The Bar War Continues:   Barb's Brief on Appeal of the Findings and Recommendation of the Special Hearing Officer 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. C2-98-0580 BARBARA C. JOHNSON Respondent ____________________________ TABLE OF CONTENTS RESPONDENT’S BRIEF ON APPEAL OF  THE FINDINGS AND RECOMMENDATION OF  THE SPECIALHEARING OFFICER I.  STATEMENT OF THE CASE Count I  Count II  Count III  II.  THE PROCEEDINGS: AN OVERVIEW Introduction: The Three Cases Underlying the Proceedings  Count I  Count II  Count III  Motions to Dismiss  Motion for Protection Order: Which Applies, Rule 3.18(a) or 3.22(c)?  Motion to Preclude  Motion for Issuance of Subpoenas Duces Tecum  Intentionally Inaccurate Transcripts  III. THE PROCEEDING THAT WORE THE MASK OF A TRIAL IV. MITIGATION V.  ARGUMENT IN SUPPORT OF THE APPEAL Summaries of the Basic Positions of Respondent  The Respondent’s Challenging Issues  Introductory Remarks   Table I.  Chart of Alleged Violations Mass. Rule of Professional Conduct 1.6(A) – Count II  Mass. Rules of Professional Conduct 1.9(c)(1) – Count II  Mass. Rules of Professional Conduct 1.9(c)(2)– Count II  Mass. Rule of Professional Conduct 1.15(a) – Count II  Mass. Rule of Professional Conduct 1.15(b) – Count II  Mass. Rule of Professional Conduct 1.15(c) – Count II  Mass. Rule of Professional Conduct 1.16(d) – Count II  Mass. Rule of Professional Conduct 3.4(c) – Counts I and III  As to Count I  As to Judge Lawton’s Order  As to Count III  Mass. Rule of Professional Conduct 4.4 – Count I  Mass. Rule of Professional Conduct 8.4(c) – Count II Mass. Rule of Professional Conduct 8.4(d) – Count I  Mass. Rule of Professional Conduct 8.4(d) – Count II  Mass. Rule of Professional Conduct 8.4(d) – Count III  Excerpt from Amended Answer:  TABLE  32. THE MEMORANDUM & ORDER OF  12/13/95  RE CONTEMPT & DISMISSAL  Excerpt from Amended Answer: TABLE 33.  COMMENTS ON THE ORDER OF 12/13/95  Excerpt from Amended Answer, ¶¶124-125  Mass. Rule of Professional Conduct 8.4(h) – Count I  Mass. Rule of Professional Conduct 8.4(h) – Count II  Mass. Rule of Professional Conduct 8.4(h) – Count III  Canon One, DR 1-102(A)(5) – Count III  Canon One, DR 1-102(A)(6) – Count III  Canon Six, DR 6-101(A)(1), DR 6-101(A)(2), DR 6-101(A)(3) – Count III  Canon One, DR 7-101(A)(3) – Count III  Supreme Judicial Court Rule 4:01, §10 – Count II  Issue Preclusion  Collateral Estoppel  Offensive Collateral Estoppel (and defensive collateral estoppel)  The Unforeseeable  Disparate Burdens  Bar Counsel’s Burden   O’Connor   And the judge  Impoundability

 

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. C2-98-0580 BARBARA C. JOHNSON Respondent ____________________________ RESPONDENT’S BRIEF ON APPEAL OF  THE FINDINGS AND RECOMMENDATION  OF THE SPECIAL HEARING OFFICER

 

STATEMENT OF THE CASE Throughout the course of Bar Counsel’s disciplinary action against Barbara C. Johnson ["Johnson"], she has alleged that the administrative proceedings were conducted unfairly and unlawfully. Due process is at the core of our American system of justice.\FN1/ It requires basic fairness in any procedure that can lead to punishment.\FN2/ It was nowhere to be seen at the Board of Bar Overseers or the Office of Bar Counsel.  FN1  "‘The history of liberty is the history of due process.’" Nat Hentoff, "Orwellian Justice on Campus: Columbia University's Star Chamber," Village Voice (New York: November 8 - 14, 2000), reminiscing on what Supreme Court Justice William O. Douglas taught him. FN2 Id. The Respondent has contended she became the target of the BBO/OBC because she is exercising her First Amendment rights on her website, falseallegations.com, and in her pleadings, whether on or off her  website.\FN3/ The OBC’s accusations were and remain vague.  FN3 Griswold v. Connecticut, 381 U.S. (Conn.) 479, 487 (1965), quoting Gitlow v. People of State of New York, 268 U.S. 652, 666 (1925) (freedom of speech and of the press, protected by First Amendment, are fundamental personal rights and liberties protected by due process clause of Fourteenth Amendment from impairment by States). Snyder v. Com. of Massachusetts, 291 U.S. 97, 105 (1934) (same). In Count I, she was charged with publishing allegedly confidential material on her website and thereby harming people, but the OBC has never identified with any particularity the confidential material, the offending language, or the specific people allegedly harmed. Due process required identification of the offending language in the petition.\FN4/ FN4 Respondent filed a Motion for More Definite Statement, but that motion was denied. To save time and space, Johnson requests the Board either inspect the record for all the motions filed with the OBC or go to Drano Series #106  http://www.falseallegations.com/drano106-motions-filed-at-bbo-n0603.htm where Respondent has put them on display for the public to inspect. The Find tool on your computers will allow you to locate any matter more quickly than you can locate it "manually." (Respondent is taking the liberty at referring the reader to her website files, given that the BBO has accepted 26 of the Drano Series files and several versions of several other non-Drano files as evidence in the OBC’s case against Johnson.) Bar Counsel also alleged that the unidentified information "was derived from confidential reports and records on file in the juvenile . . . or probate courts, and thus impounded or shielded from public view by rule or by statute." [Transcript, I:28-29]. No evidence whatsoever was produced evidencing  the OBC’s claim. Assistant Bar Counsel Susan Strauss-Weisberg ["Weisberg"] produced only speculative "evidence."  The only direct quotes to which Weisberg could have referred in her trial exhibits are in the margin at note 5.\FN5/  Clearly the quotations alone harm no one.  FN5   See Exhibit B, a letter from Respondent to Weisberg, in the Addendum to this pleading. Weisberg did not proffer this letter as an exhibit at the "trial," although she introduced others that were admitted into evidence. The following direct quotes were taken from the investigator’s deposition, which was not a court-ordered deposition, was not filed in any court, and was not taken under the aegis of the Juvenile Court. It was taken under the caption of the custody case in the Probate and Family Court case and two reports, which were filed only in Juvenile Court. Items numbered 2, 3, 5, and 6 were proven to be untrue. The seven items below appear in either "Trial" Exh. 23 [Drano #22]: Amended Complaint for Modification Pursuant to Mass.R.Civ.P. 15(a) filed in Bristol County Probate & Family Court] and/or "Trial" Exh. 17 [Drano #5:Amended Complaint Based on the Deprivation of Parental Rights filed in U.S. District Court] and/or "Trial" Exh. 18 [Drano #9: Opposition to Christopher Salt's Motion to Dismiss filed in U.S. District Court] and/or "Trial" Exh. 29 [Drano #31: Jones's Opposition and Combined Memorandum in Support of His Opposition to Children's Hospital's and Eli Newberger's Motion to Dismiss filed in U.S. District Court].   No one has moved to impound these files at either of the courts. Com. v. Dabrieo, 370 Mass. 728, 741-742 (1976) (allowed impounded materials to be used in later action). "justification" [CS, depo at 15], "no live-in boyfriend" [CS 7/1/88 report at 25], "there appears to be no significant males in [the child’s] life other than Mr. Jones." [CS 7/1/88 report at 25], "dated a few times and have remained good friends" [CS 7/1/88 report at 17], "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 11/10/88 deposition at 34], "her husband Michael is very important to [Jones’s son] and that Michael treats her son as if he were his own" [CS 1/5/92 report at 2; also 15]. "except for one or two" [CS 1/5/92 report at 8]. In Count II, the OBC accused Respondent of commingling funds, but the  OBC has never identified the amount of the funds allegedly commingled. Respondent has always contended that she did not commingle funds, for  she had already earned the money before she cashed the check. Believing  the couple were facing steep attorney’s fees to defend against four charges  of rape and assault, she thought she was being considerate of them when she deeply discounted her fees and rebated to the couple $3174.50. [See accounting sent to the Parkers on 12 December 1999, included in the Addendum as Exhibit E.]\FN6/  FN6 For whatever, possibly nefarious, reasons, the OBC failed to include Johnson’s accounting to the Parkers as an exhibit in the proceeding labeled a "trial." Notwithstanding OBC’s reason(s), SHO Phillips found that Johnson’s fees were not excessive.]   That act of generosity bit her in the back. The deep discounting made it  appear that Johnson had deposited the money into her account before earning it. At least, that was the spin Bar Counsel has put on it. But the spin is untrue. Johnson had earned the money, properly put in into her personal account, extended to the couple sympathy and assistance for which they and their adult, married daughters and sons-in-law appeared to greatly appreciate,\FN7/ returned a few thousand dollars to them so as to ease their upcoming financial burden . . . and then got stung by them and, later, by the  OBC for so doing.  FN7See textbox above paragraph 56 of the Amended Answer. 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 Mary Parker 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 Mary’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.   As in Count I, an allegation of publishing "personal and confidential" information was charged in Count II.\FN8/ Respondent has always contended that she was given written permission to publish the Complainant’s family story ["Trial" Exh. 67] and that the Parkers had already published it on 21 December 1999 to others who had no need to know:  FN8 In ¶ 58 on page 25 of the Hearing Report, SHO Phillips referred to Exhibit 41 as the document that supported his finding that Johnson published personal and confidential information. In the list of exhibits provided Johnson, "Trial" Exhibit 41 is Drano Series #84a. There never has been a file numbered 84a. There was going to be but Johnson had been warned that there would be still another charge brought if she uploaded it, so Johnson wrote in the space she had provided in the Drano Series Table, "Banned in Boston." Consequently, Phillips’ argument is supported by a mythical, i.e., non-existent file, one that never existed.   On 12 December 1999, the Parkers gave implicit if not explicit permission to post their story on Johnson’s website, falseallegations.com [Addendum, Exh. C] on 16 December 1999, Mary Parker emailed Johnson regarding Johnson’s bill to the Parkers ["Trial" Exhibit 59] on 20 December 1999, Johnson responded to Mary Parker ["Trial" Exhibit 60]  on 21 December 1999, Mary Parker sent to four people a communication from her to Johnson regarding Johnson’s bill to the Parkers ["Trial" Exhibit ?? ]. The four people were Attorney Hoose (whom they had consulted re criminal-defense representation), Attorney Reddington (a personal friend of two of the Parkers’ children), Attorney Schultz-Breda (the Parkers’ niece), Attorney Simons (Richard Parker’s criminal-defense counsel) on 28 December 1999, Johnson wrote Mary Parker [Exhibit F in the Addendum to this brief] regarding Mary Parker’s letter of December 21st ["Trial" Exhibit 61??]\FN9/   FN9 The list provided Respondent by BBO reads Dec 29th for Exh. 61, not the 28th, but there was no document dated December 29th, so Respondent assumes this was an error by the transcriptionist. Given also that documents were renumbered at trial, Respondent is not attempting to go through the thousands of pages to find the exhibit.   Respondent had a right to defend herself "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).    Lastly, in Count III, the OBC alleged that Respondent was jailed in 1998 to force payment of funds allegedly ordered to be paid in 1995 by a non-existent valid order. The OBC has produced only a copy of a materially altered fabricated order. See Exhibit O, attached to this pleading; this is also in the Amended Answer and online at Drano Series #90c. Weisberg stated during her opening statement that she would establish Count III "largely but not totally . . . by the Chair's ruling on issue preclusion, and by certain admissions by the respondent in her answer" [Transcript, I:36]. Weisberg called no complainants nor any other witnesses. Even had Johnson been present at the so-called trial, Weisberg had no intention of calling a witness to the stand. Johnson’s subpoenas served on the Complainants were quashed by the Special Hearing Officer, Herbert P. Phillips ["SHO Phillips"]. So the trial was planned from the outset to be a witnessless trial. That is, from the day the Petition of Discipline was filed, neither the OBC nor the BBO had any intention of conducting a trial with witnesses. As Johnson wrote above, "Due process is at the core of our American system of justice." Due process also requires notice and the opportunity to cross-examine one’s adversaries. Proper notice of the basis for the charges brought was not given, and Johnson was never to be given an opportunity to cross-examine the Complainants. Due process had fallen into desuetude.  THE PROCEEDINGS: AN OVERVIEW Introduction: The Three Cases Underlying the Proceedings Count I swirls around a custody and paternity case in which Johnson chastized a court for depriving a man for over a dozen years of his parental rights without due process and equal protection.\FN10/ The man had loved and adored his son, and suddenly the child was brutally and cruelly ripped from his heart.\FN11/ FN10 Never, in those twelve years was Dad allowed to cross-examine the mother of that child or the therapists who, without ever meeting him and without any evidence except the mother’s say-so, accused him of sexually abusing his child. FN11 Respondent represented a male who dated a female, a spoiled, elegant looking woman. They conceived a child who was born out of wedlock. They lived together for a while. He was going to marry her, but found her impossible to live with, so he brought a case in Maine seeking custody of the child because he had been very involved in the child's life. When she realized that she would have to keep Dad involved in the child's life, she ran away to Massachusetts. It took Dad ten months to find her. Subsequently they agreed to mediate their differences. After one of the sessions, she perceived that the mediation was not going her way. The very next day, she went to see a therapist, who filed a 51A, alleging the child had been sexually abused. The allegation arose out of a little Batman costume that Mom had bought for the child. Mom’s true given name is Robyn. So she and the child became "Batman and Robin." One day after the couple had ceased living together and the child was brought to spend time with his Dad, he came dressed as Batman. He had a little day-glow figure he pulled out of something like a Kellogg cereal box. It glowed in the dark and he wanted to show it to Daddy. Daddy’s place at that time was small. The only place in which the day-glow sticker would shine was in a kitchen broom closet. According to the landlady, there was no lock on the broom closet. Eventually, the child had a whole collection of the day-glow figures on the inside of the broom closet. He would go in there to show the new one to Daddy, and Daddy would go in there and look at the growing day-glow collection with him. In the story created by Mom, Dad’s apartment became the bat cave, Dad's car became the Batmobile. Dad became the evil Joker and Penguin. Dad would take the child in his Batmobile, his car. And Dad, she said, would sexually molest the child in the broom closet. Never across the twelve years was Dad ever given the opportunity to tell the judge his story. Never was he allowed to cross-examine the mother of the child. He never even met some of the therapists who allegedly wrote reports accusing him of molestating his son. He never was allowed to cross-examine them. Due process was killed by the unscrupulous judge in whose court the man was deprived of his child, whom he loved, even adored, and who was suddenly ripped from his heart. The court and the actors were brutal. They were cruel. Dad ultimately had had six lawyers. None of those lawyers was able to do anything for him. Courts didn't care. He tried. He came to Respondent for help around 1999 or 2000. Respondent told him, there are hurdles which we might not be able to overcome: judicial immunity, quasijudicial immunity for everyone appointed by the court, the statute of limitations, all kinds of problems. She would not be allowed to see the juvenile court records. So she tried to get papers from the six prior attorneys. Some of them did not respond. Some pointed out that the case was old, the papers had been thrown out or shredded. So there were chunks of the cases that she never saw. She learned that most of the so-called therapists did not file their reports in court. She never saw all of the reports that were referenced here and there. Ultimately, she never saw the records in the juvenile case. She had never set foot in the juvenile court, so had no clue how records are kept or where they are kept even. She never had a juvenile court practice. So she uploaded the pleadings in the federal-court case, which was a public record, to her website. She wanted to feel out other attorneys who were upset by this horrifying sociological situation that's destroying our society. She wanted to find out what other lawyers are out there, what other activists are out there, who else has been suffering. So it was with a responsible purpose, not a malicious purpose, that she uploaded her files to her website. Plus the public had had a right to know about the unscrupulousness. She researched the law and found that the cases do, indeed, back her position, to wit, that the public has a right to scrutinize courts, to make sure they are not unscrupulous. In all the documents that were entered into evidence, there are probably only seven phrases in all that are even worthwhile talking about here. [See note 5, supra] Identifying them and noting their location, Respondent wrote Weisberg. Weisberg never responded. Why? Because the object was to target Johnson and stop her from criticizing the judiciary or the judicial system. The Complainant was the child’s mother, who ran for public office and when on election day, she learned she lost, she blamed that loss on Johnson’s website and filed a complaint at the BBO. For details, see Amended Answer [BBO Paper 47], which does not appear to have been entered as a "Trial" Exhibit, but was repeatedly cited in the SHO’s report.\FN12/See also Exhibit B, attached hereto this pleading. FN12 Johnson’s Amended Answer may be found, divided into three files, one for each count, on Respondent’s website by clicking in the Drano Series Table on 90a, 90b, and 90c, respectively: http://www.falseallegations.com/drano90-part-i-answer-bbo-count-one-Jones.htm http://www.falseallegations.com/drano90-part-ii-answer-bbo-count-two-sano.htm http://www.falseallegations.com/drano90-part-iii-answer-bbo-count-three-lily.htm Count II involves a case on which Johnson did some consulting and returned around 30 percent of the retainer because she had deeply discounted the fee. The wife of the criminally charged defendant wanted more money returned and instead of going to the Fee Arbitration Board, went to the Bar. The OBC claimed that the money should have gone into the IOLTA account.\FN13/ Johnson disagreed, because she had already earned the money by the time she deposited the check into her personal checking account.  FN13 The new "receipts and bookkeeping" rule – amended M.R.Prof.C. 1.15 -- which will allow the OBC/BBO to violate a lawyer’s right against self-incrimination would be unconstitutional under Spevack v. Klein, 385 U.S. 511, 517-518 (U.S.N.Y.1967) (reversing disbarment: refusal of attorney to produce demanded financial records or to testify at judicial inquiry on basis that production of records and his testimony would tend to incriminate him was not ground for disbarment).   After the OBC let Johnson know that charges would be brought, Johnson added her responses to her website. Her rationale: The BBO/OBC’s repugnant reputation for secrecy and the absolute disregard of due process is widely known, and Johnson did not want to become caught in its eddy.\FN14/ Moreover, Johnson had a documented statement that she believed constituted the Parkers’ consent to the publication.\FN15/ Johnson presents, infra, her legal arguments on the legal issue raised by the SHO in that footnote.  FN14 Johnson had been instructed to put "everything" she wanted to submit as evidence into her Answer, otherwise she would not have the opportunity to submit it. In words for all intents and purposes, "The BBO did not allow Respondents to give evidence." That turned out to be excellent advice. FN15 "The Respondent contends that Mary Parker’s statement that she hoped to see their story on her web site sometime constituted consent for the Respondent’s publication of all of the items she put on her web site concerning the Parkers. (See Ex. 67, §1, p. 343)." Hearing Report, p. 17 n. 28.   It was not Mary Parker’s complaint that caused most of the charges against Johnson, but the OBC’s displeasure with the publication of their unreasonable, unconscionable charges against Johnson over a de minimus fee dispute. Clearly, the only reason for processing the fee dispute as an ethical violation was that the OBC or its superiors had made Johnson a target because of her very public campaign for court reform and the abolishment of judicial and quasijudicial immunity. Even SHO Phillips ultimately found NO violation on the issue of excessive fees:  After reviewing the bill and the other evidence presented, I find that Bar Counsel has failed to prove these charges by a preponderance of the evidence. I am not persuaded that the fee charged for the services rendered was clearly excessive, [FN26] nor am I persuaded that the Respondent made intentional misrepresentations to the Parkers about her fees, time and services. In so finding, I note that no testimony was presented in this hearing and thus, I had no opportunity to evaluate the credibility of the Parkers or the Respondent with respect to these issues. (See n.9, supra)    FN26 In my view, the fact that I might question an hour or two here and there is not sufficient to meet the requirement that a fee be "clearly" excessive. Hearing Report, except from ¶53.  Count III arises out of what Johnson claims were false allegations of contempt in 1995, ten years ago. Johnson was in jail in 1998 for 24 hours because she said No to the judge who had found her in contempt three years prior. The Complainant to the Bar was the judge, not Respondent’s client, as wrongly asserted by SHO Phillips. The underlying case was, for all intents and purposes, a whistleblower case. The plaintiff in that case had reported a scheme of fraud in the environmental consulting industry. From the outset of that case, Johnson and her client faced the obstacles, for no good cause, presented by the eight protective orders granted the defendant company, which had won contracts on many governmental projects, including the Big Dig.  The case was then remanded to Concord District Court.  Having been given evidence of fraud by eight female former employees,\FN16/ all of whom had been either fired or forced out, Johnson was trying to access the Mother Lode of documentary proof when Tyco International, Inc., then headed by Dennis Kozlowski, the chief executive officer indicted for using $600 million of Tyco’s money as his own, acquired the defendant company.\FN17/ FN16 The husband of one of them worked for the government in a Compliance unit. Soon thereafter the federal Department of Labor conducted an internal audit over a period of many months. FN17 Soon after Johnson had brought suit, the original defendant company merged with another, larger company, which became the defendant company. Not long thereafter, that company was acquired by Tyco. With Koznowski at the helm, opposing counsel began demanding that Respondent be jailed: "Tell her to bring her tooth brush next time, Your Honor." Johnson became a victim of Koznowski’s famed wrongdoing when she was found in contempt of a non-existent order.\FN18/ "It has been held that 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), and its progeny. See Drano Series #90c, or the Amended Answer for Count III [BBO Paper 47], for the remaining details.  FN18  Excerpted from ¶ 123 Amended Answer, For years, Johnson has cautioned herself not to think that McGill was on the take, but now with (1) the disclosure by Assistant Bar Counsel Weisberg of  McGill and Tyco's Attorney O'Connor's ex parte communications and (2) the 39 recent 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 Johnson from conducting discovery of incriminating documents in the custody, control, and possession of the defendants and the successor corporations. 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     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 -- 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 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, dropped dead from a heart attack, and was pronounced DOA at Lahey Clinic, -- that Carla was left widowed with three young school-age children. Notes:  (1) The SHO quashed Respondent’s subpoena and allowed O’Connor to escape cross-examination. (2) Carla was a plaintiff in an employment discrimination case against the same defendant company. SHO Phillips, in his finding at ¶83, held it against Johnson for not appealing the judgment of dismissal by McGill of Coughlin’s case. That was a wrongful finding. In his order, McGill had written that when Coughlin paid the $261.25 he would restore Coughlin’s case to the list ["Trial" Exhibit ???].   When Johnson paid the $261.25 on Coughlin’s behalf, the Judge violated his own order: he did not restore the case to the list. By then, the appeal period had run. Thus the failure to appeal should not be on the shoulders of Johnson, but on those of another unscrupulous judge. It is exactly this type of unjudicious behavior that made Johnson into a tireless advocate of court reform. [See discussion on this subject at p. 52, infra, particularly note 43, and Amended Answer].  Johnson and her client were also put in a position not dissimilar to Bumila’s, one in which it made more sense at the time to pay the sanction than appeal. In LePage v. Bumila, 407 Mass. 163, 167 n. 4 (1990), the court held that where "the sanctions which Bumila faced at the clerk magistrate's hearing, and the $40 noncriminal sanction he actually received, [were] not of the degree that would give him ‘every incentive to defend the prosecution vigorously ... and take an appeal.’" "Thus, it would be unfair to allow the use of offensive collateral estoppel in the circumstances of this case." Id., citing Whitehall Co. v. Barletta, 404 Mass. 497, 502 (1989) (advocating a determination of equitable factors in deciding whether to allow offensive use of collateral estoppel and affirming earlier caselaw by stating, "absent mutuality of estoppel and technical privity, this court would rarely allow collateral estoppel to be applied to a prior judgment offensively. . . .").  Motions to Dismiss\FN19/ FN19 Count 2 of Bar Counsel’s petition involved a fee dispute between Johnson and a wife who sought Johnson’s consulting services on behalf of her husband, who was charged criminally. Johnson had received a retainer and after service was complete, returned the unused portion (around $3200). The couple wanted more back. A de minimus fee dispute arose. SHO Phillips found that Johnson’s fee was not clearly excessive. The wife had previously given implicit or explicit permission (see website) to put their story on Johnson’s website, but Johnson did not do so. It was only after the wife complained to the Bar that she wanted more money back that Johnson uploaded her bill to the couple and some of the information for her defense. The Bar then declared that publication to be an unwarranted publication. Johnson disagreed. Because the material facts are undisputed, Johnson tried a motion to dismiss on the grounds that "[o]nce such a charge [of ineffectiveness of counsel] is made, the attorney-client privilege may be treated as waived at least in part, but trial counsel's obligation may continue to preserve confidences whose disclosure is not relevant to the defense of the charge of his ineffectiveness as counsel." See Tasby v. United States, 504 F.2d 332, 336 (8th Cir.1974), cert. denied, 419 U.S. 1125, 95 S.Ct. 811 (1975). The motion with all the cites, including Com. v. Brito, 390 Mass. 112 (1983), Glenn v. Aiken, 409 Mass. 699 (1991), Com. v. Woodberry, 26 Mass.App.Ct. 636 (1988), and Darius v. City of Boston, 433 Mass. 274 (2001), are on Johnson’s website.   Under Board Rule 3.18(b), all motions to dismiss the petition for discipline or any charges contained therein are to be determined by the Chair of the Board or the Chair’s designee. And this the Chair, M. Ellen Carpenter, did. She summarily denied the two motions to dismiss by Johnson.  One was to dismiss Count II because the Complainant’s consent to the publication of her story defeated any claim of confidentiality. The other was to dismiss Count III on the grounds during the 5-8 year delay in bringing a disciplinary action, the tape of a necessary hearing was overwritten by the Commonwealth and an eyewitness, the First Assistant Clerk, had passed away. Other grounds for dismissal were based on a an ex parte communication having occurred between the judge and opposing counsel (revealed by Assistant Bar Counsel) and a material document having been physically altered by what appears to be a combined effort by the local district court motion judge and the opposing counsel for Tyco/Koznowski.  Motion for Protection Order: Which Applies, Rule 3.18(a) or 3.22(c)? ABC Weisberg did not distinguish between a protection order and an order of impoundment. Her motion was not only a motion for a "protective order" but also  a motion for impoundment  a motion to censor Johnson’s website  a motion to enjoin Johnson’s political and free speech and  a motion for secret hearings    Weisberg and Bar Counsel failed to acknowledge and identify the standards to be followed when determining such potpourri motions as Bar Counsel’s, failed to show good cause, failed to follow the procedures for impoundment, failed to state the authority giving the Bar the right to censor Johnson’s website and stifle her political speech and free expression, failed to state the scope of the website censorship sought, failed to state how the censorship was to be implemented, failed to state the authority giving the Bar permission to override Johnson’s First Amendment rights, and failed to identify with sufficient particularity that which Bar Counsel wants to prevent disclosure and that which he wants to impound.  Secrecy, harshness, and arbitrariness sought!  Despite all the flaws in the legally bizarre motion, which would never pass muster before any judge in any superior court, Chair Carpenter allowed Bar Counsel and Weisberg’s motion.  But according to Rule 3.18(a), nondispositive motions are to be determined by the hearing panel or hearing officer, not the Chair.  In response to Johnson’s inquiry about the noncompliance with Rule 3.18(a), BBO General Counsel Michael Fredrickson pointed to Rule 3.22(c). But Rule 3.22(c), as well as 3.22(b)(2), presumes that "the Board" issues a protective order. And Rule 3.22(b)(3) presumes the SJC issues the protective order. None of the subsections of Rule 3.22 gives Ellen Carpenter the authority as Chair to rule on a motion for a protective order.  Fredrickson’s explanation was that the Chair can appoint herself to speak for the Board.  "But the rules make a distinction between ‘the Chair’ and ‘the Board,’ and she’s not acknowledging that. Every word has meaning."  "We’ve done it that way ever since I’ve been here," Fredrickson said, in words for all intents and purposes.  To a similar excuse in Cohen, infra, Justice Black wrote:  . . . This argument -- that constitutional rights are to be determined by long-standing practices rather than the words of the Constitution -- is not, as the majority points out, a new one. It lay at the basis of two of this Court's more renowned decisions -- Dred Scott v. Sandford, 19 How. 393 [1857], and Plessy v. Ferguson, 163 U.S. 537 [1896]. But cf. Brown v. Board of Education, 347 U.S. 483 [1954]. The notion that a violation of the plain language of the Constitution can gain legal stature by long-continued practice is not one I can subscribe to. A majority group, as de Tocqueville observed, too often "claims the right not only of making the laws, but of breaking the laws it has made." De Tocqueville, Democracy in America, Vol. 1, at 261.   Cohen v. Hurley, 366 U.S. 117, 142 n.23 (1961) (dissent), a 5-to-4 decision, was overruled in Spevack v. Klein, 385 U.S. 511, 514 (U.S.N.Y. 1967).\FN20/ FN20 "[L]awyers also enjoy first-class citizenship." Spevack v. Klein, 385 U.S. 511, 516 (1967) (overruling Cohen v. Hurley). To interpret Rule 3.22(c) as Carpenter and Fredrickson did, Rule 3.22(c) is in conflict with Rules 3.18(a) and 3.18(b). To interpret Rule 3.22(c) literally, in accordance with the words used and the definitions given in Rule 1.2, the words "the Board" means the 12 people appointed from time to time by the SJC.  Doing it Michael Wolsey and Ellen Cranmer’s way, the rules become arbitrarily interpreted and imposed. . . . harsh, and arbitrary!\FN21/ FN21  Johnson had seven days within which to appeal Carpenter’s decision. But it would have been futile. The BBO and OBC are the SJC’s offspring. Not only is Carpenter’s colleague and former partner sitting on the SJC bench, but the SJC had made unconscionable decisions on the few cases Johnson had recently brought to that body. For details of author’s then-recent SJC cases, see http://www.falseallegations.com/drano88-abend-rule-27-letter-to-appeals-court.htm http://www.falseallegations.com/drano87-gordon-rule-27-letter-to-appeals-court.htm and http://www.falseallegations.com/drano94-restraining-order-in-another-state.htm Motion to Preclude And Chair Carpenter did with Bar Counsel’s motion for issue preclusion that which she did with Bar Counsel’s motion for a protective order: she usurped the power of Special Hearing Officer Phillips, as identified in Rule 3.18(a).  The OBC/BBO’s motive was to preclude Johnson from showing that the lower-court orders were not only "bad," they were based on fabricated facts and findings and ultimately on, literally, a materially altered document.\FN22/ Amended Answer, or Drano Series #90c. See also Respondent’s Opposition to Bar Counsel’s Motion for Protective Order [Paper #___], Respondent’s Opposition to Bar Counsel’s Motion to Preclude Respondent from Contesting Allegations of Count III of Petition for Discipline [Paper #___], and Respondent’s Opposition to Bar Counsel’s Motion in Limine to Preclude Contesting Authenticity [Paper #___]. Of course, they, too, are on my website in Drano Series #106.  FN22   Johnson is of the opinion that the higher courts did not know that the endorsement on the motion had been altered. It is not clear that Johnson’s counsel, Elaine Whitfield-Sharp, recognized the alteration when she received it. Johnson believes that Whitfield-Sharp was not anticipating an alteration and probably never bothered to look at an endorsement on a motion she had read many times previously. A second, but unforgivable fact is that Whitfield-Sharp never included in the appendix to the brief she wrote on Johnson’s behalf the two motions filed in February 1995 which were "believed" to have been found frivolous 10 months later by District Court Judge Paul McGill. Johnson writes "believed" because there is no court document which identifies those motions McGill claims he had deemed frivolous. Those motions, Johnson contends that while regarding an area of law not fully developed by 1995 in Massachusetts, were not frivolous. They were similar to those allowed by Chief Magistrate Robert B. Collings in Morrison v. Brandeis Univ., 125 F.R.D. 14 (D.Mass.1989); and Monpoint v. Lotus Dev, Corp, 110 F.R.D. 414 (D.Mass. 1986), both cases relied upon by Johnson in 1995 and cited, more recently, in Messing, Rudavsky & Weliky, P.C. v. President and Fellows of Harvard College, 436 Mass. 347, 364 n. 1, 764 N.E.2d 825, 840 n. 1 (2002), overruling the order awarding sanctions against the lawfirm in Stanford v. President & Fellows of Harvard College, 2000 WL 1725424 at 2, No. 99-4042. (Mass.Super. Nov. 1, 2000) (Cratsley, J.).   Thus, based on fabricated facts and findings and ultimately on, literally, a materially altered document, Judge Paul McGill’s orders between 3 March 1995 and 17 December 1998 were transparently invalid.  Having been informed but being unwilling to consider the unlawfulness revealed to her – through documentation, not hearsay, not he-said/she-said testimony – former BBO Chair M. Ellen Carpenter issued an order that was equally as transparently invalid as those of McGill and as such, could be ignored.  Furthermore, only where the court lacks jurisdiction to make an order or where an order is transparently invalid on its face may a party ignore a court order and attempt to evade sanctions by litigating the validity of the underlying order. Matter of Providence Journal Co., 820 F.2d 1342, 1347 (1st Cir.1986), modified on reh'g, 820 F.2d 1354 (1st Cir.1987). See Vakalis v. Shawmut Corp., 925 F.2d 34, 36-37 (1st Cir.1991).  Oakham Sand & Gravel Corp. v. Town of Oakham, 54 Mass.App.Ct. 80, 87, 763 N.E.2d 529, 536 (2002), cert. denied 437 Mass. 1109, 774 N.E.2d 1099 (2002) (emphasis supplied).  "Courts have the inherent power of contempt for violation of their orders. See Doe v. Commonwealth, 396 Mass. 421, 422 (1985). This inherent power, however, is recognized only if the underlying order is valid." Commonwealth v. Florence, F. a juvenile, 429 Mass. 523, 525 (1999). Moreover, the only time a party may be permitted to ignore a court order and attempt to "evade contempt sanctions by litigating the validity of the underlying order itself" is if the court "lacked jurisdiction to make the order, or where the order was ‘transparently invalid.’" Vaklis [sic, read Vakalis] v. Shawmut C., 925 F.2d 34, 37 (1st Cir.1991) quoting Matter of Providence Journal Co. 820 F.2d 1342, 1347 (1st Cir.1986). Quill v. Eresian, 2000 WL 782930 at 2, No. CV9501981 (Mass.Super., April 18, 2000) (Fecteau, J.) (emphasis supplied).  Judge McGill did not have that power in 1995 or 1998.\FN23/  In addition, the jailing of Johnson on 17 December 1998 had nothing to do with the alleged contempt of 1995, contrary to what the OBC through ABC Weisberg has claimed.\FN24/  Edward F. Sulesky, First Assistant Clerk, the witness who could have proven that Johnson’s assertion is true, is deceased, and the tape of the hearing was eradicated by taping-over by the court.   For these reasons, the OBC’s claim must fail.  FN23 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. Paragraph 38 of Part Part IV-A of Respondent’s Proposed Subsidiary Findings of Fact. FN24 See Exhibit D in the Addendum to this brief.   Motion for Issuance of Subpoenas Duces Tecum A month prior to trial, Johnson filed, pursuant to Rule 4.5, requests for subpoenas and permission to use an uninterested party for service. By BBO General Counsel, Johnson had been told that space on the subpoenas would left for Johnson to fill in those documents she wanted the witness to bring to  the hearing.  SHO Phillips dragged his feet and did not act on her motion until after she had no choice but to prepare subpoenas herself and cause more than half of the subpoenas to be served by a constable. [Transcript, I:8-9]. When he did send subpoenas to Johnson for service, he left no space for documents. Any subpoenas requiring the production of documents would be quashed.  On Day 1 of trial, the SHO reiterated what he had done:  Seven such subpoenas were issued for service by the respondent  requiring attendance at the hearing for those individuals who I had ruled would be permitted to testify: namely, Jane Gerry Sylvia, Deborah Wolf, Esq., Bruce Leiter, Esq., Mary Parker, Richard Parker, Richard Simons, Esq., and Mark O'Connor, Esq. Any subpoena served which were not issued by the board are hereby quashed, and any such subpoenas requiring the production of documents are also hereby quashed, it appearing such requests were overbroad, requiring production of documents previously deemed irrelevant. \FN25/    FN25 Note that SHO Phillips uttered the real names, not pseudonyms, of the Complainants. "Trial" transcript, pp. 6-7. \FN26/ No opportunity for argument was taken regarding documents at any time.  FN26 Note that seven people were on the SHO’s list. At trial he said his list had nine people ["Trial" Transcript, I:19].   The problem was clear, the SHO had denied Johnson the ability to use certain documents in the possession of the potential witnesses when she would examine them. Weisberg was not going to call these people [Transcript, Hearing on 11/17/03, p. 27; Paper ??, dated 12 November 2003]. Weisberg was going to use 101 documents in lieu of calling witnesses with blood coursing through their veins.  Not knowing the purpose of introducing many of the lengthy documents, Johnson had to have at the ready some of the people mentioned in those documents or the people who had written those documents, for she could not cross-examine documents. She needed people for cross-examination [Transcript, Hearing on 11/17/03, pp. 18-19].  SHO Phillips wanted witness summaries.  Johnson moved for the SHO to order ABC Weisberg to write document summaries.  As grounds, Johnson said, in that way, she could narrow her list of witnesses accordingly. Phillips denied Johnson’s motions.  Chair Carpenter had already precluded Johnson from offering certain documents for evidence at trial.  Although Assistant BBO General Counsel Carol Wagner handed Johnson a document and proclaimed that it was Weisberg’s witness summaries. When Johnson later had an opportunity to look at it, she saw that it did not contain witness summaries.\FN27/ FN27 Still later, Johnson could not find it on the docket sheet. Maybe it was there but not recognizable by the title.   Intentionally Inaccurate Transcripts During the November pretrial conference, SHO Phillips kept on telling the transcriptionist to go off the record when Johnson was speaking and to go back on the record when Phillips spoke. One example:  11/17/03 Transcript, p. 40, lines 9-12 Other examples exist on the following pages and lines: Transcript, hearing  of 17 November 2003, p. 39, line 20 [39:20]; p. 40:9-12; p. 60:19-21, p. 82:15-20, p. 83:23, p. 86:12-16.  THE PROCEEDING THAT WORE THE MASK OF A TRIAL On Day 1 of "trial," SHO Phillips announced that he was quashing Johnson’s subpoenas. He did so not only because they had not been issued by the BBO, but also because they commanded the witnesses to bring documents to the trial [Transcript I:5-6]. As the people arrived at the hearing, SHO Phillips asked 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]. One, Mark O’Connor, from Rich, May, Bilodeau, had been one of the seven people he had "allowed" Johnson to subpoena, without, however, a request for documents. It was critical that O’Connor bring his documents. There is no sense speculating on what would have happened, for Phillips excused O’Connor, who left forthwith.  On Day 1 of "trial," Carol Wagner, a counsel in the General Counsel's office to the Board of Bar Overseers whispered continually in the SHO’s ear, allegedly to advise him [Transcript, I:23]. It gave the appearance that she was unlawfully instructing him as to what his decisions should be, making it reasonable to infer that SHO Phillips was not an independent hearing officer as required under the BBO rules but a pawn of the BBO General Counsel’s office.  On Day 1 of "trial," SHO Phillips announced that on 10 September 2003, three months prior to "trial," Chairperson M. 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 declared Johnson in violation of that order [Transcript, I:47-48].\FN28/ FN28 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. That all the potential exhibits contained the real names of the parties, Phillips imaginary list of protected names made no sense. On Day 1 of "trial," ABC 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?  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]. Where there was no list of names in a protection order, Johnson saying a non-party’s given name was not an "inadvertent slip. "It was no "slip" at all, of any kind. 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. When Johnson inadvertently used the Complainant’s name, Phillips ordered the public out of the room. Johnson went with them.  HEARING OFFICER: No. I'm removing the people from the room.  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.  [Transcript, I:61-65, emphasis supplied].  There was no agreement and there was no protective order. Yet 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].  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.  Shades of Concord District Court.  Respondent felt ill, anxious, and agitated.  This was not déjà vu.  The outrageousness was happening all over again.  It was unacceptable.   The only protective order extant was that for unidentified documents.  There never was, as Weisberg confirmed, a list of people whose names were protected.  After the lunch break on Day 1 of "trial," in Johnson’s absence, 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.  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.  [Transcript, I:66-67, emphasis supplied]. Here is Phillips admission that the rules had not yet even been promulgated.  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.\FN29/  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].\FN30/ Phillips admitted the man’s comments, 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.  FN29 Redaction or preclusion from the record was one of Johnson’s fears. At the November hearing, Phillips kept on telling the transcriptionist to go off the record when Johnson was speaking and to go back on the record when Phillips spoke. [See page 16, supra for list of page references.]. Without witnesses, Phillips, Carol Wagner, et al could say that Johnson said all sorts of things that she had not said. She did not trust Phillips and the others and had documentary evidence to prove that her fear was reasonable and justified. FN30 That man, whose spoken words were not included in the record, wrote an email to a few listservs after he was ordered out of the hearing room. That email is hereto attached in the addendum to this brief. 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].  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].  Phillips was getting instructions midtrial from Assistant General Counsel Wagner and possibly also from others by cellphone in the next room when Wagner and Phillips took breaks. For instance, Phillips’ language reveals that he 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].  Phillips distorted the record: ABC Weisberg 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].  There was no alleged ground rule regarding affidavits.  Johnson’s subpoena of Deborah Wolf, one of the complainants, was quashed by Phillips.  The allegations of confidential material were general, speculative, bald assertions. No words, phrases, statements were pointed out as being confidential. [Transcript, I:74].  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 or a 1000 documents. [Transcript, I:76-77].  ABC Weisberg admitted that she, in so many words, is playing the Thought Police. Drano #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 (emphasis supplied)].  ABC Weisberg has not defined what an "impermissible purpose" is and has no proof whatsoever of [a] pleading being published for an "impermissible purpose."  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.  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 published court opinion contains personal information. These opinions are public records and publishable.  Chalk B is a document that was not produced until after the OBC’s case-in-chief  had concluded [Transcript, I:106-107]. Johnson has never seen it.  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 that she had seen 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 ABC Weisberg are insufficient to justify any disciplinary action. The Fascistic approach to censorship is frightening. Impending 21st century book-burning.  A chalk is not an exhibit, is not evidence. [Transcript, I:108].  None of the pleadings numbered Exh. 45 or of the exhibits from the juvenile court was uploaded to Johnson’s website. And the Assistant Bar Counsel admitted 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 McGregor] that I have introduced in evidence, although she did not in her Internet posting include the attachments you will see on the court copy.  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:117-119 (emphasis supplied). 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").  Further, 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.  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.  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 Johnson is meeting her professional obligation. It is not evidence of Johnson allegedly redisseminating 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.  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. Jane Doe 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]. In fact, some of today’s OOW mothers herald in public forums their pride in being single mothers.  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].  When the Parkers complained about Johnson’s fee, Johnson had an unfettered license to disseminate the accounting she presented to the Parkers, for 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. A fee dispute supports the publication of the bill or accounting. SHO Phillips tried to overcome that nexus by finding that Johnson put up personal and confidential information in Drano Series #84a. Drano #84a has never existed on the website. Only reference to it appears on the Home Page:

84a The Bar War: To come. Banned in Boston by the Board of Bar Overseers, commandered by the Massachusetts Supreme Judicial Court  Barb's fight against Bar Counsel and the Parkers

That entry into the Drano Series Table arose after Johnson told Weisberg that she planned on uploading the story. Weisberg’s reaction was to threaten to bring another charge against Johnson. Not needing more trouble, Johnson held off uploading #84a, but because she had announced on her website that she would upload the file, she simply wrote the truth: the file was "Banned in Boston." The tragedy is that Phillips once again lied: he referred in ¶58 to "Table" Exhibit 41, which is Drano #84a, as proof of the publication of confidential material. But there is Nothing in #84a. The file does not exist! And has never existed!  Because of the large number of untruthful spins, and the unavailable time it would take Respondent to unspin them, Respondent refers the Board to both her Amended Answer [BBO Paper 47] and to her Proposed Findings of Fact and Rulings of Law [BBO Paper # ??, dated 14 April 2004]. The unnecessary burden on Respondent to bang her head against a leaning wall of OBC and BBO lies and the intentional, serious infraction and/or evasion of the common law is unconscionable and violative of Board Rule 3.28.  Board Rule 3.28.  In proceeding upon a petition for discipline Bar Counsel shall have the burden of proof by a preponderance of the evidence, shall initiate the presentation of evidence, and may present rebuttal evidence. The respondent shall have the burden of proof by a preponderance of the evidence on affirmative defenses and matters in mitigation [Amended effective September 15, 1997] (Second sentence added).  It is almost a brazen desire, where Bar Counsel is or should be well-familiar with his own case, which states that there is no preclusion where "the burden has shifted to [the] adversary of the person" against whom preclusion is sought. That is, the burden has shifted to the adversary of Johnson against whom preclusion is sought. That adversary is the Bar. Bar Counsel, 420 Mass. at 12, quoting Restatement (Second) of Judgments § 28(4) (1982).  Where the OBC has not met its burden and given the SHO’s prevarication and evasion of the laws, the SHO’s recommendation is nonsustainable. It must fail.  MITIGATION And the Board rules are written in contemplation that a respondent to a petition for discipline will have facts in mitigation. See Rule 3.15(f), which requires that mitigation be pled. Rule 3.15(f) is the equivalent, one presumes, of an affirmative defense.  "There is something specially repugnant to justice in using rules of practice in such a manner as to debar a prisoner from defending himself, especially when the professed object of the rules so used is to provide for his defense." Faretta v. California, 422 U.S. 806, 822-823 (1975), quoting 1 J. Stephen, A History of the Criminal Law of England, 341-342 (1883).  The majority is holding . . . that lawyers are not entitled to the full sweep of due process protections because they had no such protections against judges or their fellow lawyers in England. But I see no reason why this generation of Americans should be deprived of a part of its Bill of Rights on the basis of medieval English practices that our Forefathers left England, fought a revolution and wrote a Constitution to get rid of. Cohen, at 142 (Justice Black, with whom Chief Justice Warren and Justice Douglas concurred, dissenting). Fearing that the majority opinion in Cohen implied that "a lawyer is not to have the protection of the First Amendment with regard to his private beliefs and associations whenever his exercise of those freedoms might interfere with his duty to ‘co-operate’ with a judge’" [id. at 145], they concurred:  It seems to me that the majority takes a fundamentally unsound position when it endorses a practice based upon the artificial notion that rights and privileges can be stripped from a man in his capacity as a lawyer without affecting the rights and privileges of that man as a man.  Id. at 145 (dissent).  Attorneys must be able to avail themselves of "the general rules which govern society." Cohen, at 136 (dissent).  In Cohen, some 40 years ago, Messrs. Justice Black, Chief Justice Warren, and Justice Douglas eloquently warned that the important role that lawyers are to play in society makes it all the more imperative that they not be discriminated against and not be deprived of "the basic freedoms that are designed to protect the individual against the tyrannical exertion of governmental power." Cohen, at 138.  Singling out "groups for special treatment with regard to certain constitutional privileges" is "clearly unconstitutional." Id., at 137 n. 13, citing Barsky v. Board of Regents, 347 U.S. 442, 456-467 (1954).  "When the Founders of this Nation drew up our Constitution, they were uneasily aware of this English practice, both as it had prevailed in that country and as it had been experienced in the colonies prior to the Revolution. Particularly fresh in their minds was the treatment that had been accorded the lawyers who had sought to defend John Peter Zenger against a charge of seditious libel before a royal court in New York in 1735. These two lawyers had been summarily disbarred by the judges presiding at that trial for [filing Exceptions after being warned not to do so]. It is to the lasting credit and renown of the colonial bar that Andrew Hamilton, a lawyer of Philadelphia, defied the hostility of the judges, defended and brought about the acquittal of Zenger." Cohen, at 140-141. Such language throughout the dissents to the later-overruled majority report in Cohen makes this Respondent confident that were these high justices here today, it is likely they would write, "In Medieval England, the BBO/OBC would have become as justly vilified as the Star Chamber."  ARGUMENT IN SUPPORT OF THE APPEAL Summaries of the Basic Positions of Respondent In three counts, Bar Counsel charged that Johnson violated 20 Rules of Professional Conduct and 3 Canon subsections. SHO Phillips found violations of 14 of those rules and canons and one SJC Rule. SHO also added three disciplinary rules which were not charged [Table I, infra].  The Respondent’s Challenging Issues After brief introductory comments, Johnson challenges each of the alleged violations. These challenges were raised earlier during the process, but were never addressed either by the OBC or by the BBO. No oppositional memorandum on the issues raised ever emanated from the "pen" of ABC Weisberg and no decision longer than the word "denied" ever issued from the BBO.  All the challenges are based on the traditional legal principle that to prove a claim, one must offer sufficient evidence of each element of the cause of action. This is something the OBC failed to do, and because of that failure, the SHO’s recommendations must also fail.  Introductory Remarks Only the matter in Count I had been on Johnson’s website prior to the OBC’s so-called investigation. When it appeared that the OBC would bring actions under questionable circumstances, Johnson uploaded the information complained-of in Counts II and III, for she is a zealous advocate of accountability and full disclosure, sunshine.  That uploading fueled the Bar Counsel’s efforts to censor Respondent’s website, but censorship is politically incorrect.\FN31/ So the OBC brought the petition to censure Johnson instead.  FN31 It is more likely, however, that before the uploading of that material, the OBC’s attention was drawn to Johnson’s website because on it was Johnson’s criticism of the judiciary. That Johnson uploaded her pre-petition responses to letters sent her by Weisberg added more fuel to the OBC’s efforts to try to quiet Johnson. But as the Massachusetts Bar Association research has revealed, the OBC and BBO had much to keep quiet. Ironically, although Johnson had dealt with the OBC prior to the petition, it was very limited. She was unaware how devoid the BBO rules and procedures were of provisions that acknowledged the constitutional rights to due process and equal protection of the laws. After Weisberg became more aggressive, Johnson became aware of the treachery she faced. The many facts Johnson supplied her and any of the abundant law upon which Johnson relied were totally and absolutely ignored. It was as if the facts and the law were disappearing into a black hole, where they would never be seen or heard. Publication then became Johnson’s only option . . . if she fell like a tree in the forest, squirrels and other small creatures would not be the only ones to know what happened. Johnson relied on the fact that it was she who holds the privilege of confidentiality, not the OBC or BBO. Subsequently it became obvious that the OBC, if not also the BBO and others, was displeased that Johnson waived her right to confidentiality and raised questions on her website about the procedures of the dynamic duo.

Table I* M.R.Prof.C. or Canon-D.R. Count I Count II Count III M.R.Prof.C. or Canon-D.R. Count I Count II Count III 1.5(a)(1-8) 1.16(d) Violation 1.6(a) Violation 3.4(c) Violation Violation 1.9(a)  4.4 Violation 1.9(b)(1) 8.4(c)  ½ Violation*** 1.9(b)(2) 8.4(d) Violation Violation Violation 1.9(c)(1) Violation 8.4(h)  Violation Violation Violation 1.9(c)(2) Violation 1-102(A)(5) Violation 1.15(a) Violation** 1-102(A)(6) 1.15(b) Violation 7-101(A)(3) Violation 1.15(c) Violation SJC 4:01, §10 Violation Not charged but found 6-101(A)(1) Violation 6-101(A)(2) Violation 6-101(A)(3) Violation Notes * Not each rule or canon was charged in each count. ** This must be referring to the "old" 1.15(a). The "new" 1.15(a) contains definitions only.  *** On page 26 in ¶64, the SHO wrote that he did not find an 8.4(c) violation as to fees, but on page 27 in ¶65, he did as to commingling funds. DEFINITIONS ACCORDING TO SPECIAL HEARING OFFICER PHILLIPS Massachusetts Rules of Profressional Conduct of Which an Alleged Violation was Found by SHO Phillips 1.6(a)  Lawyer shall not reveal confidential information relating to representation of client unless client consents after consultation 1.9(c)(1)  Lawyer who has formerly represented a client in a matter shall not thereafter, unless the client consents after consultation, use confidential information relating to the representation to the disadvantage of the former client, to the lawyer’s advantage, or to the advantage of a third person, except as Rule 1.6, Rule 3.3 or Rule 4.1 would permit or require 1.9(c)(2)  Lawyer who has formerly represented a client in a matter shall not thereafter, unless the client consents after consultation, reveal confidential information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require 1.15(a)  (pre-2004 rule) Failure to keep client funds separate from lawyers’ funds, failure to safeguard funds, failure to keep adequate records 1.15(b) Failure to keep separate funds in failing to refund dispute  1.15(c)  Failure to promptly deliver funds to client  1.16(d)  Upon termination, lawyer shall take steps to protect client’s interests, including refunding any advance payment of fee  3.4(c)  Lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists 4.4 In representing a client, lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person 8.4(c)  Dishonesty, fraud, deceit or misrepresentation.  8.4(d) Conduct prejudicial to the administration of justice 8.4(h)  Conduct adversely reflecting on fitness to practice Canons One, Six, and Seven and Disciplinary Rules of Which an Alleged Violation was Found by SHO Phillips 1-102(A)(5)  Conduct prejudicial to the administration of justice) and (6) (conduct adversely reflecting on fitness to practice 6-101(A)(1)  Lawyer shall not handle legal matter he knows he is not competent to handle without associating with competent lawyer  6-101(A)(2)  Lawyer shall not inadequately prepare a legal matter  6-101(A)(3)  Lawyer shall not neglect a legal matter  7-101(A)(3)  Lawyer shall not intentionally prejudice or damage his client Supreme Judicial Court Rule of Which an Alleged Violation was Found by SHO Phillips 4:01, §10 Lawyer shall not, as a condition of settlement, to require Complainant to withdraw the complaint

With arbitrary procedures and the absence of due process, cenSURing is much easier to do than cenSORing. That concern prompted Justice Black to warn us, "The ‘law of the land’ is [not] an accordion-like protection that can be withdrawn from any person or group of persons whenever the Government might prefer ‘procedures resulting in greater preventive certainty’ if it can show some ‘reasonable’ basis for that preference." Cohen v. Hurley, 366 U.S. at 137-138 (dissent).  Mass. Rule of Professional Conduct 1.6(A) – Count II A finding of No Violation of Massachusetts Rule of Professional Conduct 1.6(a) must be substituted for the finding of a Violation of that rule on the grounds that the SHO erred by finding a violation of Rule 1.6(A) where the Parkers ["the Parkers" in the petition and the [real family name] in the "Trial" Exhibits] had given Respondent implicit consent . . . and were excitedly looking forward to Respondent putting their story on her website. For example, 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. . . ." [Exhibit C(1), "Trial" Exhibit ??] The [real family name]  family was on Johnson’s list of witnesses.  Mass. Rules of Professional Conduct 1.9(c)(1) – Count II A finding of No Violation of Massachusetts Rule of Professional Conduct 1.9(c)(1) must be substituted for the finding of a Violation of that rule on the grounds that the SHO erred by finding a violation of Rules 1.9(c)(1) where the Bar Counsel failed to prove by a preponderance of the evidence that Respondent, having formerly represented a client, used, without the client’s consent, confidential information relating to the representation to the disadvantage of the former client and to the lawyer’s advantage, or to the advantage of a third person, except as Rule 1.6, Rule 3.3 or Rule 4.1 would permit or require.  Assuming that Bar Counsel is referring to Mary Parker and/or her husband, Richard Parker, Jr., and assuming arguendo that the Parkers did not give their consent to publication on Johnson’s website, Johnson had a right under M.R.Prof.C. 1.6(b)(2) to "reveal, and to the extent required by Rule 3.3, Rule 4.1(b), or Rule 8.3 must reveal, such information … to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client. . . ."  Given the nature of the controversy between the Parkers and Johnson and given that Johnson produced the email in which the Parkers gave her consent to publication, Bar Counsel shall be unable to prove to anyone with a reasonable mind that Johnson violated any confidentiality rule under any subsection of Rule 1.9.  Bar Counsel failed to prove that Johnson received any advantage over the Parkers by posting the bill and her Answer or Amended Answer on her website. Mass. Rules of Professional Conduct 1.9(c)(2)– Count II A finding of No Violation of Massachusetts Rule of Professional Conduct 1.9(c)(2) must be substituted for the finding of a Violation of that rule on the grounds that the SHO erred by finding a violation of Rules 1.9(c)(2) where the Bar Counsel failed to prove by a preponderance of the evidence that Respondent, without the former client’s consent, revealed confidential information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require.  See response in section entitled Mass. Rules of Professional Conduct 1.9(c)(1)– Count II. Mass. Rule of Professional Conduct 1.15(a) – Count II A finding of No Violation of Massachusetts Rule of Professional Conduct 1.15(a) must be substituted for the finding of a Violation of that rule on the grounds that the SHO erred by finding a violation of Rule 1.15(a) where the Bar Counsel failed to prove by a preponderance of the evidence the following elements:  the identification of how much of the Parkers’ money did Johnson not hold separately from her own property. This is critical.  Johnson had been providing services since 31 October 1999 before she ever received the $10,000 check from June Edward, Mary Parker’s sister, on or around 20 November 1999. In fact, but for a few hours all the services Johnson provided were provided before receiving the check and before depositing it. Therefore, when Johnson deposited the check, the money had already been earned. But for Johnson deeply discounting the bill for the Parkers, there would be no question that the money was already Johnson’s before she deposited it into her personal account; the identification of the amount that was allegedly "commingled." In fact, ABC Weisberg absolutely did not even once in the few years she was prosecuting the case state an amount that was allegedly commingled.  Neither did SHO Phillips state an amount that he believed was commingled with Johnson’s own funds;  the identification of any monies that were not properly safeguarded;  the identification of records that were not kept by the Respondent showing the receipt, maintenance, and disposition of such funds; the amount of the disputed portion of their retainer; the identification of the amount of money Respondent allegedly failed to segregate; how the account the Respondent sent to the Parkers was inadequate as notice to the Parkers as to the disposition of the funds received from them. Given (a) that there it is undisputed that Johnson promptly notified "Mary Parker" that her sister June sent a check and that it was safely received, (b) that SHO Phillips  found that Johnson’s fees were not clearly excessive,  found that no refund was due the Parkers, for all the money Johnson received from the Parkers had been earned, and  did not recommend that any money be returned to the Parkers or to Mary Parker’s sister June Edwards,  (c) that there is no dispute as to records or as to receipts, (d) that there is no dispute as to accounting, (e) that it was the OBC’s burden to prove the amount allegedly commingled, and (f) that ABC Weisberg failed to meet her burden, there can be no violation of Rule 1.15(a).  Mass. Rule of Professional Conduct 1.15(b) – Count II A finding of No Violation of Massachusetts Rule of Professional Conduct 1.15(b) must be substituted for the finding of a Violation of that rule on the grounds that the SHO erred by finding a violation of Rule 1.15(b) where the Bar Counsel failed to prove by a preponderance of the evidence any of the rule’s elements.  Where ABC Weisberg never stated a dollar value of those funds which Bar Counsel contended the Parkers were entitled to receive, and SHO Phillips found that Johnson’s fees were not clearly excessive and did not recommend that any money be returned to the Parkers, there can be no violation of Rule 1.15(b). Further, upon doing her accounting for the Parkers, Johnson deeply discounted her fees and sent the Parkers a check in the amount of $3174.50, and later, upon learning of an arithmetic error in the calculation of her bill, sent the Parkers an additional $343. Clearly, there was no violation of Rule 1.15(b).  Further, where the "Parker"/Johnson relationship was based on a contractual theory, and the OBC does not have the power of a court of common law to hear contract cases, the OBC interfered where it should not have. Johnson had asked ABC Weisberg for the source of OBC’s authority to hear contract cases, but Johnson never received an answer from her.  Further, but for the OBC’s and BBO’s policy of selective enforcement, the finding of No Violation must be substituted for the finding of a violation not only of Rule 1.15(b) but also of any subsection of that rule.  Mass. Rule of Professional Conduct 1.15(c) – Count II A finding of No Violation of Massachusetts Rule of Professional Conduct 1.15(c) must be substituted for the finding of a Violation of that rule on the grounds that the Bar Counsel failed either to identify or prove by a preponderance of the evidence that there was a portion of the money Johnson received that had to be kept separate by the lawyer until the dispute was resolved. In other words, Weisberg never stated, "Keep $1 or $100 or $1000 or more in a trust account for the Parkers until the dispute was over." Thus, the finding of No Violation must be substituted for the finding of a violation of Rule 1.15(c).  Mass. Rule of Professional Conduct 1.16(d) – Count II A finding of No Violation of Massachusetts Rule of Professional Conduct 1.16(d) must be substituted for the finding of a Violation of that rule on the grounds that the SHO erred by finding a violation of Rule 1.16(d) where the Bar Counsel failed to prove by a preponderance of the evidence that Respondent did not take steps to protect client’s interests, including refunding any advance payment of fee. In fact, the SHO did not recommend the refund of any of the money Johnson received from the Parkers.  Where Johnson never entered an appearance in any of the Parkers’ existing and proposed civil and criminal actions, there was no representation to terminate, making M.R.Prof.C. 1.16(d) inapplicable to this situation. Thus SHO Phillips erringly found a violation of that which Bar Counsel complained in ¶65.  In fact, it was Johnson’s assistance in trying to find counsel for the Parkers of which Mary Parker 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 Parkers and about which the Parkers did not complain. There never was any money that had to be returned. There was only money that Johnson voluntarily returned – as a result of deeply discounting her fees – and that was done months before Mary Parker contacted the OBC and/or the BBO.  Bar Counsel’s bringing of this claim under Rule 16(d) was malicious at best and one that arose out of a political agenda at worst.  Mass. Rule of Professional Conduct 3.4(c) – Counts I and III A finding of No Violation of Massachusetts Rule of Professional Conduct 3.4(c) must be substituted for the finding of a Violation of that rule on the grounds that the SHO erred by finding a violation of Rule 3.4(c) where the Bar Counsel failed either to identify or prove by a preponderance of the evidence the elements of the rule. Spenlinhauer v. Kane, 1998 Mass.App.Div. 155, 1998 WL 474170 at 6 (1998); Bolden v. O'Connor Cafe of Worcester, Inc., 50 Mass.App.Ct. 56, (2000).  As to Count I: Specifically,Petitioner has failed to identify each and every valid obligation under the rules of a tribunal that Respondent allegedly disobeyed, although the claim is made at ¶¶43 and 126 of Bar Counsel’s petition.  Incorporating ¶¶43 and 126 of her Amended Answer, Johnson adds and/or reinforces and re-emphasizes that the Juvenile Court never had jurisdiction over her, 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  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 should have been fatal to Bar Counsel’s claim.  As to Judge Lawton’s order, "Trial" Exhibits 31(A) and 31(B), Drano Series #34 (http://www.falseallegations.com/drano34-juvenile-ct-order.htm), and Exhibit M (attached hereto this pleading): ABC Weisberg failed to offer into evidence the undecipherable, encrypted "Complaint" which Wolf (court-appointed more than a decade ago to represent the child) filed in Juvenile Court and out of which Judge Lawton ’s order arose.\FN32/ FN32 Deborah Wolf is the Complainant of the "silent" complaint, namely BBO No. C2-01-0091 on the caption of the petition for discipline and all other pleadings. You do not see her name in the petition or SHO Phillips recommendations. You must ask yourself, WHY the silence? Because the OBC and BBO, in exchange for help in "getting" Johnson, who was the political target, have neither investigated nor enforced the MRPC against Wolf. The selective enforcement is unacceptable if not unlawful. Wolf wrote in her complaint against me to the Bar that she was appointed in both Bristol County Juvenile Court for a Care and Protection case [Docket No. 8800018] and the Bristol County Probate Court "for related matters" [Docket No.88W0113-P1], but the docket sheets of the Probate & Family Court case show that Wolf was NOT appointed by that court. While writing that she was appointed as the Jones child’s second attorney in October 1991, Wolf failed to state in which of the two courts that appoint occurred in 1991. Clearly she was attempting to avoid disclosing that she was never appointed in the Probate & Family Court in any year. The Juvenile Court docket sheet does not show that that appointment was ever renewed. In the community of attorneys practicing in the Care and Protection ["C&P"] area, a C&P closes when custody is determined and it is re-opened when a parent brings a "review and redetermination" pursuant to M.G.L. c. 119, § 26. The statute is silent on the subject of closing. It is highly questionable that a court-appointed attorney, such as Wolf, would have a right to collect fees in assorted courts in assorted types of actions for representing a child from age 3 to age 18 . . . particularly where a means test is necessary in the first place. Section 29, provides a court-appointed attorney for foster care and commitment to custody cases, including cases where DSS or a licensed child-placement agency is a party (c. 119, §§. 23-27, 29B; c. 201, §§ 5, 14). The Care and Protection of William was not such a case. From where, therefore, was or is her authority to act on the child's behalf in Probate & Family Court? Further, § 29, provides for the appointment of an attorney for the child in certain circumstances, none of which is applicable here, if the child is financially unable to retain counsel. That, too, is inapplicable here, for there was no showing of indigency of Jane or of the child. There was never a means test of Jane to pay for her 6-year-old's attorney. Massachusetts G.L. c. 119, sec. 29, requires a means test. Without that means test, the appointment of Deborah Wolf was unlawful. In fact, Jane Doe was and is receiving child support from both John Jones and Robert Brown (since 1994) and is employed as a housekeeper. (She also ran for elected office locally. She lost her bid in April 2001.) According to the affidavit of her husband, Robert Brown, "She works cleaning houses for other people occasionally during the day, or her own schedule . . ." I have yet to learn whether Jane declares that income. Similarly, Wolf filed in Juvenile Court a Verified Complaint entered into the docket as 01E0001. In it, she appears to be representing Jane Doe as well as the son. Yet she knows Jane as not and is not indigent. Did Jane write, sign, and file an affidavit of indigency in the Juvenile Court in 1991 and any subsequent dates for the appointment of Deborah Wolf? After reviewing the docket sheets from both Juvenile Court (received from ABC Weisberg, who forwarded it to me as a document received from Wolf) and Probate & Family Court, I have been able to determine that Deborah Wolf must be being paid with public funds for work for which she is not authorized to perform. To whom does she send the bills for her Juvenile Court work? To whom does she send the bills for her Probate & Family Court work and her court appearances? CPCS? Another fund account administered by the Commonwealth? Jane? Who approves of those bills? Where are those bills now? With what frequency has she sent them for payment? What tasks are included on them? Copies of her bills, the signed approvals, check stubs of the payments would be informative. The Verified Complaint was verified by the minor child, although a child cannot file a Care & Protection action against itself. Johnson phoned Deborah Wolf after Johnson was refused by First Assistant Clerk/Magistrate of New Bedford Juvenile Court Gregory Centeio a copy of a Wolf’s petition, which should have been attached to a summons received (but not served) on John Jones. That summons was returnable June 26th. Wolf refused to send Johnson the petition. Jones also received a subpoena (an improperly served one) to be a witness at a hearing on June 26th. Again both Centeio and Wolf refused to tell Johnson the subject of the hearing. Wolf has also falsely reported that Johnson used confidential records from Juvenile court. Yet Wolf has freely distributed copies of the Juvenile Court docket sheets, which under the Standing Order are also confidential. Johnson did not make an assertion in Lawton’s court that no valid obligation existed, because she was never in his court, but she certainly openly refused based on an assertion that no valid obligation existed.  She did that by writing and sending him a letter as well as by also publishing it on her website for the public to see and study and form their own opinions ["Trial" Exhibit 32, (Johnson’s letter), Drano Series #37  (http://www.falseallegations.com/drano37-impound-ment-Lawton.htm)   and Exhibit N (attached hereto this pleading): Johnson invoked her First Amendment rights to publish that open letter to the young Judge Lawton, which is clearly allowed under Rule 3.4, too.  In the Care and Protection case to which the judge refers, there never was a hearing, there were only proceedings. "At the least, a proceeding where no one is allowed to argue or present evidence cannot constitute a ‘hearing.’" Umina v. Malbica, 27 Mass,App.Ct. 351, 361 (1989), quoting Milton Commons Associates v. Board of Appeals of Milton, 14 Mass.App.Ct. 111, 114-115 (1982).  It is also highly unlikely that Jones’s son\FN33/ ever appeared before Judge Lawton and therefore that the condition of the now-20-year-old young man is simply that which his mother, Jane, told to Deborah Wolf. Given Jane's and Wolf’s history, there is little left of their credibility. Johnson’s subpoenas to Wolf and Jane were quashed by BBO SHO Phillips.  FN33 The young man has many, very serious problems, all predating by years Johnson’s website. Because the historical information regarding the young man is not evidence in this OBC/BBO action, Johnson shall not disclose it here. Suffice it to say that the young man’s problems are the reasons SHO Phillips quashed Johnson’s subpoena of him and the reasons ABC Weisberg did not want to call him as a witness. Without doubt, the immunized Judge Harper (now retired), his immunized pet investigator, Christopher Salt, and a few other court-appointed minions are responsible for the condition of the Jones boy. Unable to persuade Judges LaStaiti, McGregor, and a few other judges to take any interest whatsoever in the desolate future of the man-child they created, and change his custody from the devastating care of his mother to the loving care of his father, Johnson was impelled to publish the Jones story. The goal was not to embarrass Jane or the children, but to capture the attention of the public to make them aware of the unscrupulousness and incompetency of the current court system in the majority of family-law cases. Unscrupulousness and incompetency are derivatives of the unaccountability given the blessing of absolute judicial and quasijudicial immunity by judicial fiat. Even you deciding this appeal have immunity through the rules promulgated by some committee. Do not abuse your power. Acknowledge that you have the moral responsibility to be as accountable for your actions as does Johnson for hers. Disbarment will not change Johnson’s goal of seeing judicial and quasijudicial immunity abolished. Where Judge Lawton’s order was transparently invalid, Johnson could lawfully ignore it. Oakham Sand & Gravel Corp. v. Town of Oakham, 54 Mass.App.Ct. 80, 87 (2002), cert. denied 437 Mass. 1109 (2002).\FN34/Vakilis v. Shawmut C., 925 F.2d 34, 37 (1st Cir.1991); Matter of Providence Journal Co. 820 F.2d 1342, 1347 (1st Cir.1986). Quill v. Eresian, 2000 WL 782930 at 2, No. CV9501981 (Mass.Super. April 18, 2000) (Fecteau, J.). \FN35/ FN34 Furthermore, only where the court lacks jurisdiction to make an order or where an order is transparently invalid on its face may a party ignore a court order and attempt to evade sanctions by litigating the validity of the underlying order. Matter of Providence Journal Co., 820 F.2d 1342, 1347 (1st Cir.1986), modified on reh'g, 820 F.2d 1354 (1st Cir.1987). See Vakalis v. Shawmut Corp., 925 F.2d 34, 36-37 (1st Cir.1991). Oakham Sand & Gravel Corp. v. Town of Oakham, 54 Mass.App.Ct. 80, 87, 763 N.E.2d 529, 536 (2002), cert. denied 437 Mass. 1109, 774 N.E.2d 1099 (2002). FN35 "Courts have the inherent power of contempt for violation of their orders. See Doe v. Commonwealth, 396 Mass. 421, 422 (1985). This inherent power, however, is recognized only if the underlying order is valid." Commonwealth v. Florence, F. a juvenile, 429 Mass. 523, 525 (1999). Moreover, the only time a party may be permitted to ignore a court order and attempt to "evade contempt sanctions by litigating the validity of the underlying order itself" is if the court "lacked jurisdiction to make the order, or where the order was ‘transparently invalid.’" Vaklis [sic] v. Shawmut C., 925 F.2d 34, 37 (1st Cir.1991) quoting Matter of Providence Journal Co. 820 F.2d 1342, 1347 (1st Cir.1986). Quill v. Eresian, 2000 WL 782930 at 2, (Mass.Super. 2000) (emphasis supplied). One can only surmise that Lawton was manipulated by Wolf and/or ABC Weisberg, and to his detriment, coming from "The" Judge Lawton’s family,\FN36/ he was much too accustomed to believing unquestioningly and indiscriminately to those in judicial and political power.\FN37/ FN36 His father and Respondent had a mutual respect for each other. His father, a jovial, friendly gentleman, had lots of common sense. FN37 Respondent believes that ABC Weisberg has done much to entice judges into making bad choices. See  http://www.falseallegations.com/drano96-judge-jarasitis-judas-to-justice.htm.  The formatting is badly done because Johnson did it too quickly to perfect it, but it is readable and explains Respondent’s first remark in this footnote. Johnson received from ABC Weisberg no response to her letter. Nor has she ever seen a grievance letter from Judge Jarasitis. Nor has Johnson received the money due her from the Commonwealth. The mystery grievance letter in the Jarasitis matter has led Johnson to believe that Weisberg’s role in the Lawton debacle might be greater than it appears on the surface. Drano #96 was not included amongst the "Trial" Exhibits. Because there is a wide section in the middle, it is likely easier to read on the web than on paper. As to Count III: 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 complained in ¶43 and 126 (Counts I and III, respectively) inapplicable in the case at bar.  It has been held that a civil contempt adjudication based on a violation of an unlawful court order cannot stand. See Fitchburg v. 707 Main Corp., 369 Mass. 748, 754 (1976); Stow v. Marinelli, 352 Mass. 738, 744-745 (1967), and cases cited. We shall assume with the parties, but do not decide, that a valid Commission order was an indispensible underpinning of the order of September 20 assessing a prospective fine of $20,000 for each day the strike thereafter continued, of the temporary restraining order, and of the final judgment.  Labor Relations Commission v. Fall River Educators' Ass'n, 382 Mass. 465, 469 n. 5 (1981).  Some of the fines ordered on March 22d, 1995, by Judge McGill in Concord District Court were daily in terrorem fines to compel compliance with a non-existent order allegedly issued on March 3d, 1995. As such, the March 22d order was based on a mirage and was, without doubt, invalid and could not survive. LaTrobe Steel Co. v. United Steelworkers Local 1537, 545 F.2d 1336, 1345-1348 (3d Cir. 1976) (a coercive civil contempt order does not survive if the underlying injunction is invalid).  Now fast forward almost four years later, to December 1998. The exhibit to Bar Counsel’s petition is testament to this.  In it, it clearly states that Johnson had filed a motion to quash and that the judge denied it on December 17th, 1998, and immediately found her in contempt and jailed her. This was not only an unjust order, it was an unjust imprisonment. There was no flagrant contempt, there was no need for immediate punishment, and Johnson was never given an opportunity – effective or ineffective – to defend herself, the contempt order was invalid. Sussman v. Com., 374 Mass. 692, 696 (1978).  In Sussman, the Court held that where the attorney's conduct was not flagrant contempt, where there was no need for immediate punishment, and where the attorney was never given an effective opportunity to defend himself, the adjudication of contempt was procedurally invalid. The Court further held that where there was no contemptuous act or intent on part of the attorney, the adjudication was substantively invalid). Id. Where "[s]ummary punishment for direct contempt ‘is warranted only when essential to the orderly administration of justice,’" Judge McGill’s order was unlawful. Id., quoting Opinion of the Justices, 314 Mass. 767, 784 (1943).  A judge may only enforce "‘lawful orders essential to prevent a breakdown of the proceedings.’" Sussman v. Com., 374 Mass. at 695-696, quoting United States v. Wilson, 421 U.S. 309, 319 (1975). McGill’s order was anything but a lawful one. "[M]any of the due process safeguards available in criminal proceedings should apply to a contempt proceeding." Sussman v. Com., 374 Mass. at 696, citing e. g., Bloom v. Illinois, 391 U.S. 194 (1968), and Garabedian v. Commonwealth, 336 Mass. 119, 124-125 (1957).  Moreover, M. R. Prof. C. 3.4(c), entitled "RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL" reads: "A lawyer shall not: (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists." Here, of course, Johnson did, numerous times in District Court, not only declare that she could not afford to pay, she also continually made "open refusal[s] based on an assertion that no valid obligation exist[ed]," because no order of March 3d existed and all the other orders, which arose out of that original non-existent order, were invalid.  To not substitute a No Violation in lieu of Violation of this rule would be a violation of Johnson’s rights to constitutional due process and equal protection.  Mass. Rule of Professional Conduct 4.4 – Count I A finding of No Violation of Massachusetts Rule of Professional Conduct 4.4 must be substituted for the finding of a Violation of that rule on the grounds that the SHO erred by finding a violation of Rule 4.4 where the Bar Counsel failed to prove by a preponderance of the evidence that Respondent used means that had no substantial purpose other than to embarrass, delay or burden a third person, or used methods of obtaining evidence that violated the legal rights of such a person.  According to the SHO’s findings in ¶31, the following alleged act  constituted a violation of Rule 4.4:  disseminating information about William, David and Jane on her web site with no substantial purpose other than to embarrass or burden them [¶31] There are two things in any trial that a plaintiff must prove. One is liability, the other is damages. Here we have the real plaintiff in interest, the Co-complainant Jane, putting on documents that are filled with hearsay. For the liability prong of the trial, the documents of the type submitted by Weisberg here would not be allowed in as evidence, as is, without the defendant being able to cross-examine those quoted in accused in the documents. For the second prong, the plaintiff or Co-complainant would have to prove harm and then damages. Here Weisberg put in absolutely no evidence of any embarrassment of William, David and Jane and no evidence that William, David and Jane were burdened.  Jane did not even file an affidavit. Neither did the children. Deborah Wolf filed an affidavit, but she cannot testify as to any harm or burden to William, David and Jane. No witness may testify to the state of mind of another individual.  Johnson is aware that the BBO does not use the rules of evidence as the real courts are required to do, but that is the problem. Being a lawyer does not mean that one must sacrifice his or her constitutional rights to due process or equal protection. In fact, a lawyer must not be stripped of his or her constitutional rights, for the important role that lawyers are to play in society makes it all the more imperative that they not be discriminated against and not be deprived of "the basic freedoms that are designed to protect the individual against the tyrannical exertion of governmental power." Cohen, at 138.  Singling out "groups for special treatment with regard to certain constitutional privileges" is "clearly unconstitutional." Id., at 137 n. 13, citing Barsky v. Board of Regents, 347 U.S. 442, 456-467 (1954).  As quoted above,  It seems to me that the majority takes a fundamentally unsound position when it endorses a practice based upon the artificial notion that rights and privileges can be stripped from a man in his capacity as a lawyer without affecting the rights and privileges of that man as a man.  Cohen, at 145 (dissent). Attorneys must be able to avail themselves of "the general rules which govern society." Cohen, at 136 (dissent).  SHO Phillips took an adverse position in note 23 on page 18 of the Hearing Report: "[A]n attorney’s right to speak, in contrast with that of other citizens, can be and, in fact, is constrained by ethical rules. Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)."  Then he continues quoting a comment to Mass. R. Prof. C. 1.6. That comment is not on point. Confidentiality is one subject. The First Amendment right to freedom of speech is another. The SHO then went on to say Johnson had to get a court order to publish impounded information, but as Weisberg admitted, Johnson did not upload impounded documents to her site. See discussion, supra, on this issue.  ABC Weisberg had to prove the elements of Rule 4.4. She did not do so. Moreover, in ¶44 of Bar Counsel’s petition, Weisberg identified three people by pseudonyms but two of the 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.  Johnson never met any of the people with or without pseudonyms and certainly would not have been able to testify as to whether those third persons were harmed in any way by anything Johnson did or did not do.  Further, although all three people were available to testify, all were subject to subpoena, and Weisberg could have called them to testify. On the other hand, a Board member refused to issue on Johnson’s behalf subpoenas for those people. Then the SHO quashed Johnson’s trial subpoenas on the first day of the "Trial."  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 were 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 feared to put on the stand. Thus a finding of No Violation must be substituted for SHO’s finding of Violation. A finding No Violation is mandatory because the SHO may not shift Bar Counsel’s burden onto Johnson.  Mass. Rule of Professional Conduct 8.4(c) – Count II A finding of No Violation of Massachusetts Rule of Professional Conduct 8.4(c) must be substituted for the finding of a Violation of that rule on the grounds that the SHO erred by finding a violation of Rule 8.4(c) where the Bar Counsel failed to prove by a preponderance of the evidence dishonesty, fraud, deceit, misrepresentation.  According to the SHO’s findings in ¶65, the following alleged acts constituted dishonesty, fraud, deceit, misrepresentation:  commingling the Parkers’ retainer payment with her own funds and not holding it in escrow,  failing to refund all her unearned fees to the Parkers,  failing to segregate the disputed portion of their retainer, and  failing to account adequately to the Parkers for her application and disposition of the retainer Given the SHO found that Johnson’s fees were not excessive and that there were no fees to be returned, where is the evidence of dishonesty, fraud, deceit, misrepresentation? There isn’t any. Given that neither Weisberg nor the SHO identified the amount of money was that was not allegedly disputed and segregated, where is the evidence of dishonesty, fraud, deceit, misrepresentation? There isn’t any. Given that Johnson provided the Parkers an accounting immediately, where is the evidence of dishonesty, fraud, deceit, misrepresentation? There isn’t any.  In a real court of law, these charges would be thrown out on the first motion to dismiss.\FN38/ A finding of No Violation of Massachusetts Rule of Professional Conduct 8.4(c) must be substituted for the finding of a Violation of that rule.  FN38 Johnson brought such motions, but former Chair, M. Ellen Carpenter, denied them with one word, "Denied."   Mass. Rule of Professional Conduct 8.4(d) – Count I A finding of No Violation of Massachusetts Rule of Professional Conduct 8.4(d) must be substituted for the finding of a Violation of that rule on the grounds that the SHO erred by finding a violation of Rule 8.4(d) where the Bar Counsel failed to prove by a preponderance of the evidence that Respondent’s conduct was allegedly prejudicial to the administration of justice.  According to the SHO’s findings in ¶¶ 29 and 30 for Count I, the following alleged acts were allegedly prejudicial to the administration of justice:  disseminating impounded material from the C & P and paternity actions, failing to return to the juvenile court impounded reports belonging to the court, as ordered by the court, and failing to remove impounded material from her web site, again as ordered by the court [¶29] 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.    Trial Transcript, Vol. I, pp. 117-118 (emphasis supplied). SHO Phillips appears to have overlooked ABC Weisberg’s admission that Johnson had not uploaded documents from Juvenile Court. With no uploaded documents from Juvenile Court, the SHO’s finding that Respondent "fail[ed] to remove impounded material from her web site" is error, and must also be rejected.  Johnson had no "juvenile court impounded reports belonging to the court" to return or to disseminate.\FN39/  That which has confused this issue throughout these proceedings is that Judge Ronald Harper, a Juvenile Court judge, was assigned to wear two hats, one in Juvenile Court and one in Probate & Family Court. Documents were served on counsel and filed in Probate & Family Court. The investigator’s deposition, for instance, was taken under the Probate & Family Court caption, not that of the Juvenile Court.    FN39 The reports: In the federal case against him, Eli Newberger did not file his report in Juvenile Court, for, as he wrote, he was not appointed by that court and was therefore not a "state actor." That was part of his defense to the federal case [see "Trial" Exhibits 17, 19, 22, 30, Drano ## 5, 12, 17, 21, 32, and others]. Eileen Kern gave her §51A report to DSS. It was not filed in Juvenile Court. It was not uploaded to the web. Sandra Fyfe, too, was not court-appointed. Neither was the entity for which she worked. Johnson has been informed that her report did get filed in court. Fyfe’s report made the rounds to perhaps at least two dozen persons. Notwithstanding the prior publications, Fyfe’s report was not uploaded to the web. John "Jack" McCarthy’s reports are not reports. They are bills sent to Jones for payment of the uninsured portion. If memory serves, one letter was addressed "To Whom It May Concern." None of them was filed in federal court or uploaded to the web. McCarthy saw Jones’s son one time. The other 20 so-called interviews by McCarthy, then a recent widower, were with elegant-looking Jane alone. The child refused to meet with McCarthy. But McCarthy still billed the insurance company for allegedly providing therapy for the child!! Christopher Salt was court-appointed and his two reports appear to have been filed in Juvenile Court. Johnson has no personal knowledge of this since she has never seen the Juvenile Court file. His reports were, however, filled with serious lies. Johnson needed and still might need Salt’s reports if and when Jones’s son decides to sue for interference with his relationship with his father. Com. v. Dabrieo, 370 Mass. 728, 741-742 (1976) (allowed impounded materials to be used in later action). If Johnson is disbarred, she can pass them on to counsel for the son, who needs help badly. Now a young man of 20, he is a high-school dropout, and has had many serious problems while in the "care" and custody of his mother. Those problems were foreseeable, given the statistics of what happens to children who are deprived of their fathers.   Johnson obtained a copy of Salt’s deposition, taken in the P&F case and was not filed in any court. That deposition was a source of the considerable information Johnson obtained. Another source of considerable information was Jane’s divorce file, which was not impounded during the seven years her divorce was active and unresolved.   It was Deborah Wolf, an attorney assigned in the early ‘90s to represent Jones’s son, who "managed" to obtain and file them in Juvenile Court.\FN40/   It must be noted here that Wolf was not assigned to represent the son in P&F Court because he was not a party to that action. She filed them in Juvenile Court so she could add to her time sheets, which she then presented for payment to the Commonwealth.    FN40 Jane, the out-of-wedlock mom in this case, has been the source of Wolf’s alleged information about the son, not the son himself. The son was for all intents and purposes incommunicado for several years. Johnson told Weisberg of Wolf’s assorted tricks: for instance, charging for interviewing the son when, in fact, she did not interview him.\FN41/  If SHO Phillips had not quashed Johnson’s subpoenas, the son would have testified that all these years, he has thought his father was dead. And his mother, faced with abundant documentary evidence of her mendacity, would have been forced to admit she had lied about almost everything since "Day 1." Of course, if SHO Phillips had not quashed Johnson’s subpoenas, evidence of the unnamed Count-I-Co-complainant Wolf’s time sheets and records would have supported Johnson’s position.    FN41 This was not known originally by Johnson. It is acquired knowledge, specifically when ABC Weisberg sent to Johnson the Juvenile Court docket sheet for the Care & Protection action. Johnson never saw that docket sheet and never requested it. When Johnson put 2+2 together, she complained about Wolf to Weisberg, but Weisberg at that time needed Wolf to get Johnson, and so was uninterested in pursuing any action against Wolf. These are only one of the many proofs Johnson could and would have produced to prove unscrupulousness in the court system, of which the public had a right to know and of which Johnson was obligated as an officer of the court to make public, particularly where the courts themselves were uninterested. Certainly neither the OBC nor the BBO staff and/or counsel were interested in the truth. They were only interested in nailing their target, the Respondent.  That Johnson used her website as the medium through which she made some of this information known to the public was justified. This is what the First Amendment is all about. But for the First Amendment, we could all say completely Good-bye to this country as we have in the past known it. As it is, it has changed considerably with the popular male-bashing and the daily destruction of families via parentectomies. Jones’s problems began around the same time these tragedies were being birthed.  disobeying the Juvenile Court’s May 1, 2001 order [¶30]  Where the order was transparently invalid, Johnson could lawfully ignore it. Oakham Sand & Gravel Corp. v. Town of Oakham, 54 Mass.App.Ct. 80, 87, 763 N.E.2d 529, 536 (2002), cert. denied 437 Mass. 1109, 774 N.E.2d 1099 (2002). Vakilis v. Shawmut C., 925 F.2d 34, 37 (1st Cir.1991); Matter of Providence Journal Co. 820 F.2d 1342, 1347 (1st Cir.1986). Quill v. Eresian, 2000 WL 782930 at 2, No. CV9501981 (Mass.Super. April 18, 2000) (Fecteau, J.).  Mass. Rule of Professional Conduct 8.4(d) – Count II A finding of No Violation of Massachusetts Rule of Professional Conduct 8.4(d) must be substituted for the finding of a Violation of that rule on the grounds that the SHO erred by finding a violation of Rule 8.4(d) where the Bar Counsel failed to prove by a preponderance of the evidence that Respondent’s conduct was allegedly prejudicial to the administration of justice.  According to the SHO’s findings in ¶67 for Count II, the following alleged act was allegedly prejudicial to the administration of justice:  requiring the withdrawal of the Parkers’ bar discipline grievance as a condition of removing their confidential information from her web site [¶67] By ordering Respondent to remove the material about the Parkers from her website, Retired Judge William Simon was trying to exercise power that he no longer had while on the bench. He was trying to intimidate Respondent. Unappreciative of him being overbearing, she left a reactive voice message on his answering machine. He never returned her phone call. Instead he reported directly to Weisberg, whom he knew was assigned to Respondent’s case. His act resembled that of a pompous man upset because Respondent was not giving him the obeisance that he wanted but that was no longer required.  Mass. Rule of Professional Conduct 8.4(d) – Count III A finding of No Violation of Massachusetts Rule of Professional Conduct 8.4(d) must be substituted for the finding of a Violation of that rule on the grounds that the SHO erred by finding a violation of Rule 8.4(d) where the Bar Counsel failed to prove by a preponderance of the evidence that Respondent’s conduct was allegedly prejudicial to the administration of justice:  According to the SHO’s findings in ¶91 for Count III, the following alleged acts were allegedly prejudicial to the administration of justice.  knowingly disobeying the district court’s orders of December 13, 1995, after those orders were affirmed on appeal, engaging in contempt of court,    Excerpt from Amended Answer TABLE  32: THE MEMORANDUM & ORDER OF  12/13/95 RE CONTEMPT & DISMISSAL   On December 13th, there still being no clear and unequivocal command out of which contempt could arise, Judge McGill issued a memorandum  [A70] (sent by FAX on the 14th), stating that the Final Judgment was on the case-in-chief (Lily's case), reiterating the sanctions imposed on Lily and Johnson, identifying where he was wrong, and reducing the so-called money damages for which Lily was liable from $3809.25 [A65, ADD-S.A. 1] to $261.25 [A73, see also A78, ADD-S.A. 2, 6]. The court also reduced the amount allegedly owed by Johnson, which was the subject of the severed case.  The December 13th order also announced that a summons for contempt would issue against Johnson [A74].  Although Whitfield Sharp argued that the finding of contempt was a finding of criminal contempt, Judge McGill found it a civil contempt.  Where there was no March 3d order, the first finding of contempt cannot stand.  It has been held that a civil contempt adjudication based on a violation of an unlawful court order cannot stand. Labor,  382 Mass. at 469 n. 5 (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). In the December  memorandum, McGill stated for the first time both that two of Johnson's motions (UNspecified) were without legal or factual basis and in bad faith, and that she did not comply with a discovery order ten months earlier.  [O'Connor's App. Brief, p. 29].  This statement was clearly made by Judge McGill to cover up the wrongful finding of contempt of a non-existent order and wrongful imposition of fines and the wrongful award of fees.  The memorandum also contained several other inaccurate statements of fact. The most egregious one regarded Plaintiff's compliance with discovery. Two other hotly contested issues were raised in the December 13th memorandum, but they were subjects of A.C. 96-P-1277, for they concerned Johnson, not Lily: (1) whether Johnson stated that she did or would refuse to pay [A71], and (2) whether Johnson  admitted to being in contempt [A72]. Regarding discovery compliance: On 13 December 1995, Judge McGill, in his  Memorandum and Order, wrote that Johnson "ignored its discovery order."  That statement is so manifestly and so viciously false that the statement is almost more insulting to the judiciary than to Johnson!  [See A212-214].  Plaintiff did not "ignore" any discovery order. Before any order issued on February 17th, 1995 [A1070], Johnson filed  a pretrial-conference memorandum [Cou.Rec.App. A1044-1056] -- almost two months earlier, on December 28th, 1994,  then, two days before the subject order, a supplemental memo [Cou.Rec.App. A1057-1061],   an opposition to Defendants' proposed pretrial order [Cou.Rec.App. A1062-1063],   a proposed pretrial order [Cou.Rec.App. A1064-1067], and  next, in response to the February 17th pretrial order, objections to the pretrial order on the grounds that it was prejudicial to Plaintiff [Cou.Rec.App. A1073-1076].   Johnson had already complied with it as much as any counsel could have complied with it, given that her client had been given no discovery.   Judge McGill's finding that Johnson failed to show subjective good faith was nothing less than unequivocally capricious and an abuse of judicial discretion in extremis. In contrast to Plaintiff's fastidious compliance with any and all pretrial-conference orders, Defendants wrote NOT a memorandum but two pretrial-conference Orders [A20 @ ##138, 141] and one witness list [A21 @ #150].  Yet the court then, with great bias for the Defendants and overwhelming prejudice against Lily and Johnson, adopted almost in entirety Defendants' Proposed Pretrial Order, requiring that all documents for use at trial be identified within twenty days of the order [A21 @ #145].  This was problematic for Lily: because no documents had been produced to her--other than part of Lily's personnel file--and all efforts to conduct discovery had been precluded for years, Johnson could not identify all the documents she wanted to use at trial. The December 13th memorandum also stated that Johnson failed to give notice that she would not appear at the facility in February.  That, too, was untrue [A1085-95; p. 9 supra].   Excerpt from Amended Answer TABLE 33.  COMMENTS ON THE ORDER OF 13 DECEMBER 1995 Given that no order specified a time by which payment had to be made, contempt could not be found.  "Where a court's order lacks a critical term or contains an error, a finding of civil contempt is inappropriate." Demoulas v. Demoulas Super Mkts., 424 Mass. 501, 566 (1977).  [Sharp's Brief at 19-23]. Where (1) the Motion to Depose Nonparty Witnesses Outside the Presence of Defense Counsel and (2) the Motion to Reconsider to Order of January 4, 1995 regarding Inspection of Documents were not frivolous, the granting of $720 in attorney's fees for opposing the motion was reversible error. [See Exhibits G and H in the Addendum to this brief.] Where Johnson did not have the ability to pay the contempt fines, regardless of whether the fines were properly or improperly imposed, the imposition of $580 in terrorem or daily fines plus an additional $650 in civil penalty on Johnson for allegedly admitting to contempt or for not complying with an order that lacked a critical term such as time by which payment had to be made, was reversible error . . . as was the retaliatory imposition of dismissal of her client's case. Where the orders contained no date by which payment was to be made, the granting of attorney's fees for bringing show cause motions was improper. . [See Exhibits G and H in the Addendum to this brief.] Lastly, Johnson still does not know whether she was found responsible ultimately for paying $558 for O'Connor attendance at two hearings: one of which he caused to be aborted by his leaving (March 1st) and then for the March 3d hearing. refusing to purge her contempt until incarcerated Excerpt from Amended Answer, ¶¶124-125 124.  Respondent denies that the proceeding in Concord District Court went as written in ¶124,  and calls upon Petitioner to prove the same.  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.  Respondent denies the third statement as written in ¶124 and calls upon Petitioner to prove the same.  Notwithstanding the denials, Respondent states that when she began a response to one of Judge McGill's questions with the word "No," Judge McGill ordered the court officer to "lock her up."  Respondent never got to finish the sentence, which was explanatory and not a denial of any order.  Respondent admits that she was " incarcerated until December 18, 1998."  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. [See Exhibits G and H in the Addendum to this brief.] Respondent calls upon Petition to prove the authenticity of Exhibits D and E.   Johnson never saw these before or after being jailed; at least, she has no memory of seeing them.  If she did receive them, she has no memory of the receipt, and if she did, it is likely she did not read them, since very little of what McGill wrote was ever true.  He had only earned the intense disrespect of Respondent. 125.  Respondent denies the statements in both sentences of ¶125 and calls upon Petitioner to prove the same.  Notwithstanding the denial, 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, (3) that she calls upon Petitioner 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, and (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.  Respondent does admit that she 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. Mass. Rule of Professional Conduct 8.4(h) – Count I A finding of No Violation of Massachusetts Rule of Professional Conduct 8.4(h) must be substituted for the finding of a Violation of that rule on the grounds that the SHO erred by finding a violation of Rule 8.4(h) where the Bar Counsel failed to prove by a preponderance of the evidence that Respondent’s conduct was allegedly prejudicial to the administration of justice:  According to the SHO’s findings in ¶¶29 and 30 for Count I, the following alleged acts allegedly reflected adversely on her fitness to practice law:  disseminating impounded material from the C & P and paternity actions, failing to return to the juvenile court impounded reports belonging to the court, as ordered by the court, and failing to remove impounded material from her web site, again as ordered by the court [¶29] disobeying the Juvenile Court’s May 1, 2001 order [¶30]  Respondent’s response to these allegations is the same as that in the section entitled Mass. Rule of Professional Conduct 8.4(d) – Count I.  A finding of No Violation of Massachusetts Rule of Professional Conduct 8.4(h) must be substituted for the finding of a Violation of that rule.  Mass. Rule of Professional Conduct 8.4(h) – Count II A finding of No Violation of Massachusetts Rule of Professional Conduct 8.4(h) must be substituted for the finding of a Violation of that rule on the grounds that the SHO erred by finding a violation of Rule 8.4(h) where the Bar Counsel failed to prove by a preponderance of the evidence that Respondent’s conduct was allegedly prejudicial to the administration of justice:  According to the SHO’s findings in ¶67 for Count II, the following alleged acts allegedly reflected adversely on her fitness to practice law:  requiring the withdrawal of the Parkers’ bar discipline grievance as a condition of removing their confidential information from her web site ["Trial" Exhibit 74] Respondent’s response to this allegation is the same as that in the section entitled Mass. Rule of Professional Conduct 8.4(d) – Count II.  A finding of No Violation of Massachusetts Rule of Professional Conduct 8.4(h) must be substituted for the finding of a Violation of that rule.  Mass. Rule of Professional Conduct 8.4(h) – Count III A finding of No Violation of Massachusetts Rule of Professional Conduct 8.4(h) must be substituted for the finding of a Violation of that rule on the grounds that the SHO erred by finding a violation of Rule 8.4(h) where the Bar Counsel failed to prove by a preponderance of the evidence that Respondent’s conduct was allegedly prejudicial to the administration of justice.  According to the SHO’s findings in ¶91 for Count II, the following alleged acts allegedly reflected adversely on her fitness to practice law:  knowingly disobeying the district court’s orders of December 13, 1995, after those orders were affirmed on appeal, engaging in contempt of court,  Respondent’s response to this allegation is the same as that in the section entitled Mass. Rule of Professional Conduct 8.4(d) – Count III.  A finding of No Violation of Massachusetts Rule of Professional Conduct 8.4(h) must be substituted for the finding of a Violation of that rule.  Canon One, DR 1-102(A)(5) – Count III  A finding of No Violation of DR 1-102(A)(5) of Canon One must be substituted for the finding of a Violation of that rule on the grounds that the SHO erred by finding a violation of Canon One, DR 1-102(A)(5), where the Bar Counsel failed to prove by a preponderance of the evidence that Respondent’s conduct was prejudicial to the administration of justice  According to the SHO’s findings in ¶92 for Count III, the following alleged acts constituted conduct prejudicial to the administration of justice:  filing motions in the Coughlin action without any legal or factual basis and in bad faith See Exhibits G and I in the Addendum to this brief. One of the motions is in Exhibit G. This was modeled after a motion allowed by Chief Magistrate-Judge Robert C. Collings court. See discussion regarding this, supra. The other motion was merely a Motion to Reconsider the Order of January 4th, 1995. The story regarding these motions is included in Exhibits G and particularly I, which is an excerpt of ¶102 from Johnson’s Amended Answer [BBO Paper 47] to the Petition for Discipline. Included in Exhibit I are the tables that are part of that paragraph. exposing Coughlin to dismissal of her claims and personal liability for sanctions and damages through the Respondent’s misconduct This is an absurd accusation. See Exhibit H, which is a table, and Exhibits J, which are the docket sheets in the District Court, and K, which are the Superior Court docket sheets. (The case went back and forth several times from one court to another. Where the case had been sent to District Court from Superior Court, the initial appeal was to the Superior Court, not the Appeals Court.) Johnson paid the $261 because McGill had said and had written that he would put it back on the list [Trial Exhibit ?? for order dated 7 or 8 February 1996. See also footnote 42]\FN42/ . . . but McGill then did not comply with his own order and did not restore the case to the list.\FN43/   FN42 The document list provided in the transcript given to Johnson does not give the dates of the District Court orders. Neither does the transcript. It appears that there had been a lot of renumbering of exhibits and OBC’s Exhibits 55-103 went in as a batch. So the reader must look for the document with the correct date, which Respondent supplies. FN43 At a hearing on 8 February 1996, Judge McGill amended the April 19th final judgment on the merits by reducing the costs imposed on Coughlin from $3809.25 to $261.25. The order was still unclear, however, (a) as to whom the $261.25 should be paid, (b) by when payment was to be made, and (c) as to whether the court would still entertain a motion to restore the case to the active list [Appellate Appendix, p. 77]. Thus, Plaintiff filed a motion for clarification and paid $261.25 to the court in order to restore the case to Concord's active list [AA26 @ #231, AA1276]. The court did not restore Plaintiff's case to the active list but upon Plaintiff's request, did re-retransfer the case to Middlesex [AA26 @ #232].   For more on the events of this time see Part III of Respondent’s Amended Answer – in particular the Tables between ¶¶ 112 and 113. failing to appeal from the contempt judgment against Coughlin  This issue is discussed supra. pursuing a frivolous appeal from the superior court order striking the retransfer request Clearly ABC Weisberg’s accusations are not grounded in reality. And the SHO gives absolutely no basis for declaring one appeal necessary and another frivolous. The Respondent finds it impossible to respond intelligently to such broad statements without any basis in fact. The Respondent implores that the Board read her entire Amended Answer [BBO Paper 47 or online at Drano Series ###90a, 90b, and 90c]. It details the many appeals Johnson filed on behalf of Lily. And if she did not, it details why not.  A finding of No Violation of Canon One, DR 1-102(A)(5), must be substituted for the finding of a Violation of that rule.  Canon One, DR 1-102(A)(6) – Count III  A finding of No Violation of DR 1-102(A)(6) of Canon One must be substituted for the finding of a Violation of that rule on the grounds that the SHO erred by finding a violation of Canon One, DR 1-102(A)(6), where Bar Counsel failed to prove by a preponderance of the evidence that Respondent’s conduct adversely reflected on her fitness to practice law.  According to the SHO’s findings in ¶92 for Count III, the following alleged acts adversely reflected on her fitness to practice"  filing motions in the Coughlin action without any legal or factual basis and in bad faith exposing Coughlin to dismissal of her claims and personal liability for sanctions and damages through the Respondent’s misconduct failing to appeal from the contempt judgment against Coughlin pursuing a frivolous appeal from the superior court order striking the retransfer request See Respondent’s response in the section entitled Canon One, DR 1-102(A)(5) – Count III.  Canon Six, DR 6-101(A)(1), DR 6-101(A)(2), DR 6-101(A)(3) – Count III  A finding of No Violation of DR 6-102(A)(1) of Canon Six must be substituted for the finding of a Violation of that rule on the grounds that the SHO erred by finding a violation of Canon Six, DR 6-101(A)(1), where Bar Counsel failed to prove by a preponderance of the evidence that Respondent knew she (1) was not competent to handle Lily’s case without associating with a competent lawyer, (2) was inadequately prepared, and (3) neglected Lily’s case.  According to the SHO’s findings in ¶92 for Count III, Johnson knew she (1) was not competent to handle Lily’s case without associating with a competent lawyer, (2) was inadequately prepared, and (3) neglected Lily’s case by  filing motions in the Coughlin action without any legal or factual basis and in bad faith exposing Coughlin to dismissal of her claims and personal liability for sanctions and damages through the Respondent’s misconduct failing to appeal from the contempt judgment against Coughlin pursuing a frivolous appeal from the superior court order striking the retransfer request See Respondent’s response in the section entitled Canon One, DR 1-102(A)(5) – Count III.  Further, these three disciplinary rules were not amongst the violations alleged by ABC Weisberg. They were added by Phillips sua sponte. Additionally, Johnson did not know, and still does not believe, that she (1) was not competent to handle Lily’s case without associating with a competent lawyer, (2) was inadequately prepared, and (3) neglected Lily’s case. Johnson believes that SHO Phillips added these three disciplinary rules because Johnson admitted that she had said that Phillips was not the brightest bulb in the chandelier. [Hearing Report, page 36, note 32]. Retribution, we call it!  Certainly, Phillips has pointed to no incompetent pleadings, to anything that supports his claim of inadequate preparation, or to anything that proves that Johnson neglected Lily’s case.  If, however, there is a Board member who is sitting on a fence regarding Johnson’s competency, Johnson beseeches that member to go to Johnson’s website and read her pleadings in the Drano Series.   Johnson believes the best are Drano Series ##135-143. The pleadings in Lily’s case were written so many years ago (between 1992 and 1995) that they never made it to the website, the web not being known as it is today.  Canon One, DR 7-101(A)(3) – Count III  A finding of No Violation of DR 7- 101(A)(3) of Canon Seven must be substituted for the finding of a Violation of that rule on the grounds that the SHO erred by finding a violation of Canon Seven, DR 7- 101(A)(3), where the Bar Counsel failed to prove by a preponderance of the evidence that Respondent intentionally prejudiced or damaged her client.  See Respondent’s response in the section entitled Canon One, DR 1-102(A)(5) – Count III.  Supreme Judicial Court Rule 4:01, §10 – Count II  A finding of No Violation of S.J.C. Rule 4:01, §10, must be substituted for the finding of a Violation of that rule on the grounds that the SHO erred by finding a violation of S.J.C. Rule 4:01, §10, where Bar Counsel failed to prove by a preponderance of the evidence that Respondent’s conduct was allegedly prejudicial to the administration of justice:  According to the SHO’s findings in ¶67 for Count II, the following alleged acts allegedly reflected adversely on her fitness to practice law:  requiring the withdrawal of the Parkers’ bar discipline grievance as a condition of removing their confidential information from her web site Respondent’s response to this allegation is the same as that in the section entitled Mass. Rule of Professional Conduct 8.4(d) – Count II.  A finding of No Violation of S.J.C. Rule 4:01, §10, must be substituted for the finding of a Violation of that rule.  Issue Preclusion "The doctrine of issue preclusion provides that when an issue has been "actually litigated and determined by a valid\FN44/ 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, 530-531 (2002) (emphasis supplied). Given that Bar Counsel is neither Mark C. O’Connor, the Plaintiff-in-Contempt against Johnson, nor HMM Associates, Inc., the defendant in Lily’s case or the mysterious Plaintiff-come-lately-in- Contempt against Johnson, issue preclusion does not apply to this disciplinary action.  FN44 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) in the underlying case merely peppered the aggravating and mitigating circumstances of which Johnson has complained. Neither does the doctrine of claim preclusion apply to the instant action, for Bar Counsel was neither a party nor privy to one of the parties in the district court actions. Id.; City of Salem v. Massachusetts Com'n Against Discrimination, 44 Mass.App.Ct. 627, 638 (1998); Heacock v. Heacock, 402 Mass. 21, 23.  Under Jarosz, issue preclusion can not apply to the instant action for another reason, to wit, the doctrine of issue preclusion’s "requirement that the issue decided be ‘essential to the judgment’ requires that the issue be essential to the merits of the underlying case." Id., at 529, 532. The underlying case was Lily’s case. The bifurcated contempt case against Johnson had not arisen before she was allegedly found in contempt. Lily’s case was a whistleblower case. At no time whatsoever were the merits of her case ever considered.  Under Jarosz, issue preclusion can not apply to the instant action because there was never any actual litigation in the district court. Although Johnson’s liberty was at stake, she was given no trial – bench or jury – or any evidentiary hearing, even one of limited scope. That is undisputed. Under Jarosz, the meaning of "actually litigated" means that issue was "‘subject to an adversary presentation. . . .’" Jarosz, at 531. There was no adversary presentation allowed.  Under Treglia v. MacDonald, 430 Mass. 237, 241 (1999), cited in Jarosz, at 531, the Court held that "preclusive effect should not be given to issues or claims that were not actually litigated in [the] prior action."  Under Jarosz, "the term ‘judgment’ refers to a final determination on the merits of the proceeding. For a ruling to have preclusive effect, it must have a bearing on the outcome of the case." Jarosz , at 533. Also requiring the outcome to have been necessary to the decision of the case was the court in Coastal Oil New England, Inc. v. Citizens Fuels Corp., 55 Mass.App.Ct. 69, 70 (2002), cert. denied 437 Mass. 1106 (2002). In the underlying case, here, the outcome of Johnson’s so-called contempts had no bearing on the outcome of Lily’s case.\FN45/ FN45 Lily’s case was to be put back on the list were the $261.25 to be paid. It was paid, but the judge violated several of his own orders by not restoring Lily’s case to the list. Under Jarosz, "‘[i]f issues are determined but the judgment is not dependent upon the determinations, relitigation of those issues in a subsequent action between the parties is not precluded.’" Jarosz , at 533, quoting Restatement (Second) of Judgments § 27 comment h (1982). Under Jarosz, a determination is considered "final" when three elements are met: (1) "the parties were fully heard," (2) "the judge's decision is supported by a reasoned opinion, and" (3) "the earlier opinion was subject to review or was in fact reviewed." Jarosz , at 533-534. quoting Tausevich v. Board of Appeals of Stoughton, 402 Mass. 146, 149 (1988).  In this case, the second element was not met, for each and every one of McGill’s decisions nine-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 figures appeared to be out of the air. See under ¶101 of the Amended Answer, Table C, which is an attempt to parse McGill’s orders. Thus, under Jarosz, there was no final order, regardless of the outcomes of the appeals.  Collateral Estoppel: "Collateral estoppel is ‘known as issue preclusion. . . .’" Smola by Smola v. Higgins, 42 Mass.App.Ct. 724, 727 (1997), quoting Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 742 (1985) (collateral estoppel is available to a civil plaintiff where there has been a preceding criminal proceeding and without regard to the absence of mutuality of estoppel). In the instant case. Johnson was not a party to a criminal proceeding.  "Offensive collateral estoppel ‘occurs when a plaintiff seeks to prevent a defendant from litigating issues which the defendant has previously litigated unsuccessfully in an action against another party.’" Id. at 725 n. 3, quoting from Whitehall Co. v. Barletta, 404 Mass. 497, 501 n. 9 (1989). The cases addressing whether collateral estoppel can be used offensively are going in two directions. (Martin v. Ring, cited by Weisberg, deals with defensivecollateral estoppel.)  One trend is that advocated by Bar Counsel, using his case, Bar Counsel v. Board of Bar Overseers, 420 Mass. 6, 9 (1995)\FN46/,\FN47/ for the proposition that its use offensively is "generally accepted." However, "[b]efore the doctrine of collateral estoppel can be used offensively, the fact finder should be afforded wide discretion in determining whether to do so would be fair to the defendant." Id. at 11. "Fairness is the decisive consideration" in the use of offensive collateral estoppel. Smola, supra, at 727, quoting Aetna Cas. & Sur. Co., supra at 745.  FN46 "[T]he offensive use of collateral estoppel is appropriate in bar disciplinary proceedings." Bar Counsel at 10-11. This is contrary to Albernaz v. Fall River, 346 Mass. 336, 339-340 (1963), which held that persons who are neither parties nor their privies were precluded from asserting collateral estoppel "offensively." Whitehall, 404 Mass. at 501. FN47 The instant case is distinguishable from Bar Counsel v. Board of Bar Overseers, 420 Mass 6, 9-10 (1995). There the attorney (Voros) being disciplined had had a bench trial. There was evidence proving what Attorney Voros had done. In Johnson’s, there was no bench trial. And there was evidence of nonpayment of a non-existent  order and then, of the nonpayment of unlawful ones, which cannot stand. Labor, 382 Mass. 465, 469 n.5.(1981), and its progeny. The second trend is "in the favor of adopting the position of the second Restatement." York Ford, Inc. v. Building Inspector and Zoning Adm'r of Saugus, 38 Mass.App.Ct. 938, 941 (1995):  The trend appears in favor of adopting the position of the second Restatement. See, e.g., Halpern v. Schwartz, 426 F.2d at 105-106; American Tel. & Tel. v. FCC, 602 F.2d 401, 409 n. 48 (D.C.Cir.1979); Hicks v. Quaker Oats Co., 662 F.2d at 1173 (holding that the second Restatement rule is "especially appropriate in the case of offensive collateral estoppel, where the problems of assuring a rigorous determination of all grounds of decision are magnified"); C.B. Marchant Co. v. Eastern Foods, Inc., 756 F.2d 317, 319 (4th Cir.1985); A.J. Taft Coal Co. v. Connors, 829 F.2d 1577, 1581 (11th Cir.1987) (encouraging appeals on minor issues would frustrate goal of reducing litigation); Turney v. O'Toole, 898 F.2d 1470, 1472 n. 1 (10th Cir.1990); Arab African Intl. Bank v. Epstein, 958 F.2d 532, 535, 537 (3d Cir.1992) (applying New Jersey law); Baker Elec. Co-op v. Chaske, 28 F.3d 1466, 1476 (8th Cir.1994) (applying North Dakota law); Rannels v. Hargrove, 731 F.Supp. 1214, 1218 (E.D.Pa 1990); Vanover v. Kansas City Life Ins., 438 N.W.2d 524, 526 (N.D.1989); Manlove v. Sullivan, 108 N.M. 471, 476, 775 P.2d 237 (1989). York, 38 Mass.App.Ct. at 941-942 (emphasis supplied).  "The Massachusetts rule is that "absent mutuality of estoppel and technical privity, [the court] would rarely allow collateral estoppel to be applied to a prior judgment offensively. . . ."  Smola, supra, at 727, quoting Whitehall, 404 Mass. at 502. However, "[t]he general rule should be that in cases where . . . the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel." Id. (emphasis supplied). "Included in the judge's consideration, therefore, should be whether [the defendant] had a full and fair opportunity to litigate and whether equitable considerations otherwise warrant precluding relitigation." Whitehall, 404 Mass. at 502-503, citing Allen v. McCurry, 449 U.S. 90, 94-95, 101 S.Ct. 411, 414-415 (1980) and Restatement (Second) of Judgments § 29 (1982). Matter of Cohen, 435 Mass. 7, 15-16 (2001) ("A defendant must also have a ‘full and fair opportunity to litigate the issue in the first action.’"), also citing Restatement (Second) of Judgments § 29 (1982); Fireside Motors, Inc. v. Nissan Motor Corp. in U.S.A., 395 Mass. 366, 373 (1985); and Fidler v. E.M. Parker Co., 394 Mass. 534, 541 (1985).  One exception to the general rule of issue preclusion provided in § 28 of the Restatement is particularly relevant to the instant action: "[R]elitigation of the issue in a subsequent action between the parties is not precluded [when] [t]here is a clear and convincing need for a new determination of the issue ... (b) because it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action, or (c) because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action." York, 38 Mass.App.Ct. at 942 n. 10 (emphasis supplied).  The Unforeseeable: 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. They did it 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. For convenience of the reader, Respondent includes the pictorial analysis of the metamorphosis of Motion #157 as Exhibit O attached to this pleading.  Johnson discovered the alteration when she was answering Bar Counsel’s petition and building the "Interwoven Petition/Answer" for her website, falseallegations.com, and had to scan the trouble-making Motion #157 into her computer. She always knew what was happening was bizarre, but never knew the Why. She never realized why the appellate courts took no action to correct the wrong. And there it was . . . evidence of the alteration magnified electronically to a humungous size by the scanner – as that machine does to all documents scanned in (Johnson has no idea why). The misconduct was far worse than Johnson’s imagination could have dreamt. See pp. 134-135, Amended Answer [BBO Paper 47]. Of significance here is that "[i]t has been held that 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) (emphasis supplied), and its progeny.  Disparate Burdens Additionally, it should also be determined whether disparate burdens of proof existed in the two proceedings. Compare Pollock v. Marshall, 391 Mass. 543, 555 (1984) (in civil proceeding, attorney must show transaction fair and equitable) with Rule 3.28 of the Rules of the Board of Bar Overseers (1995) (bar counsel has burden of proof in disciplinary proceedings). See also Restatement (Second) of Judgments § 28(4) (1982) (no preclusion where "the burden has shifted to [the] adversary of the person" against whom preclusion is sought). Bar Counsel, 420 Mass at 12 [emphasis supplied]. So if Bar Counsel were to shift the burden onto Johnson, preclusion would not be available.  Here, Bar Counsel wanted to submit the divers judicial decisions, from lower court through the appellate courts, as prima facie evidence of Johnson’s alleged misconduct, even though Bar Counsel knew that "[the findings were] not evidence but merely constitute[d] the substance of the conclusions made by the judge from the evidence and are the foundation on which the decree rests.’" Bar Counsel, 420 Mass at 10 (admitting most of the court record, but the court would not admit the portion of the record containing the judge's findings because they were merely the judge’s conclusions, not evidence), quoting Matter of Santosuosso, 318 Mass. 489, 495 (1945).  "Prima facie evidence . . . casts the burden of production upon the opponent. In the absence of contradictory evidence, prima facie evidence compels a finding in accordance therewith in civil cases.... [P]rima facie evidence does not 'disappear' upon being rebutted, but rather remains as evidence sufficient to get the case to the jury." Smola by Smola v. Higgins, 42 Mass.App.Ct. 724, 728 (1997), quoting Liacos, Massachusetts Evidence § 5.8.5, at 236-237 (6th ed.) (citations omitted).  Here, even were the Order of Judge McGill to be deemed prima facie evidence, the introduction of rebuttal evidence would still be permitted. This reasoning is consistent with that of the doctrine of shifting burdens. Where there are disparate burdens of proof in the two proceedings, there is no preclusion. Bar Counsel, 420 Mass. at 12. By wanting to rely on prima facie evidence, Bar Counsel has overlooked still another Board Rule – in this case, Board Rule 3.28, which reads:  Board Rule 3.28   In proceeding upon a petition for discipline Bar Counsel shall have the burden of proof by a preponderance of the evidence, shall initiate the presentation of evidence, and may present rebuttal evidence. The respondent shall have the burden of proof by a preponderance of the evidence on affirmative defenses and matters in mitigation [Amended effective September 15, 1997] (Second sentence added). It is almost a brazen desire, where Bar Counsel is or should be well-familiar with his own case, which states that there is no preclusion where "the burden has shifted to [the] adversary of the person" against whom preclusion is sought. That is, the burden has shifted to the adversary of Johnson against whom preclusion is sought. That adversary is the Bar. Bar Counsel, 420 Mass. at 12, quoting Restatement (Second) of Judgments § 28(4) (1982).  In the lower-court case, the burden was on the prosecution, on O’Connor and adopted by McGill. In the instant case, the burden is on the Bar, but shifts to the Respondent for affirmative defenses and matters in mitigation. Board Rule 3.28. When that burden shifts, there is no preclusion. Smola, 42 Mass.App.Ct. at 428; Bar Counsel, 420 Mass. at 12.  Bar Counsel’s Burden In court, Johnson never had a bench trial and the only evidence is that Johnson had not paid any money to the Court or to O’Connor prior to being jailed.  Bar Counsel must overcome several serious obstacles in order to prove that the original so-called order existed, that the contempt judgments were clear and unequivocal, contained all the critical elements, and were final and valid.   To do this, Bar Counsel must use an obviously altered alleged order of which Johnson was found in contempt. There are only two known witnesses to the material alteration: McGill and O’Connor.  O’Connor:  He is impeachable. There is an abundance of proof in and on O’Connor’s pleadings that he violated every rule of civil procedure applicable to the district court, there is an abundance of proof in the court docket sheets of O’Connor’s violations, there are his pleadings in the other courts (superior and appellate courts), there are transcripts of what he said in each and every hearing throughout the Spring of 1995. He is dishonest. "Common honesty is essential for every lawyer. The want of it constitutes ground for disbarment." In re Ulmer, 268 Mass. 373, 402 (1929).  Let’s not overlook that a "deliberate ex parte communication with the judge in an attempt to influence the ruling on a pending motion" is also grounds for disbarment. In re Bailey, 439 Mass. 134, 151 (2003). Here, we have the revelation by ABS Weisberg of the judge contacting O’Connor, rather than vice versa. What was O’Connor’s obligation when the judge contacted him ex parte? Cf. In the Matter of John A. Markey, 427 Mass. 797 (1998) (judge violated the Code of Judicial Conduct by permitting a private communication designed to influence her judicial action, and by permitting that communication to influence her judicial action).  And the judge: Were Johnson allowed to depose or examine him at "trial," he would prove to be impeachable as well. His own memoranda are like treasure chests of so-called mistakes and errors, unsupportable conclusions. His testimony is relevant.  Such facts are relevant.  "As a general proposition, a judge does not have discretion to exclude relevant evidence." Com. v. Pare, 43 Mass.App.Ct. 566, 572-573 (1997), quoting Com. v. Martin, 392 Mass. 161, 163 (1984).  Bar Counsel cannot prove that there was a clear and unequivocal order that Johnson disobeyed, despite Weisberg’s efforts at trying to warp or distort or ignore the facts.  No higher court ever saw the two motions that are only assumed to have been those which were said by the district court judge to be frivolous.  In fact, Judge McGill never identified the motions that he alleged were frivolous. And neither has Bar Counsel. . Such facts, too, are relevant. "As a general proposition, a judge does not have discretion to exclude relevant evidence." Com. v. Pare, 43 Mass.App.Ct. at 572-573, quoting Com. v. Martin, 392 Mass. at 163.  Our analysis rests on two basic considerations. The first is the breadth of the idea of relevance in our law. Evidence is generally relevant so long as it has "a 'rational tendency to prove an issue in the case,' " or makes a "desired inference more probable than it would be without" the evidence. [Internal cites omitted.] The desired evidence "need not establish directly the proposition sought; it must only provide a link in the chain of proof." [Internal cites omitted.]  Indeed, evidence is to be considered relevant if it only "throw[s] light," . . . or "shed[s] light on an issue," . . . or, "in connection with other evidence, it helps [the fact-finder] a little." . . . It is relevant if it "could have been helpful" for a jury in determining whether a complainant was telling the truth. . . . So long as evidence possesses any of these probative tendencies, even if it "is of marginal significance, we cannot say that it [is] irrelevant." Cohen v. Liberty Mutual Ins. Co., 41 Mass.App.Ct. 748, 752 (1996).  Com. v. Pare, 43 Mass.App.Ct. at 572-573.  Without those motions, Bar Counsel is missing necessary, material evidence. Analogous would be a store detective arresting someone for shoplifting without being able to say what the person shoplifted. Johnson has only speculated that it was those two motions by a process of elimination, but she cannot be sure. The court never said.  So how can any order compelling her to pay sanctions for frivolous motions when the motions have not been identified?   "Before the doctrine of collateral estoppel can be used offensively, the fact finder should be afforded wide discretion in determining whether to do so would be fair to the defendant." Bar Counsel, 420 Mass at 11, citing Whitehall, 404 Mass. at 502.  O’Connor said each and every one of Johnson’s motions were frivolous. The numbers he sought for fees and the like never added up and often were dissimilar from those the judge used. Sometimes the judge used numbers that appeared nowhere, not in O’Connor’s pleadings, including his affidavits, or were not calculable from the numbers that did appear in O’Connor’s pleadings. Clearly this is not sufficient evidence to establish "fairness."  Impoundability\FN48/ FN48 Respondent contends that M.G.L. 209C, §13, as amended, effective 31 March 1998, has both retroactive and prospective effect. [See Exhibit L in the Addendum to this document]. The effect of Johnson’s position is to cement her position that the documents in Trial Exhibit 46 are not impounded documents, i.e., that the documents from Probate & Family Court are, for the reasons cited in Exhibit L, not impounded documents. Johnson has no problem with Bar Counsel following a court order. However, once one of those documents found its way into evidence at trial, it metamorphosized into a public document. Petrell v. Rakoczy, 2001 WL 1631575 *5, No. 01-2849-F (Mass.Super. Dec.19, 2001) (Gants, J.). Judge Gants’ explanation is exquisite. It follows:  In contrast, 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. See generally Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 546 (1977); The Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 603-611 (2000). When that access is denied despite the "rigorous presumption of openness," The Boston Herald, Inc. at 608, any member of the general public or the press may seek relief from the court to obtain access to these filed documents. See generally, Uniform Rules on Impoundment Procedure, Rule 10 (allowing "any interested third person" to move to modify or terminate an order of impoundment).  Documents filed with the court are treated differently from documents obtained through discovery because " '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." The Boston Herald, Inc. at 606, quoting Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 502 (1st Cir.1989).  In other words, the law gives the public a presumptive right of access to all documents filed with the court because the right to a public trial is one of the means devised to ensure the right to a fair trial, and the public often needs access to the court papers to determine whether a trial has been conducted fairly. There is no similar presumptive right of access to documents obtained through discovery but never filed with the court, because the former documents are not needed to obtain a full understanding of the judicial proceeding. Petrell, 2001 WL 1631575 *2.  Later, a court will have to consider whether impounding records that might show that a child is illegitimate is or is not good cause for impoundment, for illegitimacy or "nonmarital birth" is no longer a stigma in society or in our law justice. "Ours is an era in which logic and compassion have impelled the law toward unburdening children from the stigma and the disadvantages heretofore attendant upon the status of illegitimacy." C.C. v. A.B., 406 Mass. 679, 685 (1990), quoting Powers v. Wilkinson, 399 Mass. 650, 659-660 (1987),  Later, a court will have to consider whether impounding records that might show that Jane Doe was an unmarried mother is or is not good cause for impoundment, for "‘[i]t seems beyond dispute that the statutes defining or punishing [these] crimes [namely, of fornication, adultery, and lewd and lascivious cohabitation] ... have fallen into a very comprehensive desuetude.’" Powers, at 658, quoting Fort v. Fort, 12 Mass.App.Ct. 411, 417 (1981).  In sum, the admissibility [and/or] impoundability of evidence should be determined at time of trial according to the established rules of evidence and rules of impoundment, not in a nilly-willy manner for baseless vague, broad, unspecific reasons such as those set forth by Bar Counsel. The OBC/BBO can argue that it needs not follow those rules, but in so doing, it certainly diminishes the Bar Counsel’s credibility, value, reputation, and respect. With any luck, our society will, at least, slowly creep into an Age of Accountability.  In such an age, non-facts will not constitute evidence anywhere, including the BBO.

Respectfully submitted, 13 June 2005                              Barbara C. 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 13 June 2005, I caused to be served in hand FIVE true and accurate copies of the within pleading for filing with the Board of Bar Overseers and ONE copy to Herbert P. Phillips, Esq., c/o the Board of Bar Overseers, 99 High Street, Boston, MA 02110-2320, and and ONE copy to Assistant Bar Counsel Susan Strauss Weisberg, at the Office of Bar Counsel, at the same address..  13 June 2005                                Barbara C. Johnson                                                      Barbara C. Johnson, Esq.