service properly is possessed by Respondent and not the other attorneys with whom the Parkers were involved (Factor #1). In fact, Respondent's forté is attention to minute details, the details that many attorneys unfortunately overlook owing to impatience, or the lack of time and care to find and absorb the facts, or the knowledge that they will not be compensated for the time it would take to analyze the facts a case presents.
- observations and questions presented in a review of the 500 pages,
- the inherent conflict presented by Timothy Carlson acting as both the G.A.L. and counsel for the mentally challenged woman,
- more observations,
- the different rules for the production of document in criminal and civil cases,
- other civil case involving abuse of the mentally challenged woman, in addition to the psycho-social problems of the Parker family members. All the issues as noted by Respondent in the links were not recognized by any of the other attorneys -- Simons, Carlson, Schultz-Breda.
95. Therefore Respondent's fee was clearly not excessive.
96. Respondent did not commingle the Parkers' retainer payment with her own funds. While Respondent admits not holding the retainer payment in escrow, she did not because she had earned the money prior to depositing it into her personal account. Then on 12 December 1999, when she did an accounting for the Parkers, she greatly discounted the value of the services she rendered and cut a check for $3174.50 and sent it to the Parkers as a rebate. The Parkers then sought the return of all but $1100 (see letter from Parker to Respondent).
97. Respondent attempted to settle the fee dispute amicably (see letters from Respondent to Mary), but the Parkers then complained in a letter regarding the Respondent and sent it to four attorneys. Upon learning about the letter (see letter), Respondent then suggested to Parker that they have those four attorneys in whom Mary Parker confided be arbitrators of the fee dispute (see letter). Parker rejected that notion and three months later, on 13 March 2000, sent her complaint against Respondent to the Bar. After Parkers' complaint to the Bar, a $343 arithmetic error was found, and Respondent then sent a check for the Parkers to the Assistant Bar Counsel.
98. Thus, the Respondent, never intended to keep any moneys that were not hers to keep, did not violate Mass. R. Prof. C. 1.15(a)-(c), 1.16(d), and 8.4(c) and (h).
99. Respondent did not reveal confidential information gained in the course of her professional relationship with the Parkers without their consent after consultation, and thus Respondent did not violate Mass. R. Prof. C. 1.6(a) and 1.9(c)(l) and (2).
100. Respondent did not reveal confidential information regarding the Parkers. Given that the Parkers contend that there was no professional relationship between them and Respondent, the information may not be deemed information that was confidential or that was gained in the course of her professional relationship with the Parkers. Further, Respondent did have the Parkers implied, if not explicit, consent, given on 12 December 1999, to publish their story on her website.
101. Thus, the Respondent did not violate, as Petitioner contends, Mass. R. Prof. C. 1.6(a) and 1.9(c)(l) and (2).
102. Respondent did not require the withdrawal of the Parkers' bar discipline grievance as a condition of removing their confidential information from her web site and thus Respondent did not violate Mass. R. Prof. C. 8.4(d) and (h) and S.J.C. Rule 4:01, §10.
103. Respondent denies that she uploaded confidential information to her website. She had implied, if not explicit, consent via Mary of the Parkers to upload their story. Where the Parkers' bar discipline grievance on this issue is frivolous and brought in bad faith, because of the Parkers' consent via Mary, Respondent had no need to remove the information from her website.
104. Thus, the Respondent did not violate Mass. R. Prof. C. 8.4(d) and (h) and S.J.C. Rule 4:01, §10.
~~~~~~~~~~~~~~~
Part III-B: Proposed Rulings of Law for Count II 1. OBC ABC Weisberg did not enter all the emails between the "Parkers" and their family members and Johnson which were supplied to the OBC by Respondent because they are exculpatory to Johnson. Where Johnson was intimidated out of attending the trial, by not entering the emails, Weisberg, Bar Counsel, and the BBO interfered with Johnson’s constitutional rights to due process and equal protection.
2. Respondent obtained permission from the Parkers to disclose or disseminate their family story on her website.
3. Retired Judge William Simons ordered Respondent to remove the material about the Parkers from her website. Given that the retired judge no longer had the authority to order Respondent to do anything, his "order" was an attempt to intimidate Respondent.
4. Respondent has not removed any information about the Parkers or their family from her web site, but the uploaded information was and is neither confidential nor personal.
5. The fees Respondent charged and collected in the Parker matter were not "clearly excessive."
6. Taking each of the eight facts in Rule 1.5(a) one at a time:
7. The cases involved difficult, if not novel, questions of both fact and law, and the skill requisite to perform the legal service properly is possessed by Respondent and not the other attorneys with whom the Parkers were involved (Factor #1). Respondent's forté has demonstrated that she pays attention to minute details, details that many attorneys unfortunately overlook owing to impatience, or the lack of time and care to find and absorb the facts, or the knowledge that they will not be compensated for the time it would take to analyze the facts a case presents.
- Respondent’s fee was fixed according to a schedule (Factor #8).
- Respondent had devised a reasonable price schedule for online customers.
- Respondent was providing consulting services rather than representation, and more than one case was involved: one was the criminal case, one was to be brought on behalf of Sarah, one was an existing guardian case. Given that Respondent did not ultimately represent the Parkers nor was privy to any of the cases after contact between her and the Parkers ended, Respondent does not know what results were obtained. (Factor #4). See other results in item "e" below.
- There was no time limitation imposed by the client or by the circumstances, although the level of the family's anxiety -- evidenced by both the number and timing of emails sent by the Parkers to Respondent -- was great, time was considered of the essence (Factor #5).
- The length of the professional relationship with the client was between 10/31/99 and 12/4/99 (Factor #6), and the nature of the relationship with the client was, in addition to reviewing the work done in both the existing criminal and civil cases, researching, and strategizing, supportive (Factor #6). In her experience, Respondent learned that clients who become educated about their cases fare better than those kept in ignorance of the legal process and that clients who are put at ease fare better than those who are in a constant state of anxiety. That the entire family was relieved of some of their pressure is revealed by the words of thanks from "Mary" and her daughters.
- Respondent's experience, reputation, and ability in performing services in the area of false allegations is significant, as attested to on her website www.false-allegations.com (Factor #7).
- The likelihood that the acceptance of the three Parker matters would preclude Respondent from performing services for others depended on the scope of the consulting services sought and the other lawyers the Parkers retained to defend and prosecute the other cases (Factor #2). Respondent never intended to take the criminal case. Father Parker had legal counsel, Richard Simons, the retired judge's son, but the Parkers, particularly Mary, were displeased with Simons the Younger at the time Mary and her daughters contacted Respondent. The bad-mouthing of Respondent was the way, at least so it appears from Mary's emails, by which Simons turned the Parkers against Respondent.
- The guardianship case had already caused great difficulty for the Parkers. The deposition of a monosyllabic mentally challenged 28-year-old woman with the mental age of a 1- to 2-year-old toddler was ludicrous. The woman's guardian (Attorney Timothy Carlson) went along with the deposition and apparently tried to take notes of the woman's grunts, groans, and movements of her body and appendages. The so-called deposition transcript resembled white pages on which chickens ran across, a transcript of hieroglyphs. On this evidence, Father Parker was impaled and the Parkers were precluded from seeing their child. The court, the Department of Mental Health ["DMH"], the GAL, all had ignored all evidence of differential diagnoses. And remarkably, the Parkers' lawyers were telling them the guardianship case was not a civil action.
- The second civil case was yet one which the Parkers' niece, Schultz-Breda, was going to institute, one against the DMH for the failure to provide proper care of the young Parker woman. It was unknown the amount of assistance Schultz-Breda would be seeking.
- During the 4-1/2 weeks, the time and labor required was 61.90 hours. The novelty and difficulty of the questions involved were noteworthy.
8. Therefore Respondent's fee was clearly not excessive.
9. Respondent did not commingle the Parkers' retainer payment with her own funds. While Respondent admits not holding the retainer payment in escrow, she did not because she had earned the money prior to depositing it into her personal account. Then on 12 December 1999, when she did an accounting for the Parkers, she greatly discounted the value of the services she rendered and cut a check for $3174.50 and sent it to the Parkers as a rebate. The Parkers then sought the return of all but $1100 (see letter from Parker to Respondent).
10. Respondent attempted to settle the fee dispute amicably (see letters from Respondent to Mary), but the Parkers then complained in a letter regarding the Respondent and sent it to four attorneys. Upon learning about the letter (see letter), Respondent then suggested to Parker that they have those four attorneys in whom Mary Parker confided be arbitrators of the fee dispute (see letter).
Parker rejected that notion and three months later, on 13 March 2000, sent her complaint against Respondent to the Bar. After Parkers' complaint to the Bar, a $343 arithmetic error was found, and Respondent then sent a check for the Parkers to the Assistant Bar Counsel.11. Thus, the Respondent, never intended to keep any moneys that were not hers to keep, did not violate Mass. R. Prof. C. 1.15(a)-(c), 1.16(d), and 8.4(c) and (h).
12. Respondent did not reveal confidential information gained in the course of her professional relationship with the Parkers without their consent after consultation, and thus Respondent did not violate Mass. R. Prof. C. 1.6(a) and 1.9(c)(l) and (2).
13. Respondent did not reveal confidential information regarding the Parkers. Given that the Parkers contend that there was no professional relationship between them and Respondent, the information may not be deemed information that was confidential or that was gained in the course of her professional relationship with the Parkers. Further, Respondent did have the Parkers implied, if not explicit, consent, given on 12 December 1999, to publish their story on her website.
14. Thus, the Respondent did not violate, as Petitioner contends, Mass. R. Prof. C. 1.6(a) and 1.9(c)(l) and (2).
15. Respondent did not require the withdrawal of the Parkers' bar discipline grievance as a condition of removing their confidential information from her web site and thus Respondent did not violate Mass. R. Prof. C. 8.4(d) and (h) and S.J.C. Rule 4:01, §10.
16. Where Respondent had implied, if not explicit, consent via Mary of the Parkers to upload their story, it must be concluded that Respondent did not upload confidential information to her website.
17. The Parkers' bar discipline grievance on this issue was frivolous and brought in bad faith. The grievance was a de minimus fee dispute and should have been brought in a court not to the Board of Bar Overseers.
18. Thus, the Respondent did not violate Mass. R. Prof. C. 8.4(d) and (h) and S.J.C. Rule 4:01, §10.
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Part IV-A: Proposed Subsidiary Findings of Fact for Count III 1. In December 1992 in Middlesex Superior Court, on behalf of "Lily," Respondent commenced a wrongful termination action against HMM Associates, Inc., its parent company, and two of its employees. Default was entered against Defendants, whereupon they removed the case to federal court, which remanded it upon Johnson’s motion.
2. In August 1994, Lily’s action was transferred from Middlesex Superior Court to Concord District Court. The action almost immediately became procedurally labyrinthine. The primary cause of that maze was defense counsel Mark O’Connor's habitual and intentional violation of established court and disciplinary rules. The secondary cause of the maze was the continual change of jurisdiction: seven changes between lower courts. Review was elusive. See Table A in Respondent’s Amended Answer.
3. At an undisclosed date, HMM and its parent company, Summit Environmental Group, Inc. ["Summit"], were acquired and/or merged with Earth Technologies Corp (USA) ["ETCUSA"].
4. On 11 December 1995, Tyco International, acquired HMM, Summit, and ETCUSA. ETCUSA and Tyco were, respectively, the first and second successor parent corporations.
5. For the three years between 1995 and 1998, Defendants were on a frolic. See Respondent’s Amended Answer for particulars. If there was a rule to be broken, they broke it and the courts unscrupulously went along with the sham. (Respondent incorporates herein Tables A-C and 1-4 above and Table 5 in the Amended Answer by reference as if set forth herein.)
6. In an effort to break the impasse caused by eight protective orders issued by unthinking courts in favor of Defendants, Johnson suggested that she be allowed to inspect the documents at Defendants' facility and requested that someone be allowed to accompany her. The court unreasonably limited the "someone" to Lily, who was residing and working in California, and imposed a $55 hourly fee for a "paralegal" to "supervise" Johnson during the inspection [ADD-279]. The order, however, violated fundamental fairness. The defendants had not complied with one discovery request and had been allowed EIGHT protective orders. The plaintiff was thereby denied any and all discovery for no lawful reason.
NOTE In 2003, the U.S. Attorney's office caused the 38 or 39 indictments against Dennis Kozlowski, CEO of Tyco, for "taking" $600 million dollars from Tyco. Kozlowski’s criminal trial ended in a mistrial because of a problem with Juror #4. The problem evidently arose out of a perceived communication between the juror and Kozlowski during trial. His bail was $100 million.7. Between 22 and 24 February 1995, the respondent filed emergency motions in the district court to reconsider the court's order of 4 January 1995 and to depose nonparty witnesses outside the presence of the defendants' counsel. Respondent incorporates herein by reference Table 8 of her Amended Answer. The motion to depose nonparty witnesses outside the presence of the defendants' counsel was modeled after two motions that U.S. District Court Magistrate-Judge Robert Collings had allowed. Plaintiff's motion had SOLID legal or factual basis and was brought in the best of good faith. The motions appear in the Respondent’s Amended Answer, and are incorporated herein by reference.At the time of Respondent's wrongful incarceration on 17 December 1998 by Concord District Court Judge Paul McGill, the opposing counsel, Mark C. O'Connor, a partner of Rich, May, Bilodeau, and Flaherty, was in the pay of the alleged felon Kozlowski. Respondent suggests the possibility that both Judge Paul McGill and "Juror #4" were also.
8. On or about 3March 1995, the district court denied the respondent's emergency motions.
9.On 22 March 1995, District Court Judge Paul McGill issued an order and found Respondent and her client ("Lily the geologist") in contempt in the same hearing immediately after issuing the order. Respondent informed the court on March 22 that she had received no notice of such an order. In an endorsement on the motion, the court wrote (a) that Johnson's complaint about the lack of notice was "without merit," (b) that the court order Johnson or Lily to pay the $261.25 mentioned in the first paragraph of the Motion for Paralegal Fees (this was amended by the court in December 1995 and January 1996), (c) that the court ordered Johnson or Lily to pay the "$558 on paper #165," but $558 is NOT in Paper #165 (this was amended by the court in December 1995 and January 1996), and (d) that the court threatened dismissal of the case should they not pay.
10. Neither Lily nor Respondent made a payment based on the March 22d order, for the March 22d order was based on the non-existent order of March 3d and was, therefore, unlawful. NOTE See Table 17 and Figure 3-2 of the Amended Answer, incorporated herein by reference. The monetary sanctions were comprised of attorney's fees and a $50 daily fine imposed RETROACTIVELY from March 10 to March 22. Id. March 10 appears to have been an arbitrarily chosen date, for nothing known to Respondent occurred or was to occur on that date.Note also that the endorsement in which it was written that Lily and Johnson were jointly and severally liable was "clarifie[d]" and/or amended by the court on several occasions over the next year.Respondent incorporates herein by reference Tables 15, 16, 17, and 18 .11. The court also again refused to act on Lily's motion to show cause why defendants should not be sanctioned for violating a Superior Court order not to contact Texaco, Lily's then-employer, about her action.
12. Further, the Respondent states that although the court awarded more attorney's fees, assessed more fines (the civil penalty of $650 referred to in Petitioner's ¶108), again held Lily and Johnson jointly and severally liable for some but not all orders, and dismissed Lily's Complaint unless and until the penalty, costs, and attorney's fees were paid, the court again gave no date by which payment was to be made or to whom.
13. And even more significant is that, ultimately, Judge McGill, on the grounds that the order was in error, amended this order in December 1995 (12/13/95), January 1996, and February 1996 (2/8/96). See details of the hearings in those months below.
14. Moreover, on 5 April 1995, the District Court also (a) refused to act on Lily's motion to stay the proceedings until SJC acted on the 211:3 Petition, (b) refused to act on Lily's motion to show cause why the defendants in the underlying case should not be sanctioned for violating Superior Court Judge Roseman's order not to contact Lily's present employer about the instant action, and (c) allowed Defendants' motion to show cause why the Complaint should not be dismissed.
15. The court's finding on Paper 172 that Johnson had admitted to Contempt was not true, for there is a difference between admitting to not having paid the monies and to admitting being in contempt: while Johnson had admitted she had not paid, she also stated that she did not have the ability to pay. Further, the order to pay was not absolute or unequivocal: it stated that payment was to be made or the case would be dismissed. Therefore, Lily and/or her counsel, Johnson, were not obligated to pay.
16. It was not clear until April 5th that fines were imposed and that they were retroactive. Note also that each of the endorsements in which it was written that Lily and Johnson were jointly and severally liable were "clarified" and/or amended by the court on several occasions over the next year. Even though the order was unlawful, Respondent made payment on behalf of Lily, because the court had promised to reinstate the case on the list, but the court's word was without honor. Lily appealed.
17.On 19 April 1995,
18. Respondent further states that none of the known monetary assessments adds to $3809.25, the amount in the Final Judgment. The amount appears only in O'Connor's Motion #176. Johnson was unaware of the amount requested until counsel were in court, for this motion, like the other of Defendants' motions, was not served according to Dist./Mun.Cts.R.Civ.P. Rule 6(c), but handed to Johnson in court. And once again, Plaintiff was not given an opportunity at the hearing to examine O'Connor on the facts alleged in his motion.
- O'Connor moved to convert the nonfinal judgment of contempt into a Final Judgment on the Merits,
- the District Court allowed, over Plaintiff's objection, Defendants' motion to convert the previously-ordered conditional dismissal into a Final Judgment on the Merits with alleged damages of $3809.25 (#176),
- Final Judgment on the Merits entered into the District Court docket (#179) at the Defendants' request, and
- the case was retransferred pursuant to G.L. c. 231 §102C, to Superior Court for a trial "de novo" at the Plaintiff's request.
19. Two separate judgments, however, one on the merits and one on the contempt, did not enter. That is, there was no written separate piece of paper denoted as a Final Judgment of Contempt against either Plaintiff or her counsel.
20. The endorsements of 22 March 1995 and 5 April 1995 were amended by Judge McGill several times, for instance, in his order dated 13 December 1995 and the orders he issued in January and February 1996.21. On 13 December 1995, Judge McGill made no order while the parties were in court. He did write an order and it was FAXed to and received by Johnson on the 14th of December 1995. In that order, McGill further clarified his "contempt" orders by reducing the amount of the monies allegedly owed by Johnson to roughly two thousand dollars.
22. On the very next day, 14 December 1995, Judge McGill changed his mind and caused a subpoena to be served by the Andover Police Department on Johnson for an evidentiary hearing on 22 December 1995 on the contempt issue. Payment prior to the evidentiary hearing would have, in a nutshell, been simply crazy, if not sophisticatedly and/or legally bizarre. The inclusion of this statement in the petition by Assistant Bar Counsel Weisberg was an act of bad faith and done with malice.
23. Respondent never was in contempt of a clear and unequivocal order and even were she to assume that she was, she had pled that she did not have the ability to pay. She was also never given a hearing on the alleged contempt charges.
24. Judge McGill's orders were like a collection of flawed postal stamps. None was perfect, some were duplicates with different amounts on them, all lacked essential elements to make them clear and unequivocal orders.
25. Although the district court granted on 8 February 1996 a request by the respondent for reconsideration of her contempt adjudication, there was no proceeding in either Lily's or Johnson's case on 8 February 1996. Respondent had been with her counsel in court for O'Connor's case against her on 7 February 1996. Judge McGill issued a memorandum the next day, 8 February 1996. That alleged evidentiary hearing never occurred.
26. On 8 February 1996, the district court did not enter an Amended Final Judgment for dismissal of Lily's claims and for Lily's payment of $261.25 to the defendants. Respondent did not take an appeal to the Appeals Court from that judgment on Lily's behalf, she instead filed a request for retransfer of the Lily action to the superior court, pursuant to G.L. c. 231, §102C, on or about 20 February 1996, which was the appeal allowed under then-existent law.
27. There are three avenues of review of a case remanded to a district court from a superior court:
In the instant case, only the retransfer to superior court from district court was appropriate. There was no record to review. Superior court had authority to review the district court actions.
- If there is a question of fact, review would be to the Appellate Division of the District Court Department.
- If there is no record and only questions of law to review, the superior court may consider those questions without a sidetrip to the Appellate Division. Tax Collector of Braintree v. J.G. Grant & Sons, 26 Mass.App.Ct. 731, 733 (1989).
- If there is a final judgment of contempt, an appeal from that judgment is to the Appeals Court. Jones v. Manns, 33 Mass.App.Ct. 485, 489 (1992).
28. On 15 July 1996, the District Court (McGill, J.) issued a Memorandum and Order clearly stating that the "judgment on the civil contempt shall remain in effect," but (a) it failed to state explicitly which sum of money was due from Johnson, (b) the words "final judgment" appear nowhere in the Memorandum and Orders dated 15 July 1996, and (c) the 8 February 1996, the order upon which the court was relying, was not clear. In fact, after Judge McGill severed the contempt from Lily's underlying action, he adamantly refused to issue a separate piece of paper entitled "Final Judgment of Contempt" against Johnson.
29. Where there was no Order out of which a finding of contempt could arise, sanctions were inappropriate, dismissal was inappropriate, retransfer to Superior Court could not be precluded, and the repeated remands were reversible error.
30. Deeming the appeal of Lily's issues under these circumstances to be frivolous was nothing less than an abuse of discretion. And given that procedurally the facts in Lily's were egregious and legally there was absolutely no basis to deny Lily's appeal, Johnson believes the appellate panel court either did not read the appeal and supporting appendix or was covering the unlawfulness or incompetency of Judge McGill . . . or had another unvoiced ulterior motive, for there was neither a reasonable nor a rational basis for denying Lily relief.
31. Well-settled law required that Defendants be estopped from arguing one position in one court and then another position in a second court: i.e., from first arguing that the conditional dismissal because of contempt should be converted to a Final Judgment on the Merits and money damages should be awarded, and then arguing that the Final Judgment on the Merits was really a Final Judgment of Contempt. [See Lily's brief at 41-43, which Respondent incorporates herein by reference.] Changing the type of Final Judgment months after judgment issued changed the route of appeal and seriously prejudiced Lily. It was arbitrary and capricious of Superior Court to do it and then arbitrary and capricious of the appellate panel to have done it. It denied Lily equal protection of the laws.
32. Where Superior Court refused to review how District Court applied the law of contempt and denied Lily a trial de novo, Superior Court committed clear error and denied her due process and equal protection of the laws: to wit, denied Lily her right to have a jury hear the facts considered and found in District Court (even if they had a prima facie effect), and then to determine whether a court order issued on 3 March 1995 or whether the order merely took shape in and came out of the recesses of O'Connor's mind on 22 March 1995. Superior Court's failure to allow Lily her trial de novo was clear error and was appealable, was properly appealed, and was not frivolous.
33. So Respondent admits that she pursued an appeal on Lily's behalf and that the Appeals Court found that the appeal was frivolous, but Respondent vigorously denies that the appeal either procedurally or substantively was frivolous. Notwithstanding the finding of the court, that an Appeals Court finds an appeal frivolous is insufficient to constitute any violation of the rules of professional conduct.
34. Losing an appeal or even a finding of frivolity is not an ethical breach. There is nothing in the statutes or rules which says that a finding under any of them is an ethical breach or should be deemed a breach of professional ethics. That which is unethical is the Bar Counsel even making that Appeals Court finding a part of this petition. In fact, the higher courts intentionally blinded themselves to the facts of the case both procedurally and substantively and allowed the inappropriate decisions of an unscrupulous court (McGill's court) and a negligent one (Neel's court) to stand.
35. On 16 May 1998, Respondent filed with the Bar a complaint against opposing counsel, Mark O'Connor [see Table 43 in Respondent’s Answer] and requested the Bar to file an amicus brief on Lily's behalf, to which request Johnson received no response.
36. On 25 May 1998, Respondent filed with a petition pursuant to Mass.R.A.P. 27 for a rehearing of the appeal [see Table 44 in Respondent’s Answer].
37. Around May 1998, Lily retained an attorney in California, where she was residing and working, to represent her. Respondent has no personal knowledge as to what she did regarding payment after that.
38. Respondent was never lawfully found in contempt, she never had the opportunity to cross-examine O'Connor or testify in her own defense, there was never an order with the sum of $1,278 in it, and the imposition of in terrorem fines for a period of time, 10-22 March 1995, when there was absolutely no order -- lawful or unlawful -- in place, the imposition of the in terrorem fines of $650 was both a violation of Respondent's civil rights and a criminal act by Judge McGill. See G.L. c. 12, §11I. There also was never a calculation or mention of interest on the daily in terrorem fines.
39. A hearing was scheduled to take place on December 17th, but no hearing took place that day. There was only a proceeding. No evidence was taken. No opportunity was given Johnson to cross-examine the movant and accuser Mark O'Connor. No opportunity was granted Respondent to present a defense.
40. Assistant Bar Counsel Weisberg disclosed that Judge Paul McGill had unlawful ex parte communication with Tyco's counsel, O'Connor, before or on or around 3 December 1998. Respondent has insufficient information to admit or deny the statement about the communication between Judge McGill and Tyco Attorney O'Connor, but the new information from ABC Weisberg helps explain perhaps the origin of certain earlier events, rulings, decisions, orders that did not pass any legal sniff test and seemed to arise from the netherworld rather than from a constitution, statute, or rule.
41. The absence of due process and equal protection in Lily’s and Respondent’s cases was caused by judicial conduct egregious in extremis. It was intolerable. It was inexcusable. It was also inexplicable. For years, Johnson cautioned herself not to think that McGill was on the take, but now with (1) the disclosure by ABC Weisberg of McGill and Tyco's Attorney O'Connor's ex parte communications and (2) the 39 indictments of Tyco's CEO, Dennis Kozlowski, for "stealing" $600 million from Tyco, Johnson feels confident in her original gut feeling that at least one judge was reached to prevent her from conducting discovery of incriminating documents in the custody, control, and possession of the defendants and the successor corporations.
41. By December 1998, it was clear that justice was not to be had in Concord District Court, and it was not going to be recovered or restored by either of the higher courts, the Appeals Court or the Supreme Judicial Court. By December 1998, repeated fraud on the court had already been committed by NOTE Curiously, just within the last 10 days, April 2d and 3d, 2004, the problem with Juror #4 signalling the defense in the Kozlowski trial has livened Respondent’s feeling that perhaps Kozlowski forces did reach McGill as they might have reached Juror #4. Respondent admits that her suggestion is solely speculative, but circumstances do lead to the possibility of reaching fact-finders to be an act of which Kozlowski was and is capable.
- defense counsel, Mark O'Connor, a partner of Rich May Bilodeau & Flaherty, and his defendant clients,
- the judiciary had already showed its lack of integrity and nettle,
- the Bar Counsel had breached in 1998 (prior to Johnson being jailed) its duty to protect the public from unscrupulous attorneys
- when it dismissed the complaint against O'Connor after Bar Counsel had been informed
Respondent incorporates herein by reference Table 45 of Respondent’s Amended Answer.
- that O'Connor had so abused Carla with his threatening, intimidating, unconscionable conduct that Carla (a) collapsed in the ladies room of Rich May Bilodeau & Flaherty at the end of the second day of deposition, Wednesday, 27 May 1998) (b) was taken by ambulance to New England Medical Center, and (c) was diagnosed as having an anxiety attack (see Table 46 in Respondent’s Amended Answer, which she incorporates herein by referrence, and in which Johnson informed an Assistant Bar Counsel of the event),
- that on or around Saturday, 6 June 1998, Carla's husband learned about the order against Lily and began worrying that he and Carla, too, would suffer sanctions,
- that on Monday, 8 June 1998, troubled all weekend, Carla's husband dropped dead from a heart attack, and was pronounced DOA at Lahey Clinic,
- that Carla was left widowed with three young school-age children.
42. On 17 December 1998, Respondent was jailed PRIOR to being declared in continuing contempt of court, if, indeed, she was ever declared in continuing contempt. If the court declared it, it was AFTER Johnson had been put into the hold. Respondent has no memory of the court "on that date order[ing her] jailed until she purged her contempt and complied with the subpoena duces tecum." If the court ordered that, it was AFTER Johnson had been put into the hold.
43. By 17 December 1998, Johnson was jailed, not for not complying with one of McGill's orders, but for beginning with the word "No" an answer to a question posed by McGill on the 17th. Johnson was not jailed for any reason having to do (1) with a non-existent March 3d order, (2) with any discovery order, or (3) with some order arising out of two motions filed by Johnson in February 1995, eleven months prior to the bogus finding.
44. Johnson never saw Exhibits D and E to Bar Counsel’s petition before or after being jailed.
45. Respondent states (1) that on 18 December 1998, she never produced any records under subpoena, (2) that on 18 December 1998, she never paid any monies to the Commonwealth or to HMM, which had gone out of existence many years prior to 18 December 1998.
46. Petitioner has failed to prove (a) that on 18 December 1998, she owed the Commonwealth $867.14 for civil penalty with interest, (b) that on 18 December 1998, she owed $1,712.28 to the former-HMM or Earth Tech or Tyco's attorney, (c) that on 18 December 1998, Respondent was in lawful contempt capable of being purged, and (d) that on 18 December 1998, she purged a lawful or unlawful contempt.
47. Respondent was released from custody on 18 December 1998. A loyal son was forced to pay ransom for his mother on that date. Respondent has no personal knowledge (a) as to how much he paid or (b) as to whom he made the check(s) payable or (c) as to how the amount, whatever it was, was determined or calculated.
48. Respondent states (1) she never appealed any order of 13 December 1995, given that the order was amended within the period during which Respondent or Lily had to appeal, (2) that any contempt found was unlawful and could not stand, (3) that she never engaged in contempt of that court, (4) that she never disobeyed any clear and unequivocal order, (5) that she never believed she was in lawful contempt and therefore the elements "knowingly" and "refusing" cannot be proved, (6) that she never "knowingly disobeyed" a lawful order, (7) that an unlawful order cannot be purged, (8) that her incarceration had nothing to do with the amounts of money alleged to be owed or with the alleged contempts which are the subject of Count III of the Petition for Discipline, (9) that any payment made by her son was simply a sum he was told would be sufficient to get his mother out of MCI Framingham, and (10) that she did not violate the cited rules.
49. Respondent did absolutely everything possible on Lily's behalf. Given that the higher courts were disregarding Judge McGill's scurrilous decisions and violations of fundamental fairness, Respondent accomplished a miracle to get the judge to "clarify" and correct his errors of judgment and reduce the imposed assessments from $3809.25 to $261.25, which Respondent paid pursuant to several orders between 5 April 1995 and February 1996, and expecting that the judge would obey his own memorialized promise that he would restore Lily's complaint to the list when the assessment was paid in full. Once the amount had been reduced to $261.25, it was much more cost- and time-efficient to pay the $261.25 than to spend many hours and expend many dollars to effect an appeal that would likely be unsuccessful.
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Part IV-B: Proposed Rulings of Law for Count III 1. Whether "respondent knowingly, willfully and intentionally violated that order" is irrelevant, for a civil contempt adjudication based on a violation of an unlawful court order cannot stand. Labor Relations Commission v. Fall River Educators' Ass'n, 382 Mass. 465, 469 n. 5 (1981) (assuming a valid order was an indispensable underpinning of the order), and cases cited. "[A] coercive civil contempt order does not survive if the underlying injunction is invalid." Id., citing LaTrobe Steel Co. v. United Steelworkers Local 1537, 545 F.2d 1336, 1345-1348 (3d Cir. 1976).
2. Respondent was never lawfully found in contempt, she never had the opportunity to cross-examine O'Connor or testify in her own defense, there was never an order with the sum of $1,278 in it, and the imposition of in terrorem fines for a period of time, 10-22 March 1995, when there was absolutely no order -- lawful or unlawful -- in place, the imposition of the in terrorem fines of $650 was both a violation of Respondent's civil rights and a criminal act by Judge McGill. See G.L. c. 12, §11I. There also was never a calculation or mention of interest on the daily in terrorem fines.
3. Judge McGill unlawfully and knowingly acted contrary to the due process and equal protection provisions of the State and Federal constitutions. His unlawful acts were forbidden by the Commonwealth and were thus expressly committed in the absence of jurisdiction. Where Judge McGill was "not doing the business which the sovereign has empowered him to do or he [was] doing it in a way which the sovereign has forbidden, his actions [were] ultra vires his authority and therefore may be made the object of specific relief . . . and in such cases the relief can be granted, without impleading the sovereign, only because of the officer's lack of delegated power." N.H. Ins. Guar. Association v. Markem Corp., 424 Mass. 344, 352 (1997), quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-690 (1949), discussed at length in Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 116 (1984).
4. Because Judge McGill was not authorized to violate the law, and his conduct was forbidden, his actions were ultra vires and he is liable for his own conduct. The two types of ultra vires conduct are clearly identified in Larson, supra. See Pennhurst at 153.\fn1/ Mireles v. Waco, 502 U.S. 9, 12 (1991) ("judge is not immune for actions, though judicial in nature, taken in the absence of all jurisdiction").
fn1 That the doctrine of sovereign immunity does not protect conduct which has been prohibited by the sovereign is clearly demonstrated by the case on which petitioners chiefly rely, Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949). The Larson opinion teaches that the actions of state officials are not attributable to the State -- are ultra vires -- in two different types of situations: (1) when the official is engaged in conduct that the sovereign has not authorized, and (2) when he has engaged in conduct that the sovereign has forbidden. A sovereign, like any other principal, cannot authorize its agent to violate the law. When an agent does so, his actions are considered ultra vires and he is liable for his own conduct under the law of agency. Both types of ultra vires conduct are clearly identified in Larson.5. Neither was there a proceeding or a hearing on 3 December 1996. In fact, neither in Lily's case nor in Johnson's was there ever a "hearing" where Lily or Johnson was allowed to argue or present evidence. Umina v. Malbica, 27 Mass.App.Ct. 351, 361 (1989) ("a proceeding where no one is allowed to argue or present evidence cannot constitute a ‘hearing’"), quoting Milton Commons Associates v. Board of Appeals of Milton, 14 Mass.App.Ct. 111, 114-115 (1982).
Pennhurst at 153 (Stevens, J., with whom Brennan, Marshall, Blackmun, JJ, join, Dissenting).6. "A civil contempt adjudication based on a violation of an unlawful court order cannot stand" [Labor, 382 Mass. at 469 n. 5], thus relieving Johnson of any perceived -- rightly or wrongly perceived -- obligation to produce documents to purge herself of an alleged violation of an unlawful court order.
7. Regardless of whether the orders were clear and unequivocal or not, whether they were lawful or not, Respondent did not have the ability to pay and was willing to prove it to the court at all times. Other than that, her personal financials were not relevant to the issues before the court. Respondent further states that she had produced her financials almost three years earlier, on 17 January 1996, for an in camera inspection. McGill never memorialized his inspection in writing.
8. Johnson was entitled to question or cross-examine O'Connor on his requests for fees. She was never given the opportunity to do so, not once since March 1995, nine years ago, when McGill's first unlawful order issued.
Where ABC Weisberg could not produce an order that issued on 3 March 1995, any finding of contempt arising from the non-existent order is unlawful and cannot stand. Johnson incorporates herein by reference the documents and figures from her Amended Answer.10. The question of whether a document resembling Document 1 ever existed is a question for a jury. Liacos, Handbook of Massachusetts Evidence, §12.7.1, p. 697 (6th ed.). Secondary evidence may not be considered if there is no evidence to warrant a finding that the original ever existed. Id. Fauci v. Mulready, 337 Mass. 532, 540-543 (1958).
If the document is "lost," a proponent . . . bears the burden of proving that the order issued, and he must also prove its terms. Employers' Liability Assur. Corp., Ltd. v. Hoechst Celanese Corp., 43 Mass.App.Ct. 465, 484 (1997), citing Markline Co. v. Travelers Ins. Co., 384 Mass. 139, 140 (1981).
"If the document was destroyed by the proponent, secondary evidence of the contents ordinarily will no be admitted, there being a presumption that if proponent destroyed the document it contained matter unfavorable to him." Com. v. Garriques, 55 Mass.App.Ct. 1107 (2002) (unpublished), citing Liacos, Handbook of Massachusetts Evidence §12.7.1 (7th ed.1999). Liacos, Handbook §12.7.1 (6th ed. 1994), citing Capital Bank & Trust Co. v. Richman, 19 Mass.App.Ct. 515, 521-522 & n.7 (1985) and Joanne v. Bennett, 87 Mass. (5 App) 169 (1862).
Further, Judge McGill did not author all of his own memoranda. A young chemical engineer worked in Concord District Court one day a week during 1995 and authored memoranda for the judge.
Issue Preclusion
11. "The doctrine of issue preclusion provides that when an issue has been ‘actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties whether on the same or different claim. " Jarosz v. Palmer, 436 Mass. 526, 531-532 (2002).
We know that there was no actual litigation in Concord District Court in front of Judge McGill. Although Johnson’s liberty was at stake, she was given no trial – bench or jury – or any evidentiary hearing even of limited scope. That is undisputed.\fn2/
fn2 Dennis Kozlowski, who was busy taking $600 million from Tyco, was also paying Mark O’Connor (whom SHO Phillips excused from testifying on December 2d, 2004) to persist and insist that Johnson be jailed. Johnson had been trying to conduct discovery of certain records. She already had documentary proof of considerable fraud, she wanted more. Paul McGill was Kozlowski’s Juror No. 4 between 1995 and 1998."A determination is considered final when 'the parties were fully heard, the judge's decision is supported by a reasoned opinion, and the earlier opinion was subject to review or was in fact reviewed. ". Jarosz , 436 Mass. at 533-534. This, we know, is in dispute. Each and every one of McGill’s decisions half-a-dozen-or-so decisions – memoranda and orders -- is inconsistent with each other as to who was in contempt, how much Lily and Johnson were to pay individually or jointly, of what they were in contempt, when they were in contempt, of which orders they were in contempt, the source or the basis of the dollar figures he came up with. Some appeared to be out of the air.There appears to be no caselaw as to the definition of the word "valid. "What is validity? Is a judgment valid if there is a separate piece of paper, such as required by Rule 58 or 77? If so, then there is no valid judgment in this case.
Even assuming arguendo that there is a valid and final judgment, is civil contempt punishable under the rules of professional conduct, and if so, which one?
Such nebulous judgment(s)\fn3/ in the underlying case created the aggravating and mitigating circumstances of which Johnson has complained.
fn3 The original nonfinal judgment was modified, finalized, unfinalized, and . . . bifurcated and . .Ironically, but for the Bar Counsel’s Petition for Discipline, Johnson would never have known that the judge and opposing counsel had conspired to fill the void where the ghostly motion should have been by altering an existing endorsed motion to make it appear that the non-existent motion was existent after all. See Amended Answer about Motion #157.~~~~~~~~~~~~~~~
1. Respondent did not violate Mass. R. Prof. 8.4(d) and (h).
Part V-A: Proposed Ultimate Findings of Fact from Canons and Disciplinary Rules The "Jones" Matter: Male JL and the Female RGS – Count I
2. Where Respondent did not take and was not given any reports by the juvenile court, it was and is impossible to return reports to the juvenile courts.
3. Bar Counsel failed to define what he means by "reports belonging to the juvenile court."
4. Bar Counsel failed to identify those reports which allegedly belong to the juvenile court and which Johnson allegedly has.\fn1/
fn1 “During her opening statement, Assistant Bar Counsel Susan Strauss-Weisberg said, “And bar counsel expects to prove that most, if not all, of this information was derived from confidential reports and records on file in the juvenile court or in the probate court, and thus impounded or shielded from public view by rule or by statute.” [Transcript, I: 28-29]. ABC Weisberg never did meet her own expectations. She did not differentiate what information came from which source and whether the alleged source was filed in juvenile, probate, or no court.5. Bar Counsel failed to identify which of those reports allegedly belonging to the juvenile court are the alleged reports that Johnson has allegedly disseminated.
There were sources other than the courts for the information Johnson used. Bar Counsel and Weisberg failed to examine those possibilities and failed to heed what Johnson had told Weisberg during the investigation stage of the proceedings. Bar Counsel and Weisberg also withheld from the Special Hearing Officer exculpatory documents in their possession, documents of which Johnson had been made aware.
Of course, given the closeness of the BBO and the OBC staffs and members, perhaps SHO Phillips and AGC Wagner were aware of or participated in the decision(s) not to present the exculpatory evidence.6. Bar Counsel failed to identify which of those reports allegedly belonging to the juvenile court are the alleged reports that Johnson has allegedly uploaded to her web site. In fact, Weisberg admitted during the trial – in Johnson’s absence -- that Johnson did not post a single impounded record from juvenile proceedings on her website. [Transcript, I:118].
7. Bar Counsel failed to identify which of those reports allegedly belonging to the juvenile court are the alleged reports which Johnson has allegedly failed to remove from her web site.
8. No juvenile court had jurisdiction over Johnson at any time, including any time before, on, or after May 1, 2001.
9. Bar Counsel failed to prove that Respondent knowingly disobeyed any lawful juvenile court order dated May 1,2001.
10. Bar Counsel failed to prove that Respondent engaged in knowing violations of Juvenile Court Standing Order No. 1-84.
11. Bar Counsel failed to prove that Respondent engaged in knowing violations of G.L. c. 209C, §13.
12. Respondent did not violate and Bar Counsel failed to prove that Respondent violated Mass. R. Prof. C. 3.4(c).
13. Respondent owed no valid obligation to the Juvenile Court where Juvenile Court had indulged for a decade in the unscrupulous practice of denying "Jones" both due process and equal protection of the laws.
14. Respondent had a valid obligation to the state and federal constitutions and to stare decisis where it is well-settled that the public is entitled to scrutinize the judicial process where the conduct of the court is unscrupulous.
15. Respondent did not engage in conduct that was prejudicial to the administration of justice and/or engaged in any other conduct that adversely reflects on her fitness to practice law.
16. Bar Counsel failed to prove that Respondent engaged in conduct that was prejudicial to the administration of justice and/or engaged in any other conduct that adversely reflects on her fitness to practice law.
17. Respondent did not disseminate information about RGS, about the two children (one the son of JL and the other the son of MS), or about MS – appearing sub nom. in the Petition for Discipline -- on her web site with no substantial purpose other than to embarrass or burden them.
18. Bar Counsel failed to prove that Respondent disseminated information about William, David. and Jane on her web site with no substantial purpose other than to embarrass or burden them.
19. Respondent did not use methods to obtain evidence that violated the legal rights of William, David, and Jane.
20. Bar Counsel failed to prove that Respondent used methods to obtain evidence that violated the legal rights of William, David and Jane.
21. Respondent did not engage in any other conduct that adversely reflects on her fitness to practice law.
22. Bar Counsel failed to prove that Respondent engaged in any other conduct that adversely reflects on her fitness to practice law.
23. Respondent did not violate and Bar Counsel failed to prove that Respondent violated Mass. R. Prof. C. 4.4 and 8.4(h).
Parkers – Count II
24. Respondent, neither intended to keep nor kept any moneys that were not hers to keep, and thus did not violate, as Petitioner contends, Mass. R. Prof. C. 1.15(a)-(c), 1.16(d), and 8.4(c) and (h).
25. Bar Counsel failed to prove that Respondent intended to keep or kept any moneys that were not hers to keep, and thus did not prove that Respondent violated, as Petitioner contends, Mass. R. Prof. C. 1.15(a)-(c), 1.16(d), and 8.4(c) and (h).
26. Respondent did not reveal confidential information gained in the course of her professional relationship with the Parkers without their consent after consultation, and thus the respondent did not violate Mass. R. Prof. C. 1.6(a) and 1.9(c)(l) and (2), and 1.9(c).
27. Bar Counsel failed to prove that Respondent revealed confidential information gained in the course of her professional relationship with the Parkers without their consent after consultation, and thus the respondent did not violate Mass. R. Prof. C. 1.6(a) and 1.9(c)(l) and (2), and 1.9(c).
28. Respondent did not reveal confidential information regarding the Parkers.
29. Respondent did not upload confidential information regarding the Parkers to her website.
30. Given that the Parkers contend that there was no professional relationship between them and Respondent, any information Respondent learned from the Parkers was not confidential information gained in the course of her relationship with the Parkers.
31. Respondent had the Parkers implied, if not explicit, consent, given on 12 December 1999, to publish their story on her website. Thus, the Respondent did not violate, as Petitioner contends, Mass. R. Prof. C. 1.6(a) and 1.9(c)(l) and (2), and 1.9(c).
32. Respondent did not "require" the withdrawal of the Parkers' bar discipline grievance as a condition of removing any information about the Parkers from her web site.
33. Respondent did not violate Mass. R. Prof. C. 8.4(d) and (h) and S.J.C. Rule 4:01, §10.
34. Petitioner to prove that she asked for the withdrawal of the Parkers' grievance as a condition of removing the Parker story from her website.
35. Respondent did not violate Mass. R. Prof. C. 3.4(c) and 8.4(d) and (h) and Petitioner failed to prove that Respondent did.
36. Respondent did not violate Canon One, DR 1-102(A)(5) and (6), Canon Six, DR 6-101(A)(1)-(3), and Canon Seven, DR 7-101(A)(3), and Petitioner failed to prove that Respondent did.
Lily – Count III
37. Respondent incorporates herein by reference Part IV-A, ¶¶1-49.
38. Respondent violated no Rule of Professional Conduct, no Canon, and no Disciplinary Rule.
39. By ignoring that there never was an order issued on 3 March 1995 by Judge McGill in "Lily’s" case, every order subsequent to that date was unlawful. Ignoring the evidence, Weisberg jumped to irrational, improper, and inappropriate conclusions regarding Johnson’s conduct.
40. Even assuming arguendo that there was such an order, a finding of contempt is not a disciplinary violation.
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Part V-B: Rulings of Law from Canons and Disciplinary Rules In this case, Petitioner has not only failed to state the elements of each of the rules of professional conduct of which respondent has been deemed in violation. Respondent’s motions to compel Petitioner to state those elements were denied. 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 claims of violation of the rules of professional conduct must be dismissed.
MASS. RULE OF PROFESSIONAL CONDUCT 1.5(a)(1-8)
Petitioner has failed to:
- declare what it was about a fee agreement that constituted an agreement to charge or collect an illegal or clearly excessive fee,
- state how any money collected by Respondent was an illegal fee,
- state that amount of money collected which was an illegal fee,
- 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,
- state Bar Counsel’s rationale for determining that an illegal fee was collected,
- state what amount of money collected, in Bar Counsel’s opinion, constituted an excessive fee,
- state why any money collected by Respondent was excessive,
- identify which of the eight factors set forth by Bar Counsel were used to determine that any money collected by Respondent was excessive,
- state how each of the factors contributed to the determination that any part of money collected by Respondent was excessive,
- state the rationale behind the determination that an excessive fee was collected.
MASS. RULE OF PROFESSIONAL CONDUCT 1.6(a)Petitioner has failed to:
MASS. RULES OF PROFESSIONAL CONDUCT 1.9(a), (b1), (b2), (c1), and (c2)
- 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."
Petitioner has failed to:
Assuming that Bar Counsel is referring to DS and/or her husband, HS, 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. . . ."
- 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.
Given the nature of the controversy between the DS (and her family???) and Johnson and given that Johnson produced the email in which the Ss gave their consent to publication, Bar Counsel was 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.
MASS. RULES OF PROFESSIONAL CONDUCT 1.15(a), (b), and (c)
Petitioner has failed to:
Assuming that Bar Counsel is referring to money, there is no dispute between DS and/or her husband, HS, 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 Ss. 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, DS 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 Ss acknowledged this at the beginning of their relationship with Johnson. They denied it at the end . . . but the emails from the S family prove their delight with the services rendered by Johnson.
- identify that property which Bar Counsel contends that Respondent has not kept safely,
- identify how much -- if that property is money -- of it was not held separately from Respondent’s own property,
- state the dollar value of those funds which Bar Counsel contends the "Parkers" are entitled to receive,
- state the authority from whence the Office of Bar Counsel derives the power of a court of common law to hear contract cases.
No honest fact-finder would consider the OBC’s claim to be anything more than a de minimus fee dispute.MASS. RULE OF PROFESSIONAL CONDUCT 1.16(d)
Petitioner has failed to:
Where Johnson never entered an appearance in any of the S family’s 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):
- 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.
In fact, it was Johnson’s assistance in trying to find counsel for the Sanos of which DS 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).
MASS. RULE OF PROFESSIONAL CONDUCT 3.4(c)
Petitioner 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 the following is fatal to Bar Counsel’s claim:
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.
- where the complaint was for the so-called case involving Johnson
- what he thought he was doing when he issued a piece of paper purporting to be an order
- what it was he was "saying" in that piece of paper purporting to be an order
- under what authority was he acting
- whose poor recommendation he was following, or
- to whose sales pitch he succumbed
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).
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.
MASS. RULE OF PROFESSIONAL CONDUCT 4.4
Petitioner has failed to state the following elements of the claim of violation of Massachusetts Rule of Professional Conduct 4.4. As a result, there is no ground upon which relief may be granted and the claim must be dismissed.
Petitioner has failed in ¶44 – the only paragraph in which the rule is cited -- to:
Bar Counsel must prove those elements that the SHO has allowed him, ironically, not to prove, making dismissal mandatory at this junction.
- 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;
- 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;
- identify the means allegedly used by the Respondent to embarrass, delay, or burden a third person;
- 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;
- identify each and every alleged third person whose legal rights were allegedly violated by Respondent when obtaining evidence;
- identify each and every bit of evidence that Respondent allegedly obtained by allegedly using methods that allegedly violated the legal rights of third persons;
- identify each and every alleged evidence-gathering method by which Respondent allegedly violated the legal rights of alleged third persons;
- identify each and every alleged evidence-gathering method by which Respondent allegedly violated the legal rights of alleged third persons;
- identify the methods allegedly used by the Respondent to violate allegedly the legal rights of an alleged third person; and
- for each and every alleged third person, identify the legal rights allegedly violated by the Respondent.
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"] forbade 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.
MASS. RULES OF PROFESSIONAL CONDUCT 8.4(c), (d), and (h)
Petitioner has failed to state the following elements of the claims of violation of Massachusetts Rules of Professional Conduct 8.4(c), (d), and (h). There being no ground upon which relief may be granted, the claim must be dismissed.
Specifically, Petitioner has failed in ¶42-43, 96, 99, 126 – the paragraphs in which the rules are cited -- to:
Bar Counsel must prove those elements that the SHO has allowed him, ironically, not to prove, making dismissal mandatory at this junction.
- identify each and every occasion when Respondent’s conduct allegedly involved dishonesty;
- identify each and every occasion when Respondent’s conduct allegedly involved fraud;
- identify each and every occasion when Respondent’s conduct allegedly involved deceit;
- identify each and every occasion when Respondent’s conduct allegedly involved misrepresentation;
- identify each and every occasion when Respondent’s conduct was allegedly prejudicial to the administration of justice; and
- identify each and every occasion when Respondent allegedly engaged in any other conduct that adversely reflected on her fitness to practice law.
But Johnson needed 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 could not and cannot fight general conclusions. Due process afforded 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.
CANON SIX: DR 6-101(A)(1)
Petitioner has failed to identify each and every, if any, occasion when Respondent allegedly handled a matter which she knew or should have known that she was not competent to handle, without associating with her a lawyer who was competent to handle it.
CANON SIX: DR 6-101(A)(2)
Petitioner has failed to identify each and every occasion, if any, when Respondent allegedly handled a legal matter without preparation adequate in the circumstances.
CANON SIX: DR 6-101(A)(3)
Petitioner has failed to identify each and every, if any, occasion when Respondent allegedly neglected a legal matter entrusted to her.
CANON SIX: DR 7-101(A)(3)
Petitioner has failed to identify each and every, if any, occasion when Respondent allegedly intentionally prejudiced or damaged her client during the course of the professional relationship, except as required under DR 7-102(B).
S.J.C. RULE 4:01 SECTION 10
Petitioner has failed to identify each and every, if any, occasion when Respondent allegedly, as a condition of settlement, compromise or restitution, required the complainant to refrain from filing a complaint, to withdraw the complaint, or to fail to cooperate with the bar counsel.
More Proposed Rulings
1. Bar Counsel failed to prove that Respondent engaged in knowing violations of G.L. c. 209C, §13.
2. Respondent, neither intended to keep nor kept any moneys that were not hers to keep, and thus did not violate, as Petitioner contends, Mass. R. Prof. C. 1.15(a)-(c), 1.16(d), and 8.4(c) and (h).
3. Bar Counsel failed to prove that Respondent intended to keep or kept any moneys that were not hers to keep, and thus did not prove that Respondent violated, as Petitioner contends, Mass. R. Prof. C. 1.15(a)-(c), 1.16(d), and 8.4(c) and (h).
4. Respondent did not reveal confidential information gained in the course of her professional relationship with the Parkers without their consent after consultation, and thus the respondent did not violate Mass. R. Prof. C. 1.6(a) and 1.9(c)(l) and (2).
5. Respondent did not reveal confidential information regarding the Parkers. Given that the Parkers contend that there was no professional relationship between them and Respondent, the information may not be deemed information that was confidential or that was gained in the course of her professional relationship with the Parkers. Further, Respondent did have the Parkers implied, if not explicit, consent, given on 12 December 1999, to publish their story on her website.
6. Respondent had the Parkers implied, if not explicit, consent, given on 12 December 1999, to publish their story on her website, it must be concluded that Respondent did not upload confidential information to her website, and thus did not violate, as Petitioner contends, Mass. R. Prof. C. 1.6(a) and 1.9(c)(l) and (2), and 1.9(c).
7. Bar Counsel failed to prove that Respondent revealed confidential information gained in the course of her professional relationship with the Parkers without their consent after consultation, and thus the respondent did not violate, as Petitioner contends, The Parkers' bar discipline grievance on this issue was frivolous and brought in bad faith. The grievance was a de minimus fee dispute and should have been brought in a court not to the Board of Bar Overseers.
8. Thus, the Respondent did not violate Mass. R. Prof. C. 1.6(a) and 1.9(c)(l) and (2).
9. Respondent did not violate and Bar Counsel failed to prove that Respondent violated Mass. R. Prof. C. 3.4(c).
10. Respondent did not violate and Bar Counsel failed to prove that Respondent violated Mass. R. Prof. C. 4.4.
11. Respondent did not violate Mass. R. Prof. C. 8.4(d) and (h) and Petitioner failed to prove that Respondent did.
12. Respondent did not "require" the withdrawal of the Parkers' bar discipline grievance as a condition of removing any information about the Parkers from her web site. Thus Respondent did not violate Mass. R. Prof. C. 8.4(d) and (h) and S.J.C. Rule 4:01, §10.
13. Respondent did not violate Canon One, DR 1-102(A)(5) and (6), Canon Six, DR 6-101(A)(1)-(3), and Canon Seven, DR 7-101(A)(3), and Petitioner failed to prove that Respondent did.
14. Bar Counsel failed to prove that Respondent engaged in knowing violations of G.L. c. 209C, §13. The BBO does not have the authority to interpret the 1998 amendment of §13 of G.L. c. 209C. The SJC has not yet interpreted the amendment of that statute.
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Part VI: Proposed Rulings of Law from Affirmative Defenses
- By the acts of omission and/or commission of the Bar Counsel, he has waived any authority or rights that he may have had to act, or use any of their powers against Johnson at law, in equity, or administratively.
- The causes of action claimed by the Office of the Bar Counsel must fail because he who seeks equity must come with clean hands, as under the doctrine of unclean hands, and is not entitled to a remedy at law, in equity, or administratively.
- Johnson was justified in her acts and conduct, and is therefore not in violation of any Rule of Professional Conduct as alleged in the Bar Counsel’s Petition for Discipline.
- Count One of the Petition by the Bar Counsel must be dismissed because she not only had a professional obligation to expose the unscrupulous conduct of the court, she also had a right to exercise her First Amendment rights to political expression and free speech.
- Count Two of the Petition by the Bar Counsel must be dismissed because of the Bar’s own regulations preclude interfering in fee disputes, particularly those for sums less $10,000. In this case, the dispute between the Sanos and Johnson is for a de minimus amount.
- Count Three of the Petition by the Bar Counsel must be dismissed because of Laches, the unreasonable delay has resulted in prejudicing Johnson: e.g., by Bar Counsel’s delay, the subject court destroyed an exculpatory tape of a critical hearing by overwriting the tape, and a neutral eye-witness – the courtroom clerk -- died.
Bar Counsel is barred by the statute of limitations from disciplining Johnson.
Barbara C. Johnson, Esq.
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
CERTIFICATE OF SERVICE
I, Barbara C. Johnson, hereby certify that on 14 April 2004, I caused to be served in hand a true and accurate copy of the within pleading both to the Herbert P. Phillips, Esq., c/o BBO, and to Assistant Bar Counsel Susan Strauss Weisberg, Office of Bar Counsel, 75 Federal St., Boston, MA 02110.
13 April 2004 Barbara C. Johnson
Barbara C. Johnson, Esq.