Barb's Opposition to the Recommendation of the Board of Bar Overseers for Disbarment

#154, Drano Series

Barb's Opposition to the Recommendation of the

Board of Bar Overseers ["BBO"]
for Disbarment*
*html-ing this very lengthy document (197 pages in the original) has been beyond me.
The size of the font kept changing.
I have no clue why.
Just keep reading. Ignore the small changes in size.

There are three documents included in this file.

Because my Opposition to the BBO's Reommendation for Disbarment is several hundred pages long, I was not sure Judge Spina of the Massachusetts Supreme Judicial Court ["the SJC"] would take the time to read it.

Why bother, given that it has been very clear that disbarment was predetermined during my run for Governor on a platform of court reform and the abolishment of judicial immunity?

The so-called investigatory arm of the BBO is the Office of Bar Counsel ["OBC"].   Because there was no legally valid reason to "discipline" me, the OBC had to build a case.
They never could do so, which is why there was a so-called trial WITHOUT witnesses and even WITHOUT me!
I left the sham trial when the hearing officer threw the public out.

There is no one of any power at the OBC or the BBO who is anything but a political hack, including the rotating Board of Directors, so I was convinced over time there was nothing I could do to change the inevitable tide.

Optimistically, I did hold out hope that once the case got to the Mass. SJC,
real judges would see there was no case.
When it was, however, assigned to Judge Spina, hope faded quickly. I had not been impressed over the years by either his integrity or his commitment to seeing that justice was done.

So I prepared a CAPSULE SUMMARY as bait. Maybe, maybe, he would take an interest in the legal arguments, and then want to look also at the facts.

I have included the CAPSULE SUMMARY at the top of the file for the reader who does not have the time to read the entire opposition.

For Spina, for the same reason, I prepared a very, very unusual TABLE OF CONTENTS.
It is unusual, since the outline was written according to the structure of he BBO memorandum.
And the BBO took the buckshot approach. Throw lots of detritus and hope that some will stick.

Not wanting to overlook any of the buckshot, I adopted a POINT/COUNTERPOINT structure.
As a result, the opposition itself is absolutely UNlike any traditional opposition.

It's "all over the place" . . . just like buckshot!

People have written me, "What can I do to help you?"
It is unlikely anything will help the inevitable, however, anything is worth trying. The "anything" might be letters to the Court:

Supreme Judicial Court
John Adams Courthouse
One Pemberton Square
Boston , MA 02108

Supreme Judicial Court
Justices
(click on names and see photos and profiles)

Chief Justice Margaret H. Marshall

Justice John M. Greaney

Justice Roderick L. Ireland

Justice Francis X. Spina

Justice Judith A. Cowin

Justice Martha B. Sosman

Justice Robert J. Cordy

COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss.                                              Supreme Judicial Court for Suffolk County
   Single-Justice Session No. BD-2006-039

IN RE BARBARA C. JOHNSON

~~~~~~~~~~~

JOHNSON’S CAPSULE SUMMARY OF HER OPPOSITION TO BBO’S
INFORMATION
AND MOTION TO REPORT TO FULL PANEL ISSUES OF FIRST IMPRESSION

Now comes Barbara C. Johnson, Esq., [“Johnson”] to submit this capsule summary of her opposition to the BBO’s Information and to move that the issues of first impression be reported to the full panel.

Count I: Count I arises solely out of Johnson’s website, http://www.falseallegations.com, where Johnson published pleadings she had filed in U.S. District Court in Boston and in Bristol County Probate & Family Court, as well as copies of portions of pleadings and affidavits filed by the complainant in her divorce action from a man she wed after her relationship ended with Johnson’s client, with whom she had a child.

The complainant was running for elective office in Fairhaven, MA, and on the day she lost her bid for election, she filed a complaint against Johnson with the BBO. She believed she lost the election because of the documents published on Johnson’s website.

The OBC asserted that Johnson

·       disseminated material impounded by Juvenile Court

Johnson’s Counterpoint: This is untrue and there was no evidence to present at trial to prove that the OBC and the BBO’s assertion is true.

·       deliberately disobeyed a Juvenile Court order

Johnson’s Counterpoint: Given that Johnson was never in the Juvenile Court, the Juvenile Court never had jurisdiction over Johnson, and Johnson had never obtained anything from Juvenile Court, there was nothing to return. The so-called Order was transparently invalid and could be ignored. There is no evidence to prove the assertion is true.

·        disseminated embarrassing or burdensome information about William, David and Jane on her website

Johnson’s Counterpoint: These people never appeared as witnesses to say they were embarrassed or burdened. “Jane” was the complainant. “William” was the husband she was divorcing for 7 years, and “David” was their son, who could not stand his mother, Jane, and eventually went to live with his dad in Rhode Island. William and David never made either a written or oral peep to or at the BBO or the OBC, nor to or at Johnson. Only Jane did, when she lost her election. Jane had bought sexual abuse charges against Johnson’s client as well as against William. It was her modus operandi to control and get money from these men.

Where Jane is a public person, the OBC had to prove that there was malice. There was no evidence to show malice.

Where the OBC called no witnesses to the hearing/”trial” of the case against Johnson at the BBO, there is no testimonial evidence that Jane or anyone else was embarrassed or burdened and certainly no documentary evidence of Jane or anyone else being embarrassed or burdened.

            There is no evidence that there was a Complaint against Johnson in Juvenile Court, there is no evidence that Johnson was served with a Complaint filed in Juvenile Court, there is no evidence of which documents Johnson was alleged to have had, there is no evidence of which documents Johnson was ordered to return. It was quite easy both to say Johnson published X and to put into evidence Y files, but the failure to identify X in the Y files precludes finding a violation of any kind. Clearly, this is what the OBC did, what the BBO approved, and what Johnson says deprived her of her rights to due process and equal protection.\[1]/

Issue of First Impression: Where the 1998 amendment to §13 of G.L. c. 209C is administrative or remedial, the amendment has retroactive as well as prospective effect, and Linnehan, Johnson, and the public were entitled to access to the entire file of Linnehan’s chapter 209C custody and paternity action. See Impounded Vol. VII, Tab 177, and Vol. II, Tab 53.
             The above issue arose in early December 2002 out of the OBC’s Motion for Release of Impounded or Segregated Records, filed in Bristol County Probate & Family Court, in a closed case James Linnehan v. Robyn L. (Gerry) Sylvia, Docket No. 88W0113-P1. See pages 82 et seq., in Johnson’s Opposition to Recommendation in Information. See also Impounded Vol. VII, Tab 177, and Vol. II, Tab 53.

Issue of First Impression: Where M.G.L. c. 233, §8, is a statute and the BBO Rules are simply rules, §8 trumps the BBO rule regarding subpoenas, making Johnson’s subpoenas valid and the quashing of them unlawful..

Count II: Count II arose out of a de minimus fee dispute. The hearing officer found that Johnson did not charge an excessive fee and did not owe her former clients a refund of an unearned fee. Johnson never met the complainant—one woman—face-to-face, never represented her or her husband in a court, and never signed an attorney-client fee agreement because the woman and her husband could not decide the scope of the services that they wanted from Johnson. Notwithstanding all of the afore-mentioned facts, the OBC and BBO continue to assert that Johnson

·        commingled the retainer payment with her own funds, failed to segregate the disputed portion of their retainer, and failed to account adequately tor her application and disposition of the retainer

Johnson’s Counterpoint: Given that Johnson owed nothing to the “Parkers,” what was commingled? Nothing. The money Johnson deposited into her account was her earned money. There was never any identification of a dollar amount that was a “disputed portion of their retainer.” There was no complaint of a failure to account. Those charges were arbitrary and capricious inventions by the OBC, which is what provoked Johnson to upload the bill to the “Parkers” to her website for the world to see that the OBC charge was baseless, i.e., totally false.

·        revealing confidential information gained in the course of her professional relationship with the Parkers without their consent

Johnson’s Counterpoint: The “Parkers” wrote that they were looking forward to seeing their story on Johnson’s “wonderful educational website.” It was reasonable for Johnson to interpret that written statement as consent to publish. The Parkers never testified at the so-called trial of Johnson at the BBO. The Parkers never personally complained about a violation of their confidentiality.

·        demanding the withdrawal of the Parkers’ bar discipline grievance as a condition of removing their confidential information from her website

Johnson’s Counterpoint: Given that the Parkers never testified, the only evidence of this is hearsay evidence and a spin of an alleged message left on an answering machine of someone representing that he was their attorney, but no proof of that relationship was in evidence.

Issue of First Impression: Whether the BBO has jurisdiction of de minimus fee dispute cases, and if so, may they selectively enforce some de minimus fee dispute cases and not others.\[2]/

Issue of First Impression: Where M.G.L. c. 233, §8, is a statute and the BBO Rules are simply rules, §8 trumps the Board rule regarding subpoenas, making Johnson’s subpoenas valid and the quashing of them unlawful..

Count III: Count III arose out of a whistleblower case remanded from a superior court to a district court in the early ‘90s. In 1995, Johnson was found in contempt of a non-existent order. For almost one year after that finding, the court kept on changing its decisions and orders, none of which was ever clear and unequivocal. None gave a total of what was to be paid, to whom payment was to be made, or by when payment was to be made. They also included in terrorem fines. The orders were transparently invalid. Johnson was jailed; one of her sons paid ransom to get her out of jail. Johnson had no knowledge of the ransom amount. How the sum was arrived at is unknown to Johnson.

After the OBC brought the Petition for Discipline, the Assistant Bar Counsel prosecuting the case produced an Order alleged to be the Order of which Johnson was found in contempt originally.   It was fabricated. It may be seen, Johnson has been led to believe, in Vol. V, Tab 83.\[3]/   The “blow-ups” of the fabricated order may be seen in Johnson’s Amended Answer at pages 142-145 [Vol. I, Tab 46] and in color on her website at Drano Series #90C: http://www.falseallegations.-com/drano90-part-iii-answer-bbo-count-three-lily.htm.

Despite having seen the fabrication, created either by Attorney Mark C. O’Connor [“O’Connor”] or the district court judge himself, the OBC and now the BBO assert that Johnson

·       knowingly disobeyed the district court's orders of December 13, 1995 after those orders were affirmed on appeal, engaging in contempt of court, and refusing to purge her contempt absent the compulsion of incarceration

            Johnson’s Counterpoint: On 13 December 1995, a Decision and Memorandum issued, but it did not contain the final order as to Johnson. The underlying case was bifurcated. The contempt against the client issued on that date and the amount was lowered from well over $3000 to $261.45, which Johnson paid on the client’s behalf because the judge said he would restore the case to the list. BUT the judge did not restore the client’s case to the list despite the money having been paid and despite his promise. It was not until 17 January 1996 that Johnson was found in contempt of not paying sanctions for frivolous motions. Her motions had been filed 11 months earlier, in February 1995. Johnson contends that the one-year delay in concluding Johnson’s motions were frivolous was due to the judge’s inability to produce the non-existent order and his need to find a basis for having found Johnson in contempt almost a year earlier.

·       filed motions without any legal or factual basis and in bad faith, exposing her client 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 her client, and pursuing a frivolous appeal from the superior court order striking the retransfer request

Johnson’s Counterpoint: This is all untrue. See Johnson’s Amended Answer for Count III [Vol. I, Tab 46]., where the appeals taken are identified. The motions that the court found frivolous are incorporated into that Answer. They were motions similar to those allowed in two other cases in U.S. District Court. Why would a judge decide in December of 1995 that motions he endorsed “Denied” in February 1995 were suddenly frivolous? Because he needed an excuse for having found Johnson in contempt. The original motion never existed. AND it had not yet have been fabricated!!

Further, O’Connor was found in contempt, but the OBC/BBO did not even attempt to discipline him. See O'Connor v. O'Connor, 61 Mass.App.Ct. 1109 (2004).\[4]/\[5]/ And the BBO hearing officer quashed the subpoena Johnson served on O’Connor, and when O’Connor arrived at the so-called trial, he was immediately excused.

Issue of First Impression: Where M.G.L. c. 233, §8, is a statute and the BBO Rules are simply rules, §8 trumps the Board rule regarding subpoenas, making Johnson’s subpoenas valid and the quashing of them unlawful..

Issue of First Impression: Where there is a clear and convincing need for a new determination of the contempt issue (a) because it was not sufficiently foreseeable at the time of the district court action that the issue would arise in the context of a disciplinary action, or (b) because respondent, as a result of the conduct of her adversary or other special circumstances, did not have an adequate opportunity to obtain a full and fair adjudication in the initial action, or (c) because the application of offensive estoppel would be unfair to the respondent, or (d) because a civil contempt adjudication based on a violation of an unlawful court order cannot stand, relitigation of the contempt issue at the BBO is not precluded.

            WHEREFORE, the BBO recommendation must be rejected and the issues of first impression be reported to the full panel.

                                                           Respectfully submitted
                                                /s/ barbaracjohnson@worldnet.att.net
<>17 July 2006                    Barbara C. Johnson, Esq., Pro Se
                                               6 Appletree Lane
                                                            Andover, MA 01810-4102
                                                          978-474-0833


CERTIFICATE OF SERVICE

I, Barbara C. Johnson, hereby certify that on 17 July 2006 I emailed a true and accurate copy of the within pleading to the BBO and opposing OBC counsel, 75 Federal St., Boston, MA 02110 and shall deliver it in hand on 18 July 2006.

                                                                                          /s/ barbaracjohnson@worldnet.att.net

17 July 2006                                                                   Barbara C. Johnson

[1]       The court may “eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets” [Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989) (internal quotations omitted)] and “periphrastic circumlocutions, unsubstantiated Conclusions, and outright vituperation.” United States v. Avx Corp., 962 F.2d 108, 1992.C01.40600 at ¶37 <http://www.versuslaw.com> (1st Cir. 1992) A plaintiff, including such plaintiffs as the OBC and the BBO “cannot rely merely on allegations set forth in his pleadings or on bald assertions that facts are disputed.” Young v. Boston University, 64 Mass.App.Ct. 586, (2005), citing LaLonde v. Eissner, 405 Mass. 207, 209 (1989), citing Community Natl. Bank v. Dawes, 369 Mass. 550, 554 (1976).

[2]     Assistant Bar Counsel Christa Arcos wrote to a member of the public, “fee disputes are not generally within the jurisdiction of this office” [Not included in BBO Appendix, but included as Exh. D (BBO letter) attached to Verified Complaint, Johnson v. BBO et al, November 2003, filed in both the SJC (summarily dismissed, Spina, J.) and in U.S. District Court and entered into the docket as No. 03-CV-12314-WGY].

[3]    That location is according to the list supplied Johnson by the BBO (Johnson has been unable to see it, for the BBO has refused to provide Johnson with a set of the 12-volume Appendix).

[4]        At the end of the deposition of one of Johnson’s clients [“Carla”] in the office of O’Connor, Carla collapsed and was taken to New England Medical Center in an ambulance. O’Connor had been so vicious, Carla had suffered an anxiety attack. When her husband learned of the nature of O’Connor’s threats, he worried all weekend and suffered a heart attack on Monday. He was DOA at Lahey Clinic, leaving Carla a widow with three elementary-school-aged children.   Just a week prior to Carla’s collapse, Johnson had filed a complaint at the BBO regarding O’Connor’s despicable behavior. The OBC and BBO did nothing but immediately dismiss the complaint against O’Connor. Given that O’Connor was and still is a partner at an old, “prestigious” lawfirm in Boston, and then representing the now-convicted felon Kozlowski , ex-CEO of Tyco, one can only wonder, Why did the OBC/BBO not investigate and issue a petition for discipline against O’Connor for his unprofessional behavior?

[5]        For details of O’Connor’s role in Count III of the Petition for Discipline, see Vol. I Tab 46, or #90C of the Drano Series on Johnson’s website: http://www.falseallegations.com/drano90-part-iii-answer-bbo-count-three-lily.htm.

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY

Suffolk ss.                                                             Single-Justice Session No. BD-2006-039

IN RE BARBARA C. JOHNSON

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

TABLE OF CONTENTS
OF
JOHNSON’S OPPOSITION TO RECOMMENDATION IN INFORMATION

NOTE

This Table of Contents morphed into a unique Table of Contents as it became clear that the headings embedded into Johnson’s Opposition would not be of sufficient assistance to the Court in finding a desired section. Johnson there and then decided to identify the sections as she did in the Opposition, e.g., “BBO Count 1, §5.”

The reader may assume that each entry beginning with BBO contains also Johnson’s Counterpoint whether or not the words “Johnson’s Counterpoint ” appear. In a few dozen entries Johnson’s Counterpoint is called out and excerpts of legal arguments are included.

The purpose of including excerpts legal argument is not for the sake of argument but simply to alert the Court that this is the spot at which an argument on that issue appears.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Pleadings relied upon

Part One: Facts

Procedure (facts and mixed facts and law)

Selective Enforcement: Ulterior Motive to Deprive Johnson of Her First Amendment Rights

Motion for Trial by Jury

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

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

Motions to Dismiss: Under Board Rule 3.18(b)

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

Motion to Dismiss Count III: Prejudicial Delay

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

Motion to Preclude

The Trial Closes In Substantive Issues

Johnson’s Attempt to Narrow the Issues

Procedural Issues: BBO Deprived Johnson of Her Right to Call Witnesses

The Conundrum Created by G.L. c. 233, §8 and Board Rule 4.5

Miscellaneous Issues

The Trial Was Upon Us

OBC Prosecutor Cannot Be Fact Witness or Authenticating Witness

Respondent Needed to Cross-Examine Complainants and Authors

Count I, ¶¶129-135

Count II, ¶¶136-138

Count III, ¶¶139-146

Part Two: Re the Information: Point/Counterpoint

Point BBO ¶3, note 1, ¶1.

               Weisberg’s admission that there is no list of names for which pseudonyms are to be substituted

               Special Hearing Officer Phillips telling Johnson :”If you want to say something, you can
say something off the record.”


Point BBO ¶3, note 1, ¶2, sentences 1 and 2.

Point BBO ¶4.

               Table Drano Series Numbers, Filenames, Case. OBC Trial Exhibit Numbers

Point BBO ¶5.

            As to prior counsel

           As to pseudonyms

Point BBO ¶6      Preclusion

Point BBO ¶7      Protective order

Point BBO ¶8.      Scheduling

Point BBO ¶9       Johnson’s pretrial motions

Point BBO ¶10      Prehearing disclosures of witnesses and exhibits and subpoenas sought

Point BBO ¶11      November 5, 2003, prehearing conference; summaries

Point BBO ¶12      November 24, 2003, prehearing conference; subpoenas

Point BBO ¶13      December 2, 2003, hearing Day 1; public ordered out; Johnson leaves;
OBC and BBO continue without Johnson

                   As to “SHO Phillips Order” regarding pseudonyms

Weisberg’s admission that there is no list of names for which pseudonyms are to be substituted

Point BBO ¶14      December 3, 2003, hearing Day 2; OBC and BBO continue without Johnson

Point BBO ¶15      December 2003, Johnson’s posttrial motions

Point BBO ¶16      April 14/15, 2004, Johnson’s proposed findings of fact and rulings of law.
Bar counsel's proposed findings, conclusions, and recommendation
for discipline

Point BBO ¶17     May 24, 2005, hearing officer's report issued

Point BBO ¶18     June 13, 2005, Johnson’s appeal from hearing officer's report and
recommendation; stricken;

Assistant Bar Counsel Weisberg admits that Johnson did not post
a single impounded record from juvenile proceedings on her website.
[Transcript, I:118]. “judicial admission binding upon [her] client”

Point BBO ¶18, note 2   Attachments to respondent's internal appellate brief

Point BBO ¶19         July 26, 2005, bar counsel’s opposition to appeal. August 18, 2005,
respondent’s reply: 4 issues: Unconstitutionality, Selective
Enforcement, Johnson’s Subpoenas, Preclusive Effect in
Count III. Johnson’s motion to strike bar counsel's opposition was
denied August 19, 2005

Point BBO ¶20       March 20, 2006, Board issued a memorandum.

Point BBO ¶21        Costs

PART THREE: Re the BBO’s Board Memorandum of 20 March 2006:

                           Point/Counterpoint

NOTE: The issues on appeal: In its Board Memorandum, the BBO did not express their issues as propositions of law—beginning with “Whether” or “Where”— but only as a word or phrase

                Issues on Appeal

BBO Memorandum, ¶1, sentence 1: The first two counts: publication of confidential
and private information on website. The third count from contempt of court. Johnson’s
counterpoint for the three counts.

            As to Count I

           As to Count II

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.

                                                         Consent to publish

            As to Count III

BBO Memorandum, ¶1, sentence 2: More smoke and mirrors.

As to the first dispute:   Disciplinary proceedings: administrative
versus judicial in nature. Judge Young’s and AAG’s Hitt’s
versions.   Judicial estoppel appropriate.

BBO Memorandum, ¶2, sentences 1-3: BBO bald, conclusory opinion of
Johnson’s appellate brief.

BBO Memorandum: Procedural Background, ¶1, sentence #2. Bar Counsel’s
motion for issue preclusion as to Count III. Johnson’s Counterpoint: Legal
arguments against offensive use of collateral estoppel.

BBO Memorandum: Procedural Background, ¶1, sentence #3. Bar Counsel’s
motion for a protective order. Johnson’s Counterpoint:   No “protective order to
keep confidential the identities of the individuals and certain information in Counts I and II.”
(1) ABC Weisberg’s admission no list of people whose names were subject
to a protective order. Board and Special hearing officer Phillips ignored
material admissions. Phillips used non-existent order to use pseudonyms
as an excuse for ordering the public out of hearing room

BBO Memorandum: Procedural Background, ¶2, sentence #3. Re written
summaries of the anticipated testimony of each proposed witness and its relevance.

HEARING OFFICER: How did she obtain the information from the Bristol Juvenile Court? From the client herself, himself?

MS. WEISBERG: . . . she was unable to get copies herself from the juvenile court because she was never counsel of record. I believe that's -- So I believe the source of her information is either her client or prior counsel, but I have no further evidence to offer in that regard.

          Source of Johnson’s documents, according to Weisberg

MS. WEISBERG: , 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.

             Weisberg was acting as self-appointed censor

BBO Memorandum: Procedural Background, ¶2, sentence #4. Re witness
summaries and subpoenas

BBO Memorandum: Procedural Background, ¶2, sentences #5-6. More about
seven subpoenas issued by the Board and subpoenas served by Johnson and witnesses.

BBO Memorandum: Procedural Background, ¶3. December 2, 2003, SHO Phillips
ordered public attendees to leave. Respondent also left. Hearing continued. . .    .

BBO Memorandum: Procedural Background, ¶4. Bar Counsel presented case based
solely on documentary evidence. Respondent and Bar Counsel filed proposed findings,
conclusions of law.

Weisberg said they were not contending Johnson uploaded impounded records: “We do not contend that Ms. Johnson posted a single impounded record from the juvenile proceedings on her web site” [Impounded Vol. VII, Tab 201, transcript, Day I at 118]

          Weisberg was acting as self-appointed censor

BBO Memorandum: Procedural Background, ¶5. SHO Phillip’s conduct at hearing.

BBO Findings of Fact and Conclusions of Law: BBO’s adoption of SHO’s findings of
fact and, except as indicated below, his conclusions of law. SHO: Pseudonyms used
“in accordance with the protective order.” Johnson’s Counterpoint: There was
no protective order regarding the use of pseudonyms at trial.

BBO Count I

BBO Count I, ¶2: History of complainant Robyn.

BBO Count I, ¶3: May 2000, Linnehan’s complaint for modification in custody and
paternity action, and complaint in federal court.

BBO Count I, ¶4: Juvenile Court and alleged documents.

BBO Count I, ¶5: Juvenile Court Standing Order No. 1-84.

BBO Count I, ¶5, footnote 6: G.L. c. 209C, § 13, before and after 31 March 1998.

BBO Count I, ¶6: Johnson’s website.

BBO Count I, ¶7:   Contents of documents on website and quotes, names, and
pseudonyms. .

BBO Count I, ¶8:   Mid-February 2001: website photographs. Mother’s candidacy.            .

BBO Count I, ¶10: May 2001, ignoring the juvenile court order.

NOTES

(1) Lots of law in Johnson’s Counterpoint.

(2) The Juvenile Court rule “only imposes a requirement of confidentiality on the [records], and not on witnesses or persons outside the [court].” In re Enforcement of Subpoena, 436 Mass. 784, 797 (2002).   “Nothing in the impoundment order prevents the witness from “speak[ing] publicly about the proceedings before the commission and about these proceedings.” Id.

(3) “Publicity prevents abuses of a single judge's power.”   Globe News Co. v. Superior Court, 379 Mass. 846, 855 (1980), citing In re Oliver, 333 U.S. 257, 268-270.

BBO Count I, ¶12: January 2003, probate court hearing on Bar Counsel’s motion for
release of impounded records for use in connection with his investigation. The 1998
amendment of G.L. c. 209C, §13, arguments by Weisberg and Johnson..

NOTES

             (1) Lots of law in Johnson’s Counterpoint.

             (2) Where the 1998 amendment to §13 of G.L. c. 209C is administrative, the amendment has retroactive as well as prospective effect, and Linnehan and the public are entitled to access to the entire file of his chapter 209C action.

             (3) “The general rule is that statutory procedural changes properly apply to pending cases and to trials that concern events occurring before the enactment of the change.” News Group Boston, Inc. v. Com., 409 Mass. 627, 630 (1991), citing Commonwealth v. Greenberg, 339 Mass. 557, 578-579 (1959) (“[s]tatutes relating merely to the remedy or procedure which do not affect substantive rights are generally held to operate retroactively”).


              Diagram of Amendment of §13 of c. 209C, effective 31 March 1998


BBO Count I, ¶13: August 2003. Johnson’s amended answer. Nothing removed from her website.

BBO Count I, ¶14, sentence 1 of 3: Special hearing officer’s conclusions.
Mass. R. Prof. C. 8.4(d) and (h).

BBO Count I, ¶14, sentence 2 of 3: Special hearing officer’s other conclusions.
Juvenile Court Standing Order No. 1-84 and G.L. c. 209C, §13, Mass. R. Prof. C. 3.4(c)
and 8.4(d) and (h).

Under Labor Relations Commission v. Fall River Educators' Ass'n, 382 Mass. 465, 469 n. 5 (1981), as well as under Mass.R.Prof.C. 3.4, a party need not comply with an improper order, making Rule 3.4(c) inapplicable in the case at bar.
           [W]here the court lacks jurisdiction to make an order or where an order
           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 (2002), cert. denied 437 Mass. 1109(2002).

BBO Count I, ¶14, sentence 3 of 3:   SHO’s conclusions. Mass. R. Prof. C. 4.4 and 8.4(h).

BBO Count II

BBO Count II, ¶1: August 1999. History of Parkers.

BBO Count II, ¶6: About November 22, 1999. Receipt of $10,000 retainer check.
Alleged commingling.

BBO Count II, ¶7: Early December 1999. Accounting. Return of $3,174.50.

March 2000, “Parkers” filed complaint with Office of Bar Counsel. Johnson’s Counterpoint: Parker family thankful for Johnson’s help. On 4 December 1999, Parkers give consent to publication:

We will be forever grateful for what you have done for us. You have given us knowledge, the strength and the tools necessary to fight for our lives.

At this time we feel that we need to cancel our agreement, cancel our appointment on the 9^th and receive an itemized bill for services rendered as of Dec 3, 1999. This fee to be deducted from the retainer and the balance to be returned to us.

It is our sincere wish that we at least keep in touch. We will be watching your website for any new information. You are providing a great service to a great number of people.

Sincerely

                       Parkers thank Johnson

BBO Count II, ¶8: March 2000, “Parkers” filed complaint with Office of Bar Counsel.

Johnson’s Counterpoint: 12 December 1999, Parkers give consent to
publication:

“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.”

                Parkers again thank Johnson and give consent to publish


BBO Count II, ¶9: Mid-December 2002, Parker bill, emails to/fro wife Parker, and letters
to/fro Weisberg regarding Parker complaint. Johnson’s Counterpoint: A month
after Johnson’s gubernatorial campaign on platform of court reform and the abolishment of judicial immunity, notice by OBC Weisberg of petition for discipline

        If a client chooses to waive the privilege of confidentiality, the attorney is under no further ethical obligation to keep the communications secret. S.J.C. Rule 3:07, Canon 4, DR 4-101 (C)(1), (2), as amended, 382 Mass. 778 (1981).
District Atty. for Plymouth Dist. v. Board of Selectmen of Middleborough, 395 Mass. 629, 633-634 (1985).

BBO Count II, ¶10: Requirement or no requirement of notice to Parkers.



BBO Count II, ¶11: December 23, 2002. Retired judge demands removal of Parker story
from website. Alleged message on retired judge’s answering machine. Johnson’s Counterpoint: Board Memorandum almost identical to Weisberg’s petition.
Written by Weisberg herself. Not one iota of evidence of independent judgment
in the Board Memorandum. Where Findings of Fact and Rulings of Law adopted wholly or almost wholly from OBC’s Proposed Findings of Fact and Rulings of
Law, the Board Memorandum and recommendation must be rejected. Cites.

Strict scrutiny warranted where judge's findings fail to evidence a “badge of personal analysis.” Judge Rotenberg Educational Center, Inc. v. Commissioner of the Dept. of Mental Retardation, 424 Mass. 430, 451 (1997). “[F]indings which fail to evidence a ‘badge of personal analysis’ by the trial judge must be subjected to stricter scrutiny by an appellate court.” Cormier v. Carty, 381 Mass. 234, 237 (1980) (“judge's findings represent a verbatim recitation of the submissions made by Carty's counsel in response to the judge's letter”), quoting In re Las Colinas, Inc., 426 F.2d 1005, 1010 (1st Cir. 1970), Louis Dreyfus & Cie. v. Panama Canal Co., 298 F.2d 733, 738-739 (5th Cir. 1962).

BBO Count II, ¶13: Special hearing officer found that Bar Counsel had failed to prove that
the respondent had charged a clearly excessive fee. He also concluded that Bar Counsel
failed to prove that the respondent had made intentionally false, deceptive or misleading representations to the Parkers about her fees, time and charges. Bar Counsel has not
appealed those findings.

BBO Count II, ¶14, sentence 1 of 3: Commingling Mass. R. Prof. C. 1.15(a)-(c), 1.16(d),
and 8.4(c) and (h). FN7   Respondent denies. Discounting fee. Factual analysis and legal arguments by Johnson.

BBO Count II, ¶14, footnote 7: FN7 Respondent did not violate Mass. R. Prof C. 1.15(a) (safekeeping trust property) and 1.16(d) (upon termination of representation, taking steps
to protect client’s interests and refunding any unearned fee), since the special hearing officer
did not find that the respondent charged an excessive fee or that she owed her former clients
a refund of an unearned fee. Johnson’s Counterpoint: Then how commingling?

BBO Count II, ¶14, sentence 2 of 3: Mass. R. Prof. C. 1.6(a) and 1.9(c)(1) and (2).

BBO Count II, ¶14, sentence 3 of 3: Mass. R. Prof. C. 8.4(d) and (h) and S.J.C.
Rule 4:01, § 10.

As to Mass. R. Prof. C. 8.4(d), and (h)

As to S.J.C. Rule 4:01, §10

BBO Count III

BBO Count III, ¶1: 1992, wrongful termination action on behalf of a client.
Early January 1995, permission to inspect the defendants’ documents. Different
versions of events.

BBO Count III, ¶2: February 1995. Johnson filed emergency motions. Johnson’s Counterpoint: Motions inserted into Johnson’s appeal. Motion similar to
those allowed in federal court in Morrison v. Brandeis University, 125 F.R.D.
14 (D.Mass. 1989) and Mompoint v. Lotus Development Corp., 110 F.R.D. 414, 418-19 (D.Mass. 1986).

EMERGENCY MOTION TO RECONSIDER TO ORDER OF
JANUARY 4, 1995 REGARDING INSPECTION OF DOCUMENTS



EMERGENCY MOTION & MEMORANDUM TO DEPOSE

NONPARTY WITNESSES AND FORMER EMPLOYEES OF DEFENDANT CORPORATIONS
OUTSIDE THE PRESENCE OF DEFENSE COUNSEL





BBO Count III, ¶3: March 3, 1995. About motions.

BBO Count III, ¶4: March 22, 1995, district court judge issued an order finding both the respondent and her client in contempt for nonpayment. Sanctions. Johnson’s Counter-
point: Order of March 3d was also non-existent when Johnson and client were
found in contempt of the non-existent order. It was non-existent at every hearing
that Johnson attended in Lily’s case and she was present at all of them.

BBO Count III, ¶5: April 5, 1995. More sanctions.

BBO Count III, ¶6: Request to retransfer the case to the superior court under G.L. c. 231,
§ 102C. September 20, 1995, superior court struck plaintiff’s request for retransfer and
dismissed the matter.

BBO Count III, ¶7: December 13, 1995. Dstrict court modified prior contempt rulings. Johnson’s Counterpoint: Judge's orders were like a collection of flawed
postal stamps. None was perfect, some were duplicates with different amounts
on them, all lacked essential elements to make them clear and unequivocal orders.

A civil contempt adjudication based on a violation of an unlawful court order cannot stand. Labor Relations Commission v. Fall River Educators' Ass'n, 382 Mass. 465, 469 n. 5 (1981) (assuming a valid order was an indispensable underpinning of the order), and cases cited. But in the BBO, it did stand. "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).   But in the BBO, it did survive.

               . . . [O]nly 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 (2002), cert. denied 437 Mass. 1109 (2002). And in the BBO, Johnson was denied any opportunity to litigate the validity of the underlying orders of Justice Paul McGill.

BBO Count III, ¶8: February 8, 1996. Court entered amended final judgment dismissing the plaintiff’s complaint and reducing the amount to $261.25. If paid, will restore to list. Johnson’s Counterpoint:   Paid, but case not restored to list. Case bifurcated in January 2006.

BBO Count III, ¶9: February 20, 1996. Second request for retransfer of the case to
the superior court, again under G.L. c. 231, § 102C. Johnson’s Counterpoint: At that
time, there were three avenues of review of a case remanded to a district court from a superior court.

BBO Count III, ¶10: Mid-July 1996, Final judgment of contempt against the respondent. The respondent filed an appeal in Appeals Court.

BBO Count III, ¶11: Mid-November 1996. Superior court struck request for retransfer. Johnson appeals order in “Lily’s case” to Appeals Court. April 27, 1998, appeal held frivolous; award of attorney’s fees and costs. Mass.R.App.P. 25. Rehearing and further appellate review denied. June 1998, Appeals Court awarded attorney’s fees and costs.
Paid.

BBO Count III, ¶12: May 14, 1998. Contempt judgment affirmed. Court rejected
Johnson’s claim to lack of notice of March 1995 order. Rehearing and further appellate
review denied. Johnson’s Counterpoint: 16 May 1998, Johnson filed at OBC complaint against opposing counsel, Mark O'Connor and requested Bar to file
an amicus brief on Lily's behalf, to which request Johnson received no response.

25 May 1998, Mass.R.A.P. 27 petition for rehearing of the appeal. Justice found nowhere for either “Lily” or Johnson.

I am hoping that the Office of Bar Counsel will write an amicus curiae brief for [“Lily”] so that her FAR application is one of the one or two percent of the cases which are granted further appellate review. Her rights to constitutional due process and equal protection have been trampled, and O'Connor is still out there as a symbol of shame for both the Bar and the Bench.

BBO Count III, ¶13: July 16, 1998, district court allegedly threatens Johnson with
more sanctions and notifies BBO. Johnson’s Counterpoint: Johnson ignores
orders based on transparently invalid district court orders.

BBO Count III, ¶14: Early December 1998, as revealed by ABC Weisberg, district
court in ex parte communication to Tyco/to-be-convicted-felon-Kozlowski’s counsel, O’Connor, told him to serve Johnson with subpoena duces tecum requiring her
to produce personal financial records on December 17, 1998,

BBO Count III, ¶15: December 17, 1998. District court incarcerated Johnson
without a hearing.

BBO Count III, ¶16: December 18, 1998 Johnson released fro MCI Framingham. Johnson’s Counterpoint: One of Johnson’s son paid ransom and Johnson released
from incarceration. Legal argument. Johnson states BBO’s statements in ¶16 are false.

As to “the district court's findings and orders of December 17, 1998”

BBO Count III, ¶17, sentence 1: Mass. R. Prof. C. 3.4(c) and 8.4(d) and (h).
Johnson’s Counterpoint: Considerable legal argument.

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. Labor Relations Commission v. Fall River Educators' Ass'n, 382 Mass. 465, 469 n. 5 (1981). Fines ordered March 22d, 1995,included 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, was 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). Sussman v. Com., 374 Mass. 692, 696 (1978) (summary contempt was procedurally and substantively invalid where the attorney-plaintiff’s conduct was not flagrant contempt, where immediate punishment was not needed, where he was never given an effective opportunity to defend himself, where there was no contemptuous act or intent on the part of the plaintiff).

As to Mass. R. Prof. C. 3.4(c)
As to Mass. R. Prof. C. 8.4(d) and (h)

BBO Count III, ¶17, sentence 2: Special hearing officer concluded motions absent
legal or factual basis, etc. Canon One, DR 1-102(A)(5), and (6), Canon Six,
DR 6-101(A)(1), (2) and (3), and Canon Seven, DR 7-101(A)(3). Johnson’s
Counterpoint: Considerable factual controversy.

            As to Canon One: DR 1-102(A)(5) and (6)

As to Canon Six: DR 6-101(A)(1)

As to Canon Six: DR 6-101(A)(2)

As to Canon Six: DR 6-101(A)(3)

As to Canon Seven: DR 7-101(A)(1)

BBO Factors in aggravation, ¶1: AD-95-80, 11 Mass. Att'y Disc. R. 468 (1995)
(Ex. 105). Johnson’s Counterpoint: Considerable factual controversy.
Argument: Judicial estoppel.

BBO Factors in aggravation, ¶2: Respondent’s conduct during the disciplinary proceeding.

BBO Issues on Appeal: On appeal, the respondent claims that procedural errors
in the disciplinary process denied her due process, namely, that she was the subject of
selective prosecution,             that it was improper to refuse to issue all but seven of the
subpoenas requested by the respondent and then to quash those she herself purported
to issue, and that it was error to issue a protective order and to close the hearings when
the respondent failed to use pseudonyms to protect the identities of individuals. The
respondent also raises other issues with respect to the separate count. Johnson’s
Counterpoint: Considerable legal argument on selective prosecution,
subpoenas, and protective orders.

BBO Selective Prosecution: Selective prosecution. Matter of Tobin, 417 Mass.
92, 103, 10 Mass. Att'y Disc. R. 256, 267 (1994). United States v. Armstrong, 517
U.S. 456, 464-465 (1996). Johnson’s Counterpoint: A selective-prosecution
claim is not a defense on the merits to the criminal charge itself, but an
independent assertion that the prosecutor has brought the charge for reasons
forbidden by the Constitution. United States v. Armstrong, 517 U.S. 456, 1996.SCT.0000086 at ¶31 <http://www.versuslaw.com> (affirming that
the proof requirements for a selective-prosecution claim do not compel a
defendant to demonstrate that the Government has failed to prosecute others
who are similarly situated). Notwithstanding that holding, Johnson does have
proof that the OBC and the BBO has failed to prosecute other lawyers who
are similarly situated.

               Of course, a prosecutor's discretion is "subject to constitutional constraints." United States v. Batchelder, 442 U. S. 114, 125 (1979). One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, Bolling v. Sharpe, 347 U. S. 497, 500 (1954), is that the decision whether to prosecute may not be based on "an unjustifiable standard such as race, religion, or other arbitrary classification," Oyler v. Boles, 368 U. S. 448, 456 (1962). A defendant may demonstrate that the administration of a criminal law is "directed so exclusively against a particular class of persons . . . with a mind so unequal and oppressive" that the system of prosecution amounts to "a practical denial" of equal protection of the law. Yick Wo v. Hopkins, 118 U. S. 356, 373 (1886).

Armstrong, 1996 SCT.0000086 at ¶33 (emphasis supplied). “‘The requirements for a selective- prosecution claim draw on "ordinary equal protection standards.’” Id., quoting United States v. Wayte, 710 F. 2d 1385, 1387 (CA9 1983), aff'd, 470 U. S. 598, 608 (1985).

               And the motive for the selective-prosecution was retaliation against Johnson for speaking out about the need for court reform and the abolishment of judicial immunity in order to achieve accountability, and she did that by scrutinizing judges and criticizing them, if appropriate.

               [T]he law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, . . . , for speaking out, [Crawford-El v. Britton, 523 U. S. 574,] 592; see also Perry v. Sindermann, 408 U. S. 593, 597 (1972) (noting that the government may not punish a person or deprive him of a benefit on the basis of his "constitutionally protected speech”).

Hartman v. Moore, 126 S.Ct. 1695, 2006.SCT.0000072 at ¶31 < http://www.versuslaw.-com>.

BBO Subpoenas, ¶1: More about subpoenas being quashed by the SHO. Johnson’s Counterpoint: Due process. G.L. c. 30A, § 11(3). See also Matter of Tobin,
417 Mass. 92, 102 (1994). G.L. c. 233, §8. Bloom v. Worcester, 363 Mass.
136, 162-163 (1973)), and cannot now complain of the absence of witnesses
who could have been subpoenaed.   Richardson v. Perales, 402 U.S. 389, 397, 404-405 (1971). “[L]awyers also enjoy first-class citizenship.”   Spevack v. Klein, 385 U.S. 511, 516 (1967) (overruling Cohen v. Hurley, 366 U.S. 117 (1961), which was a 5-to-4 decision). Attorneys must be able to avail them-
selves of “the general rules which govern society.” Cohen, at 136 (dissent).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.

BBO Subpoenas, ¶2: Still more excuses about quashing subpoenas.

BBO Subpoenas, ¶3: And still more about allegedly invalid subpoenas.S.J.C. Rule 4:01,
§ 22(1) and BBO Rule 4.5. See Mass. Bonding & Ins. Co. v. Commissioner of Insurance,
329 Mass. 265, 278 (1952) (party’s claim of subpoena power under G.L. c. 233, § 1.
Bloom v. City of Worcester, 363 Mass. 136, 158 (1973).

BBO Protective Order, ¶1: The non-existent protective order regarding pseudonyms. S.J.C.
Rule 4:01, § 20(4) and BBO Rule 3.22(c).FN8 BBO claims Johnson should have appealed to
single justice from the grant of the protective order. Johnson’s Counterpoint: Where
there was no protective order regarding pseudonyms, there was no order from
which to appeal. 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

BBO Protective Order, ¶1, footnote 8: About impounded documents in Count

BBO Protective Order, ¶2: Protective order re hearing.

BBO Protective Order, ¶2, footnote 9: FN9 About pseudonyms and the SHO

First Amendment, sentences 1-3 of 8: First Amendment right to publish information,
as she chose, on her website, and that any sanction for this conduct would constitute a
violation of this right. . Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991); Anthony v.
Virginia State Bar, No. 050948 (Va. November 4, 2005). Comment [6] to Mass. R. Prof.
C. 1.6.   Johnson’s Counterpoint: Johnson was exercising her First Amendment
rights to political speech and free expression when she uploaded file. Mass.
R. Prof. C. 1.6 is inapplicable. Counterpoint contains considerable legal argument.

Table: In shaded italic Comic Sans type below, Johnson states what Weinberg
did not state, to wit, the purpose of the documents offered and accepted as
trial exhibits contains purpose of files listed.


Johnson had no case in front of either the retired judge or the sitting Juvenile Court judge, so there was no decision to appeal. Because Johnson never appeared in front of either one of them, Johnson was not seeking either removal or impeachment.   Johnson was using the judges’ wrongful conduct as examples to educate the public to the ills in the judicial system. This purpose was at the core of the First Amendment. “The judicial system . . . play[s] a vital part in a democratic state, and the public has a legitimate interest in [its] operations.” Gentile, supra.   “There is no question that speech critical of the exercise of the State's power lies at the very center of the First Amendment.” Id.   “An attorney is free, like all Americans, to hold political sentiments.”   Bernier v. Delahanty, 129 F.3d 20, 1997.C01.0000511 at ¶68 <http://www.versuslaw.com> (1^st Cir. 1997).

First Amendment, sentences 4-6 of 8: BBO contended that Johnson had a duty to
raise her First Amendment claims by challenging the court orders specifically impounding
the nformation she published on her website. Johnson’s Counterpoint: Consider-
able legal argument to show that BBO’s assertion has reached the height of absurdity, and the cases the BBO cites have absolutely no applicability here.

First Amendment, sentences 7-8 of 8: More about Johnson allegedly failing to timely
raise her First Amendment claims by challenging the validity of the court orders, and BBO contentions that it was misconduct to defy them., Johnson’s Counterpoint: Johnson disagreed. Incorporated arguments.

BBO Issues on Appeal re: Count I: About respondent’s claims that the court orders
impounding the records in the care and protection and paternity matters were erroneous
and therefore invalid. Johnson’s Counterpoint: More of the same.

BBO Issues on Appeal re: Count II, ¶1: Whether “Mary Parker’s” statement that
someday their “story” would be “on your wonderful educational website” constituted
consent to the respondent’s publication of information on her website concerning the
Parkers. Mass. R. Prof. C. 9.1(c). Mass. R. Prof. C. 1.6(a).

BBO Issues on Appeal re: Count II, ¶2: Whether respondent’s claim that once the
Parkers disputed her fee, she had a right to defend herself by publishing this information.
Mass. R. Prof. C. 1.6(b)(2); see Restatement (Third) of the Law Governing Lawyers, § 64, comment c (1998). See also PR-94-02, 10 Mass. Att'y Disc. R. 309 (1994); BBA Ethics
Op. No. 93-2. Johnson’s Counterpoint: Legal arguments. A bill is not
onfidential where the complainant sought the return of an unspecified amount
of money. There appears not to be a case in the Commonwealth on point.

The court may “eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets” [Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989) (internal quotations omitted)] and “periphrastic circumlocutions, unsubstantiated Conclusions, and outright vituperation.” United States v. Avx Corp., 962 F.2d 108, 1992.C01.40600 at ¶37 <http://www.versuslaw.com> (1st Cir. 1992).

               [The] plaintiff [OBC and the BBO] cannot rely merely on allegations set forth in his pleadings or on bald assertions that facts are disputed. See LaLonde v. Eissner, 405 Mass. 207, 209 (1989), citing Community Natl. Bank v. Dawes, 369 Mass. 550, 554 (1976).

Young v. Boston University, 64 Mass.App.Ct. 586, (2005).

BBO Issues on Appeal re: Count II, ¶3: BBO’s argues that Parker’s criminal charges
even though they were a matter of public record. Comment [5A] to Rule 1.6 of the Mass. R.
Prof. C.: Mass. R. Prof. C. 1.6. See Restatement (Third) of the Law Governing Lawyers,
§ 59, comment d (1998). Johnson’s Counterpoint: Legal argument

BBO Count III – Issue Preclusion, ¶1: Issue preclusion with respect to Count III. Johnson’s Counterpoint: Factual argument.

BBO Count III – Issue Preclusion, ¶2: BBO concludes that ruling precluding the respondent
from collaterally attacking them in this proceeding was proper. See Matter of Cohen, 435 Mass. 7, 17 Mass. Att'y Disc. R. 129 (2001); Matter of Goldstone, 445 Mass. 551 (2005). Johnson’s Counterpoint: Incorporated argument regarding the offensive use of collateral
estoppel. Preclusion of the issue was improper and fundamentally unfair.

BBO Count III – Issue Preclusion, ¶3: Re respondent’s contention that she lacked notice of
the court’s order. Johnson’s Counterpoint: Again Weisberg skips over major issues of mixed fact and law: (1) The tape of the hearing at which Johnson ordered to jail by Judge Paul McGill was overwritten by the court in Concord. (2) The one eyewitness who had no stake in the action and who would have spoken the truth, the Courtroom Clerk Edward Suleski, had passed on. (3) A fabricated order in an attempt to cover up in an attempt to justify an unlawful finding of contempt of a non-existent order.   These extraordinary facts in Count III do not support the use of estoppel. In fact, they are the types of facts that support the preclusion of an offensive use of estoppel. Legal arguments.

BBO Count III – Issue Preclusion, ¶3, footnote 10: FN10 In any event, this order pertained
only to payment of paralegal fees. The respondent was also held in contempt for her refusal to
comply with a separate order requiring payment of attorneys’ fees, an order to which she raises
no claim of fabrication or other objection here. Johnson’s Counterpoint: Johnson
beseeches this Court to read her Amended Answer for Count III thoroughly. The happenings were many and convoluted by Judge McGill’s convoluted and
inconsistent and continuously changing decisions and orders.

BBO The Appropriate Sanction, ¶1: Recommended disbarment. Johnson’s
Counterpoint: Johnson recommends rejection of BBO’s recommendation.

BBO The Appropriate Sanction, ¶2: Respondent’s alleged misconduct itemized.
Johnson’s Counterpoint: Johnson denies and disagrees.

The court may “eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets” [Dartmouth Review, 889 F.2d at 16], and “periphrastic circumlocutions, unsubstantiated Conclusions, and outright vituperation.” United States v. Avx Corp., 962 F.2d 108, 1992.C01.40600 at ¶37 <http://www.versuslaw.com> (1st Cir. 1992).

BBO The Appropriate Sanction, ¶3, sentences 1-2 of 9: More about Johnson’s
alleged violaion of court orders. Johnson’s Counterpoint: Legal arguments. Factual arguments: In Count I, Judge Lawton’s unlawful order. In Count III, a series of
unlawful orders, all changed one after another for an entire year. No logical and
clear explanation for mysterious judicial obstinancy to hold on to orders that had
no basis either in fact or law.

As to Matter of Tobin

As to Matter of Cohen

BBO The Appropriate Sanction, ¶3, sentences 3-5 of 9: More about alleged misconduct
and appropriate sanction. Johnson’s Counterpoint: Johnson factual arguments.

BBO The Appropriate Sanction, ¶3, sentences 6-9 of 9: Still more about alleged
misconduct and appropriate sanction. Johnson’s Counterpoint:   Legal and factual arguments.

BBO The Appropriate Sanction, ¶4: And still more about alleged misconduct and
appropriate severe sanction. Johnson’s Counterpoint:   Legal and factual arguments. History of immunity and the SJC’s reliance upon Bradley v. Fisher, 80 U.S. (13
Wall.) 335, 355 (1871), which relied upon the bestowal by the Star Chamber, the
most reviled court in English history, of judicial immunity even when a judge acted maliciously or corruptly. That birth of judicial immunity occurred in England in a
“case of conspiracy”—Floyd and Barker, 12 Co.Rep. 23, 77 Eng. Rep. 1305 (1607)—during a period when “[a] number of courts challenged the King’s Bench
for authority” [Pulliam v. Allen, 466 U.S. (Va.) 522, 530 (1984)].

As to Matter of Saab

As to Matter of Cobb


BBO The Appropriate Sanction, ¶5, footnote 11: FN11 Discussion of Cobb ,who was
disbarred. Johnson’s Counterpoint:   Given the falsities put forth by the OBC
and the BBO in Johnson’s case, and the ease with which they were perpetuated,
it is with great cynicism that Johnson looks upon the conclusions in Cobb. The
public simply does not know what evidence was buried by the OBC and BBO
and what residue remained to sustain the Court’s findings of alleged violations.

BBO Conclusion: Recommending disbarment   Johnson’s Counterpoint:
Recommendation of rejection of BBO’s recommendation.

Part Four: Appeal of the Special Hearing Officer’s Hearing Report

Part Five:   Johnson’s Proposed Findings of Fact and Rulings of Law

Part Six:     Johnson’s Other Arguments and Conclusions

1.         Where a Bar disciplinary proceeding is quasi-criminal in nature, Johnson has been deprived of her rights—particularly the right to a jury trial—under article XV of the Mass. Declaration of Rights.
<>
2.         Board of Bar Overseers Rules are unconstitutional facially and as applied.

3.         Attorneys Are Entitled to the Full Sweep of Rights, Privileges, and Immunities, Due Process and Equal Protection.

4.         Sections 9(1), 9(2), and 9(3), the immunity provisions, of SJC Rule 4:01 are unconstitutional.

5.               Section 10, the settlement provision, of SJC Rule 4:01 is unconstitutional.

6.         The policy of the twin entities, the OBC and the BBO, to selectively enforce the rules of professional conduct, deprived Johnson of due process and equal protection.
<>
                                                                        Respectfully submitted,

                                                                        /s/ barbaracjohnson@worldnet.att.net

20 July 2006                                                   Barbara C. Johnson, Esq., Pro Se

                                                                        6 Appletree Lane

                                                                        Andover, MA 01810-4102

                                                                        978-474-0833

CERTIFICATE OF SERVICE
<>I, Barbara C. Johnson, hereby certify that on 20 July 2006 I emailed a true and accurate copy of the within pleading to the BBO and opposing OBC counsel, 75 Federal St., Boston, MA 02110.
                                                                                          /s/ barbaracjohnson@worldnet.att.net

20 July 2006                                                                   Barbara C. Johnson
<>

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY

Suffolk ss                          Single-Justice Session No. BD-2006-039
<>

<>IN RE BARBARA C. JOHNSON

~~~~~~~~~~~

JOHNSON’S OPPOSITION TO

RECOMMENDATION IN INFORMATION

Now comes Barbara C. Johnson, Esq., [“Johnson” or the “respondent”] to oppose the recommendation by the Board of Bar Overseers [“BBO”] for disbarment of the respondent.

As grounds, Johnson states: (1) Procedurally and substantively, the process at the offices of the Siamese twins, viz, the BBO and the Office of Bar Counsel [“OBC”], violated Johnson’s constitutional rights to due process and equal protection. (2) Factually the case against Johnson was made of whole cloth, some of it recycled and altered materially. (3) Adherence to law, whether statutory or common law, was remarkable only by its absence. (4) Adherence to rules was also absent—perhaps because the OBC/BBO were allegedly operating according to administrative law, but the twins also did not adhere to their own rules, to wit, the Board Rules.   (5) Fundamental fairness, the cornerstone of due process, had fallen as much into desuetude as has adultery.

As further grounds for rejecting the BBO’s recommendation, Johnson states (6) that Bar Counsel failed to meet his burden of proof on all charges, (7) that the Board’s recommendation is not supported by substantial evidence in the record, and (8) that the few facts deemed to be facts in the Board Memorandum are not true facts, they are fabricated. In sum, the BBO’s recommendation reflects selective enforcement designed to interfere with and thereby violate Johnson’s First Amendment right to free speech and, specifically, her right to political speech.

On the aforementioned grounds, Johnson prays this Court both deem the recommendation of the BBO inappropriate and dismiss the several BBO complaints lest a tragedy of justice occur.

            In support of her opposition to the recommendation, Johnson corrects the untrue facts and iterates the true facts in this pleading. Because the falsities by the OBC and BBO are so extensive, so pervasive, that Johnson has divided this pleading into six primary parts:

·       Part One: A two-part list of true facts—the first part lists procedural facts; the second, substantive facts—goes to the three counts in the OBC’s Petition for Discipline.

·       Part Two: “Re the Information: Point/Counterpoint.”    At page 27.

·       Part Three: “Re the BBO’s Board Memorandum of 20 March 2006: Point/Counterpoint” (Vol. IV, Tab 243).   The process at the BBO did not allow Johnson to respond to the Board Memorandum; i.e., this is Johnson’s first opportunity to challenge that memorandum.   The Board Memorandum is essentially a re-iteration of the SHO’s report. At page 43.

·       Part Four: Johnson incorporates herein by reference her appeal at Vol. IV, Tab 233; Impounded Vol. VII, Tab 233, of the Special Hearing Officer’s Hearing Report. The OBC did not write an appellee brief. At page 185.

·       Part Five:   Johnson incorporates herein by reference her Proposed Findings of Fact and Rulings of Law: Introduction at Impounded Vol. VII, Tab 217.   At page 185.

·       Part Six: Johnson’s Other Arguments and Conclusions.   At page 186.

In further support of her opposition to the BBO’s recommendation of disbarment, Johnson herein incorporates in entirety by reference all her pleadings in the BBO’s Record Appendix, and specifically:

·    Bar Counsel’s Motion for Release of Impounded or Segregated Records, dated early December 2002, filed in Bristol County Probate & Family Court, but not included in the BBO’s Record Appendix, although entirely relied upon in the OBC’s case to the BBO, by the Special Hearing Officer, and by the Board

·     Johnson’s Opposition to Bar Counsel’s Motion for Release of Impounded or Seg-regated Records, dated 14 December 2002, filed in Bristol County Probate & Family Court, and also not included in the BBO’s Record Appendix

NOTE: Bar Counsel brought the Motion for Release of Impounded or Segregated Records in a “collateral” action in Bristol County Probate & Family Court prior to serving the Petition for Discipline. In the motion, Assistant Bar Counsel [“ABC”] Susan Strauss-Weisberg [“Weisberg”] moved on Bar Counsel’s behalf to “impound Johnson’s thoughts and written conclusions.” There was no open case when the motion was brought, making the decision and order of that court transparently invalid, where the court had no jurisdiction, and where the order was one that could be ignored.\[1]/   See S.J.C. Rule 3:07, Mass. R. Prof. C. 3.4(c).

·         Amended Answer to Petition (Vol. I, Tab 46)

·        Complaint in the Nature of a Petition for a Writ of Certiorari and to Invoke the General Superintendence of the Court, not included in the BBO’s Record Appendix

NOTE: This petition, pursuant to G.L. c. 211, §3, sought the Court to interpret the amendment to §13 of G.L. c. 209C. Given that there was no open action in Bristol Country Probate & Family Court, a 211:3 petition was the only avenue of “appeal.” Because Johnson used this avenue, the OBC and BBO have subsequently indulged in a bit of Schadenfreude by averring that Johnson did not appeal the loss of the issue over c. 209C, §13, in the family court.

·         Bar Counsel’s Motion for Protective Order, dated 29 May 2003 (Vol. I, Tab 12)

NOTE: It was the Order allowing Bar Counsel’s Motion for Protective Order upon which Special Hearing Officer [“SHO”] Herbert P. Phillips relied, and upon which now the Board members rely. There is nothing in it that addresses the real names or pseudonyms of any person dead or alive. There simply is no existing list or order commanding Johnson to use pseudonyms. That portion of the Board Memorandum is a fabrication. OBC ABC Weisberg admitted that no such list existed [Vol.VII, Tab 201, pp. 56-57].

· Respondent’s Opposition to Bar Counsel’s Motion for Protective Order, dated 26 August 2003 (Vol. II, Tab 53)

NOTE: In a lengthy, law-filled pleading (22 pages), Johnson opposed the OBC’s motion for a protective order, which—contrary to the assertions of both the SHO and the BBO— identified neither documents nor the names of people to be “protected.” The OBC’s motion was not only a motion for a protective order but also

·        a motion for impoundment (see WHEREFORE clauses A and B)

·        a motion to censor Johnson’s website (see WHEREFORE Clause C)

·        a motion to enjoin Johnson’s political and free speech, and

·        a motion for secret hearings (see WHEREFORE clause D)

In its Information, the BBO reveals that a revised protective order was entered on 29 December 2003, after the hearings. (Vol. III, Tab 195). Where the December 29^th revised protective order issued after Johnson had uploaded her files to her website, she clearly may not be held liable or sanctioned or disciplined if her acts and/or words did not comport with the revised protective order.

·          Respondent’s Motion for BBO to Report Issue of Whether M.G.L. 209C, §13, as Amended, Effective March 31, 1998, Has Retroactive or Prospective Effect, dated 8 December 2003 (Impounded Vol. VII, Tab 177)

NOTE: This motion was denied because it had real names in it! It was also denied by the Chair, M. Ellen Carpenter, when it was not within her power to act on it!!

·       Amended Verified Complaint and Jury Demand on All Counts, Johnson v. BBO et al, No. 03-CV-12314-WGY,\[2]/ dated 22 December 2003, filed in U.S. District Court at Boston, and not included in the BBO’s Record Appendix

·       BBO’s Memorandum Supporting Motion to Dismiss [Johnson v. BBO et al, No. 03-CV-12314-WGY (U.S.D.C. 8 January 2004)], filed in U.S. District Court at Boston, and not included in the BBO’s Record Appendix

·         Johnson’s Proposed Findings of Fact and Rulings of Law, dated 13 April 2004, filed 14 April 2004, and uploaded them to her website as #119 in her Drano Series: drano119-bbo-prop-findings-fact-rulings-law-41404.htm   (Impounded Vol. VII, Tab 217)

·         Johnson’s Brief on Appeal of the Findings and Recommendation of the Special Hearing Officer (Vol. IV, Tab 233; Impounded Vol. VII, Tab 233)

·                   Johnson’s Reply to OBC’s Opposition to her Appellate Brief (Vol. IV, Tab 236)

·        Addendum to Respondent’s Brief on Appeal of the Findings and Recommendation of the Special Hearing Officer (Vol. IV, Tab 233; Impounded Vol. VII, Tab 233)

·       Transcript of pretrial hearing, 17 November 2003 (Impounded Vol. VII, Tab 137)

·       Transcript of alleged trial, 2 and 3 December 2003\[3]/ (Impounded Vol. VII, Tab 201)

·       Johnson’s bill dated 12 December 1999 to the Sanos/”Parkers” (believed to have been marked as Trial Exhibit 67 produced to SHO by OBC ABC Weisberg) [see Impounded Vol. VII, Tab 201, "Trial" transcript, Day 2, pp. 9-11]\[4]/

PART ONE: Facts

Procedure (facts and mixed facts and law)

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

2.               But BBO General Counsel, Michael Fredrickson, on Monday, 10 November 2003, informed Johnson that the Board Rules 4.5 and 4.6 overrule M.G.L. c. 30A, so that the State Administrative Procedure Act does not apply to BBO proceedings.

3.               The issue at hand was “subpoenas.” The OBC was not going to call trial witnesses (and did not). The OBC was going to introduce around 100 exhibits, unauthenticated exhibits, many of which Johnson had never seen and many of which Johnson did not know the authors. At least a third of the files in Johnson’s website Drano Series at the time constituted many of the OBC’s remaining exhibits.

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

the right to issue subpoenas in the name of the agency conducting the proceeding. The party may have such subpoenas issued by a notary public . . . make written application to the agency, which shall forthwith issue the subpoenas requested.

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

6.               Under G.L. c. 233, §§ 1-6, Johnson had the right to summons and call witnesses. Com. v. Graves, 35 Mass.App.Ct. 76, 84 ( 1993).\[5]/

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

8.               Relying on Board Rule 4.5 not precluding Johnson, the respondent, from causing service of her own subpoenas and not conflicting with M.G.L. c. 30A, Johnson filed on 4 and 5 November 2003 motions regarding the subpoenas: (a) Respondent’s Motion for Copies of Tape of Any Proceedings in Which Respondent Took Part and of Which Bar Counsel Has Possession, (b) Rule 4.5(A) Request for Full Board (Not the Chair Alone) to Issue Subpoenas Requiring Attendance and Testimony at Trial [Tab 90, DENIED by Phillips on 11/18/03]; (c) a Motion for Approval of Use of Uninterested Party for Service of Subpoenas. [Tab 91 dated 11/4/03 and DENIED by Phillips on 11/18/03].

Selective Enforcement: Ulterior Motive to Deprive Johnson of Her First Amendment Rights

9.               The OBC selectively prosecutes attorneys about fees and fee disputes [Exh.D, attached to the state and federal complaints filed by Johnson against the BBO et al, a letter from Asst. Bar Counsel Arcos to a member of the complaining public].

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

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

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

13.            The OBC and BBO failed to prosecute Mark C. O’Connor, an attorney who Johnson claimed was a material witness for Count III in the OBC case against Johnson, when a judgment of civil contempt entered on 28 June 2002 against O’Connor for failure to pay child support and uninsured medical bills in accordance with the Probate and Family Court's temporary order for support. O'Connor v. O'Connor, 61 Mass.App.Ct. 1109 (2004).\[6]/\[7]/

14.            On 27 October 2003, approximately 10 months after the petition for discipline was served on Johnson, the OBC identified the webpages of which Bar Counsel complains: namely, Drano ##5, 9,12, 14, 15, 17, 20, 21, 22, 23, 24, 25, 26, 28, 31, 32, 37, 39, 42, 43, 44, 65, 66, 69, 70, 72, 73, 80, 81, 82, 83, 84a [Impounded Vol. VI, Tab 87 (October 27, 2003, Bar Counsel’s Preliminary Disclosures)].

15.            The ulterior motive of the Bar Counsel was and is to censor Johnson’s website. The motive arises from Johnson’s exercise of her First Amendment right to political speech and free expression, as well as her right and obligation to see that justice is done. One of her tools is the publication on her website information related to the unscrupulous acts of a judge and other court-appointed persons who deprived two fathers of their constitutional rights to due process and equal protection.

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

Motion for Trial by Jury

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

18.            Upon deciding to represent herself, Johnson filed a motion to reconsider her motion for a jury [Vol. I, Tab 35 (7/22/03) and in Drano Series 106 on http://www.falseallegations.com].

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

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

21.            Other than the power to scold, fine, or imprison jurors, who do not exist in the world of the BBO, Carpenter appears to have most of the powers that the Star Chamber did have: e.g., the power to dictate which witnesses may be subpoenaed by a respondent to trial. The power of the Chair is, however, limited by Board Rule 3.18(a), which gives the Chair the authority to decide dispositive motions.

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

23.            Much to Fredrickson’s credit, within a day, Carpenter wrote Johnson saying that she “acted precipitously” [Vol. I, Tab 46 (7/29/03)].   Carpenter not only had “acted precipitously” but also had usurped the power of the SHO and had violated Board Rule 3.18(a).

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

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

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

27.            Subsequently, Johnson supplemented her brief in reply to Bar Counsel’s opposition to her motion for a jury trial [Vol. II, Tab 53 (8/26/03), and http://www.falseallegations.com.

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

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

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

31.            The secret, harsh, and arbitrary process resembles that of the Star Chamber.\[8]/

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

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

34.            The real reason for appointing only one person rather than a panel appears to be that it was easier for Carpenter and Fredrickson to control the course of events, for example, the decisions on motions.\[9]/ Assistant General Counsel Carol Wagner was appointed to sit by SHO Phillips’ side throughout both the prehearing conference on 17 November 2003 and the hearing on 2 December 2003. She remained at the ready by holding his arm and whispering to him throughout both proceedings. Occasionally, the SHO suspended the proceedings and went with AGC Wagner into a little room off the hearing room.

35.            Johnson has no knowledge as to who actually did appoint Phillips—whether it was the Board or Chair Carpenter or Fredrickson or some as-yet-unidentified personage. Neither did Johnson know in advance who was going to decide the motions she submitted.

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

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

37.            Bar Counsel opposed the two motions named in ¶36, supra [Vol. II, Tabs   63 and 64 (both 9/09/03)], and Chair Carpenter decided both of those motions to preclude [Vol. II, Tabs 74 and 75 (both 9/10/03)].

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

38.            One of Johnson’s motions was to declare (a) that the consent by the Sanos,\[10]/ or Parkers (Bar-supplied pseudonym), to publication of their story on Johnson’s website constituted a waiver of confidentiality [Vol. I, Tab 51 (8/26/03)] and (b) that Johnson had a right to defend herself (more infra). The alleged implicit or explicit permission or consent had been given Johnson in an email on 12 December 1999 from the wife [Impounded Vol ? , Tab ?    (email: Subject: RE: Accounting finished. Date: Sun, 12 Dec 1999 19:03:58 –0500. From: "dsano" dsano@bcn.net. To: "Barbara C. Johnson" barbaracjohnson@worldnet.-att.net)]. At the time, Johnson had not published the Sano story on her website.

39.            Bar Counsel opposed the motion for a declaration of waiver of confidentiality [Impounded Vol. VI, Tab 65 (9/09/03)].

40.            Johnson published her bill to the Sanos and some of the information for her defense only after the wife complained to the Bar that she wanted more money back than the approximately $3200 Johnson had returned.

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

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

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

Motions to Dismiss: Under Board Rule 3.18(b)

44.            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.

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

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

46.            Despite Bar Counsel not opposing Johnson’s motion re privilege in an attorney-client dispute, Chair Carpenter issued a summary denial of Johnson’s motion to dismiss Count II [Vol. II, Tab 60 (9/08/03)].\[11]/

47.            Subsequently Johnson filed a motion to reconsider the motion to dismiss on grounds that privilege did not apply to disputes between attorney and client [Vol. II, Tab 70 (9/10/03)].

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

Motion to Dismiss Count III: Prejudicial Delay

49.       The other motion was to dismiss Count III on the grounds that during the 5-8 year delay in bringing a disciplinary action, the tape of a hearing was overwritten by the Commonwealth and an eyewitness had passed away [Vol. I, Tab 52 (8/26/03)].\[12]/ A tape of that hearing would have contained exculpatory evidence.

50.            Bar Counsel’s opposition did not address the issue of the prejudice resulting from the loss or destruction of the tape of a critical proceeding in 1998\[13]/ or the death of a critical eyewitness within the then-intervening five years [Vol. I, Tab 67 (9/9/03)].

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

52.            Johnson had pled laches as an affirmative defense.

53.            Other grounds for dismissal of Count III were based on an ex parte communication having occurred between the judge and opposing counsel [Vol. I, Tab I, ¶122 (Petition)] and a material document having been physically altered by what appears to be a combined effort by the local district court motion judge and the former opposing counsel [Vol. I, Tab 46, Figures 7(a-e)].

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

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

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

56.       Weisberg and Bar Counsel failed to do the following:

·       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,

·       failed to identify those documents of which Bar Counsel wanted to prevent disclosure and those which he wanted to impound, and

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

57.            Johnson opposed Bar Counsel’s potpourri motion on Counts I and II [Vol. II, Tab 55 (8/27/03)].

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

59.            Bar Counsel opposed Johnson’s motion to strike the protective order [Vol. II, Tab 66 (9/9/03)].

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

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

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

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

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

65.            No subsection of Rule 3.22 gives the Chair the authority to rule on a motion for a protective order

66.            The Board Rules make a distinction between ‘the Chair’ and ‘the Board,’ and it is well-settled in the law that “Every word has meaning” in a statute or rule

a.      Fredrickson’s explanation was that the Chair can appoint herself to act for the Board and that “[w]e’ve done it that way ever since I’ve been here.” \[14]/

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

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

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

i.            Johnson’s views on the need for judicial accountability and the need for court reform are well-known to the courts,

ii.          the BBO and OBC are the SJC’s offspring,

iii.        Carpenter’s colleague and former partner is sitting on the SJC bench that appointed her to the Board, and

iv.        Johnson had recently brought a few cases to the SJC, but the SJC made what Johnson perceived to be unconscionable decisions on those few cases.\[15]/    .

Motion to Preclude

67.            Bar Counsel also brought a motion to preclude Johnson from contesting the allegations of Count III of Petition for Discipline [Vol. I, Tab 12 (5/22/03)]. Johnson opposed Bar Counsel’s motion for preclusion [Vol. II, Tab 57 (8/29/03)] and Bar Counsel replied [Vol.     , Tab 68 (9/09/03)].

68.            Chair Carpenter allowed Bar Counsel’s motion for issue preclusion of allegations of Count III [Vol. II, Tab 76 (9/10/03)] and then corrected her order [Vol. II, Tab 77 (9/11/03)]. In allowing the motion to preclude, Carpenter usurped the power of Special Hearing Officer Phillips, as identified in Rule 3.18(a).

69.            The motive of Carpenter and likely persons unidentified was to preclude Johnson from showing that the lower-court orders were not only “bad,” they were based on fabricated facts and findings and on, literally, a materially altered document [Vol. I, Tab 46, Figures 2(a-e), near ¶104].

70.            The Board Rules are written in contemplation that a respondent to a petition for discipline will have facts in mitigation.

71.            Rule 3.15(f) requires that mitigation be pled. Rule 3.15(f) is the equivalent, one presumes, of an affirmative defense, which means that it must be pled or it is forfeited. And Johnson pled mitigation.\[16]/ \[17]/

The Trial Closes In Substantive Issues

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

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

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

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

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

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

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

Johnson’s Attempt to Narrow the Issues

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

·       a custody and paternity action ongoing from 1988 into 2002 (seven successive counsel)

·       a fee dispute from 1999

·       a whistleblower case from 1994-1998 (which also showed fraud on the Big Dig project; in those days, no one, including the courts, the A-G, and the FBI, cared)

75.            Bar Counsel and the BBO refused to inform Johnson with sufficient particularity of that for which she was being charged.

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

77.            SHO Herbert Phillips ordered Johnson to

CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE

· Johnson’s Opposition to Bar Counsel’s Motion for Release of Impounded or Seg-regated Records, dated 14 December 2002, filed in Bristol County Probate & Family Court, and also not included in the BBO’s Record Appendix

· Bar Counsel’s Motion for Protective Order, dated 29 May 2003 (Vol. I, Tab 12)

· Respondent’s Opposition to Bar Counsel’s Motion for Protective Order, dated 26 August 2003 (Vol. II, Tab 53)

· a motion for impoundment (see WHEREFORE clauses A and B)

· a motion to censor Johnson’s website (see WHEREFORE Clause C)

· a motion to enjoin Johnson’s political and free speech, and

· a motion for secret hearings (see WHEREFORE clause D)

· Respondent’s Motion for BBO to Report Issue of Whether M.G.L. 209C, §13, as Amended, Effective March 31, 1998, Has Retroactive or Prospective Effect, dated 8 December 2003 (Impounded Vol. VII, Tab 177)

· Johnson’s Proposed Findings of Fact and Rulings of Law, dated 13 April 2004, filed 14 April 2004, and uploaded them to her website as #119 in her Drano Series: drano119-bbo-prop-findings-fact-rulings-law-41404.htm (Impounded Vol. VII, Tab 217)

· Johnson’s Brief on Appeal of the Findings and Recommendation of the Special Hearing Officer (Vol. IV, Tab 233; Impounded Vol. VII, Tab 233)

· Addendum to Respondent’s Brief on Appeal of the Findings and Recommendation of the Special Hearing Officer (Vol. IV, Tab 233; Impounded Vol. VII, Tab 233)

· 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

56. Weisberg and Bar Counsel failed to do the following:

· 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,

· failed to identify those documents of which Bar Counsel wanted to prevent disclosure and those which he wanted to impound, and

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