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 provide witness summaries of each of the witnesses named by Johnson in her list of proposed trial witnesses. Given that the order came so close to trial, the order was burdensome and harassing to Johnson.

78.            SHO Herbert Phillips did not order Crane to provide summaries of each of his proposed trial exhibits. Given that Crane was using the documents in lieu of witnesses, the documents were in fact the OBC and Bar Counsel’s de facto witnesses.

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

80.            At a prehearing conference on 17 November 2003, Phillips told the stenographer repeatedly that the proceeding was “off the record” when Johnson spoke [Impounded Vol. VII, Tab 137, 11/17/03, Day I, p. 40, lines 9-12].

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

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

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

·       Motion in Limine to Preclude Use of Chalk at Trial [Vol. II, Tab 112; DENIED without prejudice 11/18/03].

·       Motion in Limine to Preclude Drano Series and All Other Documents Related to Count One If Bar Counsel Is Not Going to Call, or Issue the Subpoenas Requested by Respondent for, Robyn Gerry-Sylvia, Brenden Linnehan A/K/A Brenden Sylvia, Deborah Wolf, Bruce Lider , Judge Ronald Harper, Christopher Salt, Sandra Fyfe, Eileen Kern, John "Jack" McCarthy, Eli Newberger, Joseph Fitzgerald and Judge Mark Lawton As Witnesses in the Case Denied [Impounded Vol. VI, Tab 100 (11/5/03); DENIED by Phillips on 11/18/03].

·       Motion in Limine to Preclude Any and All Drano Series and All Other Documents Related to Count Two If Bar Counsel Is Not Going to Call, Issue the Subpoenas Requested by Respondent for Deborah Sano, Harry Sano, their Four Daughters and the Three Sons-In-Law, Richard Simons, William Simons, or to Issue the Subpoenas Requested by Respondent for the Persons Identified on Her Proposed List of Witnesses As Witnesses 37 Through 49 [Vol. II, Tab 101 (11/5/03); DENIED by Phillips on 11/18/03].

·       Motion in Limine to Preclude Drano Series and All Other Documents Related to Count Three If Bar Counsel Is Not Going to Call, or Issue the Subpoenas Requested by Respondent for Mark C. O’Connor, Paul McGill and Witnesses on Respondent’s Witness List Number 50-51, 54-66, 69-88 [Vol. II, Tab 102 (11/5/03); DENIED by Phillips on 11/18/03].

·       Motion to Dismiss Count I on the Grounds That Without Witnesses, Bar Counsel Cannot Make Out Prima Facie Case for Count I [Filed 11/7/03); docketed 11/10/03; DENIED 12/1/03 by M. Ellen Carpenter, signed by June Risk on her behalf] [Note: Johnson cannot tell which Tab number to apply. BBO refused to supply a proper Table of Contents]

·       Motion to Dismiss Count II on the Grounds That the Fee Dispute Involves a Fee That Is Not Clearly Excessive and It Is Outside the Jurisdiction of the Board of Bar Overseers [Filed 11/7/03); docketed 11/10/03; DENIED by M. Ellen Carpenter, signed by June Risk on her behalf on 12/1/03 ] [Note: Johnson cannot tell which Tab number to apply. BBO refused to supply a proper Table of Contents]

·       Motion to Dismiss All Allegations of Violating Massachusetts Rules of Professional Conduct [Vol. II, Tab 143, filed 11/28/03; docketed 12/1/03, DENIED by M. Ellen Carpenter, signed by June Risk on her behalf on 12/1/03]

·       Motion to Dismiss Count I on the Grounds That Without an Adjudication by an Article III Court, There Can Be No Ethical Violation of Professional Ethics [Vol. II, Tab 152, filed 11/28/03; docketed 12/1/03; DENIED by M. Ellen Carpenter, signed by June Risk on her behalf on 12/1/03 ]

84.            On or around 20 November 2003, Johnson filed “Respondent’s Summaries of Testimony of Expected Witnesses Ordered over Respondent’s Objections” and argued that until she knew the purpose of Crane’s 100-plus exhibits, she could only give general summaries.

85.            On 20 November 2003, Johnson filed a “Motion to Vacate Order to Write Paragraph Summaries for Each of Respondent’s Proposed Witnesses Where Bar Counsel Has Not Been Ordered to Write Paragraph Summaries of the Purpose of Introducing Each of 101 Documents [Vol. II, Tab 113].   Phillips denied Johnson’s motion on 24 November 2003.

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

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

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

Mass. Rule of Professional Conduct 1.5(A)

Mass. Rule of Professional Conduct 1.6(A)

Mass. Rules of Professional Conduct 1.9(A), (B1), (B2), (C1), and (C2)

Mass. Rules of Professional Conduct 1.15(A), (B), and (C)

Mass. Rule of Professional Conduct 1.16(D)

Mass. Rule of Professional Conduct 3.4(C)

Mass. Rule of Professional Conduct 4.4

Mass. Rules of Professional Conduct 8.4(C), (D), and (H)

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

89.            As iterated above, relying on Board Rule 4.5 not precluding Johnson 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 [Vol. II, Tab 90, DENIED by Phillips on 11/18/03]; (c) a Motion for Approval of Use of Uninterested Party for Service of Subpoenas. [Vol. II, Tab 91 dated 11/4/03 and DENIED by Phillips on 11/18/03]

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

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

91.            On 24 November, 2003, Johnson filed Motion to Compel "Laurie" of the Registration Department to Furnish the Addresses of Either the Residence or the Last office Address Furnished in the Last Registration of Each of the Lawyers Identified as Respondent’s Potential Witnesses. The motion was ignored by the BBO and by Phillips.

            In Bloom v. City of Worcester, 363 Mass. 136 (1973), addressing the issue of subpoenas in the context of administrative hearings, the Court wrote: “The [chapter 233] commission must adopt rules of procedure for its hearings which ‘shall ensure the due process rights of all persons. . . .’” Id. at 158. To Johnson that meant that an accused retains the right of calling witnesses in his or her defense.   That is the issue Weisberg had to address in her opposition to Johnson’s appeal, but did not.

Here, we have a conundrum . . . Chapter 233 of the General Laws deals with witnesses and evidence in proceedings in civil cases, and section 8 sets out the bodies authorized to summon witnesses.\[18]/ But the BBO and OBC have been omitted from the list, clearly because the BBO and OBC are creatures birthed by a Supreme Judicial Court rule and not by legislative enactment. That Caesarean birth has worked improperly to deny lawyers the equal protection of the laws against discrimination. The result in the Commonwealth: lawyers as a class are unconstitutionally subjected to disciplinary proceeding that does not allow an accused to call witnesses in his or her defense.\[19]/   “[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).

            As Johnson set out in her appellate brief:

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

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

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

Id. at 145 (dissent).

            Attorneys must be able to avail themselves of “the general rules which govern society.” Cohen, at 136 (dissent).

[Thus, i]n Cohen, some 40 years ago, Messrs. Justice Black, Chief Justice Warren, and Justice Douglas eloquently warned that the important role that lawyers are to play in society makes it all the more imperative that they not be discriminated against and not be deprived of “the basic freedoms that are designed to protect the individual against the tyrannical exertion of governmental power.” Cohen, at 138.

Only one reasonable conclusion may be drawn, viz, to deny the Commonwealth’s subjects, of which Lawyer Johnson is one, their rights to due process in any proceeding in which a remedy is sought for wrongdoing is unconstitutional.

Miscellaneous Issues

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

·       Motion for Referral by Bar to District Attorney for Criminal Prosecution of Mark C. O’Connor [Impounded Vol. VI, Tab 99 filed on 11/5/03; DENIED by Phillips on 11/18/03],

·       Motion to Remove Susan Strauss-Weisberg As Prosecutor in This Case [Vol. II , Tab 95 filed on11/5/03; DENIED by Phillips on 11/18/03],

·       Letter to Weisberg Sent Under Caption [Vol. ?, Tab ?, filed on 11/6/03]

·       Motion for BBO to Pay for Cost of Copying Documents [Vol. II, Tab 94 (11/6/03); DENIED by Phillips on 11/18/03],

·       Motion to Recuse Special Hearing officer Herbert P. Phillips [Vol. II, Tab 157, DENIED by Phillips 12/1/03].

The Trial Was Upon Us

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

94.            For the BBO, Phillips denied Bar Counsel’s Motion for Videographed and Audiographed Proceedings because Johnson had only “conditionally opposed” it: “Johnson does not oppose videotaping and audiotaping of the proceedings. Johnson does object, however, to the reasons averred by Susan Strauss Weisberg [“Weisberg”] and Bar Counsel as a basis for their request” (See exhibits in addendum.). Phillips denied it because he understood Johnson wanted the proceedings to be videographed and audiographed [Vol. II, Tab 124; Impounded Vol. VI, Tab 127; Vol. II, Tab 128].

95.            Also on 24 November 2003, Johnson received an order stating, “The merits of the underlying cases in Counts One and Two are irrelevant to this proceeding and testimony on these issues is excluded.” [ Vol. ?, Tab ?, ¶4, Order of 24 November 2003 by Phillips].

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

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

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

99.            Johnson did not represent Linnehan in 1998.

100.         Johnson made an appearance in Linnehan’s Probate & Family case when she wrote a Complaint for Modification and then an Amended Complaint for Modification during the Spring of 2000.   In the Amended Complaint for Modification, Johnson used pre-1998 information because the standard so requires, the standard being the necessity to show (a) the order to be modified, (b) the old circumstances, (c) the new circumstances, i.e., how the circumstances out of which the original order arose substantially changed, making a new order appropriate, and (d) the proposed new order.

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

102.         In the BBO case, Johnson moved for the BBO to report the issue involving §13 to the Supreme Judicial Court. As grounds, Johnson contended that the BBO was without jurisdiction and/or authority to decide the issue of law, to wit, whether the amendment had retroactive or prospective effect. Johnson contended that it looked backward and forward. Bar Counsel disagreed.

103.         Because Bar Counsel contends that c. 209C §13 looks only forward, he brought the charges against Johnson for uploading allegedly presumptively impounded materials to her website. [See Impounded Vol. VII, Tab 177 (12/8/03), Johnson’s Motion for BBO to Report Issue of Whether M.G.L. 209C, §13, As Amended, Effective March 31, 1998, Has Retroactive or Prospective Effect].

104.         In his order of 24 November 2003, Phillips wrote, “The issue of retroactivity of G.L. c. 209C, §13, and its applicability to various documents is one of law, and testimony on this matter is excluded.” [Vol. ?, Tab ?, ¶5, Order of 24 November 2003 by Phillips].   With the high court denying relief as to the interpretation of §13, Johnson was denied equal protection of the laws.

105.         Phillips’ same order of 24 November 2003, included another order regarding harm: “To the extent that the Respondent seeks witnesses to rebut alleged charges of harm, the request is denied, subject to reconsideration on motion at the conclusion of Bar Counsel’s case with respect to that issue and other raised in Bar Counsel’s case in chief.”   [See [Vol. ?, Tab ?, ¶6, Order of 24 November 2003 by Phillips].
OBC Prosecutor Cannot Be Fact Witness or Authenticating Witness; Respondent Needed to Cross-Examine Complainants and Authors

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

107.         And on 24 November 2003, Johnson received an order allowing Bar Counsel to prove authenticity by affidavit [see Vol. ? , Tab ?, ¶6, Second Order of 24 November 2003 by Phillips], by which they would be allowed to overcome Johnson’s objection on the grounds that Weisberg would become a fact witness for Counts I and II and that Johnson needed a human to cross-examine.

108.         Assistant Bar Counsel Weisberg averred that Johnson uploaded to her website privileged and confidential documents but Weisberg failed to identify any specifically. Initially she claimed that Johnson had uploaded reports of psychologists and/or social workers. Johnson denied and still denies having uploaded any privileged and confidential documents. During the trial, Weisberg admitted that Johnson had not done so.   SHO Phillips, however, perpetuated the original falsehood and that exists in the Hearing Report [Vol. III, Tab 225] and the Board Memorandum [Vol. IV, Tab, 243].

109.         Assistant Bar Counsel Weisberg averred that Johnson uploaded to her website documents filed in Juvenile Court but Weisberg failed to identify any specifically.   Johnson denied and still denies having uploaded any documents filed in Juvenile Court. During the trial, Weisberg admitted that Johnson had not done so.   SHO Phillips, however, perpetuated the original falsehood and that exists in the Hearing Report [Vol. III, Tab, 225]. and the Board Memorandum [Vol. IV, Tab, 243].

110.         Authenticity of OBC’s documents was an issue for the trial.

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

112.         Johnson was entitled to examine the authors of the documents before the documents were accepted as evidence. On or around 28 November 2003, Johnson filed a Notice to Board of Bar Overseers and the Special Hearing Officer Herbert P. Phillips regarding the law [Vol. II, Tab 142, Notice to Board of Bar Overseers and the Special Hearing Officer Herbert P. Phillips].

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

114.         On 2 December 2003, Herbert Phillips served in hand on Johnson his order quashing all subpoenas not issued by the Board [Impounded Vol. VII, Tab 156, Order Quashing Subpoenas, 2 December 2003, by Phillips].

115.         Trial had been scheduled for December 2, 3, 4, 9, 10, and 11, 2003. The proceeding began on 2 December 2003.

116.         On 2 December 2003, ABC Weisberg gave her Opening Statement.

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

118.         On 2 December 2003, Johnson began her Opening Statement. In the middle of Johnson’s Opening Statement, Weisberg objected when Johnson mentioned the names of the complainants and anticipated witnesses. Weisberg claimed there had been a protective order on 10 September 2003 that precluded Johnson from mentioning their names.

119.         Johnson knew of no such order regarding mentioning the names orally, but attempted to identify the persons without using their real names, by substituting the words “man,” “woman,” “male,” “female,” etc. A few times, she slipped by saying the first name of a complainant, viz., Robyn.

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

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

122.         A member of the public immediately stood to express his outrage,\[20]/ Phillips refused to rescind his order to the public to leave, Johnson asked him to reconsider, Phillips refused (saying her paralegal could stay), Johnson told Phillips she did not trust him and the she feared staying without witnesses (discounting her “paralegal,” for he was vulnerable to the BBO later saying that he was not a “long-arm” witness), and then Johnson walked out with the last of the public to leave.

123.         Johnson was entitled to a hearing open to the public.

124.         Johnson filed a Motion to Dismiss All Counts on Grounds of BBO Violating Board Rule 3.22(B) and Constitutional Rights to A Public Hearing. It was denied on 8 December 2003 [Impounded Vol VII, Tab, 169, filed 12/5/03; denied 12/8/03, signed “per Board Chair” by Michael Fredrickson].

125.         On 8 December 2003, Johnson filed a Motion for BBO to Report Issue of Whether M.G.L. 209c, §13, As Amended, Effective March 31, 1998, Has Retroactive or Prospective Effect [Impounded Vol VII, Tab, 177]. The motion was denied by Chair Carpenter because there were names in it.   Chair M. Ellen Carpenter again usurped power that was not hers: she did not have the authority under the Board’s own rules to decide the motion.

126.         On 9 December 2003, Johnson filed a Petition for Board Rule 3.59 Rehearing or Alternatively, Motion to Vacate Unlawful BBO Rulings Made During the Unlawful Proceeding on 2 December 2003 [Vol. II, Tab 179].    The Petition was denied on 12 December 2003 by Phillips [Vol. ?, Tab ?].

127.         On 9 December 2003, Johnson also filed a Motion for Conference with the Twelve (12) Members of the Board of Bar 2003 [Vol. II, Tab 178]. It was denied on 12/12/03 by Phillips [Vol. ?, Tab ?].

128.         On 12 December 2003, Johnson filed a Motion to Reconsider Respondent's Petition for Board Rule 3.59 Rehearing or Alternatively, Motion to Vacate Unlawful BBO Rulings Made During the Unlawful Proceeding on 2 December 2003 [Vol. III, Tab 193, docketed 12/15/03]. Reconsideration was allowed, but the decision to deny motion for new hearing or vacate rulings was denied on 12/15/03 [Vol. ?? , Tab 194].   It was signed “per Herbert Phillips” by Michael Fredrickson [Id.].

Count I\[21]/

129.         Johnson never uploaded any documents from Juvenile Court (admitted by OBC Assistant Bar Counsel Susan Strauss Weisberg [“Weisberg”] at trial, but ignored by Special Hearing Officer Herbert Phillips and by author(s) of Board Memorandum) [Impounded Vol VII, Tab 201, pp. 118-120].

130.     Johnson never violated a protection order commanding Johnson not to use real names at trial (admitted by Weisberg at trial, but ignored by Special Hearing Officer Herbert Phillips and by author(s) of the Board Memorandum) [Impounded Vol. VII, Tab 201, pp. 56-57].

NOTES:   (1)    After Johnson left the “trial” SHO Phillips admitted (a Freudian slip?) that there was no order regarding pseudonyms: “She continued on one or two other occasions to continue to use the real names, and, again, we, the Chair warned her, and finally it was told to her that if she did not adhere to the rules that were going to be promulgated regarding the protective order that the attendees would be asked to leave the room. . . “ [Vol. VII, Tab 201, Transcript, Day I:66-68].

(2) A revised protective order was entered after the hearings on December 29, 2003 [Vol. III, Tab 195]. Johnson clearly could not obey an order of which she had no knowledge.

131.         Johnson never uploaded any psychologist’s report (no evidence to support the bald allegation that Johnson did).

132.         No one testified at trial or at any other place or time that he or she was harmed or damaged by Johnson’s website.

133.         Johnson did not publish any material that was confidential or private, for all matters Johnson published were either in open public records or derived from those sources.

134.         Every fact on Johnson’s website having to do with Count I is true and Johnson has never been sued for defamation.

135.         The order that allegedly issued from Juvenile Court and that Johnson alleged did not obey is transparently valid, for (i) Johnson was never a party, third-party, or intervenor in any action in Juvenile Court, (ii) Johnson never represented her client in that Juvenile Court while there was an open Care & Protection case concerning his son, (iii) Johnson was never in that Juvenile Court (or any other), (iv) Johnson never received documents from that Juvenile Court and therefore had none to return to it.

Count II\[22]/

136.         Johnson had written permission by the complainant to upload the complainant’s story to her website.

137.         Complainant sent her family story to many individuals by email, so that no part of the story was confidential or private.

138.         Where complainant complained of the bill, the bill for legal services was not a confidential or private document.

Count III\[23]/

139.         In 1995, Johnson was found in contempt of a non-existent order arising allegedly out of a motion.

140.         At some time unknown to Johnson, the non-existent order morphed into an existing order by altering the endorsement on the original motion.

141.         Johnson’s opponent in that case was Dennis Kozlowski, the CEO of Tyco who is now a felon convicted of the charges brought forth in 28 or 38 federal indictments.

142.         Although Johnson has no personal knowledge who altered the endorsement, circumstances point to the perpetrator as being either District Court Judge Paul McGill [“McGill”] or Attorney Mark C. O’Connor [“O’Connor”], whose client was Tyco.

143.         Johnson subpoenaed both O’Connor and McGill to the trial scheduled by the BBO to begin on 2 December 2003.

144.         On 2 December 2003, Special Hearing Officer Herbert Phillips [“SHO” or “Phillips”] quashed Johnson’s trial subpoenas.   When O’Connor appeared at the trial, the SHO immediately excused him. O’Connor’s face revealed his Schadenfreude.

145.         Five months earlier, on 28 June 2002, judgment of contempt had been entered against O’Connor, but the OBC did not file a Petition of Discipline against him, as they did against Johnson in Count III on the grounds that she had been found in contempt.

146.         Although Johnson has maintained that a finding of contempt is not necessarily a matter of professional ethics and that Johnson never had the opportunity to have an evidentiary hearing on the contempt, the OBC/BBO’s failure to issue\[24]/ a Petition of Discipline against O’Connor is definitive proof that the OBC’s prosecution and the BBO’s adjudication were evidence of selective enforcement.

PART TWO: Re the Information: Point/Counterpoint

Point BBO ¶3, note 1, ¶1. The numbered tabs used in the record correspond to the Vol., Tab numbers in the Board's docket entries. Portions of the record were impounded by the Board under protective orders entered pursuant to S.J.C. Rule 4:01, § 20(4), and Section 3.22(c) of the Rules of the Board of Bar Overseers. (Vol. I, Tab 12; Vol. III, Tab 195) A motion to impound those materials in this Court has been filed with the Information.

Johnson’s Counterpoint.   The only BBO-issued impoundment and protective order of which Johnson was aware was the endorsement “ALLOWED” on Bar Counsel’s Motion for Protective Order, dated 29 May 2003 [Vol. I, Tab 12]. As noted, supra, it was that Order upon which SHO Phillips relied and upon which now the Board relies.

            There is nothing in the OBC’s motion that addresses which documents were to be “protected” or “impounded.” There simply was no existing list provided either by the OBC or the BBO that gave notice to Johnson that specific documents were “protected” or “impounded.”

            There is no Order issued by the BBO that identifies which documents were to be “protected” or “impounded.”

            There is nothing in the OBC’s motion that addresses the real names or pseudonyms of any person dead or alive. There simply was no existing list or order commanding Johnson to use pseudonyms. The BBO cannot produce an Order supporting the BBO position unless the BBO has since fabricated it.

            Johnson vigorously objected to the OBC’s motion for impoundment and protection [Vol. II, Tab 53, Respondent’s Opposition to Bar Counsel’s Motion for Protective Order, dated 26 August 2003].   Her opposition, which she incorporates herein by reference, is a lengthy, law-filled pleading (22 pages) in which Johnson opposed the OBC’s motion, which 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)

Finally, in its Information, the BBO reveals that a revised protective order was entered on 29 December 2003, almost 4 weeks after the sham trial [Vol. III, Tab 195]. Where the revised protective order did not have retroactive effect, Johnson clearly may not be held liable or sanctioned or disciplined if her acts and/or words do or did not comport with the revised protective order.

            Further, as written on pages 17-18 in Johnson’s appellate brief to the Board [Vol. IV, Tab 233; Impounded Vol. VII, Tab 233], on Day 1 of “trial,” ABC Weisberg admitted to Phillips that there was no list of people whose names were subject to a protective order, but Phillips intentionally refused to acknowledge Weisberg’s admission:

HEARING OFFICER: Do you happen to know whether that name [Complainant’s male roommate circa 1988-1989] is on a protection list, Miss Weisberg?
MS. WEISBERG: No, we don't actually have a list. We have documents that are protected. That's a name that appears -- I believe the evidence will show that that name is a name that appears in documents that Miss Johnson published on her web site. So they are out there in the public domain.
HEARING OFFICER: I'm going to assume that was an inadvertent slip, Miss Johnson. No more of those. I'm going to have the record redact that name, (name redacted).

                Transcript, I: 56-57, emphasis supplied.   Impounded Vol. VII, Tab 201.

Where there was no list of names in a protection order, Johnson saying a non-party’s given name was not an “inadvertent slip.” In fact, it was no “slip” at all, of any kind. SHO Phillips threatened Johnson by saying “No more of those.”   It is not the statement of a fair-minded man, given the context of the conversation. When Johnson inadvertently—yet well within her right—used the Complainant’s name, Phillips ordered the public out of the room. Johnson went with them. Johnson had a reasonable fear that were she alone in that hearing room, the record could be transmogrified into a weapon against Johnson. The basis of that fear arises out of events at the November pretrial conference.

That is, as written on page 16 in Johnson’s appellate brief to the Board [Vol. IV, Tab 233; Impounded Vol. VII, Tab 233], during the November pretrial conference, SHO Phillips kept on telling the transcriptionist to go off the record when Johnson was speaking and to go back on the record when Phillips spoke. One example:

11/17/03 Transcript, p. 40, lines 9-12.   Impounded Vol. VII, Tab 137.

Other examples exist on the following pages and lines: Impounded Vol. VII, Tab 137, Transcript, hearing of 17 November 2003, p. 39, line 20 [39:20]; 40:9-12; 60:19-21, 82:15-20, 83:23, 86:12-16.

            After the public was ordered out and Johnson had left with them, and after SHO Phillips, Wagner, and Weisberg broke for lunch, Phillips, Wagner, and Weisberg resumed the charade and in the absence of the public and Johnson, Phillips put the following on the record:

    HEARING OFFICER: . . . Just for the record, I just wanted to state on the record and recap what happened before we recessed for the lunch break.

. . .
She [Johnson] continued on one or two other occasions to continue to use the real names, and, again, we, the Chair warned her, and finally it was told to her that if she did not adhere to the rules that were going to be promulgated regarding the protective order that the attendees would be asked to leave the room. Not Barbara Johnson and not her paralegal and certainly not bar counsel or her paralegal, but the people who were attending from the public standpoint would be asked to leave the room. . . .

12/2/03 Transcript, Day 1, p. 66-67.
Impounded Vol. VII, Tab 201 (emphasis supplied).
Phillips’ admission that the protective order re pseudonyms had not been promulgated.

That the BBO has impounded the transcript of both hearings is outrageous and not to be countenanced by this Court.   The BBO’s attempt to keep secret from the public an alleged trial that should have been at all times a public hearing is akin to a Star Chamber proceeding and a Kangaroo Court. The OBC’s and BBO’s malice and egregious intentions are so great that those actions are tantamount to crimes against Johnson’s person and crimes against her property , criminal acts that should be prosecuted to the fullest.\[25]/

Point BBO ¶3, note 1, ¶2, sentences 1 and 2. The public portions of the record appear in Volumes 1 through V. The materials subject to impoundment under the Board's protective order, including certain pleadings, transcripts and exhibits, are segregated in separate volumes marked as Impounded Volumes VI-XII.

Johnson’s Counterpoint.   For the afore-mentioned reasons, the documents in Volumes VI through XII must be deemed “UNimpounded. No notice was given to Johnson regarding the impoundment of any of the documents and pleadings in those volumes. There was and is no “good cause” shown to impound them. No Order emanated from any Article III court.

Point BBO ¶4.    Bar Counsel commenced disciplinary proceedings before the Board by filing and serving a three-count petition for discipline against the respondent on January 24, 2003. (Vol. I, Tab 1)   Because Counts I and II of the petition involved highly personal information derived from court records under impoundment and other confidential records, bar counsel used pseudonyms for the affected individuals. (Id.)

Johnson’s Counterpoint.   The documents from my website about which the OBC and the BBO have complained are shown in the following table—i.e., these webfiles are the ones that were named exhibits in the OBC’s pretrial document list. All those shown from Drano Series ##5-83 relate to the allegations in Count I. Drano Series #84a is non-existent. It was “banned”—under threat by ABC Weisberg— and never was uploaded.   Some of the webfiles identified on pretrial were evidently not marked as Trial Exhibits . . . or the list supplied Johnson was not complete.

[1]           . . . [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). Johnson was denied any opportunity to litigate the validity of the underlying order, namely, the order of Justice Prudence McGregor.

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

[3]   The so-called trial occurred over two days. SHO Phillips lied when he put into the record:

And we, we, the Chair, said to Barbara Johnson that certainly the proceeding was going to continue on this afternoon and that bar counsel was going to be able to present her evidence, her exhibits, et cetera, and that certainly Barbara Johnson as a party was expected to be here, and she said she was not going to be here, and we saw her leave with her public participants.

Impounded Vol. VII, Tab 201, transcript, I:13, 47.   Phillips’ communication to Johnson had to be via telepathy. There is no record in the transcript of him so informing Johnson, and Johnson has never seen Phillips since that moment on 2 December 2003 when she left the room in which the sham trial was occurring.

[4]       The Trial Exhibit list provided Johnson with the trial transcript does not agree with the exhibits as they were produced for the SHO. Weisberg mentions “billing records” being included in Exh. 67, but the list shows Exh. 67 being something else. See please Vol. VII, Tab 201 Trial transcript, Day 2, pp. 9-11.

[5]      Chapter 233: Section 1 Issuance of summonses for witnesses:

Section 1. A clerk of a court of record, a notary public or a justice of the peace may issue summonses for witnesses in all cases pending before courts, magistrates, auditors, referees, arbitrators or other persons authorized to examine witnesses. . . .   The summons shall be in the form heretofore adopted and commonly used, but may be altered from time to time like other writs.

The statutory language is unambiguous and means that SHO Phillips should not have prevented Johnson from subpoenaing or calling witnesses. Johnson had the power to subpoena witnesses under G.L. c. 233, §8. Foster from Gloucester, Inc. v. City Council of Gloucester, 10 Mass.App.Ct. 284, 292 (1980), citing Bloom v. City of Worcester, 363 Mass 136, 162-163 (1973).

[6]        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?

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

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

[9]        Justice Black wrote, in words for all intents and purposes, the goal of a tyrannical government is to deprive its citizens of independence. In that way, they become “nothing more than parrots of the views of whatever group wields governmental power at the moment.” Cohen, at 138.

[10]        There was no order to use pseudonyms. The OBC simply used them for Counts I and II in the Petition for Discipline. The OBC did not use pseudonyms in Count III. The ostensible reason was that Johnson’s client in Count III was against the OBC action against Johnson. So, under the institutional custom of selective enforcement and application of laws, the OBC chose to use the real name of Johnson’s client (who was not a complainant) and the pseudonyms for the nonclients in Counts I and II. That the client in Count III was not a complainant and actively opposed what the OBC and BBO were doing did not make her privacy—the excuse the OBC and the BBO asserted—as important as those nonclients who were aligned with the OBC and the BBO. Therefore, the so-called “privacy” issue was but a smokescreen, a sham.

[11]            The reasonable conclusion is that Carpenter upholds privilege in the face of a fee dispute.

[12]            Johnson’s contention was that although confidences must not be disclosed if they are not relevant to the defense, they may be disclosed if they are relevant to the defense of the charge. See Tasby v. United States, 504 F.2d 332, 336 (8th Cir.1974), cert. denied, 419 U.S. 1125, 95 S.Ct. 811 (1975).    In such circumstances, “the attorney-client privilege may be treated as waived at least in part.”   Id. at 336. See also Com. v. Brito, 390 Mass. 112 (1983), Glenn v. Aiken, 409 Mass. 699 (1991), Com. v. Woodberry, 26 Mass.App.Ct. 636 (1988), and Darius v. City of Boston, 433 Mass. 274 (2001).

[13]            The critical proceeding occurred on 17 December 1998.

[14]            To a similar excuse in Cohen, Justice Black wrote:

. . . This argument—that constitutional rights are to be determined by long-standing practices rather than the words of the Constitution—is not, as the majority points out, a new one. It lay at the basis of two of this Court's more renowned decisions—Dred Scott v. Sandford, 19 How. 393 [1857], and Plessy v. Ferguson, 163 U.S. 537 [1896]. But cf.Brown v. Board of Education, 347 U.S. 483 [1954]. The notion that a violation of the plain language of the Constitution can gain legal stature by long-continued practice is not one I can subscribe to. A majority group, as de Tocqueville observed, too often "claims the right not only of making the laws, but of breaking the laws it has made." De Tocqueville, Democracy in America, Vol. 1, at 261. Cohen, at 142 n.23 (Black, J., dissenting).

[15]            For details of Johnson’s recent SJC cases, see

·     falseallegations.com/drano88-abend-rule-27-letter-to-appeals-court.htm

In Abend v. Myerson et al, 57 Mass.App.Ct. 1104, cert. denied 440 Mass. 1101 (2003), the jury awarded approximately $250,000, but despite the trial judge having dismissed the counterclaim, he allowed the subtraction of a sum requested in the counterclaim. In effect, that ruling allowed “Gimbels” to lessen its debt to Abend by a sum “Macy’s” had given her.

Then SJC Justice Roderick L. Ireland awarded the multimillion dollar defendant estate attorneys’ fees for a Rule 27.1 appeal. Johnson believes the award was to smite her crusade to abolish judicial immunity.   Abend was then a little, old, still hard-working lady over 70 years old whom the decedent did not pay her for the extraordinary services she rendered to him for the last five years of his life, when he was failing from ill health (cancer, diabetes, etc.). He also did not pay into employer social security for her.

·        falseallegations.com/drano87-gordon-rule-27-letter-to-appeals-court.htm

In Cholfin v. Gordon, 57 Mass.App.Ct. 1104, cert. denied 439 Mass. 1101 (2003), Gordon represented that he was Cholfin’s lawyer and put an attorney’s lien on her case, but he was not her lawyer. When Gordon moved to compel her phone number, Judge James McHugh, then still sitting in Superior Court, wrote in his decision that Gordon should look it up in the phone book. And although Judge McHugh also declared the case ready for trial, Judge Wendi Gershengorn curiously gave Gordon the summary judgment sought by his malpractice-insurance lawyers. Gershengorn found Cholfin’s case to be frivolous.   Cholfin appealed but got no relief.   Proposition: Let any lawyer put a lien on any stranger’s case.

·        falseallegations.com/drano94-restraining-order-in-another-state.htm

The court refused to stop a trial of for a non-existent crime and wrote, in effect, let the man appeal after conviction. (This occurs when a DA misuses a previously uninterpreted and badly-written statute to hold onto a nonmeritorious case and then the SJC refuses to interpret it BEFORE trial.)   Fortunately, a second district court judge with common sense chastised the ADA and dismissed the case after the 211:3 did not work.

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

[16]       “There is something specially repugnant to justice in using rules of practice in such a manner as to debar a prisoner from defending himself, especially when the professed object of the rules so used is to provide for his defense." Faretta v. California, 422 U.S. 806, 822-823 (1975), quoting 1 J. Stephen, A History of the Criminal Law of England, 341-342 (1883).

[17]           The majority is holding . . . that lawyers are not entitled to the full sweep of due process protections because they had no such protections against judges or their fellow lawyers in England. But I see no reason why this generation of Americans should be deprived of a part of its Bill of Rights on the basis of medieval English practices that our Forefathers left England, fought a revolution and wrote a Constitution to get rid of.
Cohen, at 142 (Justice Black, with whom Chief Justice Warren and Justice Douglas concurred, dissenting).   Fearing that the majority opinion in Cohen implied that “a lawyer is not to have the protection of the First Amendment with regard to his private beliefs and associations whenever his exercise of those freedoms might interfere with his duty to ‘co-operate’ with a judge’” [id. at 145], they concurred.
It seems to me that the majority takes a fundamentally unsound position when it endorses a practice based upon the artificial notion that rights and privileges can be stripped from a man in his capacity as a lawyer without affecting the rights and privileges of that man as a man.

Id. at 145 (dissent).

[18]     “Section 8. Witnesses may be summoned to attend and testify and to produce books and papers at a hearing before a city council, or either branch thereof, or before a joint or special committee of the same or of either branch thereof, or before a board of selectmen, a board of police commissioners, a fire commissioner or a board of fire commissioners, a commissioner of public safety, a school board, the alcoholic beverages control commission established by section forty-three of chapter six, a licensing board or licensing authorities, as defined in section one of chapter one hundred and thirty-eight, a board of registrars of voters, the police commissioner or election commissioners of Boston, the Massachusetts Water Resources Authority, the state racing commission, the parole board or a board of appeals designated or appointed under section thirty of chapter forty, as to matters within their authority; and such witnesses shall be summoned in the same manner, be paid the same fees and be subject to the same penalties for default, as witnesses in civil cases before the courts. . . .” G.L. c. 233.

[19]    A proceeding—whether judicial, administrative, quasi-judicial, or quasi-administrative—that does not allow an accused to call witnesses in his or her defense would or should be deemed unconstitutional. See U.S. Constitution, Sixth Amendment (“. . . the accused shall enjoy the right . . . to have compulsory process for obtaining Witness in his favor . . .”). Constitution of the Commonwealth of Massachusetts, Part the First, Article XII (“And every subject shall have a right to produce all proofs, that may be favourable to him, to meet the witnesses against him face to face, and to be fully heard in his defence . . . ”). Although a disciplinary proceeding has been deemed a civil proceeding, there is much similarity between it and a criminal one.

[20]            See Vol.II, Tab 167, entry for 12/5/03. That person wrote an unsolicited letter; it is attached to Johnson’s Motion to Dismiss All Counts on Grounds of BBO Violating Board Rule 3.22(B) and Constitutional Rights to a Public Hearing.

[21]            Count I of the petition swirls around a father’s custody and paternity case about which Johnson filed a Complaint in federal court. In the Complaint, Johnson chastised a judge for depriving the father of his parental rights for over a decade without due process and equal protection. The child's mother ran for public office and on election day, both blamed her loss on Johnson's website and filed a complaint at the Bar.   The OBC accused Johnson of publishing protected and confidential material on her website. Denying the accusations, Johnson published her answer to the BBO and OBC on her website at falseallegations.com/bbo-drano90-answer-count-one-linnehan.doc.

               In Count I, Crane (a) did not identify with any particularity the offending language or the people allegedly actionably harmed, (b) had no intention of calling the mother-candidate, the father, or the son, now in his majority – despite the fact that they were named in the OBC’s proposed list of witnesses, and (c) also intentionally misrepresented that Johnson put onto her website documents Johnson had not put on her website.

[22]             Count II was essentially a de minimus fee dispute. Johnson provided consultation; i.e., she never made an appearance in court for the complainant’s husband.   His problems were the four indictments charging him with sexual crimes and assault of the couple’s youngest and mentally challenged daughter.   At the age of 15 months, the daughter had suffered a stroke. At the time of the indictments, the daughter was around 28 years old chronologically but only around 1½ years old mentally. The daughter had been in the custody of the Department of Mental Retardation for around eight years. The parents had been restrained from seeing her.

               The entire family was pleased with Johnson’s services and relayed their gratitude to Johnson via emails [Figures 1, 2, and 3 at Vol. I, Tab 46]. In fact, the complainant gave her consent to publication of the family story on Johnson’s website [Figure 3. at Vol.I, Tab 46]. Whether the consent was implicit or explicit is a fact for a jury to decide.

               Johnson received approximately $10,700, but realizing that the family faced considerable legal expense to defend against the criminal charges and to prosecute civil cases, Johnson deeply discounted her fees and in December 1999, a little over 2 years prior to the OBC petition issuing, returned approximately $3200 to the wife of the defendant. The wife then complained to Johnson that she wanted to pay her for only one hour and 36 minutes of time and to have Johnson return more money [Figure 4 at Vol. I, Tab 46]. Johnson suggested to the wife that the fee dispute be arbitrated. Instead of responding to Johnson’s offer to participate in arbitration, the wife complained four months later— around April 2000—to the Bar.

In Count II, Bar Counsel averred (a) that Johnson commingled funds by depositing the family’s money into her personal rather than into her IOLTA account. [Pet. ¶ 71], (b) that “the fees charged and collected by [Johnson] in the matter were clearly excessive” [Pet. ¶ 82], and (c) that Johnson published confidential material re the family without the family’s consent. [Pet ¶ 91].

               But Crane failed to identify (a) how much of the amount Johnson charged the family is excessive, (b) the task(s) for which they allege Johnson overcharged the family, and (c) also intentionally failed to acknowledge in the Petition for Discipline any of the facts or documents whatsoever in mitigation, although the OBC’s agents had copies of (a) each and every email sent from the couple and their daughters and sons-in-law to Johnson and each and every email Johnson sent to the family and three of their married daughters and sons-in-law, including (b) the email in which the wife had given her consent to publication of the family’s story on Johnson’s website [Pet. ¶91] and (c) the detailed, itemized accounting Johnson provided the couple.

Learning that disciplinary charges were being brought, Johnson placed both her bill to the family and her responses to Weisberg on her website (see http://www.falseallegations.com/drano84-sano-bbo-saga.htm) and later,   http://www.falseallegations.com/bbo-drano90-answer-count-two-sano.doc, so that the public could decide for themselves whether Johnson’s fees were excessive.

               Johnson averred (a) that she had already earned the money by the time she deposited it into her personal account [Vol, I, Tab 46, Am.Ans. ¶ 71], (b) that her fees were not excessive [Vol. I, Tab 46, Am.Ans. ¶ 82], and (c) that Johnson had the consent given by the wife to publish the story on her website and published only those parts relevant to the dispute [Vol. I, Tab 46, see Figure 1 below ¶ 74 below excerpt from an email dated 12 December 1999 at 19:03].

Ultimately, even the BBO hearing officer reported that he found no evidence of an excessive fee having been charged.

In both Counts I and II of his petition, Crane averred that Johnson published confidential material on her website and thereby harmed people. Johnson disagreed.   Griswold v. Connecticut, 381 U.S. (Conn.) 479, 487 (1965), quoting Gitlow v. People of State of New York, 268 U.S. 652, 666 (1925) (freedom of speech and of the press, protected by First Amendment, are fundamental personal rights and liberties protected by due process clause of Fourteenth Amendment from impairment by States). Snyder v. Com. of Massachusetts, 291 U.S. 97, 105 (1934) (same).

[23]           Count III arose out of a whistleblower, wrongful termination case. During its prosecution in March 1995, eight years ago, Johnson was found in contempt of a non-existent order [Vol. I, Tab 46, Am.Ans. ¶ 108, 111, et al]. After the labyrinthine proceedings of a Rube Goldberg remand case—up and down the ladder of the courts several times—the finding of contempt against Johnson was not vacated. On 17 December 1998, Johnson was ordered to jail because she began a sentence with “No” (when responding to another issue) to Judge Paul McGill, who had found her in contempt three years prior to that day. She remained jailed for 24 hours. The Complainant of Count III in the petition was Judge McGill.

“The validity of the contempt order … depends on the correctness of the underlying discovery order.” Greater Newburyport Clamshell Alliance v. Public Service Co., 838F.2d 13 (1st Cir. 01/29/1988), citing Hanley v. James McHugh Const. Co., 419 F.2d 955, 957 (7th Cir. 1969).

               In Count III, Crane alleged that Johnson was jailed to force payment of funds allegedly ordered on 3 March 1995 to be paid [Vol. I, Tab 1, Pet. ¶ 124]. Not only was Crane’s allegation untrue [Vol. I, Tab 46, Am.Ans. ¶ 124], but he knew it was untrue: his own exhibit to the petition proves otherwise.

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

               To force the disclosure of the facts raised in ¶¶ 26 and 28 above and other necessary facts, Johnson filed motions for more definite statements, Weisberg opposed one of them; and SHO Phillips denied them [Impounded Vol. IX, Tab 48 (8/26), Tab 69 (9/9/03), Tab x (11/4/03); the opposition at Tab 62 (9/9/03); the denials at Tabs 79 (9/16/03) and YY (11/18/03)].   Johnson moved for authorization to take depositions and was denied [Vol. I, Tab 18 (06/24/03)].

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

[24]    Before the OBC issues a Petition for Discipline, it must obtain the approval of the BBO. In the instant case, the Board member who performed the approval task was Attorney Elizabeth Mulvey. It is unknown to Johnson what criteria Mulvey used to reach her decision to approve the issuance.

[25]    The OBC—outgoing BC Daniel Crane and ABC Weisberg—wrote the Information and was involved in deciding the arrangement of the volumes containing the records.    It was they, with the approval of the BBO, who decided to put what should have been a public hearing into an bound volume identified as containing allegedly “impounded” documents.

Key:        box Pleadings                 Letters to/fro judges

                                                      Letters to/fro OBC

                                                      Misc.



Drano

Series

Number

Drano Series File Name

Case

OBC

Trial Exhibit Number

5

An Amended Complaint Based on the Deprivation of Parental Rights
Suit against doctor, court investigator, mental-health counselor, psychologist, social worker, trial court and child protective service

Linnehan and Brown

17

9

Opposition to Motion to Dismiss on Immunity Grounds

Linnehan and Brown

18

12

Opposition to Motion for Judgment on the Pleadings on Grounds of Sovereign Immunity: A Creative Look at Its Unconstitutionality. It Could Change the Way Massachusetts Treats Its Citizens

Linnehan and Brown

19

14

The Default of Eli Newberger of Children's Hospital

Linnehan and Brown

???

15

Motion to Strike Eli Newberger's Answer to Amended Complaint and Motion to Dismiss

Linnehan and Brown

???

17

Opposition to Motion for Judgment on the Pleadings

Linnehan and Brown

20

20

Jim's Story: The Devastating Story People Have Been Waiting For

Linnehan and Brown

21

21

Opposition to Eileen Kern's Motion for Judgment on the Pleadings

Linnehan and Brown

22

22

Amended Complaint for Modification

Linnehan v. Robyn Gerry Sylvia Paternity Case

23

23

Affidavit of Robyn Gerry-Sylvia in Her Divorce Case Against Michael

Robyn Gerry-Sylvia v. Michael R. Sylvia Divorce Case

24

24

Affidavit of Michael R. Sylvia in His Divorce Case Against Robyn

Robyn Gerry-Sylvia v. Michael R. Sylvia Divorce Case

25

25

Divorce Complaint -- Robyn Gerry v. Michael R. Sylvia

Robyn Gerry-Sylvia v. Michael R. Sylvia Divorce Case

26

26

Obituary of a Grandfather Who Longed to See His Grandson Before He Died . . . and the Letter of the Psychologist Who Recommended Denial of Grandparents' Visitation

Linnehan Grandparents v. Robyn Gerry Sylvia

27

28

Deleted.   (This had contained photographs of Linnehan’s biofamily.)

Deleted

28

31

Plaintiff James Linnehan's Opposition and Combined Memorandum in Support of His Opposition to Children's Hospital's and Eli Newberger's Motion to Dismiss

Linnehan and Brown

29

32

Linnehan's Opposition and Memorandum Supporting Opposition to McCarthy's Motion to Dismiss

Linnehan and Brown

30

34

Renegade Juvenile Court Judge Orders Impoundment of Materials Being Sued on in Federal Court. The outrageous order is reminiscent of edicts issued by tyrants, autocrats, and sociopaths who have climbed to the pinnacle of power in countries other than OUR U.S. of A.

Linnehan related. An alleged order of court

31A

31B

37

Letter to Judge Mark E. Lawton about Order to Impound Reports of Social Workers, Psychologists, and Eli Newberger-Childrens Hospital and Certain Documents on This Website

Linnehan related

32

39

Plaintiffs' Brief on (1) Court's Authority to Retain Jurisdiction (this is about the domestic relations exception -- that is, about when the federal court will not take jurisdiction of cases arising out of domestic relations cases), (2) Default Judgment Against Eli Newberger, (3) Linnehan's Surreply to Defendant Mccarthy's Reply to Linnehan's Opposition to His Motion to Dismiss

Linnehan and Brown

???

42

Letter to Chief Judge Martha P. Grace, Juvenile Court, and Chief Judge Sean M. Dunphy, Probate & Family Court

Linnehan related

33

43

Letter to Chief Justice Barbara A. Dortch-Okara, Trial Court, Chief Judge Martha P. Grace, Juvenile Court, and Chief Judge Sean M. Dunphy, Probate & Family Court. Added the context in which all these letters were written.

Linnehan related

???

44

Child's Attorney Caught Lying to Chief Justices!! Provable by Documentary Evidence: Letter in Reply to Child's Attorney's Letters to Chief Justice Barbara A. Dortch-Okara, Trial Court, Chief Judge Martha P. Grace, Juvenile Court, and Chief Judge Sean M. Dunphy, Probate & Family Court Added the context in which all these letters were written.

Linnehan related

???

65

Petition for Interlocutory Relief from the Application of the Massachusetts Child Support Guidelines Where the Father Has No Visitation
The legal ARGUMENT in this petition was written by the foremost NATIONAL EXPERT on Child Support Guidelines. (A link to her website and services is provided.) The petition does not address the constitutionality or the UNconstitutionality of the Massachusetts guidelines. That I will have to challenge in another way. DENIED on 12/27/01 without hearing. See Drano #70. Federal Complaint will be coming.

Linnehan domestic relations case

???

66

Petition for Interlocutory Relief for Temporary Child Custody
This petition is unlikely to be successful. The court will likely say that relief will be available after final judgment, but it WON'T BE. The child will be too old and will likely leave the home of the mother and go to points unknown. The father does not want to risk losing track of him.

In either event, the petition shows the format -- at least in Massachusetts -- to be used for such an interlocutory appeal. It may also work in other States. The law, primarily from the United States Supreme Court, is good in all States.
DENIED on 12/27/01 without hearing or explanation.

Linnehan domestic relations case

34

69

First Round of an Appeal Fighting Immunity:
* Sovereign Immunity for the State
* Absolute, Quasi-judicial Immunity for certain so-called mental-health workers
* Qualified Immunity for public officials and certain private parties

Linnehan and Brown against doctor, court investigator, mental-health counselor, psychologist, social worker, trial court and child protective service

???

70

Complaint in the Nature of a Petition for a Writ of Certiorari and to Invoke the General Superintendence of the Court
In Massachusetts, this is the only way to "appeal" a denial by a single justice in the Appeals Court to give relief from the application of the Massachusetts Child Support Guidelines where a father has no visitation

Linnehan v. the mother of his child and the court

35

72

Reply of Brown and Linnehan to Defendants' Appellee Briefs
The Primary arguments are immunity and state action, i.e., whether the defendants were state actors.

Linnehan & Brown against Evil Evaluator Eli Newberger et al
in the multibillion $,$$$,$$$,$$$ sex-abuse industry

36

73

Decision of Appeal Against Eli Newberger and Immunity:
* Sovereign Immunity for the State
* Absolute, Quasi-judicial Immunity for certain so-called mental-health workers
* Qualified Immunity for public officials and certain private parties
When I filed this appeal, I had absolutely no hope of winning it. I hoped only that I would get one or two sentences which would crack open a wee bit the door locked tight by immunity. I think I succeeded. See the decision: if judges are people, they are accountable -- according to Article V of the Massachusetts Declaration of Rights. This one might be appealed to the U.S. Supreme Court on that question. It might also be used for the appeal in my judge case.

Linnehan & Brown against Evil Evaluator ELi Newberger et al

???

80

The Bar War: Barb's First Response to the Complaint by Robyn (mother of Jim Linnehan's child) and the child's court-appointed attorney, Deborah D. Wolf to the Board of Bar Overseers and/or Office of the Bar Counsel

Barb Fights for her First Amendment rights against secrecy by impoundment

37

81

The Bar War: Barb's Second Response to the Complaint by Robyn (mother of Jim Linnehan's child) to the Office of the Bar Counsel and/or Board of Bar Overseers

Barb's fight for her First Amendment rights continues

38

82

The Bar War: Barb's Second Response to the Complaint by Deborah D. Wolf (the child's Juvenile-Court-appointed attorney) to the Office of the Bar Counsel and/or Board of Bar Overseers

Barb's fight for her First Amend- ment rights continues against the court-appointed attorney

39

83

The Bar War: Barb's Response to the Complaint by the Office of the Bar Counsel

Barb's fight against Bar Counsel

40

84a

The Bar War: To come. Banned in Boston by the Board of Bar Overseers, commandered by the Massachusetts Supreme Judicial Court

Barb's fight against Bar Counsel and the Sanos

41

Point BBO ¶5.   Through counsel, the respondent filed an answer to the petition on April 18, 2003 with the real names of the persons identified by pseudonyms in Counts I and II of the petition. (Impounded Vol. VI, Tab 9) The respondent's counsel withdrew on June 26, 2003 (Vol. I, Tab 22), and she represented herself in the proceedings thereafter.

Johnson’s Counterpoint.    As to having prior counsel: Johnson did retain counsel at the outset of the Bar action. He represented Kevin Curry, one of the three attorneys in Bar Counsel v. Gary Crossen, Richard Donohue, and Kevin Curry, and both he and Curry contacted Johnson soliciting her business. The representation went awry because counsel was not communicative, and had a secret meeting with ABC Weisberg. Johnson learned of the meeting from a BBO/OBC staff member who had not been clued in to the secrecy of the meeting. Despite Johnson’s inquiries as to what was discussed at that meeting, Johnson was unable to learn anything about the substance of the meeting either from her counsel or from Weisberg. Paranoia set in when her counsel failed ever to communicate with Johnson again. Johnson feared that there was a “trade” afoot: the case against Curry to be dismissed in exchange for negligent representation of Johnson.   After Johnson had dealt with ABC Weisberg and Chair Carpenter, however, Johnson concluded that any counsel would appear to be negligent, for justice did not trump the waywardness of the OBC and the BBO in conducting their business.

            As to pseudonyms: Given that there was no court order regarding pseudonyms, Johnson—and her then-counsel—were not precluded from using real names. Had the OBC used a pseudonym for Johnson’s client whose case was underlying Count III, perhaps Johnson would have voluntarily acquiesced to what she believed was foolishness by the OBC.   Why “foolishness”? Because all the documentary evidence contained the real names, not pseudonyms, and Johnson was not about to alter the evidence . . . as either Judge McGill or Attorney O’Connor or both had done to a material document later used by ABC Weisberg to comport with the fabricated iteration set out in Count III of the OBC’s petition [Vol. 1, Tab 1, and Vol. II, Tab 70, Motion to Dismiss Count III for Delay and Lack of Exculpatory Tape of Proceeding in 1998].

Point BBO ¶6.    On May 22, 2003, bar counsel filed a motion to preclude the respondent from contesting certain factual issues alleged in Count III of the petition and a memorandum in support of his motion. (Vol. I, Tab 11) The respondent filed an opposition to the issue preclusion motion on August 29, 2003 (Vol. II, Tab 56), and bar counsel replied on September 9, 2003 (Vol. II, Tab 67). The preclusion motion was allowed by the Board chair on September 11, 2003. (Vol. II, Tab 76)

Johnson’s Counterpoint.    The issue of preclusion was argued in the following pleadings, which are incorporated herein by reference:

(a)       Johnson’s opposition [Vol. II, Tab 56],

(b)       Johnson’s proposed findings of fact and rulings of law after the “trial” [Impounded Vol. VII, Tab 217],

(c)       Johnson’s appeal from the hearing report [Vol. III, Tab 225] by SHO Phillips to the Board [Vol. IV, Tab 233; Impounded Vol. VII, Tab 233], and in

(d)       her response, supra at ¶¶67-71, and to the Board Memorandum, infra.

Point BBO ¶7.    On May 29, 2006, bar counsel moved for a protective order requiring, among other things, that portions of the record related to Counts I and II of the petition be impounded and that the proceedings be conducted so as to implement the order and preserve the confidentiality of the information. (Vol. I, Tab 12)   The respondent moved on August 26, 2003 to strike the motion for protective order (Vol. II, Tab 53) and filed an opposition to the motion on August 27, 2003 (Vol. II, Tab 54).   The motion was allowed and a protective order entered by the Board chair on September 10, 2003. (Vol. I, Tab 12)    A revised protective order was entered after the hearings on December 29, 2003. (Vol. III, Tab 195)

Johnson’s Counterpoint.   The issue of the protective order was argued in pleadings noted by the Board—Johnson’s motion on 26 August 2003 to strike the motion for protective order [Vol. II, Tab 53] and her opposition to the motion on 27 August 2003 [Vol. II, Tab 54)], which are incorporated herein by reference—as well as the following documents:

(a)       Johnson’s proposed findings of fact and rulings of law after the “trial” [Impounded Vol. VII, Tab 217],

(b)       Johnson’s appeal from the hearing report [Vol. III, Tab 225] by SHO Phillips to the Board [Vol. IV, Tab 233; Impounded Vol. VII, Tab 233], and

(c)       her response, supra at ¶¶55-66, and to the Board Memorandum, infra.

Point BBO ¶8.    The matter was assigned to a special hearing officer. (Vol. I, Tab 10) On July 23, 2003, after a prehearing conference, the hearing officer issued an order for the parties' witness and exhibit disclosures and scheduled six days of hearings on the petition for December 2003. (Vol. I, Tab 38) In addition, on bar counsel's motion, the hearing officer ordered the respondent to file a revised answer to the petition with the pseudonyms used in Counts I and II of the petition. (Vol. I, Tab 13, 38) The respondent filed an amended answer on August 22, 2003. (Vol. I, Tab 46)

Johnson’s Counterpoint.   Johnson incorporates herein by reference her Amended Answer [Vol. I, Tab 46] and its attachments. Johnson does not know whether the BBO included her attachments in the bound volumes of the Record Appendix.

Point BBO ¶9.    Prior to the hearings, the respondent moved to dismiss each count and disciplinary rule violation charged in the petition and filed numerous additional motions including motions for a jury trial on the disciplinary charges, for a more definite statement, and for declaratory judgment; motions to take pretrial depositions, to preclude the Board chair from deciding any motions, to recuse the hearing officer, to remove the assistant bar counsel handling the case, to refer her opposing counsel in the litigation underlying Count III of the petition for criminal prosecution; and motions to reconsider many of her motions. All of those motions were denied by the hearing officer or the Board chair. (Vol. I-II, Tabs 17-19, 34, 42, 47-49, 51-53, 58, 59, 68, 71,77-79,81,90,92-98,101, 111, 112, 121; Impounded Vol. VI, Tabs 50, 99, 100, 105, 107)

Johnson’s Counterpoint.   Johnson incorporates herein by reference each and every motion, opposition, reply, surreply, and any other brief she filed at the BBO. Without a copy of the 12 volumes filed by the BBO, Johnson can only assume the unusual and deficient Table of Contents is correct, but cannot refer this Court with the page numbers in the documents behind each Tab.

Point BBO ¶10.    In October and November 2003, the parties exchanged and filed prehearing disclosures as to their expected witnesses and exhibits. (Vol. II, Tabs 120, 122; Impounded Vol. VI, Tabs 87-88, 115-116, 129) The respondent listed and sought subpoenas for nearly ninety witnesses. (Impounded Vol. II, Tabs 87-89)

Johnson’s Counterpoint.   First, there was no good cause to characterize these documents as impounded documents and place them in an “impounded” binder. There was no impoundment order for any of these documents. If these were included in the Motion for Impoundment filed on 29 December 2003, four weeks after the sham trial, the order did not have retroactive effect.

Notwithstanding Johnson’s objection to the characterization of the documents as “impounded, Johnson states the following: ABC Weisberg filed a short list of witnesses—whom she said she might not likely call to testify—but a lengthy list of documents. Because the relevance or purpose of most of those documents was not self-evident, Johnson’s witness list included the diverse people whose names appeared in those documents. The purpose of calling them was to testify regarding their statements, if any, in those documents or their observations regarding the events. It was clear that the BBO was going to admit the OBC’s documents, regardless of Weisberg’s inability to authenticate many of them and regardless of the hearsay in them.   Weisberg’s plan was to offer copies allegedly copied from Johnson’s website, not court-certified copies of the public records.

Johnson addressed the aforementioned problems in the following documents, and incorporates them herein by reference:

·       Motion for Bar Counsel to Write Paragraph Summaries of the Purpose of Introducing Each of 101 Documents [Vol.    , Tab     (6 November 2003)]

·       Letter Sent 11/6/03 from Johnson to Strauss-Weisberg’s Letter of 11/4/03 To Johnson (Filed under a caption) [Vol.    , Tab     (6 November 2003)]

·       Supplement #1 to Respondent’s Lists of Expected Witnesses and Proposed Documents [Vol.    , Tab     (7 November 2003)]

·       Supplement #2 to Respondent’s Lists of Expected Witnesses and Proposed Documents [Vol.    , Tab     (10 November 2003)]

·       Supplement #3 to Respondent’s Lists of Expected Witnesses and Proposed Documents [Vol.    , Tab     (18 November 2003)]

·       Respondent’s Summaries of Testimony of Expected Witnesses Ordered over Respondent’s Objections [Vol. VI, Tab 125 (20 November 2003)]

Point BBO ¶11.    On November 5, 2003, the hearing officer scheduled a further prehearing conference and ordered the parties to submit written summaries of the anticipated testimony of each proposed witness and its relevance. (Vol. II, Tab 91) Bar counsel filed his witness summaries on November 12, 2003. (Impounded Vol. VI, Tab 116) The further prehearing conference was held on November 17, 2003 with a stenographer present. (Impounded Vol. VII, Tab 137) Under protest, the respondent filed her witness summaries on November 20, 2003. (Impounded Vol. VI, Tab 125)

Johnson’s Counterpoint.    See all the documents listed in the previous “Coumterpoint for BBO ¶10 and incorporated herein by reference.

Point BBO ¶12.    On November 24, 2003, the hearing officer ordered the issuance and delivery to the respondent of subpoenas to seven of her listed witnesses. The respondent did not serve those subpoenas and instead drew up and served unauthorized subpoenas purporting to require the witnesses' appearance and production of records at the hearing. (Vol. II, Tabs 159-161; Impounded Vol. VII, Tab 165) The hearing officer ruled that any self-issued subpoenas were invalid (Impounded Vol. VII, Tab 141) and issued an order quashing all such subpoenas on December 2, 2003 (Impounded Vol. VII, Tab 156)

Johnson’s Counterpoint.   Because ABC Weisberg wrote in one her documents that she had listed the names of a few witnesses, but it was unlikely she would call them, Johnson requested in a timely fashion—a month prior to trial— that the BBO issue the subpoenas [Impounded Vol. VI, Tab 89, Respondent’s Rule 4.5(A) Request for Full Board (Not the Chair Alone) to Issue Subpoenas Requiring Attendance and Testimony at Trial (4 November 2003)].   Johnson also requested permission to use an uninterested party for service [Vol. I, Tab 90, Respondent’s Motion for Approval of Use of Uninterested Party for Service of Subpoenas (4 November 2003)].

            BBO General Counsel Michael Fredrickson had assured Johnson that space on the subpoenas would be allowed for her to add the descriptions of the documents she sought the witnesses to bring with them to trial. SHO Phillips dragged his feet in acting on the motions, so Johnson had no choice but to cause subpoenas to be served. Ultimately Phillips did not act on her motion until 26 November 2006, but a few days (including a weekend) prior to trial, and after she had caused half of her intended subpoenas to be served by a constable [Impounded Vol. VII, Tab 201, “trial” transcript, I at 8-9, 69]. When Johnson did receive the subpoenas just before trial, she saw that no space was allowed to add requests for documents.

On Day 1 of trial, SHO Phillips continued to quash Johnson’s subpoenas and excused the witnesses who did arrive in response to the subpoenas. In sum, SHO Phillips quashed any subpoena not issued by the board and any subpoena requiring the production of documents [Impounded Vol. VII, Tab 201, “trial” transcript, I:5-6].

Point BBO ¶13.    The hearings on the petition for discipline started on December 2, 2003 with the respondent and members of the public present. (Impounded Vol. VII, Tab 201) The hearing officer announced his order quashing the respondent's self-issued subpoenas and directed the parties to preserve confidentiality by using pseudonyms as to Counts I and II at all times during the hearings. (Id.) After the respondent persisted in using real names instead of pseudonyms despite repeated warnings, the hearing officer ordered the public attendees to leave the room. (Id; Vol. II, Tab 189) The respondent then left the hearings and did not return. (Id)

Johnson’s Counterpoint.     As to “SHO Phillips Order” regarding pseudonyms: That is not an accurate accounting as to what occurred. Phillips insisted that there had been an order. The author of the Information has changed the truth in order to mask Phillip’s ignoring Weisberg’s admission that there was no order regarding the use of pseudonyms [see page 27, supra, and the figure below.

HEARING OFFICER: Do you happen to know whether that name [Complainant’s male roommate circa 1988-1989] is on a protection list, Miss Weisberg?
MS. WEISBERG: No, we don't actually have a list. We have documents that are protected. . . .

        Transcript, I: 56, emphasis supplied.
   Impounded Vol. VII, Tab 201.

            Because of the suddenness of having to use pseudonyms, Johnson did “slip” on occasion, whereupon Phillips did order the public attendees out of the hearing room and . . . whereupon Johnson left with the public, her right to a public trial having been violated.

Point BBO ¶14.    The hearings continued in the respondent's absence and were concluded on December 3, 2003, with the record left open for additional materials submitted by bar counsel on December 16, 2003. (Vol. III, Tabs 197, 198; Impounded Vol. VII, Tabs 196, 199-202) Bar counsel presented his case solely on documentary evidence. (Vol. V; Impounded Vol. VIII-XII) Copies of the hearing transcripts and exhibits were served on the respondent on December 19, 2003. (Vol. III, Tab 203)

Johnson’s Counterpoint.   Johnson has no memory of being served with exhibits along with the transcripts. She does recall receiving the transcripts. They were meaningless. They were transcriptions of a sham trial. They were the alleged recordings by revisionists who distorted our system of justice.

Point BBO ¶15.    During December 2003, the respondent filed motions to dismiss the petition and vacate rulings made during the hearing and motions for rehearing and reconsideration, all of which were denied by the hearing officer. (Vol. II-III, Tabs 176, 178, 179, 181, 189, 193; Impounded Vol. VII, Tabs 169, 177)

Johnson’s Counterpoint.   Johnson did file many post-“trial” motions, including but not limited to the following:

(1)      Motion to Dismiss All Counts on Grounds of BBO Violating Board Rule 3.22(b) and Constitutional Rights to a Public Hearing [Impounded Vol. VII, Tab 169 (5 December 2003)],

(2)       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

(3)       Motion for Conference with the Twelve (12) Members of the Board of Bar [Vol. II, Tab 178 (8 December 2003)],

(4)       Petition to Reopen the Record [Vol. II, Tab 179     (9 December 2003)], pursuant to Board Rule 3.59, on the grounds that Johnson’s substantial rights were prejudiced by SHO Phillips and BBO Counsel Wagner on the grounds that they, when they ordered the public out of what was to be a public hearing, (a) violated constitutional provisions and Board Rule 3.22(b), (b) acted in excess of the Board’s statutory authority or jurisdiction of the agency, (c) based its action upon an error of law, (d) used unlawful procedure, (e) acted in an arbitrary or capricious manner, and (f) abused their discretion, or otherwise not in accordance with law, and

(5)       Respondent’s Motion to Reconsider Order of 12/12/03 on Respondent’s Petition for Board Rule 3.59 Rehearing or Alternatively, Motion to Vacate Unlawful BBO Rulings Made During the Unlawful Proceeding on 2 December 2003 [Vol. III, Tab 193 (12 December 2003)].

Point BBO ¶16.    On April 14, 2004, the respondent filed her proposed findings of fact and rulings of law. (Impounded Vol. VII, Tab 217) Bar counsel's proposed findings, conclusions and recommendation for discipline were filed on April 15, 2004. (Vol. III, Tab 218)

Johnson’s Counterpoint.    Johnson did file proposed findings of fact and rulings of law   [Impounded Vol. VII, Tab 217].   SHO Phillips disregarded all except those about fees. He found, he wrote, no evidence of excessive fees.

Point BBO ¶17.    The hearing officer's report was issued and served on May 24, 2005. (Vol. III, Tab 225) The hearing officer recommended the respondent's disbarment. (Id)

Johnson’s Counterpoint.    SHO Phillips did recommend disbarment.

Point BBO ¶18.    The respondent appealed from the hearing officer's report and recommendation.   On June 13, 2005, the respondent filed an appeal brief with real names instead of the pseudonyms used in Counts I and II of the petition. On June 21, 2005, the Board ordered the brief stricken and returned to the respondent and directed her to file a brief in compliance with the protective order. (Vol. III, Tab 228) The respondent submitted a redacted brief that was accepted for filing on July 6, 2005. (Vol. IV, Tab 233; Impounded Vol. VII, Tab 233)^FN2

Johnson’s Counterpoint.   Johnson did appeal SHO Phillips’ report and recommendation. The report had no evidence to support the finding that confidential or privileged material was uploaded to Johnson’s website. In fact, ABC Weisberg admitted the following material facts:

Part I-A:   Proposed Subsidiary Findings of Fact from Trial Transcript

Bar Counsel admits that Johnson did not post a single impounded record from juvenile proceedings on her website. [Transcript, I:118].

MS. WEISBERG: I think that's an important [118] question. I want to be clear about it. We do not contend that Ms. Johnson posted a single impounded record from the juvenile proceedings on her web site. What she did was quote from and summarize the contents of those records. That is, the source of the information she quoted and summarized in the pleadings that she posted was impounded juvenile records. She did post, however, an electronic copy of her amended complaint for modification filed in the paternity proceedings in the probate court, also impounded, as you will see from the order of Judge McGill [sic, read Judge XXXXX] that I have introduced in evidence, although she did not in her Internet posting include the attachments you will see on the court copy.

What I have handed you now are attested copies of the records on file in the juvenile and probate courts from which the information on the web postings was derived. In other words, if Miss Johnson receipts in one of her Drano series that such and such a person filed a 51-A affidavit and started a care and protection, that information comes from the actual affidavit on file in the proceeding.

Transcript, I:117-118.

Excerpt from Impounded Vol. VII, Tab 201

Johnson’s Proposed Findings of Fact and Rulings of Law

Judge XXXXX was supposed to be Judge McGregor

Weisberg was, of course, speculating that the information Johnson uploaded was from Juvenile Court records. Weisberg appears never to have considered that the information uploaded to Johnson’s website might have been from Johnson’s client, who was at all times present in both Juvenile and Probate Family courts, for the Care & Protection case relating to his son in the Juvenile Court and his Custody and Paternity action in Bristol County Probate Family Court.

Part I-B:   Proposed Rulings of Law from Trial Transcript

10.    Bar Counsel admits that Johnson did not post a single impounded record from juvenile proceedings on her website.

Weisberg made a “judicial admission binding upon [her] client.” Liacos, Handbook of Massachusetts Evidence, at §2.5, p. 34, citing Lucia v. Water & Sewer Commissioners of Medford, 332 Mass. 468 (1955); Lewis v. Sumner, 54 Mass. (13 Metc) 269 (1847), for the proposition that judicial admission “may be made . . . (b) by the opening statement of counsel at trial; (c) by remarks or statements made by counsel during the trial”). . . .


To contend that to quote or summarize a court proceeding is a violation of a disciplinary rule is insane. . . . Those historic proceedings had “become naturally available notwithstanding the impoundment order” of the juvenile court. Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 541 (1977).
In the Linnehan case, the information “had become bland”: the child was now a teenager, the unwed mother conceived soon thereafter again out–of-wedlock, she accused another man—her new husband, a widower with three children—also of sexual abuse of his children from his first marriage, DSS became involved again on another §51A mandatory report against the other man. Ottaway, 372 Mass. at 541.

           11.       There is no proof that the source of source of information regarding the §51A report or the existence of a care and protection action was the information for Johnson. In fact, Johnson was never in Juvenile Court and never received documents from juvenile court.

What I have handed you now are attested copies of the records on file in the juvenile and probate courts from which the information on the web postings was derived. In other words, if Miss Johnson receipts in one of her Drano series that such and such a person filed a 51-A affidavit and started a care and protection, that information comes from the actual affidavit on file in the proceeding.

Transcript, I:118-119.
The absurdity of Bar Counsel’s gratuitous conclusions tests any reasonable person’s credulity. For instance, Linnehan knew there was a §51A affidavit, because he was notified by DSS that the unwed mother of his child had complained of him. As a result of discovery performed by his lawyers and his meeting with sundry individuals, he learned that Eileen Kern, who had seen the child—if memory serves—one time and mindlessly and irresponsibly made a report to DSS under §51A.

Johnson did not have to procure that information from juvenile court, as Weisberg suggested.   There were multiple sources of that information – all sources outside the courts. . . .

The OBC’s ABC Weisberg did not consider the possibility of differential diagnoses, i.e., alternative explanations for certain happenings. Such limited thinking detracts from the profession. Such limited thinking detracts from performance. Such limited thinking extinguishes respect.

Also §51A input forms are generally redacted. It usually takes a humungous court fight to get 51As in relatively unredacted form. None of the attorneys working for Linnehan worked that hard, which is why he had six of them, the last – . . . – having been disbarred for other reasons.

It would be a travesty of justice were this SJC “affiliated entity” to rely on Weisberg’s speculative and unreliable chalk as identifying the source of Johnson’s pleadings and webpages.

Excerpt from Impounded Vol. VII, Tab 201

Johnson’s Proposed Findings of Fact and Rulings of Law

Point BBO ¶18, note 2.   The respondent's redacted brief was accompanied by numerous attachments, some of which refer to true names instead of pseudonyms and are found in Impounded Volume VII at Tab. 233. The remaining attachments are included with the brief itself in the public section of the record at Volume IV, Tab 233. The same tab number appears in both volumes because the redacted brief and all the attachments, whether public or impounded, were submitted and taken for filing as a single pleading under docket number 233.

Johnson’s Counterpoint.   Real names remained UNtouched in real evidentiary documents.

Point BBO ¶19.    On July 26, 2005, bar counsel filed an opposition to the respondent's appeal. (Vol. IV, Tab 235) The respondent submitted a reply on August 18, 2005. (Vol. IV, Tab 236) A motion by the respondent to strike bar counsel's opposition was denied on August 19, 2005. (Vol. IV, Tab 237)

Johnson’s Counterpoint.   Johnson incorporates herein by reference her reply to the OBC’s opposition to her appeal [Vol. IV, Tab 236, Respondent’s Reply to the Opposition of Bar Counsel to Johnson’s Appeal of the Findings and Recommendation of the Special Hearing Officer], which contained four issues:

·       Unconstitutionality

·       Selective Enforcement

·       Johnson’s Subpoenas

·       Preclusive Effect in Count III

Johnson’s motion to strike the OBC’s opposition to Johnson’s appeal on the grounds that the OBC violated Board Rule 3.50(a).

Point BBO ¶20.     On March 20, 2006, the Board issued a memorandum and unanimously voted,

           for the reasons set out in the memorandum attached to this vote, to file an Information with the Supreme Judicial Court recommending that Ms. Johnson be disbarred.

(Vol. IV, Tab 243)

Johnson’s Counterpoint.   The Board Memorandum was signed by one person. Johnson’s understanding—not personal knowledge, just understanding—that at the end of the terms of several Board members, three new members joined the Board, and those replacements recused themselves.   One had ineptly represented a client of Johnson; one was opposing counsel in a pending case; and the last had professional communication regarding potential business with Johnson on several occasions. Attorney Mulvey had previously recused herself since she was the member who “approved” the issuance of the Petition for Discipline against Johnson. So at the most, eight members voted. Johnson has no information that confirms whether the remaining eight members did or did not vote. Given that the entire case involves Johnson’s First Amendment rights, it is difficult to believe that there was continuity and consistency amongst those eight members.

            There was no appellate hearing at any time in front of one or more members of the Board.

Point BBO ¶21.    The following amounts were expended by the Board in furtherance of the disciplinary proceedings in this matter:

Johnson’s Counterpoint.   The cost to Johnson in terms of legal fees (even the fee of the original attorney was greater than the costs listed by the BBO), time and effort to defend against the fallacious accusations by the OBC (with the approval of the BBO), and lost income (due to the publication of the pending action on the BBO website and elsewhere) far exceeds the cost to the BBO and OBC.

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

            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”                 [Vol. IV, Tab 243. Memo page 15]

·       “Selective Prosecution”         [Vol. IV, Tab 243, Memo page 16]

·       “Subpoenas”                           [Vol. IV, Tab 243, Memo page 16]

·       “Protective Order”                 [Vol. IV, Tab 243, Memo page 17]

·       “First Amendment”                [Vol. IV, Tab 243, Memo page 18]

·       “Issues on Appeal re: Count I”       [Vol. IV, Tab 243, Memo page 19]

·     “Issues on Appeal re: Count II”      [Vol. IV, Tab 243, Memo page 19]

·       “Count III—Issue Preclusion”        [Vol. IV, Tab 243, Memo page 20]

·       “The Appropriate Sanction” [Vol. IV, Tab 243, Memo page 22]

Because the BBO does not discuss the issues of law as the ordinary, competent appellate attorney would, but as if they were simply disputes of fact, Johnson has discussed the facts buttressed by legal argument where the facts are first raised by the BBO in its brief. As a convenience to this Court, Johnson has cross-referenced as appropriate.

~ ~ ~ ~ ~

Because any issues of law that have been addressed by the BBO in its Memorandum are inapplicable here for they are based on non-existent, or untruthful, facts, Johnson chooses to interleave her responses, concentrating on presenting proof of the real facts, facts which were ignored at all stages of the proceedings below and in the Board Memorandum. The BBO’s writing appears in Arial, a sans serif typeface in text boxes, and Johnson’s in Times Roman.

BBO Memorandum, ¶1, sentence 1: The petition for discipline alleged misconduct in three counts: the first two arose from the respondent’s publication of confidential and private information on her website, and the third essentially from her contempt of court.

Johnson’s Counterpoint: As to Count I. Johnson uploaded to her website no information that was confidential and private. And neither the OBC nor the BBO ever identified which words, passages, sentences, or paragraphs of Johnson’s webpages contained confidential or private information. Johnson uploaded public records, i.e., pleadings filed in state and federal courts. Although Johnson did not upload the exhibits attached to those pleadings in court, the exhibits were referenced in the pleadings.\[1]/ Any accusation Johnson made was supported by incontrovertible documentary evidence.   She has never been sued for defamation. And the OBC presented at trial no witness to complain that Johnson published on her website confidential and private information about him or her.   The result: The OBC played both prosecution and the only witness.
            Johnson caused trial subpoenas to be served upon the individuals whom OBC ABC Weisberg claimed were harmed by the alleged publication of confidential and private information, but SHO Phillips quashed them.

            As to Count II.   Similarly, Johnson uploaded to her website no information that was confidential and private. And neither the OBC nor the BBO ever identified which words, passages, sentences, or paragraphs of Johnson’s webpages contained confidential or private information. [See Vol. I, Tab 46, Amended Answer to Count II].   In fact, on 12 December 1999, Johnson received in an email of that date the unsolicited, implicit, if not explicit, written consent of the complainant, Deborah Sano [BBO pseudonym, “Mary Parker”], to publish her family’s story on her "excellent educational website":\[2]/

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.

Johnson’s Amended Answer, p. 50;

Johnson assumes in Trial Exhibit 67 (371 pages), discussed in Trial Transcript, Day II, pp. 8-11\[3]/

Johnson produced to OBC ABC Weisberg, the prosecuting attorney, all emails received from and sent to the complainant and her family. Although Johnson’s emails to and from the complainant of Count II appear to have been included in Exhibit 67, Johnson has no personal knowledge as to whether the December 12^th email was included or if so, on which of the 371 pages it appears.

Further, whether the BBO members considered the above-excerpted statement when making their determination, is unknown to Johnson; however, given the BBO’s conclusion, it seems reasonable to assume they did not consider it and thus reached the specious conclusion:

The respondent admits that she did not notify the Parkers that she intended to disclose information about them on her website. She never sought or obtained the

Parkers’ permission to disclose or disseminate information about them on her website.

She never sought the permission of anyone authorized to consent for Sarah before posting information about Sarah.

Figure 1. Board Memorandum, p. 10, ¶2.

See also Amended Answer, ¶90 [Vol. I, Tab 46]

While SJC Rule 4:01, §9(1) grants complainant “immun[ity] from civil liability based upon his or her complaint,” there is no restriction on the respondent using the information to defend herself not only before the BBO but also before the public, where the petition of discipline was announced on the BBO website and in newspapers.

As to Count III. The OBC and the BBO chose to rely on an unspecified order of contempt allegedly emanating from Concord District Court in 1995. There, Judge McGill first found Johnson and her client in contempt of a non-existent order. At some point—that point being unknown to Johnson, but certainly after the case was bifurcated and at least a year after Johnson was found in contempt—the order was fabricated into existence. [See Vol. I, Tab 46, Amended Answer to Count III, explaining the story in excruciating, if not exquisite, detail].\[4]/   After Johnson called the error to the district-court judge’s attention, he changed his order and introduced more ambiguities. Thereafter, there was a series of successive so-called corrections for almost an entire year. In December 1995, nine months after the original finding of contempt of a non-existent order, the judge changed his mind once again about “which order” Johnson was allegedly in contempt of.   The entire year was bizarre, culminating in the lower-court judge not being able to keep his own orders “straight and to decide who—Johnson or her client—was in contempt of which order, so almost a year after this bizarre trip began, he bifurcated the case: one being the original plaintiff’s case against the original defendants, which he dismissed, and the other being a contempt case by the original defendant company against plaintiff’s counsel, Johnson.

            Significantly, it appears that Weisberg did not put into evidence the series of McGill’s Orders or Johnson’s pleadings filed throughout that year 1995.   Johnson therefore beseeches this Court to view Johnson’s Amended Answer at Vol. I, Tab 46, in which Johnson inserted the language of the missing exhibits, as well as some scanned in endorsements by the Court.\[5]/

Both cases were appealed—that for the client and that for Johnson. A panel of the Appeals Court exacerbated the tragic injustice by morphing justice into buffoonery. Further appellate review was denied.

Ultimately, there was no order stating all the elements for a contempt order.   The OBC and BBO alleged that Johnson had to be incarcerated to make her pay the order. At absolutely no time was there an order commanding Johnson to pay the amount one of her son’s paid to get her out of jail. At absolutely no time was there an order commanding Johnson to pay the alleged amount to any particular entity. At absolutely no time was there an order commanding Johnson to pay the alleged amount by a certain date. At absolutely no time did the OBC or BBO produce such an order.

BBO Memorandum, ¶1, sentence 2: The gist of the respondent’s misconduct in these counts – and reflected in her conduct in this disciplinary proceeding – is her utter contempt for and defiance of the judicial process and the rules of professional conduct. FN3\[6]/

            There was no judicial process at the BBO. The BBO did not even follow its own rules— such as denying Johnson her right to a fair trial open to the public—and nothing the BBO did comported with anything resembling any rule from anywhere. Further, because of §9 of SJC Rule 4:01 giving everyone at the OBC and the BBO immunity, the acts of the staff and diverse members of the then-current Board and the OBC were perniciously and perversely unbounded and unconstitutional. Johnson was, of course, contemptuous of such contemptible conduct.

Moreover, although the nature of the BBO proceedings have been deemed by the full Court to be administrative, they are, in fact and in effect, quasi-criminal, if not criminal, thereby making the denial of Johnson’s right to confront her accuser(s) unconstitutional under both the state and federal constitutions.

There are, of course, disputes (1) about the nature of the bar disciplinary process and (2) about the rights to which a lawyer, as one of the people of Massachusetts, is entitled in an administrative or a judicial proceeding.

As to the first dispute: On one hand, the SJC has declared that a bar disciplinary process is “an administrative process under the authority of the justices of the Supreme Judicial Court.” Matter of Jones, 425 Mass. 1005, 1008 (1997) (emphasis supplied)\[7]/. See also In re Segal, 430 Mass. 359 (1999) (Administrative Procedures Act governs BBO proceedings); In re Tobin, 417 Mass. 92 (1994) (same as Segal); In re Karahalis, 429 Mass. 121, 124 n. 5 (1999) (“prior [disciplinary] decisions were procedural and administrative in nature”); Matter of Eisenhauer, 426 Mass. 448, 454 (1998) (Bar discipline is an “administrative process under the authority of the justices of the Supreme Judicial Court”); Matter of Pressman, 421 Mass. 514, 517 (1995) (same as in Eisenhauer); and BBO Rule § 3.39.

On the other, however, the BBO, both in the United States District Court in Boston [Docket No. 03-CV-12314-WGY] and in the First Circuit Court of Appeals [Docket No. 04-1713/04-1833 (consolidated)], argued, through its counsel, Assistant Attorney-General John Hitt, that bar disciplinary proceedings were "judicial in nature.”   The BBO and Hitt’s assertion was an egregious misrepresentation to the federal court, one tantamount to a fraud upon the court.

           Younger requires dismissal of this case. First, there is an ongoing state-bar disciplinary action that is “judicial in nature.” Like the New Jersey bar disciplinary proceedings at issue in Middlesex Ethics Comm., 457 U.S. at 423, “[i]t is clear beyond doubt that the [Massachusetts Supreme Judicial] Court considers its bar disciplinary proceedings as “judicial in nature. Id. at 433.

Figure 2. BBO’s Memorandum Supporting Motion to Dismiss, p. 4 [Appendix at __]

The BBO’s counsel, Assistant Attorney-General Hitt, altered the statement allegedly quoted from the Middlesex case. The true statement allegedly quoted is, “It is clear beyond doubt that the New Jersey Supreme Court considers its bar disciplinary proceedings as ‘judicial in nature.’” Id. at 433-434. A false statement results by substituting “Massachusetts” for “New Jersey.”

It was an egregious misrepresentation and

should not have escaped recognition as such by the two federal courts.

            The BBO must, therefore, be judicially estopped from both arguing that the BBO proceedings are administrative in nature and denying Johnson the rights to which she would be entitled were the proceeding “judicial in nature.”

Judicial estoppel should be employed when a litigant is "playing fast and loose with the courts," and when "intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice."
Patriot Cinemas, Inc. v. General Cinema Corp., 834 F.2d 208, 212 (C.A.1 (Mass.) 1987) (cites omitted. Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 642 (2005), quoting Patriot, at 212. In Otis, the plaintiff’s claims were “diametrically contrary to the position he took in his original suit against Cusick.” Otis, at 643.

[A]llowing the present case to proceed would "create[ ] the appearance that either the first court has been misled or the second court will be misled, thus raising the specter of inconsistent determinations and endangering the integrity of the judicial process."

Otis, 443 Mass. at 643, quoting Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 33 (1st Cir.2004) (emphasis supplied).

Among Johnson’s rights of which she was deprived was her right to defend against Counts I, II, and III. Included in that right in a proceeding that is judicial in nature is

·       the right to present testimonial, documentary, and circumstantial evidence

·       the right to litigate the validity of the underlying order where the order was transparently invalid [Oakham Sand & Gravel Corp. v. Town of Oakham, 54 Mass.App.Ct. 80, 87 (2002), cert. denied 437 Mass. 1109 (2002), citing 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).]\[8]/

·       the right to be protected by the Massachusetts Rules of Evidence\[9]/

·       the right to be protected by the Massachusetts Rules of Civil Procedure

·       the right to be protected by Massachusetts statutes

           And Chief Judge William Young, in order to apply the Younger abstention doctrine, bought into the BBO and Hitt’s misrepresentation that the BBO bar disciplinary proceedings were judicial in nature [No. 03-CV-12314-WGY, Memorandum and Order (Young, C.J.) (May 26, 2004)]: “Bar disciplinary proceedings in Massachusetts are similar to those in New Jersey.” Id., slip op. at 9. “The attorney disciplinary procedure in Massachusetts thus meets the first test that the proceedings be ‘judicial in nature.’” Id., slip op. at 10, quoting Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 433 (1982).

            Johnson contends that Massachusetts has held fast to the notion that bar disciplinary proceedings are administrative proceedings, for were the SJC to do otherwise, the SJC could not allow the BBO to operate as a quasi-administrative body under the Administrative Practice Act, which allows the BBO to avoid using the rules of evidence.\[10]/

Thus the change AAG Hitt made is significant. Were the Massachusetts SJC to change bar disciplinary proceedings sufficiently to deem them "judicial in nature,” the Court would have to change how the BBO is doing business.

BBO Memorandum, ¶2, sentences 1-3: The respondent’s brief on appeal is sixty-four pages long and alludes to a number of alleged errors in a bald, conclusory form. We address here only those issues sufficiently articulated to warrant discussion. See Matter of Cobb, 445 Mass. 452, 476, 478-479 (2005); BBO Rule 3.51(A)(iv).

Johnson’s Counterpoint: To determine whether respondent’s internal appeal to the BBO alluded to the OBC’s and the BBO’s errors in a bald, conclusory form, this Court must read her brief [Vol. IV, Tab 233; Impounded Vol. VII, Tab 233, Johnson’s Brief on Appeal of the Findings and Recommendation of the Special Hearing Officer ].

BBO Memorandum: Procedural Background, ¶1, sentence #2. Prior to the hearing, over the respondent’s objection, Bar Counsel’s motion for issue preclusion as to Count III was allowed, based on various district court rulings, including contempt proceedings, which were affirmed on appeal.

Johnson’s Counterpoint: The OBC and the BBO relied on the offensive use of collateral estoppel. Johnson argued the application was not only unfair, it would exacerbate the injustice that had occurred in the companion cases underlying Count III.

Offensive collateral estoppel is closely related to the evidentiary rule regarding admissions. See LePage v. Bumila, 407 Mass. 163, 167 n. 4 (1990) (plaintiff's payment of a $40.00 noncriminal traffic fine cannot be considered an admission in a later civil trial, and it would be unfair to apply offensive collateral estoppel to those facts).

Smola by Smola v. Higgins, 42 Mass.App.Ct. 724, 727 n. 7 (1997).

The defendant finally argues, on authority of Whitehall Co., Ltd. v. Barletta, 404 Mass. 497, 501 (1989) (fairness is decisive consideration in use of offensive collateral estoppel); Bar Counsel v. Board of Bar Overseers, 420 Mass. 6, 9 (1995) (same); and Common-wealth v. Two Parcels of Land, 48 Mass.App.Ct. 693 (2000) (same), that collateral estoppel here should not prevail, as its invocation would be unfair to the defendant, and offensive use of collateral estoppel is disfavored when its application would be unfair.

Com. v. Ringuette, 60 Mass.App.Ct. 351, 360 (2004).    The American rule is expressed in Whitehall: “The Massachusetts rule is that ‘absent mutuality of estoppel and technical privity ... [the court] would rarely allow collateral estoppel to be applied to a prior judgment offensively....’” Smola, 42 Mass.App.Ct. at 727, quoting Whitehall, 404 Mass. at 502.

"[f]airness," which is "the decisive consideration" in determining whether to apply offensive collateral estoppel. Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 745 (1985). See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331, 99 S.Ct. 645 (1979); Haran v. Board of Registration in Medicine, 398 Mass. 571, 579 (1986).

In re Cohen, 435 Mass. 7, 16-17 (2001). “ ‘In appropriate circumstances ... the offensive use of collateral estoppel is a generally accepted practice in American courts’ and has been applied in Massachusetts.”   Com. v. Two Parcels of Land, 48 Mass.App.Ct. 693, 697 (2000), quoting Haran, 398 Mass. at 577. Those circumstances follow:

“Before a party will be precluded from relitigating an issue, a court must determine that (1) there was a final judgment on the merits in the prior adjudication; (2) that the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication.” Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132, 134 (1998).   In such a case, the court must also find that the party to be estopped had a "full and fair opportunity to litigate the issue in the first action." Brunson v. Wall, 405 Mass. at 451. “‘Fairness is the decisive consideration’ in the use of offensive collateral estoppel.” Smola v. Higgins, 42 Mass.App.Ct. at 727, quoting from Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. at 745. See generally Restatement (Second) of Judgments §§ 27-29 (1982). The question for us is whether the court committed an error of law when it allowed the application of offensive collateral estoppel in these circumstances. . . .

Com. v. Two Parcels of Land, 48 Mass.App.Ct. 693, 697-698 (2000).

As detailed on pages 46-47, supra, the order on which an order of contempt was ultimately based never existed on 3 March 1995.   At some point—that point being unknown to Johnson—the non-existent March 3d order was fabricated into existence. [See Amended Answer to Count III, ¶¶100-127].

After Johnson called the error to Judge McGill’s attention, he changed his order and introduced more ambiguities. Thereafter, there was a series of successive so-called corrections for almost an entire year. In December 1995, nine months after the original finding of contempt of a non-existent order, the judge changed his mind once again about “which order” Johnson was allegedly in contempt of.

The OBC and BBO alleged that Johnson had to be incarcerated to make her pay the order. At absolutely no time was there an order commanding Johnson to pay the amount her son paid to get her out of jail. At absolutely no time was there an order commanding Johnson to pay the alleged amount to any particular entity. At absolutely no time was there an order commanding Johnson to pay the alleged amount by a certain date. At absolutely no time did the OBC or BBO produce such an order.

Before the doctrine of collateral estoppel can be used offensively, the fact finder should be afforded wide discretion in determining whether to do so would be fair to the defendant. Whitehall Co. v. Barletta, 404 Mass. 497, 502 (1989). The Restatement (Second) of Judgments § 29 (1982) sets forth eight circumstances for a judge to consider in making this determination:

"(1) Treating the issue as conclusively determined would be incompatible with an applicable scheme of administering the remedies in the actions involved;

"(2) The forum in the second action affords the party against whom preclusion is asserted procedural opportunities in the presentation and determination of the issue that were not available in the first action and could likely result in the issue being differently determined;

"(3) The person seeking to invoke favorable preclusion, or to avoid unfavorable preclusion, could have effected joinder in the first action between himself and his present adversary;

"(4) The determination relied on as preclusive was itself inconsistent with another determination of the same issue;

"(5) The prior determination may have been affected by relationships among the parties to the first action that are not present in the subsequent action, or apparently was based on a compromise verdict or finding;

"(6) Treating the issue as conclusively determined may complicate determination of issues in the subsequent action or prejudice the interests of another party thereto;

"(7) The issue is one of law and treating it as conclusively determined would inappropriately foreclose opportunity for obtaining reconsideration of the legal rule upon which it was based;

"(8) Other compelling circumstances make it appropriate that the party be permitted to relitigate the issue."

Additionally, it should also be determined whether disparate burdens of proof existed in the two proceedings. Compare Pollock v. Marshall, 391 Mass. 543, 555 (1984) (in civil proceeding, attorney must show transaction fair and equitable) with Rule 3.28 of the Rules of the Board of Bar Overseers (1995) (bar counsel has burden of proof in disciplinary proceedings). See also Restatement (Second) of Judgments § 28(4) (1982) (no preclusion where "the burden has shifted to [the] adversary of the person" against whom preclusion is sought).

Bar Counsel v. Board of Bar Overseers, 420 Mass. 6, 11-12 (1995). In this action at the BBO, there was no “determination of the equitable factors [such as those cited in Bar Counsel] in deciding whether to allow offensive use of collateral estoppel.” LePage, 407 Mass. 167 n. 4.

Ironically, the 1998 incarceration of which the OBC complained and on which the BBO based its findings for Count III was an unfair event remotely collateral to the Tunnel of Horrors in Concord District Court in 1995-1996. It was an event caused by the misunderstanding by an overzealous justice on 17 December 1998. Not knowing that there would be reverbations from this event 4 years later, in January 2003, Johnson did not order the tape of 17 December 1998 at that time or shortly thereafter. After Johnson was alerted to the upcoming seismic activity, Johnson attempted to get the tape of the hearing, but was told that it had been destroyed. She also learned that the courtroom clerk, who was a decent man and would have, in Johnson’s opinion, been truthful, and who had been a witness to the courtroom event, had passed on.

Johnson caused Rule 45 subpoenas to be served on the then-opposing counsel and the district-court judge but SHO Phillips quashed the subpoenas on 26 November 2003, but a few days (including a weekend) prior to trial [Impounded Vol. VII, Tab 201, transcript, p. 69], and then again on the first day of the so-called trial. The then-Chairperson of the Board allowed the OBC’s motion to preclude Johnson defending herself against the charges brought forward in Count III.

BBO Memorandum: Procedural Background, ¶1, sentence #3. In addition, the Board Chair allowed Bar Counsel’s motion for a protective order to keep confidential the identities of the individuals and certain information in Counts I and II.

Johnson’s Counterpoint:   The BBO statement is pure mendacity. There was at no time a “protective order to keep confidential the identities of the individuals and certain information in Counts I and II.” In fact, (1) ABC Weisberg admitted to SHO Phillips that there was no list of people whose names were subject to a protective order [see infra], but Phillips intentionally refused to acknowledge Weisberg’s admission\[11]/ and (2) Phillips admitted after he, Walker, and Weisberg were alone after lunch in the hearing room that the so-called protective order about pseudonyms had yet to be “promulgated” [Impounded Vol. VII, Tab 201, transcript, Day I:66-67].

The voting Board members, whether inadvertently or intentionally, chose to ignore these material admissions.

Phillips used the fake order to use pseudonyms as an excuse for ordering the public out of the room in which the trial was taking place. Id.at 65-66. Given that the BBO rules provided for a public trial, Johnson followed the public out of the room [id.], for she distrusted both Phillips and Assistant General Counsel Walker as a result of the events at pretrial hearing on 17 November 2003: On that day. Phillips had ordered the transcriber to go off the record when Johnson spoke and to go back on the record when he spoke [Impounded Vol. VII, Tab 137, 11/17/03, Day I, p. 40, lines 9-12].   So, even though Phillips told Johnson her paralegal could stay with her at the trial, under such circumstances, Johnson feared further fabrication by those from the OBC and BBO who were in attendance. There was the likely possibility that even were her paralegal to be present and later corroborate Johnson’s position, the OBC/BBO would declare that he was not a neutral observer. Johnson could not take that chance. Once trust was gone, it does not easily return.

BBO Memorandum: Procedural Background, ¶2, sentence #3. . . . the special hearing officer ordered the parties to submit written summaries of the anticipated testimony of each proposed witness and its relevance.

Johnson’s Counterpoint: ABC Weisberg wrote in one her documents that she had listed the names of a few witnesses, but it was likely she would not call them. She did, however, list over 100 exhibits.   Approximately 35 of them were downloaded from Johnson’s website. Most of the others also appeared on Johnson’s website, but they were not identified as being on the website. Johnson moved that Weisberg be ordered to write, as Johnson had been ordered, summaries of the anticipated purpose of each proposed exhibit and its relevance. SHO Phillips denied Johnson’s motion, so the trial was going to be a trial of ambush. Of concern to Johnson was that she had been accused of uploading confidential and private information, but that so-called confidential and private information had never been specifically identified. For instance, Johnson had been accused of uploading psychological reports to her website.

Johnson knew that was untrue, to wit, that she had not uploaded psychological reports to her website. So she wanted to know what the OBC intended to identify as a psychological report.   Unable at any time to find any psychological report on Johnson’s website, ABC Weisberg informed SHO Phillips at time of trial that Johnson did not post a single impounded record from juvenile proceedings on her website. [Impounded Vol. VII, Tab 201, Day I, p. 118].

Weisberg proffered no evidence whatsoever that the source of information regarding the 51A report or the existence of a care and protection action was the source of information for Johnson. In fact, Johnson was never in Juvenile Court, never received documents from Juvenile Court, and never posted any Juvenile Court records on her website.

According to the transcript, Phillips did attempt a differential diagnosis.

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

MS. WEISBERG: I will tell you what's in the record. What's in the record is that, as Ms. Johnson

told you today in her opening, I think that's really the only evidence we have now, is that Ms. Johnson obtained copies of these records from prior counsel. I believe that's what she said in her opening. And that 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.

Impounded Vol. VII, Tab 201, Day I, p. 119-120\[12]/

Even more important than the source of Johnson’s information is that she never uploaded any pleading from Juvenile Court to her website. Notwithstanding her denial, the Board members should have, given the evidence, concluded (1) that Johnson’s client had six attorneys during the dozen years or so prior to his retaining her as his seventh successor counsel, (2) that her client, himself, was present at court proceedings, and (3) that it was more logical to conclude that at least those seven people were the possible and probable sources of Johnson’s information.

            Quite remarkable, too, is that at the end of the Day I of the alleged trial, ABC Weisberg told Phillips about a chalk she had prepared to identify confidential and private information. Johnson never saw anything that resembled the chalk Weisberg described to Phillips. Apparently Weisberg still had not gotten it right and wanted to submit still another version of it “when the case concludes.”   Given that Johnson had filed motions during the previous year seeking the information Weisberg evidently was still preparing during trial—and each and every one of Johnson’s motions had been denied summarily—without argument and without reasons or rationale, the chalks were highly prejudicial to Johnson.

MS. WEISBERG: What I did in order to demonstrate that the source of the information on the Internet postings I have just offered derived at least a part from confidential or impounded documents, I have listed by each Drano number what the text is that I say was derived from a confidential document or an impounded document, then listed the source record and what court it is in. What I would like to do when the case concludes is submit to you a second version of this chalk with the exhibit numbers collated. But it is intended to give you a road map into what bar counsel says the source of this information is. That is the source from the impounded records only. There's plenty of other information on that web site that's not impounded, but is still personal or confidential.

Impounded Vol. VII, Tab 201, Day I, p. 106-107 (emphasis supplied)

General accusations such as those spoken here by Ms. Weisberg are insufficient to justify any disciplinary action.   Further, Johnson has never seen the chalk that allegedly identifies the alleged sources.

BBO Memorandum: Procedural Background, ¶2, sentence #4. The respondent objected but eventually submitted witness summaries, and the special hearing officer issued subpoenas to the seven witnesses on her list who appeared to be percipient witnesses to the charged misconduct.

Johnson’s Counterpoint: Because ABC Weisberg wrote in a document that she had listed the names of a few witnesses, but she would likely not call them, Johnson requested in a timely fashion—a month prior to trial— that the BBO issue the subpoenas. Johnson filed requests for subpoenas and permission to use an uninterested party for service. BBO General Counsel Michael Fredrickson had assured her that space on the subpoenas would be allowed for Johnson to add the descriptions of the documents she sought the witnesses to bring with them to trial. SHO Phillips dragged his feet, so Johnson had no choice but to cause subpoenas to be served. Phillips did not act on her motion until 26 November 2006, but a few days (including a weekend) prior to trial, and after she had caused half of her intended subpoenas to be served by a constable [Impounded Vol. VII, Tab 201, transcript, Day I at 8-9, 69]. When Johnson did receive the subpoenas just before trial, she saw that no space was allowed to add requests for documents.

On Day 1 of trial, SHO Phillips continued to quash Johnson’s subpoenas and excused the witnesses who did arrive in response to the subpoenas. In sum, SHO Phillips quashed any subpoena not issued by the board and any subpoena requiring the production of documents [Id., Day I at 5-6].

BBO Memorandum: Procedural Background, ¶2, sentences #5-6. The special hearing officer declined to issue subpoenas to the other witnesses on her list whose testimony would be    irrelevant. The respondent did not serve the seven subpoenas issued by the Board. Instead she drew up and served unauthorized subpoenas on a number of witnesses (including the seven witnesses whose subpoenas had been issued by the Board), which purported to require their attendance and production of documents at the hearing.

Johnson’s Counterpoint: Johnson disputes that the testimony of the witnesses on her list “would be irrelevant.” Because (1) Weisberg had not identified those words, phrases, sentences, or paragraphs on Johnson’s webpages which Weisberg alleged contained confidential or private information [Id., Day 2 at 18-20, 22-23],\[13]/ (2) Weisberg had not identified whether she was going to try to introduce hearsay statements of diverse individuals, and (3) Johnson could not cross-examine paper, Johnson was obliged to subpoena those individuals she believed could testify regarding relevant and material facts. That SHO Phillips and/or AGC Walker, who served as “co-hearing officer,” deemed the anticipated testimony of all Johnson’s potential or percipient witnesses to be irrelevant was not unexpected. Such a conclusion was within the overall pattern of behavior of the OBC and the BBO since the incipience of the disciplinary proceedings.

BBO Memorandum: Procedural Background, ¶3. The hearings [sic] commenced on December 2, 2003, . . . the public attended. The [SHO] quashed . . . subpoenas . . . protective order and directed them to use pseudonyms during the hearing. . . . respondent, in her opening argument, used the real names of two of the individuals in Count I, . . . recess . . . respondent .was warned that failure to comply would result in an order barring the public from the hearing in order to implement the protective order by maintaining the confidentiality of the identities of the individuals in Counts I and II. . . . [SHO] ordered the public attendees to leave. . . . The respondent nonetheless walked out of the hearing. The hearing continued. . . .

Johnson’s Counterpoint:   All the above-mentioned topics are discussed herein this pleading, passim. Significant here is that the members of the BBO (1) ignored the SHO’s use of pseudonyms at the outset of the mutant trial [Impounded Vol. VII, Tab 201, transcript, Day I at 5, ¶3 (at bottom of page)], (2) ignored Weisberg’s admission that there was no list of protected names, i.e., no order directing the parties to use pseudonyms [Id., at 56-57], and (3) ignored the fact that when Phillips ordered the public to leave the hearing, he was denying under false pretenses Johnson’s right to a public trial. BBO Rules, §3.22(b).

BBO Memorandum: Procedural Background, ¶4. Bar Counsel presented his case based solely on documentary evidence. Copies of the hearing transcripts and the exhibits were served on the respondent who, post-hearing, like Bar Counsel, filed proposed findings, conclusions of law and a recommendation.

Johnson’s Counterpoint: The Board admits that the OBC called no witnesses to testify at trial. There were no depositions, no stipulations as to facts or authenticity or truthfulness of the documents presented in Johnson’s absence to SHO Phillips. See BBO Rules, §§3.36, 3.38-3.40. Chalks not even prepared by the end of trial were improperly admitted into evidence after the close of evidence.    [Impounded Vol. VII, Tab 201, transcript, Day 2 at 35.   Impounded Vol. VII, Tab 201, transcript, Day I at 19-20; 22-23. Impounded Vol. X or XI, Trial Exhibit 67].   See BBO Rules, §3.41.   E.g.,

MS. WEISBERG: Second, I had asked for leave, and I will reiterate that, to submit to you a substituted and final version of Chalk B which is the chart of Drano sources, that is comparing Internet references on the web site to the impounded documents. I would like to add exhibit number references to each entry. So that if you read down the chalk where it [20] says Drano 5 and shows Internet text, I can put in what the exhibit number is for you. Then, where it says source record, Salt Deposition Page 15, I can put in what exhibit that is referring to.

Figure 3. Excerpt from pp. 19-20, Day 2 of Trial Transcript

[Impounded Vol. VII, Tab 201]

Significantly, Weisberg had never prior to trial identified words, phrases, sentences, or paragraphs that were allegedly derived from impounded sources. In fact, earlier, 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].\[14]/   The SHO reached conclusions based on no evidence or evidence untested or examined by or even produced to Johnson.

The SHO’s conclusions were predetermined, given that the SHO sua sponte quashed all Johnson’s trial-witness subpoenas for Counts I, II, and III [see BBO Memorandum: Procedural Background, ¶3] and that then-Board-Chairperson Carpenter had both allowed a blanket protection and impoundment order on all documents and precluded Johnson from presenting any defense to Count III.   A Kangaroo Court was intentionally created and a Kangaroo trial was had. Johnson’s timely post-trial motion for a retrial was denied summarily. In fact, each and every order issued by the BBO was in each and every instance after the petition for discipline was filed was denied summarily, i.e., denied by the one-word endorsement, Denied.

The Board does not acknowledge that many, if not most, of the documents admitted into evidence would not have been admitted had the Massachusetts Rules of Evidence been followed.

BBO Memorandum: Procedural Background, ¶5. Our review of the record and the special hearing officer’s report in this matter establishes that the special hearing officer handled these proceedings with patience and respect for the rights of all involved, and also fairly considered all of the arguments and objections of the parties.

Johnson’s Counterpoint: Johnson had properly left the trial in the middle of her Opening Statement when SHO Phillips ordered the public attendees to leave. During the pretrial conference in November of 2003, he had repeatedly ordered the transcriber to go off the record when Johnson spoke and back on the record when he spoke. With fear and consternation, Johnson did not dare stay at the trial without witnesses. Although Phillips said her paralegal could stay, if push came to shove, the conclusion would be that the paralegal was not neutral and would disregard whatever he had to say of the events. No, only the public’s presence would safeguard her from untruthful allegations and innuendoes.

11/17/03 Transcript, p. 40, lines 9-12.   Impounded Vol. VII, Tab 137.

BBO Findings of Fact and Conclusions of Law: We adopt and incorporate by reference the special hearing officer’s findings of fact and, except as indicated below, his conclusions of law. They are summarized below to the extent necessary to determine the respondent’s appeal. Pseudonyms have been used in discussing Counts I and II in accordance with the protective order.

Johnson’s Counterpoint: There was no protective order regarding the use of pseudonyms at trial. When Johnson had counsel briefly at the beginning of the process, there had been an order for him to amend the Answer. When Johnson terminated his services, she filed her Amended Answer and then was ordered to re-file it with pseudonyms.   The order was bizarre inasmuch as the exhibits contained real names, and she was not about to alter any exhibits. There was no further order regarding pseudonyms.   By reading the trial transcript supplied her by the BBO, it appears that the order issued after SHO Phillips chastised Johnson publicly and ordered the public attendees out of the hearing room:

She continued on one or two other occasions to continue to use the real names, and, again, we, the Chair warned her, and finally it was told to her that if she did not adhere to the rules that were going to be promulgated regarding the protective order that the attendees would be asked to leave the room. Not Barbara Johnson and not her paralegal and certainly not bar counsel or her paralegal, but the people who were attending from the public standpoint would be asked to leave the room.

Impounded Vol. VII, Tab 201, Day I at 67 (emphasis supplied).

BBO Count I

Johnson’s Counterpoint:   For all details of Johnson’s version of Count I, see in Vol. I, Tab 46, Amended Answer to Count I, ¶¶ 6 through 44, which she incorporates in entirety herein by reference.

BBO Count I, ¶2: In 1989, Jones’ custody and visitation rights were terminated in both actions, and his efforts to obtain review and redetermination were denied. That year, William’s mother, Jane Doe, married Robert Brown and the next year had a son, David. They then divorced. William has continued to live with his mother and his half-brother and has been known in the places he has lived as William Brown.

Johnson’s Counterpoint: The mother of the child, Robyn,\[15]/ told some people that she had married in 1988 and some that she had married in 1989.   The year of her marriage depended on her need at particular times in front of particular persons. On her divorce complaint from “Robert Brown,” she alleged that that “Jones’” child was a child from a prior marriage. That was a lie. Robyn had never been married to Jones. It can reasonably be assumed that she told Brown, a very conservative chemist, that the child was the issue of her marriage to Jones. Robyn also accused Brown of sexual abuse of their child, whom she conceived also out-of-wedlock. He was, however, born after her marriage to Brown.\[16]/

Her divorce from Brown stretched over 7 years. Robyn had lied when she told the court and others that Jones’ child was living in a stable family. Brown wrote in his affidavit filed in the divorce court (and uploaded to Johnson’s website) that Robyn had moved seven times within a short period of time. The children did not know what a stable life was. And the co-complainant of Count I, Deborah Wolf, a court-appointed attorney against whom the OBC and BBO refused to take action, had to know this if, indeed, she had been in touch with Jones’s child.   She certainly told each court she was, . . . but SHO Phillips quashed the summons and subpoena duces tecum Johnson served upon Wolf in an effort to obtain the relevant documents and testimony—docu-ments and testimony that would have revealed who paid for Wolf’s services after the C&P action had long-since closed.

BBO Count I, ¶3: In May 2000, the respondent filed a complaint for modification for Jones in the paternity action, and an action in federal court on behalf of Jones and another client against, inter alia, a doctor who had concluded that William was sexually abused by Jones, the hospital where the doctor practiced, the court-appointed investigator and other therapists who had evaluated or treated Jane, William, and Jones, and the Department of Social Services. Jane, William and his half-brother were not parties to the federal action.

Johnson’s Counterpoint:   The doctor was Eli Newberger, who used a form letter to deprive immediately all fathers whose children were brought to his unit in Boston Children’s Hospital. He never filed his report in the courts hearing the C&P and the custody and paternity cases [Vol. I, Tab 23, Exhs. A-D to the Amended Complaint for Modification; Impounded Vol. VIII, BBO Exh. 23, Exhs. A-D to the Amended Complaint for Modification (it is unclear whether the BBO included the exhibits that were attached to the Amended Complaint for Modification)].

It appears that the court-appointed child’s attorney, Deborah Wolf, might have filed Newberger’s report. It is unclear. Newberger was declared not a state actor in federal court because he swore that he was not appointed by the court and that his report had not been filed in a court. The other defendants were either ordinary social workers or so-called “therapists,” with the exception of one, Christopher Salt, who was a court-appointed investigator. Please read Johnson’s Amended Answer for Court 1 for details—incorporated herein by reference— about Christopher Salt [Impounded Vol. I, Tab 46, Count I, ¶¶ 6 through 44].

None of the ordinary social workers or so-called “therapists” treated Jones.   Some never met him. Some never interviewed him.

            None treated Jones’ child, although one, Jack McCarthy, allegedly a psychologist, claimed through his bills that he did. He never wrote a report; he wrote letters to one or two attorneys and "To Whom It May Concern"; each letter was only a few lines in length. He simply met the child one time and saw Robyn the other 21 times, for which he billed 80 percent of his fee to the insurer and 20 percent to Jones. That so-called therapist was a young widower and Robyn was an exquisitely beautiful, exotic, female creature.   A reasonable question to ask is, How did McCarthy treat the child when he saw only the mother at his “therapy sessions” for which he charged Jones? There is no evidence whatsoever that Jane was getting therapy. The bills assert that the child—not the mother—was getting therapy. Those bills, too, were lies.

            Of course, none of this has relevance to the charges against Johnson. Johnson responds solely lest her silence be used against her.

            The federal action is described above.

BBO Count I, ¶4: Before filing these complaints, the respondent obtained, from sources other than the court, copies of reports and other papers on file in the care and protection action. The respondent also obtained the transcript of a deposition of the court-appointed investigator in the care and protection action and reports of a psychologist who had treated William and Jane. These records identified William, Jane and David by name; referred to findings that William had been sexually abused by his father; and contained other privileged, confidential or personal information about William, Jane, and David.

Johnson’s Counterpoint:   Johnson received almost nothing from Jones’s six prior counsel. The case was so old that some attorneys had disposed of the records, some did not respond to John-son’s requests, and maybe one or two produced some correspondence, and one had been disbarred and could not be located.   Almost 100 percent of the information Johnson received was from her client and papers he had in his possession.

            As noted above, McCarthy never treated the child and the treatment he might have given Robyn cannot be repeated here.   He also never treated Jones. He only billed Jones. If he wrote a report of therapy, Johnson never saw it. His so-called reports were a few letters, one addressed “To Whom It May Concern.” McCarthy simply called the letters reports in order to bill for them. To Johnson’s knowledge, McCarthy’s letters were not filed in either the Juvenile or the Probate & Family courts of Bristol County.

            There was no deposition of the court-appointed investigator, Christopher Salt, in the care and protection action. The caption on the deposition was for the family-court action. Johnson has seen no record that shows that the deposition was ever filed in any court.

BBO Count I, ¶5: Under Juvenile Court Standing Order No. 1-84, all juvenile court case records and reports are confidential and, if loaned to or copied for attorneys of record, are not to be further released without court permission. The respondent has acknowledged that since she never appeared for Jones in the C& P action and never received court authorization, she knew she could not obtain these case records from the court. From these admissions, the special hearing officer inferred that the respondent knew these records were confidential and should not be disclosed.FN6

Johnson’s Counterpoint:   The OBC never identified those records it alleged that Johnson disclosed. This was part of the entire problem throughout the OBC/BBO process. Broad accusations were made and nothing specific was ever identified. To Johnson’s knowledge and memory, she never disclosed anything that was filed in juvenile court. She never even saw the docket sheet until the child’s alleged attorney, Deborah Wolf, provided it to ABC Weisberg, who produced it to Johnson attached to some papers

BBO Count I, ¶5, footnote 6: From 1988, until it was amended effective March 31, 1998, G.L. c. 209C, § 13, provided that all documents in paternity actions, including docket entries, were confidential unless a judge ordered otherwise. The amendment reversed the rule, providing that such documents would not be impounded unless ordered by the court. As described below, the probate court applied the amendment prospectively only and kept all records in Jones’ paternity action impounded, including those filed after the amendment of the statute.

Johnson’s Counterpoint:   The family court treated the Amended Complaint for Modification [Impounded Vol. IX, Tab 46(G)], filed years after the amendment of §13, as if it were impound-ed. Johnson argued in family court and at the BBO (on brief, for no hearing on any motion was allowed) that the Amended Complaint was not impounded and that, under the amendment of §13, good cause had to be shown to impound it. The BBO also denied Johnson’s motion to report the issue to the higher court.   Johnson filed in the family court and served upon ABC Weisberg at the OBC the following three pleadings:

·       Johnson’s Opposition to Bar Counsel’s Motion for Release of Impounded or Segregated Records (14 December 2002)

·       Complaint in the Nature of a Petition for a Writ of Certiorari and to Invoke the General Superintendence of the Court

·       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 (8 December 2003)

None of three afore-mentioned pleadings has been included in the Record of Proceedings filed by the BBO in this Court. Due process and equal protection were exiled from the family court and from the OBC regarding the issue.

(1)            Johnson had to open the family court case with a Complaint. It was dismissed. She Amended the Complaint. It was improperly dismissed again. So there was NO open case.

(2)            Then OBC Weisberg filed a Bar Counsel’s Motion for Release of Impounded or Segregated Records in Bristol County Probate & Family Court prior to serving the Petition for Discipline. Without an open case, a motion was legally incapable of opening a closed case. The OBC did not move to intervene. Weisberg simply appeared on the scene and the court, having NO jurisdiction, gave her a hearing on her motion. It was a sheer show of power. Where the court had NO jurisdiction, Judge Prudence McGregor’s order was transparently invalid, was void ab initio, was one that could be ignored. \[17]/ See S.J.C. Rule 3:07, Mass. R. Prof. C. 3.4(c).

(3)            In the Motion for Release of Impounded or Segregated Records, ABC 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.

Given that there was no open action in Bristol Country Probate & Family Court, there was no avenue of appeal that was going to succeed. Given that it was Johnson the OBC was after and not Linnehan, he had no cause to appeal in his name. Given that Johnson was not a party to the Linnehan custody and paternity case, on whose behalf would Johnson appeal and under what caption? It was a mutant situation created by the unlimited, political power given entities that were given unconstitutional quasi-immunity, namely, the OBC and the BBO. Clearly, Johnson would have had to sue the OBC and the BBO in the SJC, the very entity which, according to both its website and the Attorney-General’s pleadings, “controlled and supervised” by the SJC. The fear that the SJC would sanction Johnson for a frivolous pleading was also real and reasonable to consider. There was clear danger.

It occurred to Johnson that the members of the BBO either did not understand procedural or jurisdictional law or were exercising their muscle to further their agenda to discipline Johnson.

Johnson’s motion seeking the BBO to report the issue of whether G.L. 209C, §13, as amended and effective on March 31, 1998, has retroactive or prospective effect was denied because Johnson had put true names in it! Significantly, then-Board Chair Carpenter denied the motion, although it was not, according to the BBO’s own rules, within her power to do so!!

BBO Count I, ¶6: In early 2001, the respondent posted on her website various items about William, Jane and David, including the amended complaint for modification in the paternity action, the respondent’s pleadings in the federal court action, pleadings from Jane’s divorce action, and part of a report by the psychologist who treated William and Jane.

Johnson’s Counterpoint:   “William” is Jones’s son.   Jane is Robyn. David? Robyn and Brown’s child?   If so, Johnson does not recall that she mentioned him other than to say that Robyn and Brown had a child.   And if so, why is the number of the exhibit in which he is allegedly mentioned not called out in the Board Memorandum?

Johnson did, indeed, post on her website the Amended Complaint for Modification in the paternity action, her pleadings in both the federal action, and pleadings from Robyn’s divorce action. She did not upload to her website any part of any report by a psychologist. The one psycho-logist, McCarthy, who Johnson described above and in her Amended Answer for Count I, did not write any reports about William and Jane. If he did, Johnson has never seen them.

            Also of importance is, If Johnson uploaded McCarthy’s report, why was it not one of Bar Counsel’s 106+ trial exhibits? Because there was no such report ever on Johnson’s website. Why is the exhibit number not called out in the Board Memorandum?   Because there was no such report ever on Johnson’s website.

            It appears that the BBO has included a list of trial exhibits in Impounded Vol. IX, Trial Exhibits 45(A-S, U-V). The BBO has not referred to any of those exhibits in its Memorandum or Information.   Lest Johnson’s silence be used against her, she hereby states that none of those exhibits appeared on her website. Amongst those Trial Exhibits 45(A-S, U-V), none is characterized as a Complaint.\[18]/

BBO Count I, ¶7: These documents contained quotations from and summaries of the contents of reports that, as the respondent admitted, were part of the juvenile court record; as such, they were impounded. In these postings, William was identified by his first name and his father’s last name, and Jane and David were identified by their true names and home address. The respondent characterized Jane in her postings as a perjurer who had conceived both her children out of wedlock and who had falsely accused both fathers of sexual abuse. Thus, the respondent, on her website, also identified David (who was completely uninvolved in the matter), disclosed where he lived and also claimed that he was illegitimate.

Johnson’s Counterpoint:   The exact quotes in Johnson’s documents are comprised of the following words and phrases, none of which can be deemed sufficient to "embarrass" or "burden" Jane or William as the Board contends:

(a)       “justification” [CS, depo at 15, lines 7 and 4]\[19]/

(b)       “no live-in boyfriend” [CS 7/1/88 report at 25]

(c)      “dated a few times and have remained good friends” [CS 7/1/88 report at 17]

(d)       “there appears to be no significant males in [William's] life other than Mr. [Jones]” [id. at 25]

(e)      “there was no diagnosis of sexual abuse, the possibility is not to be eliminated. His fear and anxiety about his father had been confirmed[;] he had undergone a traumatic experience and now suffered from post-traumatic stress” [CS depo at 34]

(f)             “parenting"

(g)            “her husband Michael is very important to [William] and that Michael treats her son as if he were his own” [CS 1/5/92 report at 2; also 15]

(g)            “might well be detrimental” [CS 1/5/92 report]

(h)            “except for one or two” [CS depo at 8]

Johnson’s memory is that she had used a pseudonym for Jones’ child, having replaced his name globally. Because it was misspelled twice (a name that had alternate spellings), she did not catch it twice. When alerted to it, not long after she uploaded the file, she changed those two occurrences. Given that the child was not known in his communities by Jones’ surname—Robyn had enrolled him in school using her husband, or estranged husband’s, name—Johnson believed that no harm would have been done by the name by which no one knew him having been up for so short a time.

It is true that Robyn did lie in and out of court, did conceive both children out of wedlock, and did accuse both fathers of sexual abuse. If those facts were untrue, Robyn would likely have sued Johnson for defamation. She did not. Johnson had documentary evidence that what she wrote in her pleadings and other documents was 100 percent true.   Johnson’s memory is that the name of Robyn and Brown’s child had been redacted from any uploaded files, whether created by Johnson or whether a “picture” of a document. Again Johnson asks, Why is the number of the exhibit in which she allegedly referred to the child not called out in the Board Memorandum?

As for addresses of where Robyn and the children lived: the addresses were in Brown’s affidavit filed in Robyn and Brown’s divorce action in Probate and Family Court. They were public records. The divorce file, never having been impounded, was open to the public.^\[20]/

BBO Count I, ¶8: In mid-February 2001, the respondent posted on her website photographs, provided by Jones, of William between the ages of about one and three. At the time of this posting, his mother was a candidate for elected town office. Along with the photographs, the respondent posted a statement describing Jane as an “out-of-wedlock mom,” who was a candidate for town public office, in a town the respondent named. In addition, the respondent not only identified William as “William Jones” but also as “William Brown”, and as a child who allegedly had been sexually abused by his father.

Johnson’s Counterpoint: Johnson (a) did post photographs of the infant and toddler William, (b) did announce that Jane was a candidate for public office in Fairhaven, but does not recall how long the announcement remained on her website, (c) did write that Jane was an ""out-of-wedlock mom," (d) might have identified William as William Brown at some point, but that she changed the name when it was called to her attention. Johnson does not recall in which file the name William Brown appeared or when she changed it, and (e) denies the remainder of the allegations in ¶8.

BBO Count I, ¶10: In May 2001, the juvenile court issued an order, which was served on the respondent and her client. The order specifically stated that all the juvenile court records were impounded, that they had been “wrongfully disseminated,” and that the respondent and her client were required to return all copies of such documents to the court and to remove all references to them as well as William’s real name and identifying information from the respondent’s website and any other website. The respondent took no action to challenge the order, but rather simply ignored it.

Johnson’s Counterpoint: Johnson incorporates herein by reference her answer to ¶35 of her Amended Answer.   While the juvenile court, according to the OBC and BBO, issued an order, the court did not serve a copy of that order on Johnson. Instead, on 1 May 2001, Deborah Wolf, the child’s so-called appointed attorney FAXed Johnson a copy of the purported order, which can be seen on Johnson’s website at http://www.falseallegations.com/drano34-juvenile-ct-order.htm as well in Impounded Vol. IX, Trial Exhibit 45(T).

A week later, on 7 May 2001, Johnson was served with a pleading which, although entitled "Verified Complaint for Equity Relief," was not legally cognizable as a Complaint, and named neither Jones nor Johnson as a defendant.\[21]/    The alleged Complaint out of which Judge Mark Lawton’s order had to arise was not included either amongst the OBC’s “trial” exhibits or in the 12 volumes of the “Record of the Proceedings.” It had to be so embarrassing to the judge, the OBC, and the BBO that they have hid it throughout the half-decade that the OBC and the BBO have been harassing Johnson.

Further,

·       Johnson has never been inside New Bedford Juvenile Court, has never filed an appearance in a case in that court, has never been served with a Complaint filed against her in New Bedford Juvenile Court. Thus the Juvenile Court had and has no personal jurisdiction over Johnson or subject-matter jurisdiction over what is on her website;

·       no pleadings from the Juvenile Court are or ever have been on her website.   And, of course, Juvenile Court has no jurisdiction over torts;

·       Johnson had no records from the juvenile court, she did not disseminate any juvenile court records, and given that she had gotten no records from juvenile court, she had no copies of such documents to return to the court;

·       where the order was transparently invalid, Johnson legally could and did ignore it. See S.J.C. Rule 3:07, Mass. R. Prof. C. 3.4(c).

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

An order impounding the papers filed with this court in this matter is not a gag order on the witness or a prior restraint on his speech, and he has in fact spoken out publicly concerning this matter on many occasions without repercussion. His desire to speak out, however, does not compel this court to open its files on the matter.

In re Enforcement of Subpoena, 436 Mass. 784, 797 (2002). Therefore Johnson’s summarizing events is not violative of any rule or regulation or statute. Indeed, Johnson was simply exercising her free-speech rights, and it is the OBC and BBO which are still attempting to interfere with those of Johnson’s rights.

On 29 May 2001, Johnson wrote the New Bedford Juvenile Court. Some excerpts follow from the letter, which appears in entirety on her website at http://www.falseallegations.com/-drano37-impoundment-Lawton.htm and which is incorporated as if set forth herein by reference.

Courts may impound documents under certain circumstances, but that an order issued which commanded Johnson to do something without either a proper complaint being filed and a hearing with all the indicia of due process was of some consternation. Such a hearing would, of course, only have been possible in a court with both subject-matter jurisdiction and personal jurisdiction over Johnson.

The Board argues that Johnson did not take action to challenge the order. Under Ottoway, Johnson could have brought suit to vacate the impoundment order, but that would have bought a needless suit against the Juvenile Court.   So Johnson suggested in her letter to the court that the court go to her site and see if there was anything there which the court believed it had a right to order removed, or references to documents which it believed it had the authority to impound.   That letter was both uploaded by Johnson to her website as Drano Series #37 (see Table, supra) and included by the BBO in Impounded Vol. VIII, at Exh. 32.

In Ottoway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 551 (1977), the Supreme Judicial Court pondered “how one might go about asserting the alleged illegality of an impoundment order entered in an action to which one was not a party” and answered, “a publisher has standing to maintain suit to vacate an impoundment order entered in a separate action.” Of course, in Ottaway, the SJC was dealing with the Superior Court and not Juvenile, and came out four-square in favor of the “general principle of publicity”: “it is only in a clearly meritorious case that impoundment can be contemplated.”   This is not one of them.

Given that the purpose of the statutes designed to protect juveniles who are subjects of litigation and not their mothers, and there is nothing on Johnson’s website which would stigmatize [the child] (he was not even known in his community as “William Jones”], there is neither reason nor justification to issue an impoundment order.   To call documents “in from the cold” after so many years raises other issues . . . all beyond the intended scope of the letter to the court.

“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. This “‘general principle of publicity’, . . . [which] governs judicial proceedings in this Commonwealth,” was affirmed again in H.S. Gere & Sons, Inc. v. Frey, 400 Mass. 326, 329 (1987).

We adopted this requirement of a showing of overriding necessity, in part, because of the great public interest in disclosure of all information relevant to misuse of authority and official wrongdoing.

H.S. Gere, 400 Mass. at 332, citing George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 279-280.

Moreover, “[a]ny limitation on protected expression must be no greater than is necessary to protect the compelling interest that is asserted as a justification for the restraint.” George W. Prescott Pub. Co. v. Stoughton Div. of Dist.Court Dept. of Trial Court, 428 Mass. 309, 311 (1998), quoting Care and Protection of Edith, 421 Mass. 703, 705 (1996).

It is apparent that any order seeking to enjoin speech must be based on detailed findings of fact that (a) identify a compelling interest that the restraint will serve and (b) demonstrate that no reasonable, less restrictive alternative to the order is available.” See also Oklahoma Publ. Co. v. District Court, 430 U.S. 308 (1977) (reversing court order enjoining media from publishing name or photograph of eleven year old boy accused of delinquency by reason of murder).

Prescott, 428 Mass. at 311, cites omitted.

Thus, on the facts here, there being no lawful basis to prohibit Johnson from putting public records on her website or to prohibit her from exercising her First Amendment rights, she can rest on the statement that she did not publish any material or quote any sentences or parts thereof which she knew to be privileged, confidential, or otherwise protected.

Johnson also states that it is “‘no longer open to doubt that the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.’” Nebraska Press Association et al. v Stuart, Judge, et al., 427 U.S. 539, 1976.SCT.42322 at ¶47 <http://www.versuslaw.com, quoting Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707 (1931). See also Grosjean v. American Press Co., 297 U.S. 233, 244 (1936).

Johnson also had a moral obligation not to follow the unlawful order. See the Principles of the Nuremberg Tribunal (1950).

The Nuremberg tribunal held that the defendants could not escape responsibility for these acts by pointing to their domestic law obligations; they had a privilege under international law to violate domestic law in order to prevent the ongoing crimes against humanity that their country was perpetrating through them. Id. We echo this explanation.

United States v. Maxwell, 254 F.3d 21, 2001.C01.0000266 at ¶54 <http://www.versuslaw.com> (2001).   Johnson also contends that although the OBC and the BBO invoke Juvenile Court Stand-ing Order No. 1-84 to justify discipline against her, that Order allows the perpetuation of crimes against humanity by overriding our state and federal constitutional rights to due process and the equal protection of our laws.

Johnson therefore did not, of course, comply with the offending order.   She chose the moral, the high road. She had learned of the unscrupulousness of the Harper court and was obligated to make the lack of any due process whatsoever in the Juvenile Court since 1988 known to the public. The nexus between Jones having lost his son for 15 years and perhaps forever and Harper's unscrupulousness was clear.

But for that Standing Order allowing secrecy, coupled with judge-made judicial immunity allowing judges to scoff at the moral obligation to act responsibly and be accountable, Juvenile Court Justice Ronald Harper's arrogance against Jones was enabled and his unscrupulous and malicious acts were hidden from public scrutiny. He was able to perpetuate a crime against humanity in the penumbra of a Kangaroo Court sanctioned not by the people but by some politically appointed committee at some time in the recent past . . . believed to be circa 1974.

In the context of the Jones case, Standing Order No. 1-84 is too broad to accomplish the stated goal of privacy. There are less onerous alternative means, means that are narrowly tailored to serve a compelling State interest, to accomplish the desired privacy.

And Johnson knew and knows that Jones is not the only parent victimized by unscrupulous and court-sanctioned malicious and corrupt acts hidden by Standing Order No. 1-84.

So Johnson's moral choice was clear. She had to stand on the side of Principles, to stand against judicial crimes against humanity. She had to risk again being called bombastic by a sitting justice for invoking the Nuremberg Principles. She had not been spouting bombast. She was facing the stark reality of the absence of justice in, particularly, those courts dealing in domestic issues. She had to act in the moment.

Justice Harper's choice was also clear. He had a moral choice [See Principle IV of the Nuremberg Tribunal]: to follow due process or do the reprehensible act of denying any indicia of due process, such as denying Jones a hearing and keeping the fact deep-sixed in the darkness defined by the Standing Order. He morally abused his discretion, if not legally abused it.

Like Harper, Justice Lawton, the Bar Counsel, the BBO, and any agent of theirs have had a moral choice: to apply the Standing Order or to allow disclosure, or sunshine, of the unscrupulous acts of the Harper Court and make the judiciary take responsibility for the unconscionable conduct of the Juvenile Court in the Jones case.

If the Nuremberg Principles, particularly Principle IV, which addresses crimes against humanity, apply to member states of the United Nations, to which Secretary of State Colin Powell announced on Meet the Press (9 February 2003) he would hold the body politic in Iraq, why should they not apply also to the Commonwealth of Massachusetts? Certainly the maintenance of judicial independence must fall in the face of a crime against humanity.

What was embarrassing to Jane was Johnson's published opinion after reviewing all the pleadings, some of which were written by Jane herself or on her behalf by her lawyer, that Jane is both manipulative and a liar. Johnson is entitled to publish her own opinions, and they were expressed not in bad faith or with malice but to further the truth and expose both the contamination by Jane of the judicial process and the corruption of justice in the Jones case.

In fact, Standing Order I-84 is conceptually outdated: “[I]in Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199 (1984), the Supreme Court applied the right of access doctrine to the fruits of pretrial civil discovery.” George W. Prescott Pub. Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 281 (1985). This is exactly the type of material Johnson was using in Jones’s other cases. The “impoundment of materials uncovered during pretrial civil discovery . . . was permissible, under the First Amendment, only if based ‘on a showing of good cause.’”   Seattle Times at 2209-2210 (not sanctioning automatic impoundment).

In a domestic relations case in which the party-wife is a public figure, “the First Amend-ment requires that [Standing Order I-84] permit interested parties to challenge the routine im-poundment of these records.” Prescott, 395 Mass at 281, citing Seattle Times, 104 S.Ct. at 2209-2210. “Moreover, when such a challenge is made, the trial judge is required either to make sufficient findings which justify the impoundment, . . . or to grant public access to the documents.”   Prescott Pub. , 395 Mass. at 281, citing Press-Enterprise Co. v. Superior Court of Riverside County, 464 U.S. 501, 104 S.Ct. 819, 824 (1984).

A sound judicial discretion in this context requires a showing by the party seeking impoundment of “good cause” and a determination by the court that the scope and duration of an order impoundment is no greater than necessary.

Converge, LLC v. Hickox, No. 01-5005-L2, 2001 WL 1692072 *2 (Mass.Super. Dec. 27, 2001) (Agnes, J.), citing H.S. Gere & Sons v. Frey, 400 Mass. 326, 329 (1987) (Impoundment Rules 2 and 7 requires motion for impoundment accompanied by affidavit, hearing, and showing of “good cause”).

And here, Johnson did not challenge the Order in Juvenile Court because, first, she was unfamiliar with the Standing Order, and even had she known of it, she, second, would have concluded a challenge would have been futile. She was aware, however, that it is well-settled that “[j]udicial proceedings are subject to the ‘general principle of publicity.’” New Bedford Standard- Times Pub. Co. v. Clerk of Third Dist. Court of Bristol, 377 Mass. 404, 410 (1979).

There is, in sum, a general principle of publicity, strong although not absolute, regarding Court records and proceedings, a principle rooted in the Constitution of the United States, the Constitution of the Commonwealth, the common-law and the Trial Court Uniform Rules on Impoundment Procedure.

Demeo v. Geoghan, 2001 WL 1902397 (Mass.Super. January 5, 2001) (McHugh, James, III, J.), citing Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 546 (1977), quoting Common-wealth v. Blondin, 324 Mass. 564, 571 (1949), cert. denied, 339 U.S. 984 (1950).

Johnson adds that the Standing Order not only cannot pass “the test of ‘strict scrutiny’ that is to be applied to statutes that implicate fundamental liberty interests” [Blixt v. Blixt, 437 Mass. 649, 668 (2002) (dissenting, Sosman, J.)], it also cannot pass the rational basis test for upholding the Standing Order in the face of the total absence of due process and equal protection in the history of the JonesDoe v. Commissioner of Transitional Assistance, 437 Mass. 521 (2002) (rational basis, rather than strict scrutiny, is the standard of review which governs an equal protection challenge to a state statute). cases.

BBO Count I, ¶12: In January 2003, at a probate court hearing on Bar Counsel’s motion for release of impounded records for use in connection with his investigation, the respondent contended that all documents in the paternity action were public records by virtue of the 1998 amendment of G.L. c. 209C, §13. The court rejected this claim, noting that the paternity and care and protection actions had been specially assigned to a juvenile court justice for ten years; that confidential, court-ordered reports had been submitted in both proceedings; and that both actions had been impounded from their inception. The court then allowed Bar Counsel’s motion for limited release and directed Bar Counsel to take steps to ensure the confidentiality of the records in any public proceeding against the respondent. The respondent did not appeal or otherwise challenge this order.

Johnson’s Counterpoint:   See on page 66, supra, Johnson’s Counterpoint to BBO Count I, ¶5, footnote 6. In that Counterpoint, Johnson argues that the pleadings in Exhibit 46 are not impounded, for M.G.L. 209C, §13, as amended, effective March 31, 1998, has retroactive as well as prospective effect.

            Without the answer to the question of whether M.G.L. 209C, §13, as amended, effective March 31, 1998, has retroactive or prospective effect or both, the BBO, which has no authority or jurisdiction to decide that question, may not rely upon that section to discipline Johnson. The questions the Bar Counsel’s petition raised are, Did Johnson publish material or excerpts from material impounded by the Probate & Family Court prior to 31 March 1998?   And if so, by that publication, did she breach any section of the Code of Professional Conduct?   And if so, how?

            For example, the Bar Counsel alleges that Johnson uploaded to her website an amended complaint for modification which she wrote in May 2000, two years after §13 had been amended and became effective. Under amended §13, the complaint may have been impounded only upon a showing of good cause. But no one ever went into family court to seek the impoundment of the amended complaint. And no one ever tried to make showing of good cause for impoundment.

            To write a complaint for modification properly, a lawyer must, above all, be concerned with the substance to be contained within the pleading. A lawyer must (1) identify the order sought to be modified, (2) explain the circumstances supporting that earlier order, (3) explain how those circumstances have substantially changed, (4) identify that which is sought to be modified, in this case the custody of the minor child, and (5) explain how the client wants the old order to be modified.

            There is no prescribed time limit between the date of the early order and the date of the motion for a proposed new order. Thus, in 2000, on behalf of her client James Linnehan, Johnson sought modification of the 1988, 1992, and/or 1995 orders denying Linnehan either custody or visitation with his biological son.   The court had relied allegedly on diverse reports from diverse caseworkers\[22]/ who produced reports that were either the result of negligence or incompetence or bad faith or malice. For 12 years, Linnehan did not see his son but in front of a caseworker for 40 minutes. Johnson had a professional obligation to point out the serious flaws supporting the early egregious orders that deprived Linnehan of his constitutional rights and to set forth in detail the worthiness and merit of his claims.\[23]/

            It is of such comments as those which appear in the margin at note 22 of the Board Memorandum about which the OBC irresponsibly complains.\[24]/ One can only suspect that the OBC had not a clue as to what a complaint for modification requires substantively. Also conclusions that counsel made on previous so-called evidence are also not subject to protective or impoundment orders. Lawyers are both expected to know how to think and obligated to think.

            While our society has grown Orwellian by many “Big Brothers” watching us, Mind Control is still not fashionable or desirable. That Weisberg brought such a complaint to censure Johnson for making the public aware of the unscrupulousness of the court and its appointees and others, that Elizabeth Mulvey approved the filing of it, and that M. Ellen Carpenter allowed Weisberg’s motion to “impound Johnson’s thoughts and written conclusions” are such foolish decisions, there are no cases on point to cover the inanity of the situation. Certainly Carpenter’s order is or, at least, should be reversible error.

            Nor has the act of thinking evolved into an ethical breach of professional conduct.

Given the statutory requirement to state the substantial change of circumstances [M.G.L. c. 209C, §20], a lawyer must incorporate the older material. To do otherwise—that is, to not consider and discuss the early or, in the Linnehan case, the pre-March-31^st-1998 material—would be malpractice!

And procedurally, the amended statute made the free use of the public records possible: Prior to 31 March 1998, court records as itemized in §13 of G.L. c. 209C, governing out-of-wedlock paternity and custody disputes and the care and support of nonmarital children (a relatively modern juridical euphemism for “a child born out of wedlock”), were presumptively impounded, that is, the impoundment was not absolute. Exceptions were allowed where there was good cause for public scrutiny. Rule 7 of Trial Court.   And Rule VIII, Uniform Rules of Impoundment Procedure, has provided the factors to be considered.^\[25]/

On 31 March 1998, an amendment of §13 became effective, and files in out-of-wedlock cases began to be treated the same as files in divorce cases. After that date, the effect of the statute was inverted: the public was given a presumptive right of access to all court records itemized In §13.^\[26]/   Restriction of access was deemed to be of constitutional dimension,^\[27]/and the burden of showing good cause was shifted onto the entity which wanted to deny access to the public.

Section 13 of G.L. c. 209C had been amended, and became effective 31 March 1998.

Pre-3/31/98 pleadings

Post-3/31/98 pleadings

              o                                       y

o                    x      o   y         o

        x      o       o            o       x o

Presumptive Impoundment

Good cause required to open files

Presumptive Right of Access

Good cause required to close files

Key:

o = Comment on fact from pre-3/31/98 pleading

x = quoted phrase from pre-3/31/98 pleading

y = quoted sentence from pre-3/31/98 pleading

Note: The number of o’s, x’s, and y’s in the figure is not intended to represent the number of o’s, x’s, and y’s in the post-3/31/98 pleadings, i.e., the Amended Complaint.

                                                                                                            /\

                                                                   /|\
                        31 March 1998 Amendment of §13

            So the primary questions to be answered by the SJC before the BBO can rely on the documents procured unlawfully by OBC ABC Weisberg are ones of first impression:

Does the amendment have only prospective effect?

Does the amendment also have retrospective or retroactive effect?

Does the pre-amended version of §13 as well as the amended versions of the statute apply to Johnson’s uploaded post-2000 pleadings?

Johnson contends that for consistency and logic, the amendment must operate retroactively as well as prospectively. The motion judge, Prudence McGregor, held firm on prospective application only. Johnson feels confident that Judge McGregor’s decision was seriously erroneous, i.e., reversible error. That judge simply gave the BBO the result it wanted. Intellectually it was a deficient decision.

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.

            “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”).

Ordinarily, statutory, and thus regulatory, changes of substance apply only to events that occur after the change's effective date. Child Support Enforcement Div. of Alaska v. Brenckle, 424 Mass. 214, 219 (1997), quoting from Hanscom v. Malden & Melrose Gaslight Co., 220 Mass. 1, 3 (1914). To that general rule, however, there are several exceptions. One such exception gives retroactive effect to “curative” changes, i.e., changes “designed to remedy mistakes and defects in the administration of government where the remedy can be applied without injustice.”   Canton v. Bruno, 361 Mass. 598, 609 (1972), quoting from Graham & Foster v. Goodcell, 282 U.S. 409, 429 (1931) . . . (“[A]n amendment may apply retroactively if it is curative or remedial and intended to clarify rather than change the law”); 2 Singer, Sutherland Statutory Construction § 41:11, at 468 (6th ed. rev.2001).

Figueroa v. Director of Dept. of Labor and Workforce Development, 54 Mass.App.Ct. 64, 70-71 (2002) [internal cites to out-of-state cases omitted].

Given that the presumption of openness and the notion that the public must be able to scrutinize judicial proceedings is so consistent and unyielding, the entire record of the action from the date it was filed is required. Thus where the amendment to G.L. c. 209C, §13, is administrative, this court must deem that the 1998 amendment operates retroactively.

Further, even assuming arguendo that the amendment was not operating retroactively, . . . because there were many wrongs done Linnehan which prejudiced and deprived him of his rights to due process and equal protection under both the federal and state constitutions while the action was pending, that defective judicial process warrants public scrutiny.

There is a well-established common law right of access to the judicial records of civil proceedings. See Nixon v. Warner Communications, Inc., [435 U.S. 589], 597 (1978) ("the courts of this country recognize a general right to inspect and copy public records and documents" [footnotes omitted] ); Ottaway Newspapers, Inc. v. Appeals Court, [372 Mass. 539], at 546 (affirming "with emphasis" general principle of publicity in the absence of statutory limitation on access to judicial records). The presumption of access facilitates "the citizen's desire to keep a watchful eye on the workings of public agencies," permits the media to "publish information concerning the operation of government," Nixon v. Warner Communications, Inc., supra at 598, and supports the public's right to know "whether public servants are carrying out their duties in an efficient and law-abiding manner." George W. Prescott Publ. Co. v. Register of Probate for Norfolk County, supra at 279, quoting Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). Access to otherwise unrestricted records of judicial proceedings may therefore be viewed as an essential component of the general principle of publicity: "the public often would not have a 'full understanding' of the proceeding and therefore would not always be in a position to serve as an effective check on the system" if it were denied access to judicial records. Globe News Co. v. Pokaski, 868 F.2d 497, 502 (1st Cir.1989). See New Bedford Standard-Times Publ. Co. v. Clerk of the Third Dist. Court of Bristol, 377 Mass. 404, 417 (1979) (Abrams, J., concurring) ("greater access to information about the actions of public officers and institutions is increasingly recognized as an essential ingredient of public confidence in government").

Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 605-606.
Where the repeated abuses by the judges of their power in the Linnehan cases, Linnehan asks whether they would have been committed if public scrutiny had been allowed and if judges and those they appoint to investigate, evaluate, or determine custody and visitation issues were not given, respectively, judicial and quasi-judicial immunity, perhaps Linnehan would not have lost knowing his son for the past 15 years. The tragedy is irremediable. Such denial of due process must be disclosed so that, at least with a little luck, similar tragedies will not occur.

Assuming arguendo also that Judge McGregor had jurisdiction to open the pre-amendment records to the Assistant Bar Counsel, Weisberg, then the pre-amendment court records should also be deemed to have been open to Linnehan, his counsel, and the public.

Where in George W. Prescott Publ. Co. v. Register of Probate for Norfolk County, 395 Mass. at 278, the Supreme Judicial Court refused to impound private information in a divorce case in which the husband at the time held two public positions, this court must refuse to impound the information in this out-of-wedlock paternity and custody action. Cf. Roberts v.Noon, 23 Mass. App. Ct. 596 (1987) (child was entitled to assert right to support after age of 18 in same manner as children of divorced parents under like circumstances).

            It follows that if Assistant Bar Counsel wanted the so-called impounded records to be released from impoundment or segregation so that she could gather material to buttress the OBC’s argument that Johnson published materials that were impounded, then in order to preserve Linnehan’s and his counsel’s rights to equal protection, the released records would have to be declared released and open to Linnehan and his counsel and the general public nunc pro tunc to the time Johnson first published any Linnehan matter.

In fact, equal rights and equal protection demand the records be open for all, for there is a “great public interest in disclosure of all information relevant to misuse of authority and official wrongdoing.” H.S. Gere, 400 Mass. at 332, citing George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 279-280.

Given this rationale, clearly the Legislature deemed the unamended section §13 violative of due process rights under the Fourteenth Amendment to the United States Constitution and arts. 1, 10, and 12 of the Massachusetts Declaration of Rights, and that on a balancing of opposing considerations, the unamended statute was unreasonable and as such unconstitutional.    Cf. In re Liquidation of American Mut. Liability Ins. Co., 434 Mass. 272, 282 (2001).

Given the relative weakness of the argument asserted by the Bar Counsel, the sufficiency of the public interest that motivated the Legislature to enact the 1998 amendment, and the narrow range of claimants who have been or will be affected by the statute as amended, this court must conclude that the retrospective application of G.L. c. 209C, §13 is reasonable and does not violate anyone’s constitutional guarantees of due process. See In re Liquidation of American Mut. Liability Ins. Co., 434 Mass. at 287.

Lastly, the OBC and the BBO would have suffered no prejudice by the probate and family court releasing all the records to Linnehan, his counsel, and to the public. What the OBC did was to seek to perform an injustice secretly and to deny Linnehan, his counsel, and the public the scrutiny warranted and considered desirable by the cases and constitutions in this Commonwealth and of our nation.

BBO Count I, ¶13: As of August 2003, when the respondent filed her amended answer, she admitted that she still had not removed from her website the confidential and personal information relating to William, Jane, David, or Jones.

Johnson’s Counterpoint:   While it is true that as of August 2003, Johnson had not removed the files that are the subject of Count I of the OBC’s petition, Johnson contends that the information was from public records. That the information was not confidential and personal regarding the people named, and that so long as the information was 100 percent true—and it was—Johnson was within her First Amendment rights to publish it.

BBO Count I, ¶14, sentence 1 of 3: The special hearing officer concluded that by disseminating impounded material from the care and protection and paternity actions, failing to return to the juvenile court impounded reports belonging to the court, as ordered by the court, and failing to remove impounded material from her website, again as ordered by the court, the respondent violated Mass. R. Prof. C. 8.4(d) and (h).

Johnson’s Counterpoint: (1) Johnson did not disseminate impounded material from the care and protection and paternity actions, (2) Johnson did not fail to return to the juvenile court impounded reports belonging to the court, for she had neither taken nor received documents from the juvenile court and had no such material to return, (3) Johnson did not fail to remove impounded material from her website, for there was no impounded material on her website. Therefore Johnson did not violate Mass. R. Prof. C. 8.4(d) and (h), making it mandatory to reject as a basis Rules 8.4(d) and (h) for the recommendation by the BBO.
            No respondent, like Johnson, can prove a negative. The accuser, here the OBC—with the approval of the BBO—bears the burden to prove the accusation. Here the accusations had to be proved only by paper and there is no paper. There was no documentary evidence to support the BBO’s conclusion. The OBC never produced a webpage from the C&P action.   The OBC never produced a webpage from the custody and paternity action prior to the effective date of the amendment of §13 of G.L. c. 209C. The OBC admitted that Johnson did not take or receive documents from the juvenile court or even possessed such material to return to that court. The OBC never produced a webpage that was a reproduction of impounded material.

The BBO’s finding of a violation of Massachusetts Rules of Professional Conduct 8.4(d) and (h) rule must not be accepted by this Court, for the OBC failed to identify any event or act whatsoever when Respondent’s conduct allegedly involved (1) dishonesty, (2) fraud, (3) deceit, (4) misrepresentation, (5) prejudice to the administration of justice, and/or (6) conduct adversely reflecting on her fitness to practice law.

The Board erred by allowing the charges to stand despite Bar Counsel’s failure to prove each and every element of the rule. Therefore rejection of the Board’s recommendation based on Count I is mandatory.

Further, Johnson needed specificity to prepare a defense to such general charges. She incorporates herein by reference the legal citations in her other motions regarding moving targets. She could not and cannot fight general conclusions. Due process afforded her the right to know specifically the charges alleged. Given that the BBO deprived her of that right, the recommendation by the BBO must be rejected on the grounds that the SHO erred by finding a violation of Rules 8.4(d) and (h).

BBO Count I, ¶14, sentence 2 of 3: In addition, by deliberately disobeying the Juvenile Court’s May 1, 2001 order and engaging in knowing violations of Juvenile Court Standing Order No. 1-84 and G.L. c. 209C, § 13, the respondent violated Mass. R. Prof. C. 3.4(c) and 8.4(d) and (h).

Johnson’s Counterpoint: Where the Juvenile Court never had personal jurisdiction over Johnson or subject-matter jurisdiction over her website and where Johnson never received anything resembling a complaint filed in Juvenile Court against her, any order from that court, being unlawful as well as unclear and equivocal, was invalid, if not voidable or void ab initio. Under Labor Relations Commission v. Fall River Educators' Ass'n, 382 Mass. 465, 469 n. 5 (1981), as well as under 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.
            Even assuming arguendo that she owed a valid obligation to the Juvenile Court, given that the Juvenile Court had indulged for a decade in the unscrupulous practice of denying Linnehan/”Jones” both due process and equal protection of the laws, Johnson’s valid obligation was to the state and federal constitutions and to stare decisis, where it is well-settled that that the public is entitled to scrutinize the judicial process and disclose unscrupulousness of any court so acting.

[W]here the court lacks jurisdiction to make an order or where an order is transparently invalid on its face may a party ignore a court order and attempt to evade sanctions by litigating the validity of the underlying order. Matter of Providence Journal Co., 820 F.2d 1342, 1347 (1st Cir.1986), modified on reh'g, 820 F.2d 1354 (1st Cir.1987). See Vakalis v. Shawmut Corp., 925 F.2d 34, 36-37 (1st Cir.1991).

Oakham Sand & Gravel Corp. v. Town of Oakham, 54 Mass.App.Ct. 80, 87, 763 N.E.2d 529, 536 (2002), cert. denied 437 Mass. 1109, 774 N.E.2d 1099 (2002).

            In fact, Johnson had a mandatory duty under M.R.Prof.C. 1.6(b)(1) and 8.3 to reveal information “to prevent the commission of a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm, or in substantial injury to the financial interests or property of another. . . .” In the case underlying Count I, Linnehan/”Jones” had already resulted in serious harm to him on many levels and in the deprivation of his constitutional rights.

            Moreover, where the OBC failed to prove that Johnson engaged in conduct that was prejudicial to the administration of justice and/or engaged in any other conduct that adversely reflects on her fitness to practice law, there was no basis for BBO’s conclusion and recommendation, making dismissal of the charges in Count I mandatory.

Additionally, the BBO’s finding of a violation of Massachusetts Rules of Professional Conduct 8.4(d) and (h) rule must not be accepted by this Court, for the OBC failed to identify any event or act whatsoever when Respondent’s conduct allegedly involved (1) dishonesty, (2) fraud, (3) deceit, (4) misrepresentation, (5) prejudice to the administration of justice, and/or (6) conduct adversely reflecting on her fitness to practice law.

BBO Count I, ¶14, sentence 3 of 3:   Finally, by disseminating information about William, David and Jane on her website with no substantial purpose other than to embarrass or burden them, the respondent violated Mass. R. Prof. C. 4.4 and 8.4(h).

Johnson’s Counterpoint: Where there was no evidence whatsoever from William, David, and/or Robyn/”Jane” that they were embarrassed or burdened or that Johnson’s purpose in uploading the pleadings identified in Count I was to embarrass or burden them, the recommendation by the BBO must be rejected on the grounds that the SHO erred by finding violations of Mass. R. Prof. C. 4.4 and 8.4(h). In this case, Prosecutor Weisberg’s arguments were the only evidence she proffered. The prosecutor’s own conclusions and own state of mind simply is not evidence.

The BBO’s finding of a violation of Mass. R. Prof. C. 4.4 must not be accepted by this Court, for where the OBC:

·       failed to proffer evidence that Respondent used methods of obtaining evidence which violated the legal rights of William, David, of Robyn/“Jane”,

·       failed to proffer evidence that William, David, of Robyn/“Jane”’s legal rights were allegedly violated by Respondent when obtaining evidence,

·       failed to proffer evidence that Respondent’s purpose in uploading files to her website was to embarrass, delay, or burden William, David, of Robyn/“Jane”,

·       failed to proffer evidence that William, David, of Robyn/“Jane” were embarrassed, delayed, or burdened, and

·       failed to proffer evidence that Respondent embarrassed, delayed, or burdened William, David, of Robyn/“Jane” by Respondent’s webpages,

there was no evidence to support the BBO’s conclusion and recommendation for disbarment.

Bar Counsel through his assistant, Weisberg, had to prove those elements that the SHO allowed him not to prove, and the failure of the BBO to hold Bar Counsel to following the law makes dismissal of Count I mandatory.

            Further, where the Bar Counsel identified three people by pseudonyms, including the complainant herself, and did not call, at the very least, the complainant as a witness, Bar Counsel, under any theory of law, did not prove—regardless of the standard used by this body—that anyone has been harmed by Johnson.   Similarly, without that evidence, SHO Phillips could not find that Johnson had violated this rule. Thus, the Board had no evidence before it whatsoever, to prove that anyone was embarrassed, delayed, or burdened by Johnson’s webpages.

            Moreover, although all three people were available to testify and all were subject to subpoena, SHO Phillips refused to issue subpoenas for William and David and quashed Johnson’s witness subpoena served on Robyn/“Jane.”   In so doing, the BBO egregiously violated Johnson’s rights to due process and equal protection and a fair trial.

A dismissal of Count I is mandated in Johnson’s favor not only because the OBC did not meet its burden to prove a prima facie case, but also because OBC was not legally entitled to shift its burden onto Johnson.

Lastly, as noted twice above, the BBO’s finding of a violation of Massachusetts Rules of Professional Conduct 8.4(d) and (h) rule must not be accepted by this Court, for the OBC failed to identify any event or act whatsoever when Respondent’s conduct allegedly involved (1) dishonesty, (2) fraud, (3) deceit, (4) misrepresentation, (5) prejudice to the administration of justice, and/or (6) conduct adversely reflecting on her fitness to practice law.

            Wherefore, as to Count I, the recommendation of the BBO must be rejected and the charges be dismissed forthwith, for:

1.               Bar Counsel failed to prove that Respondent engaged in knowing violations of G.L. c. 209C, §13 and the BBO does not have the authority to interpret the 1998 amendment of §13 of G.L. c. 209C, a section that the SJC has not yet interpreted. Therefore it was inappropriate for the BBO, without jurisdictional authority, to find that Johnson violated the section and to recommend her disbarment on the basis of its own interpretation of that section.

2.               Respondent did not violate and Bar Counsel failed to prove that Respondent violated Mass. R. Prof. C. 3.4(c).

3.               Respondent did not violate and Bar Counsel failed to prove that Respondent violated Mass. R. Prof. C. 4.4.

4.               Respondent did not violate Mass. R. Prof. C. 8.4(d) and (h) and Bar Counsel failed to prove that Respondent did.

5.               Where the Juvenile Court had neither personal jurisdiction over Johnson or subject-matter jurisdiction over her website, and where Johnson received no records from Juvenile Court and did not publish any Juvenile Court records on her website, Johnson may not be deemed to have violated Juvenile Court Standing Order 1-84.

BBO Count II

Johnson’s Counterpoint:   For all details of Johnson’s version of Count II, see in Vol. I, Tab 46, Amended Answer to Count II, ¶¶ 45 through 99, which she incorporates in entirety herein by reference.

BBO Count II, ¶1: In August 1999, Richard Parker was indicted for rape and indecent assault and battery of his adult daughter, Sarah, who was mentally retarded. At the time, Sarah was living in a residential placement under the supervision of the Department of Mental Retardation. Based on the allegations against her father, DMR had started a protective services action. Richard denied any misconduct toward his daughter, and he and his wife, Mary, suspected that someone at her residential placement might have sexually abused Sarah.

Johnson’s Counterpoint: "Richard Parker," a retired school teacher of Japanese extraction, was facing four indictments for attacking his daughter "Sarah" in the shower, for burning her while in a car with a cigarette, and for raping her twice. He and his family prefer NOT to call Sarah mentally retarded. Sarah’s family prefers to say that Sarah was "mentally challenged" from "a series of massive strokes which left her with partial paralysis and serious learning disorders and a serious lack of language skills."

BBO Count II, ¶6: About November 22, 1999, the respondent received the Parkers’ $10,000 retainer check. The respondent did not deposit any of the money into a client funds account but instead deposited the entire $10,000 into a personal account. In her Amended Answer, the respondent claimed that this action did not constitute commingling because she believed she had earned the entire retainer at the time she deposited it into her account. The special hearing officer rejected the respondent’s claim.

Johnson’s Counterpoint:   See Vol. I, Tab 46, Amended Answer, Count II, pp. 32-49, for excerpts of emails between the Parkers and Johnson between 11/12/99 and 11/29/99, and Vol. I, Tab 46, (Johnson’s bill dated 12 December 1999 to the “Parkers”), also included in Answer to Count II, ¶79, pp. 79-93, Johnson still contends that she did not commingle funds, for but for the deep discount that she gave the Parkers and the return of over $3174.50 on 12 December 1999 (many months prior to the Parkers’ complaint to the BBO), the $10,000 would have been consumed by legal fees. When later an arithmetic error was discovered, Johnson returned to the Parkers an additional $343 [see in Vol. I, Tab 46, Amended Answer, Count II, ¶84].

Where there is no evidence that Johnson commingled and used client funds with any intent permanently to deprive, no showing of misrepresentation or dishonesty, and no prejudice to a client, no discipline is warranted.

         The court's decision that a public censure is appropriate discipline for the attorney in this case [Matter of Driscoll, infra] is wrong. In Matter of the Discipline of An Attorney (the "Three Attorneys" case), 392 Mass. 827 (1984), we made clear the considerations that would apply to a lawyer's misuse of clients' funds. We said the following (392 Mass. at 835-837):

"The Board of Bar Overseers has placed in the record of those proceedings a statement of policy which it urges in these and similar cases. It is the settled position of the Board that public discipline is always merited in a case of a lawyer who has commingled clients' funds and the lawyer's funds and who has then used the commingled funds for his or her own purposes. It is implied in the Board's statement that, in any such case where it is shown, additionally, that there is 'wrongful intent,' suspension and disbarment from the practice of law is appropriate, with the extent of the sanction dependent upon the extent of the exacerbating facts....

"Bar counsel states a position consistent with that of the Board, but he states it even more definitively. He urges that 'standard' sanctions should be adopted as follows:

"Intentional commingling of clients' funds with those of an attorney should be disciplined by private reprimand. Unintentional, careless use of clients' funds should be disciplined by public censure.

"Intentional use of clients' funds, with no intent to permanently or temporarily deprive the client, and no actual deprivation, should be punished by a term of suspension of appropriate length.

"Intentional use, with intent to deprive or with actual deprivation, should be disciplined by disbarment or indefinite suspension.

"The views of the court may be stated succinctly. We concur generally in the Board's and Bar Counsel's statements of principles ... We do not adopt a posture of mandatory sanctions in such cases, but we do state that an offending attorney, in any case where the misconduct occurs after the date of this opinion, will have a heavy burden to demonstrate to the court that sanctions as recommended here by the Board and Bar Counsel should not be imposed."

The attorney in this case knowingly and intentionally misappropriated clients' funds (without an intent to steal) in an amount that exceeded $36,000. He did so long after our pronouncement in the Three Attorneys case. His conduct clearly falls within the category of conduct described above that calls for "a term of suspension of appropriate length."

Matter of Driscoll, 410 Mass. 695, 702-703 (1991) (GREANEY, J., dissenting with whom WILKINS and ABRAMS, JJ., join).

            The instant case is one in which Johnson had earned the money received, deposited the checks, and upon drafting the final statement decided to deeply discount the fees charged. The invoice was excruciatingly detailed and clearly shows that Johnson had earned the money prior to depositing it into her account.   In pushing the commingling charge because SHO Phillips found no evidence of Johnson having charged excessive fees, an allegation that appeared in the Petition for Discipline, the BBO’s conduct is akin to that of the district attorneys who use the buckshot approach—by overcharging a defendant in order to “guarantee” a conviction—and hope that something will stick.

BBO Count II, ¶7: In early December 1999, Mary notified the respondent that she was discharged and asked the respondent to provide an itemized bill, deduct any additional charges from the retainer and return the balance. A week later, the respondent sent Mary her bill and a check for $3,174.50 drawn on the respondent’s personal account. The respondent kept the remainder of the $10,000, and despite demand from the Parkers for return of an additional $6,400, did not place the disputed amount into a trust account.

Johnson’s Counterpoint:   On 4 December 1999, Mary wrote to Johnson:

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 9th 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

As noted above by the BBO, Johnson did, indeed, return $3174.50 plus $343 to the Parkers. This was four or so months prior to Mary filing a complaint with the BBO.   Johnson did not put the additional money into a trust account, for she had already earned it. And later, even SHO Phillips, Johnson’s antagonist, found that there was no evidence that Johnson had overcharged the Parkers.   So, to have been denied her earnings and to have needed to exist at a subsistence level because of a frivolous claim by the Parkers would have been extremely prejudicial to Johnson, and would have further harmed and damaged Johnson.

At some point, fundamental fairness must be factored in to the equation of the relationship between the OBC, the BBO, and the legal community.

In sum, where there is no evidence that Johnson commingled and used client funds with any intent permanently to deprive, no showing of misrepresentation or dishonesty, and no prejudice to a client, no discipline is warranted.\[28]/

BBO Count II, ¶8: In March 2000, the Parkers filed a complaint with the Office of Bar Counsel. On October 27, 2000, all the criminal charges against Richard were resolved by the entry of nolle prosequi by the Commonwealth.

Johnson’s Counterpoint:   See Vol. I, Tab 46, Johnson’s Amended Answer for Count II. See also Impounded Vols. X-XII, Tab 46, Trial Exhibit 67 [Johnson believes that is the exhibit number assigned to the 371 pages of emails between Johnson and the Parkers, according to Impoun-ded Vol. VII, Tab 201, Transcript, Day 2, pp. 8-11]. See also Figure 4.

Johnson likes to think that her educating the Parkers about the criminal justice system, the law, case strategy, and the kinds of tasks an effective criminal defense attorney should do—something that their counsel (Richard Simon, the son of Ret. Judge William Simon, who complained about Johnson to the OBC) did NOT do but should have done—contributed greatly to the ultimate success of the criminal charges brought against Richard Parker.

Sat, 6 Nov 1999 from Georgette:

THANKS AGAIN FOR ALL YUR HELP
                                                   Sarah' s Sister S

Fri, 12 Nov 1999 from Josh & Pearl Muffet:

Thank you for all you've done to give the family hope and courage. I spoke to my mother in law this evening and was encouraged by her comments.

12 Dec 1999 (after the relationship was ended): from Mary:

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.

Figure 4. Excerpts from emails from members of the Complainant’s

family and the Complainant herself

BBO Count II, ¶9: Over two years later, in mid-December 2002, the respondent posted on her website the Parker bill, correspondence between her and Mary, and copies of her responses to Bar Counsel regarding the Parkers’ complaint. The posted materials disclosed confidential, personal and private information gained by the respondent in the course of her professional relationship with the Parkers, including the true identities of the Parkers and their family members, Sarah’s history and disabilities, the history and details of the sexual abuse allegations, and communications among the respondent, the Parkers and their other counsel.

Johnson’s Counterpoint:   About a month after the gubernatorial campaign in which Johnson ran on a platform of court reform and the abolishment of judicial immunity, Johnson received notice by OBC Weisberg that the OBC was bringing a petition for discipline of Johnson.   Believing that the disciplinary action was retaliation for saying “Accountability, accountability, accountability” during one of the debates, and then seeing the press act on the news, Johnson believed she had to keep the public informed as to what was coming to pass. At that point, she began writing her Answer to the Petition and then uploaded it to her website, falseallegations.com.

Having been advised to put everything in the Answer—for she would not be allowed to proffer or introduce any evidence during the OBC/BBO process—Johnson included the “Parker” bill, correspondence between her and “Mary,” and copies of her responses not to Bar Counsel but to Weisberg regarding “Mary Parker’s” complaint.

Specifically the documents Respondent uploaded to her website regarding the Parker situation were:

(1)    the original accounting to the Parkers, dated 12 December 1999,

(2)    an email dated 20 December 1999 to Mary in response to one of her emailed letters,

(3)    a letter dated 28 December 1999 to Mary Parker in response to one of her emailed letters,

(4)    a letter dated 19 April 2000 to Weisberg in response to the Complaint,

(5)    a link to the annotated bill (dated 19 April 2000) replete with all the emails (in entirety) cited in the original bill, about which Weisberg threatened Respondent not to upload and which Johnson ultimately never did upload, although it concerned the matters in that "annotated" bill,

(6)    a letter dated 8 May 2000 to Weisberg, and

(7)    a letter dated 11 September 2001 to Weisberg.

Given that Weisberg's cover letter informed Johnson that the proceedings were public, it made logical sense that the documents concerning the factual circumstances out of which the OBC's Petition arose could and should also be made public. Either a subject is public or it is not.

Johnson still denies that she posted confidential, personal, and private information about the Parkers. Neither Weisberg nor Bar Counsel has ever identified those portions of what Johnson posted were confidential, personal, and private information about the Parkers. The OBC accusation and the BBO finding has been simply too broad and vague for Johnson to respond to intelligently at any time since the so-called OBC investigation began.

Although the Board contends that Respondent obtained the information in the postings "in the course of her professional relationship with the Parkers," the Parkers claimed that a professional relationship was non-existent, for the attorney-client fee agreement was not executed, having been signed only by the Parkers.   Johnson never signed the fee agreement because the Parkers never defined for Johnson the extent and nature of the legal services they sought from her.

If there was no such relationship, then the confidentiality issue is moot.   If there was no such relationship, then the OBC’s complaint against Johnson was frivolous and misplaced and is interfering with Respondent's advantageous business relationships. Thus, assuming there was no attorney-client relationship, as the Parkers contend, Respondent denies that she published any confidential information.   Of course, the OBC and the BBO have not expressed their collective minds on the issue, and if they have, they have never communicated what is in their minds to Respondent.

Further, Johnson contends that Richard and Mary waived their privacy when they revealed their problems to friends, acquaintances, and family members. "[T]he history and particulars of the sexual abuse allegations" against Richard were made public by the law-enforcement and judicial systems as well as by the State agencies. At all times, Respondent published only facts favorable to the Parkers or facts reflecting their position on all matters.

            For example, when on 16 December 1999, Mary Parker sent to four people a communica-tion from her to Johnson regarding Johnson’s bill to the “Parkers,” Respondent had a right to defend herself [law infra]. To do otherwise would result in “[s]uch an incongruous result [it] would be inconsistent with the object and purpose of the attorney-client privilege and a patent perversion of the rule. When a client calls into public question the competence of his attorney, the privilege is waived." Tasby v. United States, 504 F.2d 332, 336 (8th Cir.1974), cert. denied, 419 U.S. 1125, 95 S.Ct. 811 (1975) (internal citations omitted) (emphasis supplied)).

The attorney-client privilege is the client's privilege to waive. Phillips v. Chase, 201 Mass. 444, 449 (1909). McCooe v. Dighton, Somerset, & Swansea St. Ry., 173 Mass. 117, 118-119 (1899). If a client chooses to waive the privilege of confidentiality, the attorney is under no further ethical obligation to keep the communications secret. S.J.C. Rule 3:07, Canon 4, DR 4-101 (C)(1), (2), as amended, 382 Mass. 778 (1981).

District Atty. for Plymouth Dist. v. Board of Selectmen of Middleborough, 395 Mass. 629, 633-634 (1985).

Sarah, of course, because of her mental challenge, has no knowledge whatsoever of the website and even if she did learn of it, would not be able to understand it. Her vocabulary is limited to words of one syllable and has no knowledge of the concepts of time or space. She has the mind of a 15-month old in a woman’s body. The members of Richard and Mary's family are like the family members of other defendants. Their names and visages are known and often disseminated on television and in newspapers and magazines.

The bottom line is, nothing published by Johnson about the Parkers, their family members, or their attorney, Richard Simon, was untrue, which is why no one has sued Johnson for defamation.

Johnson had also been accused by the OBC and the BBO of charging the Parkers an excessive fee. This was found by the SHO to be untrue.

BBO Count II, ¶10: The respondent admits that she did not notify the Parkers that she intended to disclose information about them on her website. She never sought or obtained the Parkers’ permission to disclose or disseminate information about them on her website. She never sought the permission of anyone authorized to consent for Sarah before posting information about Sarah.

Johnson’s Counterpoint: Respondent "never sought . . . the Parkers' permission to disclose or disseminate information about them on her website" because she had already received unsolicited permission from the Parkers to disclose or disseminate their story on her website. That is, on 12 December 1999, after their relationship was ended, Mary Parker wrote Johnson:

Dear Barbara, Thanks. Know that your are not on our payroll anymore but would love to be able to keep you posted. Who knows we may someday be a story on your wonderful educational web site. . . .

Respondent also "never sought the permission of anyone authorized to consent for Sarah before posting information about Sarah on her web site," because Johnson already had Mary Parker’s permission to disclose or disseminate their story on her website.

BBO Count II, ¶11: By letter dated December 23, 2002, the Parkers’ attorney demanded that the respondent immediately remove the confidential and privileged information about them from her website. In response, the respondent left a message on the attorney’s answering machine, informing him that she might remove the postings concerning the Parkers from her website, but only if the Parkers dismissed their complaint to Bar Counsel.

Johnson’s Counterpoint: Respondent does not deny leaving a reactive message on William Simons' answering machine about the officious letter he wrote her, but she does not remember her exact words and she has never heard the tape. She can state now only that the statement as written does not sound correct.   She has a vague memory that she stated she was pleased that he, Simons and his clients, agreed that there was no defamation, because everything posted was true.

            Respondent assumes that Simons kept the tape and gave the OBC a copy of it. Given, however, that the ABC Weisberg has skewed other facts in the OBC Petition and the Board has adopted almost word for word in Weisberg’s petition, Respondent is both unwilling and unable to accept as definitive the Board’s, or actually, Weisberg’s, alleged re-iteration of what was said in the message and might be on a tape.

Given that Simon was not called as a witness, his letter to Johnson was never authenticated. Further, where Simons had never spoken to Johnson, he could not identify the voice on it. Given that Johnson was also not a trial witness—because she left with the observers when they were ordered out of the hearing room by SHO Phillips—she did not authenticate the tape.

So, the OBC never proved and the BBO could not find that "[o]n or about December 26,2002, the respondent informed William Simons that she would or might remove the Parker posting from her web site, but only if the Parkers withdrew and effected the dismissal of their bar discipline grievance against her."

            In fact, the Board Memorandum is so almost identical to Weisberg’s petition that the Board Memorandum was likely written by Weisberg herself, and thereby creating an aura of suspicion surrounding the memorandum. If Johnson’s gut feelings are incorrect, then this Court must, indeed, scrutinize the memorandum and determine whether it reflects the independent judgment of one or more Board members. Johnson contends, of course, that there is not one iota of evidence of independent judgment in the Board Memorandum. Like those Findings of Fact and Rulings of Law which a sitting justice adopts wholly or almost wholly from the Proposed Findings of Fact and Rulings of Law of a party’s counsel, the Board Memorandum and recommendation must be rejected.

We deal first with the adequacy of the so-called "Findings."   With minor exceptions not worth noting, they consisted of nothing more than a retyping of the proposed findings of fact and conclusions of law which had been submitted by counsel for the plaintiff at the conclusion of the case. (FN2) More than one quarter of the twenty pages were devoted to disposing of a defense which the commission had set up in its answers, which had been litigated only faintly in the course of the trial, and which had been conspicuously waived by the commission in its posttrial brief. There was here not only an evident lack of the independent thought on the part of a trial judge in performing his duties under Mass.R.Civ. P. 52(a), 365 Mass. 816 (1974), which is called for by the Cormier and Markell cases and their progeny (supra, n. 1), there was also a transparent refusal to consider any of the contentions of the commission.

Marr v. Back Bay Architectural Com'n, 23 Mass.App.Ct. 679, 681 (1987).

There was in the Board Memorandum relied upon here by the BBO not one alteration of substance of the proposed findings of fact and conclusions of law submitted by Weisberg.

When using suggested findings, the trial judge must demonstrate that her or his independent judgment was not suspended. See Cormier v. Carty, 381 Mass. 234, 237-238 (1980).

Zatsky v. Zatsky, 36 Mass.App.Ct. 7, 12 n. 7 (Mass.App.Ct. 1994). “[S]trict[ ] scrutiny may be warranted in cases where the 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 The 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.

Johnson’s Counterpoint: SHO Phillips so did find (1) that Johnson had not charged a clearly excessive fee and (2) that Johnson did not make intentionally false, deceptive or misleading representations to the Parkers about her fees, time and charges.

BBO Count II, ¶14, sentence 1 of 3: The special hearing officer concluded that by commingling the Parkers’ retainer payment with her own funds, failing to segregate the disputed portion of their retainer, and failing to account adequately to the Parkers for her application and disposition of the retainer, the respondent violated Mass. R. Prof. C. 1.15(a)-(c), 1.16(d), and 8.4(c) and (h).FN7

Johnson’s Counterpoint:   Although the OBC has never identified the amount of the funds allegedly commingled, both the SHO and the BBO have persisted in their allegation that Johnson commingled funds.   Respondent has always contended that she did not commingle funds, for she had already earned the money before she deposited the check.\[29]/ Believing the couple were facing steep attorney’s fees to defend against four charges of rape and assault, she thought she was being considerate of them when she deeply discounted her fees and simultaneously rebated to the couple $3174.50. [See accounting sent to the Sanos on 12 December 1999, included in Impounded Vol. VII, Tab 233 (attachment Exh. E)].\[30]/

That act of generosity bit her in the back. The deep discounting made it appear that Johnson had deposited the money into her account before earning it. At least, that was the spin Bar Counsel has put on it. But the spin is untrue. Johnson had earned the money, properly put in into her personal account, extended to the couple sympathy and assistance for which they and their adult, married daughters and sons-in-law appeared to greatly appreciate,\[31]/ returned a few thousand dollars to them so as to ease their upcoming financial burden . . . and then got stung by them and, later, by the OBC for so doing.

            Even assuming arguendo that Johnson had deposited more than she had yet earned, the special hearing officer, Phillips, found that Johnson did not charge an excessive fee, did not owe the Sanos a refund of an unearned fee, and, therefore, did not violate either Mass. R. Prof C. 1.15(a) [note 7, Board Memo].

            Further, where, in the instant case, there is no allegation whatsoever that there was even a temporary deprivation, only dismissal of the charge of violating Rules 1.15(a)-(c) re commingling.   Cf. In re Jackman, 444 Mass. 1013, 1013-1014 (2005), and In re Johnson, 444 Mass. 1002, 1003 (2005).   The relevant excerpts from those two cases, each citing and quoting, respectively, Matter of Schoepfer, infra, follow:

While the negligent, unintentional misuse of client funds might warrant a public reprimand in the absence of actual deprivation, see Matter of Schoepfer, 426 Mass. 183, 185-186 n. 2 (1997), where, as here, the unintentional misconduct has resulted in even temporary deprivation, a term suspension is typical.

In re Jackman, 444 Mass. 1013, 1013-1014 (2005).

Disbarment or indefinite suspension is the presumptive sanction if “an attorney intended to deprive [a] client of funds, permanently or temporarily, or if the client was deprived of funds (no matter what the attorney intended).” Matter of Schoepfer, 426 Mass. 183, 188, (1997).

In re Johnson, 444 Mass. 1002, 1003 (2005).   Thus, where in the instant case there is no allegation whatsoever that there was even a temporary deprivation, there is no presumptive sanction, making only dismissal of the charge of violating Rules 1.15(a) re commingling.

Moreover, there is no allegation that the accounting Johnson sent to the Sanos was inadequate as notice to them as to the disposition of the funds received from them. Given (a) that it is undisputed that Johnson promptly notified Deb Sano that her sister June sent a check and that it was safely received, (b) that SHO Phillips found that Johnson’s fees were not clearly excessive and that no refund was due the Sanos or Deb Sano’s sister, (c) that there is no dispute as to records or as to receipts, (d) that there is no dispute as to accounting, (e) that it was the OBC’s burden to prove the amount allegedly commingled, and (f) that ABC Weisberg failed to meet her burden, there can be no violation of Rule 1.15(a), (b) or (c).

Where ABC Weisberg never stated a dollar value of those funds which Bar Counsel contended the Sanos/“Parkers” were entitled to receive, and SHO Phillips found that Johnson’s fees were not clearly excessive and did not recommend that any money be returned to the Sanos, there can be no violation of Rule 1.15(b).

Further, assuming arguendo that the Sano/Johnson relationship was based on a contractual theory, the BBO did not have the power of a court of common law to hear contract cases and both the OBC and the BBO interfered where they should not have.\[32]/

Where Johnson never entered an appearance in any of the Sanos’ existing and proposed civil and criminal actions, there was no representation to terminate, making M.R.Prof.C. 1.16(d) inapplicable to this situation. Lastly, as to Mass. R. Prof. C. 1.16(d): Where Johnson never entered an appearance in any of the Sano/Parker family’s existing and proposed civil and criminal actions, there was no representation to terminate, making M.R.Prof.C. 1.16(d) inapplicable to this situation.

In fact, it was Johnson’s assistance in trying to find counsel for the Sanos of which the wife later complained . . . after she decided she wanted more money returned than Johnson had already returned. The only property that was "original" was a few photographs, which Johnson did return to the Sanos and about which the Sanos did not complain. There never was any money that had to be returned. There was only money that Johnson voluntarily returned—as a result of deeply discounting her fees—and that was done months before Deb Sano contacted the OBC and/or the BBO.

            Further, but for the OBC’s and BBO’s policy, custom, or habit of selective enforcement, an honest investigator in this case, would have seen this as a de minimus fee dispute and would not have accused Johnson of violating Rule 1.16(d). Thus SHO Phillips erringly found a violation of that which Bar Counsel complained in ¶65 of the Petition for Discipline [Vol. I, Tab 1].

BBO Count II, ¶14, footnote 7: FN7 We agree with the parties (see Bar Counsel’s opposition to the Respondent’s appeal) that, on the facts presented here, the 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: SHO Phillips so did find that (1) that Johnson did not violate Mass. R. Prof C. 1.15(a) (safekeeping trust property), (2) that Johnson did not violate Mass. R. Prof C. 1.16(d) (upon termination of representation, taking steps to protect client’s interests and refunding any unearned fee), (3) that Johnson did not charge an excessive fee, and (4) that Johnson did not owe her former clients a refund of an unearned fee.

BBO Count II, ¶14, sentence 2 of 3: In addition, by revealing confidential information gained in the course of her professional relationship with the Parkers without their consent, the respondent violated Mass. R. Prof. C. 1.6(a) and 1.9(c)(1) and (2).

Johnson’s Counterpoint:   The BBO has no basis for supporting its conclusion that Johnson revealed confidential information and therefore violated Mass. R. Prof. C. 1.6(a) and 1.9(c)(1) and (2). For example, on ¶58 on page 25 of the Hearing Report [Vol. III, Tab 225], upon which the BBO relies, SHO Phillips referred to Exhibit 41 as the document that supported his finding that Johnson published personal and confidential information. In the list of exhibits provided Johnson [Impounded Vol. IX, Exh. 41] is Drano Series #84a. There never has been a Drano Series file numbered 84a. There was going to be, but Weisberg warned Johnson that there would be still another charge brought by the OBC were she to upload it, so Johnson wrote in the space she had provided in the Drano Series Table, “Banned in Boston.” Consequently, Phillips’ argument is supported by a mythical, a non-existent file, one that never existed.

Notwithstanding the BBO’s assertion, Respondent has always contended that she was given written permission to publish the Deb Sano’s family story [Impounded Vol. X or XI]\[33]/ and that the Sanos had already published it on 21 December 1999 to others who had no need to know:

(1)            On 12 December 1999, the Sanos gave implicit if not explicit permission to post their story on Johnson’s website [Impounded Vol. VII, Tab 233, Exh. C],

(2)            on 16 December 1999, Deborah Sano emailed Johnson on the subject of Johnson’s bill to the Sanos [Impounded Vol. IX, Exh. 59],

(3)            on 20 December 1999, Johnson responded to Deb Sano [Impounded Vol. IX, Exh. 60],

(4)            on 21 December 1999, Deborah Sano sent to four people a communication from her to Johnson regarding Johnson’s bill to the Sanos [Vol. 1, Tab 46]. The four people were Attorney Hoose (whom they had consulted re criminal-defense representation), Attorney Reddington (a personal friend of two of the Sanos’ children), Attorney Schultz-Breda (the Sanos’ niece), Attorney Simons (Harry Sano’s criminal-defense counsel)

(5)            on 28 December 1999, Johnson wrote Deb Sano [Impounded Vol. VII, Tab 233, Exh. F] regarding Deb Sano’s letter of December 21^st [Impounded Vol. IX, Tab 233, Exh. 61].\[34]/

Respondent Johnson had, of course, a right to defend herself.

Such an incongruous result would be inconsistent with the object and purpose of the attorney-client privilege and a patent perversion of the rule. When a client calls into public question the competence of his attorney, the privilege is waived.

Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974), cert. denied, 419 U.S. 1125, 95 S.Ct. 811 (1975) (internal citations omitted).

Where the “Parkers” in the petition and the Sanos in the “Trial” exhibits had given Respondent implicit consent . . . and were excitedly looking forward to Respondent putting their story on her website, Mass. R. Prof. C. 1.6(a) is inapplicable and the recommendation by the BBO must be rejected on the grounds that the SHO erred by finding a violation of that rule, Rule 1.6(A).

For example, on 12 December 1999, after their relationship had ended, Mary Parker wrote to Respondent: “Dear Barbara, Thanks. Know that your are not on our payroll anymore but would love to be able to keep you posted. Who knows we may someday be a story on your wonderful educational web site. . . .” [Impounded Vol. VII, Tab 233, Exh. C(1) OR Impounded Vol. IX, Tab 67???, Exh. C(1)].

Thus, Johnson did not reveal confidential information gained in the course of her professional relationship with the Sanos without their consent after consultation, and thus Johnson did not violate Mass. R. Prof. C. 1.6(a) and 1.9(c)(l) and (2).

The Sano family was on Johnson’s witness list, but Phillips quashed her subpoena to them.

Where the OBC called no witnesses, the Bar Counsel failed to prove by a preponderance of the evidence

(a)       that Respondent represented one or more Sanos,

(b)       which of the Sanos did Johnson allegedly represent,

NOTE

The Sanos acknowledged in their complaint to the BBO that Johnson wrote her:

Be aware that I am not offering and will not offer legal advice until a potential client

o has read and studied my fee agreement,

o is satisfied that he or she understands the

   agreement,

o has signed a statement that he or she

understands it,

o has signed the fee agreement, and

o has sent it to me along with the retainer

requested by motor [sic] my legal services.

Until then there is no attorney-client relationship between me and any individual seeking legal services"

(see Ms. Johnson's web -- copy attached as #1.)

According to Deb Sano’s complaint to the BBO, Johnson’s letter also contained her statement that she never signed the attorney-client fee agreement because:

. . . it never became clear what the extent of my involvement was to be, that is, whether I was being retained solely for consultation -- which I believed the case to be -- or for representation.

Assuming arguendo that a professional relationship had not been consummated then the information may not be deemed information that was confidential or that was gained in the course of Johnson’s relationship with the Sanos.

(c)       that Johnson did not have the consent of one or more Sanos,

(d)       that Johnson used, without the client’s or clients’ consent, confidential information relating to the representation to the disadvantage of the “former client,”

(e)       that Johnson used, without the client’s or clients’ consent, confidential information relating to the representation to Johnson’s advantage or to the advantage of a third person, except as Rule 1.6, Rule 3.3 or Rule 4.1 would permit or require.

(f)        that the SHO erred by finding a violation of Rules 1.9(c)(1)

Assuming that Bar Counsel is referring to Deborah Sano and/or her husband, Harry Sano, Jr., and assuming arguendo that the Sanos did not give their consent to publication on Johnson’s website, Johnson had a right under Mass. R. Prof. C. 1.6(b)(2) to

reveal, and to the extent required by Rule 3.3, Rule 4.1(b), or Rule 8.3 must reveal, such information … to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client. . . .

Mass. R. Prof. C. 1.6(b)(2).

Given the nature of the controversy between Deb Sano and Johnson and given that Johnson produced the email in which Deb Sano anticipated “her story” being on Johnson’s website and gave her consent to publication, Bar Counsel was unable to prove to anyone with a reasonable mind that Johnson violated any confidentiality rule under any subsection of Rule 1.9.

What both the OBC and the BBO have overlooked is that Deb Sano was not seeking legal help for herself. She was seeking legal help for her husband, who had been charged with serious crimes by the Berkshire County Office of the District Attorney. His story, Harry Sano, was and is part of a public record of those charges.   Harry Sano did not complain to the OBC or the BBO. Neither did other members of Deb Sano’s family.

Further, the person who sent money to Johnson did not complain to the OBC or the BBO. Only Deb Sano did, but, according to SHO Phillips, there was insufficient evidence to prove that Deb Sano’s charges were true. See Hearing Report [Vol. III, Tab 225].

Neither Deb Sano nor any of her members complained orally or in writing to the BBO or to the OBC regarding the publication of their names or any part of the dispute between Deb Sano and Johnson.   It is Bar Counsel who complained sua sponte. (More about this below.)

Moreover, the OBC failed to proffer any evidence whatsoever that Johnson received any advantage over the Sanos by posting the bill and her Answer or Amended Answer on her website.   The latter is just one more element the OBC failed to prove to the BBO in order that a violation of Rules 1.9(c)(1) and (2) be found.

BBO Count II, ¶14, sentence 3 of 3: Finally, by demanding the withdrawal of the Parkers’ bar discipline grievance as a condition of removing their confidential information from her website, the respondent violated Mass. R. Prof. C. 8.4(d) and (h) and S.J.C. Rule 4:01, § 10.

Johnson’s Counterpoint:    According to the SHO’s findings in ¶67 of the Hearing Report [Vol. III, Tab 225], the following alleged act was allegedly prejudicial to the administration of justice: requiring the withdrawal of the Parkers’ bar discipline grievance as a condition of removing their confidential information from her web site [Vol III, Tab 225, ¶67]

Johnson did, indeed, receive a letter from Retired Judge William Simons, who represented he was the Sanos’ counsel [Impounded Vol. XII, Exh. 74; also Exhs. 75 (unauthenticated tape) and 75A (alleged transcript)].   Prior to receiving the letter, Johnson had no knowledge that the retired judge represented the Sanos. Other than seeing the letter, Johnson has seen no proof of that alleged representation.

In his letter, William Simons did not merely demand' Johnson to immediately remove information about the Sanos from the web site, but literally ordered her to remove the material. Given that the retired judge, once again simply a practicing attorney, no longer had the authority to order Respondent to do anything, Johnson took offense at what she perceived as a blatant, impolitic attempt to intimidate her. By using the verb “to order,” the retired judge was trying to exercise power that he no longer had while on the bench.   Unappreciative of him being overbearing, Johnson left a reactive voice message on his answering machine. He never returned her phone call. Instead he reported directly to Weisberg, whom he knew was assigned to Respondent’s case. His act resembled that of a pompous man upset because Respondent was not giving him the obeisance that he wanted and had become accustomed to but that was no longer required.

            As to Mass. R. Prof. C. 8.4(d), and (h): Respondent did not require the withdrawal of the Parkers' bar discipline grievance as a condition of removing their confidential information from her web site. Where the Parkers' bar discipline grievance on this issue is frivolous and brought in bad faith, because of the Parkers' consent via Mary, Respondent had no need to remove the information from her website.

Where the OBC failed to identify any event or act whatsoever when Respondent’s conduct allegedly involved (1) dishonesty, (2) fraud, (3) deceit, (4) misrepresentation, (5) prejudice to the administration of justice, and/or (6) conduct adversely reflecting on her fitness to practice law, the Board’s recommendation for disbarment based on a violation of Mass. R. Prof. C. 8.4(d) and (h) rule must be rejected.

            As to S.J.C. Rule 4:01, §10: Respondent did not require the withdrawal of the Parkers' bar discipline grievance as a condition of removing their confidential information from her website. Further, the OBC failed to identify how a reactive message to the retired judge constituted a rule violation rather than an opening for settlement discussions.   Settlement means negotiation. In a bar complaint, the only issue to negotiate is the disciplinary action. If a respondent cannot say, Drop the complaint, why should the respondent bother negotiate.

We concluded that conduct that does not violate any other disciplinary rule cannot violate DR 1-102(A)(5) unless it is so "egregious" and "flagrantly violative of accepted professional norms" as to "undermine the legitimacy of the judicial process."

In re Discipline of Attorney, 442 Mass. 660, ___ (2004) (internal cite omitted).

            Respondent contends, therefore, that S.J.C. Rule 4:01 does not apply here and thus she did not violate it, making rejection of the Board’s recommendation for disbarment on this ground mandatory.

BBO Count III

Johnson’s Counterpoint:   For all details of Johnson’s version of Count III, see in Vol. I, Tab 46, Amended Answer to Count II, ¶¶ 100 through 127, which she incorporates in entirety herein by reference.

BBO Count III, ¶1: In 1992, the respondent filed a wrongful termination action on behalf of a client. In early January 1995, the district court entered a discovery compliance order to permit the respondent to inspect the defendants’ documents but ordered the respondent to pay for supervision of the inspection. The respondent did not appear for the scheduled inspection.

Johnson’s Counterpoint:\[35]/\[36]/ By the time three years had passed since Lily's case was filed, Johnson had single-mindedly sought discovery, but to no avail: Defendants had not complied with any discovery requests and their eight boilerplate motions for orders protecting them from complying with discovery were allowed. The plaintiff, Lily, was thereby denied any and all discovery for no lawful reason.

Of the eight protective orders, the seven brought in Superior Court were allowed in entirety and the one brought in District Court was allowed in part. When ordered to comply with part of Lily's request for documents, the Defendants failed to do so and the court (McGill, J., the complainant of this count) failed to enforce its own order.\[37]/

On 4 January 1995, Attorney Mark C. O’Connor misrepresented to the Court that it would be burdensome to produce the documents requested. The court then relying upon that misrepre-sentation, failed to act on Plaintiff’s Motion to Show Cause, and instead chipped away at its own order [A1025-31, the appendix filed by Lily in the Appeals Court]. Then disparately and prejudicially treating Lily, the court allowed Defendants' Motion for Leave to Take a Deposition (of personnel at Lily’s current employer) [A1021].

In an effort to break the impasse, Johnson suggested that she be allowed to inspect the documents at Defendants’ facility and requested that someone be allowed to accompany her. The Court unreasonably limited the “someone” to Lily, who was residing and working in California, and imposed a $55 hourly fee for O’Connor’s “paralegal” to “supervise” Johnson during the inspection [A1100, ADD-279].   The order, however, violated fundamental fairness.

Johnson objected to the imposed cost. Her objection was noted and ignored. Her objections were based on the following facts:

·       No costs had been occurred on January 4th, 1995 and there were no costs to incur;

·       the corporate defendant’s documents, according to O'Connor, had been stored in 26 boxes on site;\[38]/

·       the person for whose services they charged was the secretary of the defense coun-sel, Mark O’Connor; she worked on salary and not on an hourly or per diem basis;

·       O’Connor had advance notice that Respondent would not be at the Concord facility on the day scheduled for the inspection, 22 February 1995, for fear of being set up:

§       During the two days prior to the agreed-upon inspection at the facility, O’Connor sent Johnson letters which she perceived as being intimidating, provocative, and foretelling that she was about to be “set up” [A1087-89, 1093-95; ADD-284-288].

§       To avoid potential problems, Johnson attempted to hire a private detail from the Concord Police both to protect her at that visit and to be a percipient court witness [A1085-86, 1357-58, ADD-282-283, JRA-235-236].

§       When the Department refused the service, Johnson contracted with a private security guard company. Id. [A1092, ADD-287-288, JRA-236, 289].

§       O’Connor’s knowledge of this led to the aborted visit to the facility [A1093, JRA-290].

·       O’Connor’s statements on March 3d that Johnson did not give him notice until 8 o'clock on the evening prior to the scheduled visit and that Johnson would not be at the facility and that he did not receive it until 9:30 on the morning of the scheduled inspection were untrue [OPINION at 3; ADD-253-255];

·       in actual fact, Johnson had given O’Connor notice at exactly 3:32 in the afternoon as shown by the ACTIVITY REPORT from her fax machine [ADD-289]. In that letter, she told him she had to know before 4:45 whether he agreed [ADD-287-288]. But O’Connor did not respond within that hour [id.];

·       the ACTIVITY REPORT, or log -- along with all of Johnson's financial records -- was presented by Attorney Sharp (whose handwriting is on the log) to Judge McGill for an in camera inspection. Because the log was not that part of the record which was put on the docket sheet below, Attorney Sharp did not include it in the Record-Appendix. In hindsight, it can be seen that a motion should perhaps have been brought for permission to include it in the Record-Appendix;

·       in his itemization, O’Connor alleged that a “supervisor” went to the facility on Baker Avenue in Concord, Mass., but never was made to prove it;

·        Johnson subpoenaed his secretary but the subpoena was quashed and no hearing was allowed.

BBO Count III, ¶2: In late February 1995, the respondent filed emergency motions in the district court for reconsideration of the court’s order scheduling inspection and for leave to depose non-party witnesses outside the presence of the defendants’ counsel.

Petition for Discipline ¶103. On or about February 24, 1995, the respondent filed emergency motions in the district court to reconsider the court's January 4, 1995 order and to depose nonparty witnesses outside the presence of the defendants' counsel. The respondent brought those motions without legal or factual basis and in bad faith. The defendants incurred costs in opposing those motions.

Johnson’s Counterpoint: On or around 22-24 February 1995, after O’Connor beset the intended visit with traps and Johnson’s efforts to effect a constructive visit failed, Johnson filed Lily’s Emergency Motion to Reconsider the Order of 1/4/95 regarding the inspection of documents [Vol. III, Tab 225, Exh 81 (endorsement); ADD-282-283 (the entire motion);A1085-99]. (This was one of the motions considered by Judge McGill to be "meritless and frivolous"-- so Johnson learned eleven months later.)

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

Now comes Plaintiff and moves this Court to reconsider its Order of 4 January 1995 on the grounds that events have recently occurred that make it impossible to implement that Order.

In support of this motion. Plaintiff relies on the three letters and one authorization attached hereto this motion: one dated 20 February 1995 from Mark O'Connor ("O'Connor") to me, one dated 21 February 1995 from Plaintiff's counsel to O'Connor, authorization by Barbara C. Johnson for services to Burns International Security Services, and another dated 21 February 1995 from O'Connor to Plaintiff's counsel.

As the correspondence suggests, O'Connor was attempting to usurp the power of this Court, and was purposely offensively dictatorial in a manner quite menacing to Plaintiff's counsel.

Although this is the modus operandi of O'Connor, and Plaintiff's counsel has grown accustomed to it, she has nevertheless remained unaccepting of it, finding such incivility intolerable in a profession that is supposed to be an honorable one.

It is demeaning for Plaintiff's counsel -- and Plaintiff, if she were here to be present at such an inspection — to inspect documents as if she were a prisoner of a Fascist Bund under threat of doom . . . which in this case, under the threat of being accused of some wrongdoing by a person who would, without hesitation, do what he had to, to make his warning become a self-fulfilling prophecy.

In a nutshell. Plaintiff's counsel refuses to be so demeaned and diminished. It is the ultimate in gender bias against Plaintiff's counsel and the ultimate denial of due process for the Plaintiff Lily, who is entitled to the production of documents in not only a reasonable but also a respectful manner. Mr. O'Connor's incivility is intolerable and must not be tolerated by this Court.

WHEREFORE this Court must simply order the Defendants to produce the requested documents.

A hearing is requested.

                               2l February 1995

Also on or around 22-24 February 1995, Johnson filed Lily’s Emergency Motion & Memorandum to Depose Nonparty Witnesses and Former Employees of Defendant Corporations Outside the Presence of Defense Counsel [Vol. III, Tab 225, Exh. 82 (endorsement); ADD-269-272 (entire motion)].   This motion was similar to one brought in federal court in Morrison v. Brandeis University, 125 F.R.D. 14 (D.Mass. 1989) and allowed by Magistrate-Judge Robert B. Collings. (This was the other motion considered by Judge McGill to be "meritless and frivolous" -- so Johnson learned eleven months later.)

EMERGENCY MOTION & MEMORANDUM TO DEPOSE NONPARTY WITNESSES AND FORMER EMPLOYEES OF DEFENDANT CORPORATIONS
OUTSIDE THE PRESENCE OF DEFENSE COUNSEL

Now comes Plaintiff and moves this Court to allow Plaintiff to depose nonparty Witnesses and former employees of the Defendant corporations outside the presence of defense counsel. Morrison v. Brandeis University, 125 F.R.D. 14 (D.Mass. 1989) (permitting ex parte interviews of defendant's tenure-committee employee-members whose conduct was central to plaintiff's case against the organizational defendant). Mompoint v. Lotus Development Corp., 110 F.R.D. 414, 418-419 (D.Mass. 1986), citing to International Business Machines v. Edelstein, 526 F.2d 37, 41 (2d Cir. 1975) (there was no "good cause" shown to prohibit plaintiff's counsel from attempting to interview female employees of corporate defendant without presence of opposing counsel where presence of opposing counsel would only tend to inhibit the free and open discussion which the plaintiff's counsel sought to achieve through such an interview. Fed. Rules Civ.Proc. Rule 26(c), 28 U.S.C.A.; Fed.Rules Evid.Rule 801(d)(2)(D), 28 U.S.C.A. \FN1/ There is a "tendency which the presence of opposing counsel has to inhibit the free and open discussion which an attorney seeks to achieve at such interviews." Morrison, at 19, citing to IBM v. Edelstein, at 41. Employees of corporate defendant could consent or refuse to be interviewed by plaintiff's counsel about matters which are the subject of the suit, or could consent to interview with plaintiff's counsel only if their own attorney was present and/or only if corporate defendant's attorney was present. Mompoint, at 419-420.

FN1.    In both Morrison and Mompoint, the court faced a situation [where] the parties requested leave of court to interview the employees.

As grounds for this motion, Plaintiff states that defense counsel has exhibited offensive behavior at time of deposition — for instance, at the deposition of Lily, during the "rehabilitation" examination of Plaintiff by her own counsel.FN2/ [Lily Aff. I:164; III:63, Mark O'Connor admitting he intended te be "snide."]\FN3/ Such egregious incivility by defense counsel continues — as evidenced by O'Connor's recent letters to Plaintiff's counsel (as well as by many of his earlier letters to both Plaintiff's counsel and Clerks as well as by his pleadings filed on behalf of his clients).

FN2.     At that time, Mr. O'Connor’s egregious incivility was a means to gain advantage in this lawsuit, to wit, to "finesse" Lily on the second summary-judgment motion.

FN3.     There are actually too many other pages to attach to illustrate defense counsel's offensive behavior; it may be "observed" simply as one reads the text attached to Plaintiff's Opposition to Defendants' Second Motion for Summary Judgment.

Such unseemly behavior has been but a part of the continuing tactics of O’Connor — examples of them were memorialized in March 1993 in Plaintiff's Motion for Sanctions against O' Connor. Sacrificed by Judge Bohn's Solomonic decision, that motion came to Naught for Plaintiff but came up Roses for O'Connor, who learned only that he could blithely ignore not only the rules of civil procedure but also the rules of civility — that they evidently were not made for him.

Plaintiff would catalogue defense counsel's behavior since March of 1993, but the effort not only would be burdensome -- for the occasions have been so frequent — but, so Plaintiff's counsel has learned, might also again be futile.\FN4/

FN4.     For example, when the circumstances surrounding the taking of Dr. Gross’s deposi-tion by defense counsel were revealed to the Court, Judge Lenk graciously acknowledged Plaintiff’s plaint and the Judge’s own displeasure "with the use of Dr. Gross’s deposition testimony in light of the manner by which and the circumstances in which it was obtained" [footnote 2 of page 7 of the June-17th Decision and Order], but then proceeded and refused to strike the doctor’s deposition and considered it in her decision.   See footnote 3 on page 3 of Plaintiff’s Reply to Defendants' Opposition to Plaintiff’s Motion for Order Compelling Production of Documents; the footnote describes in detail the status and circumstances surrounding Dr. Gross’s deposition. Plaintiff incorporates herein by reference the recitation of facts contained in Lily's Memorandum in Opposition to [the first) Motion for Summary Judgment.

Because Mr. O' Connor has continued to use egregious incivility as a means of gaining advantage in this lawsuit, his presence at any deposition is likely to jeopardize the productiveness of said deposi-tions, in particular, by intimidating the deponents who would be unfamiliar with Mr. O’Connor's      unorthodox manners and would likely be intimidated thereby those manners.

Lastly, allowing Plaintiff's request would likely shorten the amount of time needed for trial.

WHEREFORE, this motion must be allowed. A hearing is requested.

21 February 1995

Johnson marked the latter two motions for hearing immediately, but O’Connor pushed forward the hearing date to March 1st.

On March 1st, although O’Connor had advanced motions to that date [A21@156], he announced he could not wait, and the court, without considering Johnson, who was also waiting in court, moved the hearing to March 3d [A21@3/1].

O’Connor later sought attorney’s fees from Lily and/or Johnson for his reluctant appearance. Johnson believes that fees for that appearance may have been part of the $558 award to the defendants or to O’Connor, but the court orders were so unclear and equivocal and so often amended that certainty cannot be claimed, but Johnson contends the judge backed off of that award -- given that his memoranda of 8 February 1996 and 15 July 1996 are silent about the $558.

NOTE

Attorney Elaine Whitfield-Sharp, who became Johnson's appellate counsel at the end of 1995, did not include this significant and subject motion in the Record-Appendix she filed with the 1996 appeal. Johnson does not know the cause of Whitfield-Sharp's serious failure to include it, but Whitfield-Sharp DID include O'Connor's opposition [A273-274] to the motion, and the appellate panel did cite to the opposition in its opinion at 3.

Therefore, when Johnson brought, pro se, her petition for Further Appellate Review (FAR) she requested that the Court take judicial notice of Motion #152. Johnson has no knowledge of whether the SJC did take judicial notice of it. If it did, it certainly never referred to it.

BBO Count III, ¶3: On or about March 3, 1995, the district court denied the respondent’s emergency motions and, finding that they were brought without legal or factual basis and in bad faith, ordered the plaintiff and her counsel, the respondent, to pay the defendants $720 in attorneys’ fees and $261.25 in paralegal fees incurred in opposing the motions. Neither the respondent nor her client made the ordered payment.

Petition for Discipline ¶104. On or about March 3, 1995, the district court denied the respondent's emergency motions. That same day, the court entered orders requiring the respondent or Lily to pay the defendants $261.25, for paralegal fees incurred in setting up the document inspection, and $720 for legal fees incurred in opposing the motions.

Johnson’s Counterpoint:    This is totally untrue. This BBO paragraph and those BBO paragraphs which follow are almost identical to those in the Petition for Discipline. There is very little to be gained by copying her Answers into this pleading. In Johnson’s answer, she provided Table C [Vol. I, Tab 46, pp. 125-126], in which the actions of the judge on each hearing day are memorialized.   Johnson incorporates herein by reference her response in her Amended Answer at at ¶104, including the scanned-in figures, tables, docket sheets, and other documents [Vol I, Tab 46].

            Johnson’s Amended Answer at ¶104 includes scanned-in pictures of the fabricated order, the order that was non-existent on 3 March 1995, as well as scanned-in pictures of the evidence —such as the clerk’s notice and docket sheets—proving that there was no such order on 3 March 1995.

The mythical order of March 3d was also non-existent on 22 March 1995, when Johnson and her client were found in contempt of the non-existent order. In fact, it was non-existent at every hearing that Johnson attended in Lily’s case and she was present at all of them.

            Johnson has reason to believe that the fabrication occurred after Judge McGill bifurcated the case so that he could write more intelligible memoranda and orders.   Attorney Elaine Whitfield-Sharp came on board to represent Johnson in the newly created case against her. Johnson was present in January 1996 when Whitfield-Sharp gave all Johnson’s personal financial information to the court for an in camera inspection. The purpose: to show the court she could not afford to pay the court-ordered sanctions. The court did not memorialize, i.e., put in writing, his inspection.   This event has importance, but Johnson is moving forward too quickly to tell the whole story. Notwithstanding the missing ending of the story, long before the scheduled BBO hearing on the Petition, the BBO Chair, then M. Ellen Carpenter, precluded her from telling any of it.

BBO Count III, ¶4: On March 22, 1995, the district court judge issued an order finding both the respondent and her client in contempt for nonpayment, and ordered either of them to discharge the contempt by paying, that same day, the previously ordered fees plus $558 for additional legal fees incurred by the defendants. The court further ordered, in the event of non-payment, that a civil penalty would accrue at $50 per day and that the plaintiff’s complaint would be subject to dismissal. Neither the respondent nor her client made any payments.

Petition for Discipline ¶106. On or about March 22, 1995, the district court held the respondent and Lily in contempt for nonpayment under the March 3, 1995 orders. The court ordered the respondent or Lily to discharge the contempt by paying, that same day, the previously-ordered costs plus $558 for additional legal fees incurred by the defendants. The court further ordered, in the event of nonpayment, that a civil penalty would accrue at $50 per day and that Lily's complaint would be subject to dismissal. Petition for Discipline ¶105. Neither the respondent nor Lily made the payments required by the district court's orders of March 3, 1995. Petition for Discipline ¶107. Neither the respondent nor Lily made any payments in compliance with the district court's orders of March 22, 1995.

Johnson’s Counterpoint:   Johnson incorporates herein by reference her responses in her Amended Answer at ¶¶105-107 [Vol I, Tab 46].

O'Connor continued his abandonment of compliance with the rules of court throughout 1995: O'Connor did not comply with Dist./Mun.Cts.R.Civ.P. Rule 6(c): on March 3 and 22, April 5, September 26, and December 13, when serving Papers 156-159, 161-162, 170-172, 192-193, 198, 215 [A21-22, 1102, 1105, 1108-09, 1111, 1113, 1127, 1139]. He handed each of those motions and oppositions to Johnson as the case was called for hearing. Each and every one of Defendants' oppositions included affirmative requests for money sanctions. (A year later, the court called these pleadings "combination oppositions" [A1364].

At none of the hearings was Johnson allowed to examine O'Connor on the alleged costs and fees sought in the motions and combination oppositions signed by him. At no time was Lily allowed the opportunity to compose or present meaningful oppositions to the pleadings O’Connor filed in court after the parties reached their respective podiums.

BBO Count III, ¶5: On April 5, 1995, the district court ordered that a civil penalty of $650 be imposed on the respondent. The respondent did not make any payment. On April 19, 1995, the court dismissed the complaint and ordered the plaintiff to pay the defendants $3,809.25 in costs.

Petition for Discipline ¶108.   On or about April 5, 1995, the district court ordered that additional attorneys' fees of $720 be assessed against the respondent and Lily, jointly and severally, that a civil penalty of $650 be imposed on the respondent and Lily, jointly and severally, and that Lily's claims in the underlying action be dismissed unless and until the penalty and fees were paid in full. Petition for Discipline ¶109. Neither the respondent nor Lily made any payments in compliance with the district court's orders of April 5, 1995.

Johnson’s Counterpoint:   Johnson incorporates herein by reference her responses in her Amended Answer at ¶¶108-109 [Vol I, Tab 46].   The judge kept on changing his mind. It had not been clear until April 5 that fines were imposed and that they were retroactive. Note also that each of the endorsements in which it was written that Lily and Johnson were jointly and severally liable were "clarified" and/or amended by the court on several occasions over the next year.

BBO Count III, ¶6: The respondent did not appeal the judgment of dismissal, but instead filed a request to retransfer the case to the superior court, purportedly under G.L. c. 231, § 102C. On September 20, 1995, the superior court, on defendants’ motion, struck plaintiff’s request for retransfer and dismissed the matter. In its order, the superior court specifically advised the respondent that the proper next step was an appeal to the Appeals Court.
<>Petition for Discipline ¶110. On or about April 19, 1995, the district court entered a judgment dismissing Lily's underlying claims.

Johnson’s Counterpoint:   Johnson incorporates herein by reference her response in her Amended Answer to ¶¶110 [Vol I, Tab 46, pages 156-160]. The response includes facts different from those that the BBO found. In Johnson’s response, she sets out the facts in Tables 25-30 and Table D, which she also incorporates herein by reference.

BBO Count III, ¶7: On or about December 13, 1995, the district court modified its prior contempt rulings by (1) holding the plaintiff in contempt only for nonpayment of the paralegal costs of $261.25, ordered on March 3, 1995, and (2) holding the respondent in contempt only for nonpayment of the legal fees and civil penalty ordered on March 3, March 22, and April 5, 1995. The court entered an order allowing the respondent to purge her contempt and have the civil penalty forgiven by paying $1,278 to the defendants no later than December 20, 1995. Again, the respondent made no payments.

Petition for Discipline ¶111.   On or about December 13, 1995, the district court modified its prior contempt rulings by holding Lily only in contempt for nonpayment of the paralegal costs of $261.25, as ordered on March 3, 1995, and by holding the respondent only in contempt for violating the orders of March 3, March 22, and April 5, 1999 for payment of legal fees and the civil penalty. The court then ruled that the respondent owed payment of $1,278 for legal fees and $650 for the civil penalty pursuant to those orders. The court entered an order allowing the respondent to purge her contempt and have the civil penalty forgiven by paying $1,278 to the defendants no later than December 20, 1995. A true copy of the court's memorandum of December 13, 1995, setting forth its findings and rulings on contempt to that date, is attached to this petition as Exhibit A. Petition for Discipline ¶112.. The respondent did not make any payments in compliance with the district court's orders of December 13, 1995.

Johnson’s Counterpoint: Johnson incorporates herein by reference her responses in her Amended Answer to ¶¶111-112 [Vol I, Tab 46, pages 160 et seq].   Once again the BBO ignored the evidence, for it had all been precluded.    Had the BBO allowed Johnson’s evidence, it would have learned that Judge McGill's orders were like a collection of flawed postal stamps. None was perfect, some were duplicates with different amounts on them, all lacked essential elements to make them clear and unequivocal orders. For instance,

·       On 3 March 1995, no order issued commanding Lily or Johnson to pay any monies to anyone for anything.

·       The endorsements of 22 March 1995 and 5 April 1995 were amended by Judge McGill several times, including in his order dated 13 December 1995 as well as in January and February 1996.

·       There was no order with the figure $1,278 on it.

·       On or about December 13, 1995, the district court modified its prior contempt rulings

o      by holding Lily only in contempt for nonpayment of the paralegal costs of $261.25, as ordered on March 3, 1995, and

o      by holding the respondent only in contempt for violating the orders of March 3, March 22, and April 5, 1999 for payment of legal fees and the civil penalty.

·       On 13 December 1995, Judge McGill made no order while the parties were in court. He did write an order and it was FAXed to and received by Johnson on the 14th of December 1995.   In that order, McGill further clarified his "contempt" orders by reducing the amount of the monies allegedly owed by Johnson to roughly two thousand dollars. [A299a, at entry 199 for 12/13/95, Paper #198 and Cou-R/A at A70-74].

·       On the very next day, 14 December 1995, Judge McGill changed his mind and caused a subpoena to be served by the Andover Police Department on Johnson for an evidentiary hearing on 22 December 1995 on the contempt issue. Payment prior to the evidentiary hearing would have, in a nutshell, been simply crazy, if not sophisticatedly and/or legally bizarre. The inclusion of this statement in the petition by Assistant Bar Counsel Weisberg was an act of bad faith and done with malice.

Johnson insists (1) that she was never in contempt of a clear and unequivocal order and (2) even were she to assume that she was, she both pled that she did not have the ability to pay, and did not have the ability to pay.   She was also never given an evidentiary hearing on the alleged contempt charges and never given an opportunity to prove that there was no existing and clear and unequivocal order of which she was in contempt. And, of course, all the evidence she had was precluded from being used at the BBO.

It has been held that a civil contempt adjudication based on a violation of an unlawful court order cannot stand. Labor Relations Commission v. Fall River Educators' Ass'n, 382 Mass. 465, 469 n. 5 (1981) (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.

            Stare decisis has no value in the BBO.

BBO Count III, ¶8: On February 8, 1996, the district court granted the respondent’s request for reconsideration of the contempt order. The court also entered an amended final judgment dismissing the plaintiff’s complaint and reducing the amount due the defendants from the plaintiff to $261.25, plus interest.

Petition for Discipline ¶113. On or about February 8, 1996, the district court granted a request by the respondent for reconsideration of her contempt adjudication.

Johnson’s Counterpoint:    Johnson incorporates herein by reference her response in her Amended Answer to ¶¶113 [Vol I, Tab 46].

On 17 January 1996 [a hearing omitted from the OBC’s Petition], the court announced that it erred in finding Lily in contempt of anything over the original $261.25:

I [wrote] fees of $720 [were] against the Plaintiff and her counsel jointly. And that was wrong. It should not have been jointly.... I said the accrued civil penalty is to be paid jointly. That is incorrect. It should not have been jointly.

A1363 or JRA-76, and again promised that when Lily purged her contempt—just then reduced to $261.25—the court would consider a motion to reopen [JRA-67]:

. . . Once the contempt is purged, the underlying case may be reopened on the merits, upon motion and after a further hearing.

A1268.   See also A1362, repeating on January 17th what the court said and wrote on October 4th [A1361].

So, even though the contempt order was unlawful, Respondent made payment on behalf of Lily, because the court had promised to reinstate the case on the list. At least the amount to purge was several thousands of dollars less than it was in October.   But the court's word was without honor. Lily appealed the failure to restore the case to the list after payment had been made.

On 17 January 1996, the court further stated that it found unspecified motions "meritless and frivolous" and therefore found Johnson in contempt. [A19, lines 21-23]. Johnson could only assume that Judge McGill was referring to the same unspecified motions to which he referred in December.   At some point, Johnson could only guess that the two motions referred to were Papers 151 and 152.   Paper 151: Emergency Motion to Reconsider to Order of January 4, 1995 regarding Inspection of Documents. Paper 152: Emergency Motion & Memorandum to Depose Nonparty Witnesses and Former Employees of Defendant Corporations Outside the Presence of Defense Counsel. [Each of these has been “reproduced” above.]

Significantly these motions had been filed 11 months earlier. Finding them frivolous a year after they had been filed was merely a cover up for having found Johnson in contempt of a non-existent order and having sanctioned her for not paying diverse sums arbitrarily reached throughout the year.

In the motion to depose nonparty witnesses, Johnson cited two First Circuit cases in which the exact motion was made and allowed: 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).   A quantum leap would have to be taken to find either of those motions without legal or factual basis or frivolous. Absent frivolity or bad faith by Lily or Johnson, the imposition of costs was improper. The underlying defendants would be responsible for their own fees and costs to oppose their opponent's meritorious motions. Waldman v. American Honda Motor Co., Inc., 413 Mass. 320, 321 (1992) (in Massachusetts, litigant must bear his own expenses).

Of further significance is that the basis of "THE contempt" and the imposition of fines and awards of fees changed for the THIRD time:

·       the first, declared 3/22/95: the non-existent March 3d order;

·       the second, declared 12/13/95: the non-existent noncompliance of the discovery order(s);

§                                               the third, declared 1/17/96: the alleged frivolousness and meritlessness of the two motions filed in February 1995, eleven months prior to the bogus finding.

There was no proceeding in either Lily's or Johnson's case on 8 February 1996. Respondent had been with her counsel in court for O'Connor's case against her on 7 February 1996.   Judge McGill issued a memorandum the next day, 8 February 1996.   Respondent incorporates herein by reference Table 35 from Amended Answer.

Respondent further states that no evidentiary hearing was allowed.

BBO Count III, ¶9: The respondent did not appeal from the amended final judgment of dismissal to the Appeals Court, but instead, on or about February 20, 1996, filed a second request for retransfer of the case to the superior court, again, purportedly under G.L. c. 231, § 102C, despite the fact that the superior court had previously advised that retransfer was not proper.

Petition for Discipline ¶114. On or about February 9, 1996, the district court entered an amended final Judgment for dismissal of Lily''s claims and for Lily's payment of $261.25 to the defendants, plus interest. The respondent did not take an appeal to the Appeals Court from that judgment on Lily's behalf. The respondent filed a request for retransfer of the Lily action to the superior court, pursuant to G.L. c. 231, §102C, on or about February 20, 1996. The superior court was not the proper forum to handle the case.

Johnson’s Counterpoint: Johnson incorporates herein by reference her response in her Amended Answer to ¶114 [Vol I, Tab 46].

That the BBO, like OBC ABC Weisberg, complains that Johnson did not take an appeal to the Appeals Court from that judgment on Lily's behalf shows that whoever was leading the pack at the BBO was as unfamiliar as Weisberg was with the then-existing law regarding the avenues of appeal for remand cases.   At that time, there were three avenues of review of a case remanded to a district court from a superior court:

(1)            If there was a question of fact, review was to be to the Appellate Division of the District Court Department.

(2)            If there was no record and only questions of law to review, the superior court was to consider those questions without a sidetrip to the Appellate Division. Tax Collector of Braintree v. J.G. Grant & Sons, 26 Mass.App.Ct. 731, 733 (1989).

(3)            If there was a final judgment of contempt, an appeal from that judgment was to the Appeals Court. Jones v. Manns, 33 Mass.App.Ct. 485, 489 (1992).

In the instant case, only the retransfer to superior court from district court was appropriate. There was no record to review. Superior court had authority to review the district court actions.

The primary problem to this point was the District Court's failure to make up its mind as to:

·       which kind of final judgment it was issuing:

o                one on the merits or one for contempt,

o                what the alleged contempt was for:

¨               for not complying with a non-existent March 3d order???

¨               for the false allegation of noncompliance of the discovery order(s)???

¨               for the alleged frivolousness and meritlessness of the two motions filed in February 1995, eleven months prior to the bogus finding???

·       what type of contempt was found: civil or criminal,

·       who was found in contempt for what, and

·       which person or entity was to receive the alleged fines and fees.

Yet, before the contempt action against Johnson was severed from Lily's case-in-chief, five attempts at appeal were taken and all were unsuccessful: sidetrips to the Supreme Judicial and the Appeals courts; an attempted third trip to an appellate court; and two sidetrips to Middlesex Superior Court.

On 13 February 1996, the Amended Final Judgment on the Merits issued. [A132; District Court Paper #228 at Cou-R/A at A-78]. Note that both the original Final Judgment of April 1995 and the Amended Final Judgment of February 1996 ran to Lily. Johnson's name DOES NOT appear on either judgment.   And the judgment of contempt against was purged with Johnson’s payment of $261.25 on Lily’s behalf, but the case, as noted above, was ot restored to the list.

On or around 15 February 1996, after the Amended Final Judgment on the Merits of Lily's case issued, Johnson filed another Request for Retransfer to Superior Court [O'Connor's First Supp.App. p. 1]. The retransfer and transmittal of the casefile to Middlesex Superior Court was not allowed and completed until 5 September 1996. Id.

In Superior Court, on Lily's behalf, Johnson filed one more jury demand [A13 @ #92], a request for a special judicial assignment, which was denied [A67], and motions both to disqualify O'Connor as defense counsel [A1168]\[39]/ and to compel document production [A1288-1313].   Lily's motions were either denied or not acted upon.

Lily's motion for appointment of a discovery master [A1340], her opposition to Defendants' last so-called "emergency" motion for a protective order [A1351], and her Superior Court Rule 9A(b)(2) [A1356] were returned to Johnson because of the court action on 19 November 1996 [A1346-50], which allowed Defendants' Motion to Strike the Second Retransfer and Emergency Motion for Protective Order [A14, 79-80].   Lily appealed [A1, 14].

Respondent contends that Judge Neel committed reversible error. See ¶116 of the Amended Answer for legal argument.

BBO Count III, ¶10: After reconsideration of the contempt in mid-July 1996, the district court entered a final judgment of contempt against the respondent. The respondent still made no payments, but did file an appeal with the Appeals Court.

Petition for Discipline ¶115. On or about July 15, 1996, after reconsideration, the district court ruled that its prior adjudication of the respondent's contempt would remain in effect and entered a final judgment of contempt against the respondent The respondent made no payments pursuant to that judgment.   The respondent took and pursued an appeal from that judgment (contempt appeal).

Johnson’s Counterpoint:   Johnson incorporates herein by reference her response in her Amended Answer to ¶115 [Vol I, Tab 46, pp. 175-176]. Although there was no Final Judgment of Contempt from which to appeal, Attorney Whitfield-Sharp treated the memorandum and order of 15 July 1996 as a final judgment of contempt in accordance with Jones v. Manns, 33 Mass.App.Ct. 485 (1992).   [A1].

BBO Count III, ¶11: In mid-November 1996, the superior court entered an order striking the respondent’s request for retransfer of the case. The respondent appealed that order to the Appeals Court, Coughlin v. HMM Associates, Inc., No. 97-P-53, and the Appeals Court, on April 27, 1998, held that the appeal was frivolous and awarded attorney’s fees and costs to the defendants pursuant to Mass.R.App.P. 25 in an amount to be determined. The respondent requested rehearing and further appellate review, both of which were denied. On or about June 9, 1998, after submissions from counsel, the Appeals Court awarded the defendants $30,000 in attorney’s fees for the appeal and $1,071.65 in costs. By July 2000, these sums were paid.                                 Continued

Petition for Discipline ¶116. On or about November 19, 1996, the superior court entered an order striking the respondent's request for retransfer of the Lily action. The respondent took and pursued an appeal on Lily's behalf from that order (Lily appeal). That appeal was frivolous. Petition for Discipline ¶117. On or about April 27, 1998, the Appeals Court dismissed the Lily appeal and awarded appellate attorneys' fees to the defendants pursuant to Mass. R. A. P. 25. Lily v. HMM Associates, Inc., A.C. No. 97-P-53 (1998). A true copy of the Appeals Court's memorandum of decision in the Lily appeal is attached to this petition as Exhibit B. The respondent requested rehearing in the Lily appeal, which was denied by the Appeals Court on May 13, 1998, and further appellate review of that decision, which was denied by the Supreme Judicial Court on July 1, 1998. Petition for Discipline ¶118. On or about May 14, 1998, the Appeals Court affirmed the district court's contempt judgment against the respondent in HMM Associates, Inc. v. Johnson, 44 Mass. App. Ct 1126 (1998). A true copy of the Appeals Court's memorandum of decision in the contempt appeal is attached to this petition as Exhibit C. The respondent requested rehearing of the contempt appeal, which was denied by the Appeals Court on June 26, 1998, and further appellate review of that decision, which was denied by the Supreme Judicial Court on the same date. Petition for Discipline ¶119. On or about June 9, 1998, the Appeals Court ordered Lily to pay the defendants $30,000 as appellate attorneys' fees, plus costs of appeal in the amount of $1,071.65. The respondent did not appeal that order. Lily subsequently satisfied the order.

Johnson’s Counterpoint:   Johnson incorporates herein by reference her responses in her Amended Answer to ¶116-119 [Vol I, Tab 46, pp. 176-190].

Given that BBO ¶11 covers a period between 8 and 10 years ago, Johnson has no independent memory of which appeals were taken nor of the dates of the appellate decisions issued nor of what the issues were and the court errors made. Stating that appeals were taken and denied is unimpressive and irrelevant to this Petition. Losing an appeal or even a finding of frivolity is not an ethical breach. There is nothing in the statutes or rules which says that a finding under any of them is an ethical breach or should be deemed a breach of professional ethics.   That which is unethical is both the Bar Counsel even making that Appeals Court finding a part of this petition, and the BBO accepting the OBC’s recommendation. In fact, the higher courts intentionally blinded themselves to the facts of the case both procedurally and substantively and allowed the inappropriate decisions of an unscrupulous court (McGill's court) and a negligent one (Neel's court) to stand.

The outrageousness of that which occurred in Lily’s case . . . and Johnson’s . . . is what sparked Johnson’s ire at the courts, an ire that was to grow into a cause—having been fueled by other unjust decisions at all levels of the courts—that led Johnson to run for statewide office on a platform of court reform and the abolishment of judicial immunity, and that eventually led to the OBC with the BBO’s approval, of course, to serve on Johnson a Petition for Discipline in hopes of shutting her up.

BBO Count III, ¶12: On May 14, 1998, the Appeals Court affirmed the respondent’s contempt judgment, upholding the trial court’s imposition of sanctions under Rule 11(a) on the ground that the March 1995 emergency motions filed by the respondent were frivolous and advanced in bad faith and finding that the judge’s several findings of contempt were supported by the record. HMM Associates v. Johnson, 44 Mass. App. Ct. 1126, further app. rev. denied, 427 Mass. 1108 (1998). The Court specifically noted that the district court had rejected the respondent’s claim that she lacked notice of the March 1995 order. The respondent requested rehearing and further appellate review, both of which were denied.

Petition for Discipline ¶118. On or about May 14, 1998, the Appeals Court affirmed the district court's contempt judgment against the respondent in HMM Associates, Inc. v. Johnson, 44 Mass. App. Ct 1126 (1998). A true copy of the Appeals Court's memorandum of decision in the contempt appeal is attached to this petition as Exhibit C. The respondent requested rehearing of the contempt appeal, which was denied by the Appeals Court on June 26, 1998, and further appellate review of that decision, which was denied by the Supreme Judicial Court on the same date.

Johnson’s Counterpoint: Johnson incorporates herein by reference both her responses in her Amended Answer to ¶118 [Vol I, Tab 46] and her previous Counterpoint to BBO’s ¶11, which covers almost the same time period as BBO’s ¶12.

Still hoping that justice could be found somewhere in the system, Johnson filed, on 16 May 1998, with the Bar a complaint against opposing counsel, Mark O'Connor [see Vol I, Tab 46, Table 43] and requested the Bar to file an amicus brief on Lily's behalf, to which request Johnson received no response.

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.

On 25 May 1998, Respondent filed with a petition pursuant to Mass.R.A.P. 27 for a rehearing of the appeal [see Vol I, Tab 46, Table 44].

Justice was to be found nowhere for either “Lily or Johnson.

Around this time, Lily retained an attorney in California, where she was residing and working, to represent her.   Johnson has no personal knowledge as to what Lily did regarding payment after that, but has, however, sufficient information to believe that there was a settlement for a lesser amount of money.

BBO Count III, ¶13: On or about July 16, 1998, after review of the Appeals Court decision, the district court notified the respondent that additional civil remedies would be instituted against her, as well as referral to the Board of Bar Overseers, unless she purged her contempt by paying the previously ordered attorneys’ fees of $1,278 and the civil penalty of $650, plus interest, no later than July 30, 1998. The respondent made no payments.

Petition for Discipline ¶121. On or about July 16, 1998, the district court notified the respondent that additional civil remedies would be instituted against her unless she purged her contempt by paying the previously-ordered attorneys' fees of $1,278 and the civil penalty of $650, plus interest, no later than July 30, 1998. The respondent knowingly, willfully and intentionally violated that order.

Johnson’s Counterpoint: Johnson incorporates herein by reference both her responses in her Amended Answer to ¶121 [Vol I, Tab 46] and her previous Counterpoint to BBO’s ¶11, which covers almost the same time period as BBO’s ¶13.

BBO Count III, ¶14: In early December 1998, the district court scheduled a hearing on the respondent’s contempt for December 17, 1998. The court also ordered the defendants’ attorney to serve the respondent with a subpoena duces tecum requiring her to produce certain financial records at the hearing. The subpoena was served on the respondent in hand on or about December 5, 1998.

Petition for Discipline ¶122. On or about December 3, 1998, the district court notified the respondent that a hearing on disposition of her contempt was scheduled for December 17, 1998. The court that day ordered defendants' attorney to serve the respondent with a subpoena duces tecum for her production of designated records at the hearing. The subpoena was served on the respondent in hand on or about December 5, 1998.

Johnson’s Counterpoint:   Johnson incorporates herein by reference both her responses in her Amended Answer to ¶122 [Vol I, Tab 46] and her Counterpoint, supra, to BBO’s ¶11, which covers almost the same time period as BBO’s ¶14.

First, there was neither a proceeding nor a hearing on December 3d, 1996, in either Lily's case or in Johnson's. In fact, there was never a "hearing" where Lily or Johnson was allowed to argue or present evidence.   There were only “proceedings,” where argument was heard.   Umina v. Malbica, 27 Mass.App.Ct. 351, 361 (1989) ("a proceeding where no one is allowed to argue or present evidence cannot constitute a 'hearing'"), quoting Milton Commons Associates v. Board of Appeals of Milton, 14 Mass.App.Ct. 111, 114-115 (1982).

Notwithstanding the absence of independent memory of particular and unmemorable dates, Respondent does remember Thursday, 17 December 1998, primarily because of the uniqueness of events that took place that day in and outside of Concord District Court.

Respondent does admit that a hearing was scheduled to take place on December 17th, but denies that the hearing took place that day. There was only a proceeding. No evidence was taken. No opportunity to cross-examine the movant and accuser Mark O'Connor was given. No opportunity was granted Respondent to present a defense.

Respondent is quite grateful to ABC Weisberg for disclosing that Judge McGill had had an unlawful ex parte communication with Tyco's counsel, O'Connor, before or on or around 3 December 1998. Respondent has insufficient information to admit or deny the statement about the communication between Judge McGill and Tyco Attorney O'Connor, but the new information from ABC Weisberg helps explain perhaps the origin of certain earlier events, rulings, decisions, orders that did not pass any legal sniff test and seemed to arise from the netherworld rather than from a constitution, statute, or rule.

BBO Count III, ¶15: On December 17, 1998, after a hearing, the district court held the respondent in continuing contempt of court for failure, “without justification or cause [to] purge[] herself of her civil contempt by obeying prior Orders of [the] Court” and for “willfully disobey[ing], without justification or cause, a Subpoena Duces Tecum served upon her … by failing to produce the records identified in such Subpoena.” The court on that same date ordered the respondent jailed until she purged her contempt and complied with the subpoena duces tecum. The respondent was immediately taken into custody and incarcerated.

Petition for Discipline ¶123. The respondent knowingly, willfully and intentionally failed to purge herself of her civil contempt prior to December 17, 1998. In addition, the respondent knowingly, willfully and intentionally disobeyed the subpoena duces tecum by failing to produce the records under subpoena on that date.

Johnson’s Counterpoint: Johnson incorporates herein by reference both her responses in her Amended Answer to ¶123 [Vol I, Tab 46] and her previous Counterpoint to BBO’s ¶11, which covers almost the same time period as BBO’s ¶15.

Johnson repeats only a tidbit of her lengthier answer )with legal authorities) here, for re-inforcement: Even assuming arguendo that the BBO and the OBC refer to a particular adjudication of civil contempt, "a civil contempt adjudication based on a violation of an unlawful court order cannot stand" [Labor, 382 Mass. at 469 n. 5], thus relieving Johnson of any perceived—rightly or wrongly perceived—obligation to pay ransom in advance or to produce documents to purge herself of an alleged violation of an unlawful court order.

BBO Count III, ¶16: The next day, the respondent arranged for production of the subpoenaed records, for payment of $867.14 to the Commonwealth for the civil penalty with interest, and for the further payment of $1,712,28 to the defendants for the attorneys’ fees owed with interest. As a consequence, the respondent purged her contempt and was released from custody. The respondent filed no further appeal from the court’s orders.

Petition for Discipline ¶124.   On or about December 17, 1998, the district court held the respondent in continuing contempt of court. The court on that date ordered the respondent jailed until she purged her contempt and complied with the subpoena duces tecum. The respondent was taken into custody forthwith and incarcerated until December 18, 1998. True copies of the district court's findings and orders of December 17, 1998 are attached to this petition as Exhibits D and E. Petition for Discipline ¶125.   On December 18, 1998, the respondent effected the production of records under subpoena, the payment of $867.14 to the Commonwealth for the civil penalty with interest, and the farther payment of $1,712.28 to HMM for the attorneys' fees owed with interest. The respondent thereby purged her contempt and was released from custody that day.

Johnson’s Counterpoint: Johnson incorporates herein by reference her responses in her Amended Answer to ¶¶124-125 [Vol I, Tab 46].

On 17 December 1998, Johnson began a response to one of Judge McGill's questions with the word "No," whereupon Judge McGill order/ed the court officer to "lock her up." Respondent never got to finish the sentence, which was explanatory and not a denial of any order.   Until the point when she was “locked up,” Johnson had not been declared in continuing contempt of court, if, indeed, she was ever declared in continuing contempt. If the court declared it, it was AFTER Johnson had been put into the hold. If the court ordered her jailed until she “purged her contempt and complied with the subpoena duces tecum," it was AFTER Johnson had been put into the hold.

Thus, on 17 December 1998, Johnson was jailed not for not complying with one of McGill's orders but for beginning with the word "No" an unprovocative response to a statement by McGill on the 17th.   Johnson was not jailed for any reason having to do (1) with a non-existent March 3d order, (2) with any discovery order, or (3) with some order arising out of two motions filed by Johnson in February 1995, eleven months prior to the bogus finding.   Johnson was jailed as for a summary contempt! But the process McGill employed was not correct in that situation.

The standard case for summary contempt and punishment is that of a party or witness or bystander who behaves boisterously or offensively in open court against the dignity of the court. The present case is far distant from that model and not amenable to rule 43. How can it be said that summary punishment was necessary to maintain order in the courtroom: there was no threat of disorder. Again, at clause (1) the rule harks back to In re Oliver's requirement that all essential elements of the misconduct shall have been under the eye of the court when misconduct occurred: here the misconduct of lying was established, as the judge might think, only after the judge had engaged in an ex parte investigation of documentary material. See State v. Garcia, 481 N.W.2d 133, 137-138 (Minn.App.1992). For further difficulty in applying the rule to this situation, when that element of urgency or immediacy is absent, the lawful procedure, assuming some plausible charge of contempt, is to go under rule 44 and proceed more deliberately, with customary procedural safeguards familiar to ordinary criminal trial. Cf. Commonwealth v. Corsetti, 387 Mass. at 6-10; Commonwealth v. Segal, 401 Mass. 95, 98-100 (1987). (FN3)

Com. v. Viera, 41 Mass.App.Ct. 206, 209 (1996).

As to “the district court's findings and orders of December 17, 1998”: Johnson never saw the OBC’s Exhibits D and E before or after being jailed.   She could not have received them before being jailed, for they would not yet have been written . . . unless McGill knew in advance what he was going to do. Certainly, Johnson has no memory of the receipt. And after she was jailed, she was never again in McGill’s court, nor received anything he issued from court.

Respondent also states (1) that on 18 December 1998, she never produced any records under subpoena and (2) that on 18 December 1998, she never paid any monies to the Commonwealth or to HMM, which had gone out of existence many years prior to 18 December 1998.

The BBO evidently accepted Judge McGill’s baseless, unlawful endorsements and orders as evidence that on 18 December 1998, (a) Respondent owed the Commonwealth $867.14 for civil penalty with interest, (b) she owed $1,712.28 to the former-HMM or Earth Tech or Tyco's attorney, (c)(d) she purged a lawful or contempt.   Johnson cannot aver strongly enough that (a), (b), (c), and (d) are totally false. she was in lawful contempt capable of being purged, and

Respondent does admit that she was released from custody on 18 December 1998. One of her sons was forced by court-inspired intimidation and duress to pay ransom for his mother on that date. Respondent has no personal knowledge (a) as to how much he paid or (b) as to whom he made the check(s) payable or (c) as to how the amount, whatever it was, was determined or calculated.

But for Johnson having been denied a public trial and but for SHO Phillips stopping the reporter-transcriber from recording Johnson’s words during a hearing,\[40]/ she would have been able to stay and testify to what occurred on 17 December 1998 in Concord District Court.

BBO Count III, ¶17, sentence 1: The special hearing officer concluded that by knowingly disobeying 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 until incarcerated, the respondent violated Mass. R. Prof. C. 3.4(c) and 8.4(d) and (h).

Petition for Discipline ¶126. By knowingly disobeying 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, the respondent violated Mass. R. Prof. C. 3.4(c) and 8.4(d) and (h), as set forth in paragraph 128 below.

Johnson’s Counterpoint: Johnson incorporates herein by reference her response in her Amended Answer to ¶126 [Vol I, Tab 46].

               First, the OBC could not under any theory of law prove Johnson’s state of mind or what she knew and did not know. Therefore the BBO had no evidence whatsoever before it to find that Johnson did anything knowingly.

In fact, Johnson states (1) that she never appealed any order of 13 December 1995, given that the order was amended within the period during which Respondent or Lily had to appeal, (2) that any contempt found was unlawful and could not stand, (3) that she never engaged in contempt of that court, (4) that she never disobeyed any clear and unequivocal order, (5) that she never believed she was in lawful contempt and therefore the elements "knowingly" and "refusing" cannot be proved, (6) that she never "knowingly disobeyed" a lawful order, (7) that an unlawful order cannot be purged, (8) that her incarceration had nothing to do with the amounts of money alleged to be owed or with the alleged contempts which are the subject of Count III of the Petition for discipline, (9) that any payment made by her son was simply a sum he was told would be sufficient to get his mother out of MCI Framingham, and (10) that she did not violate the cited rules.

As to Mass. R. Prof. C. 3.4(c): Where the OBC had no, no, no evidence whatsoever (1) that Judge McGill’s orders were lawful, (2) that the OBC could produce only one fabricated document [see Vol. I, Tab 46, ¶104 and figures included therein, page 133 et seq] (3) that Respondent ever "knowingly disobeyed" a lawful order, (4) that any payment made by her son was to purge her alleged contempt and not paid as ransom to free his mother from MCI Framingham, (5) that the orders from District Court were anything but unlawful as well as unclear and equivocal, invalid, and if not voidable, void ab initio, the Board’s recommendation for disbarment based on a violation of Mass. R. Prof. C. 3.4(c) must be rejected.

            Under Labor Relations Commission v. Fall River Educators' Ass'n, 382 Mass. 465, 469 n. 5 (1981), as well as under Rule 3.4, a party need not comply with an improper order, making Mass.R.Prof.C. 3.4(c), of which Bar Counsel complains in ¶126 (Count III) inapplicable in the case at bar.

It has been held that a civil contempt adjudication based on a violation of an unlawful court order cannot stand. See Fitchburg v. 707 Main Corp., 369 Mass. 748, 754 (1976); Stow v. Marinelli, 352 Mass. 738, 744-745 (1967), and cases cited. We shall assume with the parties, but do not decide, that a valid Commission order was an indispensible underpinning of the order of September 20 assessing a prospective fine of $20,000 for each day the strike thereafter continued, of the temporary restraining order, and of the final judgment.

Labor Relations Commission v. Fall River Educators' Ass'n, 382 Mass. 465, 469 n. 5 (1981).

Some of the fines ordered on March 22d, 1995, by Judge McGill in Concord District Court were daily in terrorem fines to compel compliance with a non-existent order allegedly issued on March 3d, 1995. As such, the March 22d order was based on a mirage and was, without doubt, invalid and could not survive. LaTrobe Steel Co. v. United Steelworkers Local 1537, 545 F.2d 1336, 1345-1348 (3d Cir. 1976) (a coercive civil contempt order does not survive if the underlying injunction is invalid).

Now fast forward almost four years later, to December 1998. The exhibit to the OBC’s petition is testament to this. In it, the OBC clearly states that Johnson had filed a motion to quash, which the judge denied on 17 December 1998 and then immediately found her in contempt and jailed her. This was not only an unjust order, it was an unjust imprisonment. There was no flagrant contempt, there was no need for immediate punishment, and Johnson was never given an opportunity—effective or ineffective—to argue the motion or to defend herself, the contempt order was invalid procedurally and substantively. 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).

The courtroom clerk having passed before the OBC filed its petition and the tape of the December 17^th hearing having been intentionally destroyed by the Court—“intentionally” because where Judge McGill wrote the BBO in July 1998, he had to know that the tape of 17 December 1998 would be material evidence of the well-orchestrated\[41]/ events that were to occur in his courtroom on that well-anticipated date, known in advance only by him—the OBC could produce, at most, a renegade judge’s specious memorandum to cover his unlawful acts. The BBO never read either the written evidence or the pleadings closely enough to ferret out the true meaning of them. In actual fact, the BBO never had sufficient basis to reach the decision it did regarding Count III.

The BBO’s conclusion ought to have been identical to that in Sussman.   In Sussman, the Court held that where the attorney's conduct was not flagrant contempt, where there was no need for immediate punishment, and where the attorney was never given an effective opportunity to defend himself, the adjudication of contempt was procedurally invalid. The Court in Sussman further held that where there was no contemptuous act or intent on part of the attorney, the adjudication was substantively invalid. Id.

Where “[s]ummary punishment for direct contempt ‘is warranted only when essential to the orderly administration of justice,’” Judge McGill’s order was unlawful. Id., quoting Opinion of the Justices, 314 Mass. 767, 784 (1943).

A judge may only enforce “‘lawful orders essential to prevent a breakdown of the proceedings.’” Sussman v. Com., 374 Mass. at 695-696, quoting United States v. Wilson, 421 U.S. 309, 319 (1975). McGill’s order was anything but a lawful one. “[M]any of the due process safeguards available in criminal proceedings should apply to a contempt proceeding.” Sussman v. Com., 374 Mass. at 696, citing e. g., Bloom v. Illinois, 391 U.S. 194 (1968), and Garabedian v. Commonwealth, 336 Mass. 119, 124-125 (1957).

Here, of course, Johnson did, numerous times in District Court, not only declare that she could not afford to pay, she also continually made “open refusal[s] based on an assertion that no valid obligation exist[ed],” because no order of March 3d existed and all the other orders, all of which arose out of that original non-existent order, were invalid.

As to Mass. R. Prof. C. 8.4(d) and (h): Where the OBC failed to identify any event or act whatsoever when Respondent’s conduct allegedly involved (1) dishonesty, (2) fraud, (3) deceit, (4) misrepresentation, (5) prejudice to the administration of justice, and/or (6) conduct adversely reflecting on her fitness to practice law, the Board’s recommendation for disbarment based on a violation of Mass. R. Prof. C. 8.4(d) and (h) rule must be rejected.

BBO Count III, ¶17, sentence 2: The special hearing officer also concluded that by filing 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, the respondent violated 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).



Petition for Discipline ¶127. By filing motions in the Lily action without any legal or factual basis and in bad faith, exposing Lily to dismissal of her claims and personal liability for sanctions and damages through her own misconduct, failing to appeal from the contempt judgment against Lily, and pursuing a frivolous appeal from the superior court order striking the retransfer request, the respondent violated Canon One, DR 1-102(A)(5) and (6), Canon Six, DR 6-101(A)(1)-(3), and Canon Seven, DR 7-101(A)(3), as set forth in ¶129 below.

Johnson’s Counterpoint: Johnson incorporates herein by reference her response in her Amended Answer to ¶127 [Vol I, Tab 46].

Respondent believes she did absolutely everything possible on Lily's behalf. Given that the higher courts were disregarding Judge McGill's scurrilous decisions and violations of fundamental fairness, Respondent accomplished a miracle to get the judge to "clarify," to correct his errors of judgment, and to reduce the imposed assessments from $3809.25 to $261.25, which Respondent paid on Lily’s behalf, expecting that the judge would obey his own memorialized promise that he would restore Lily's complaint to the list when the assessment was paid in full. Once the amount had been reduced to $261.25, it was much more cost- and time-efficient to pay the $261.25 than to spend many hours and expend many dollars to effect an appeal which would likely be unsuccessful.

As Weisberg and Crane themselves admit in their petition, an appeal from the superior court was deemed frivolous. How dare the BBO agree, under the scenario of the underlying cases, with the OBC in presuming that appealing, as opposed to paying the $261.25, would be in the best interests of the client. Respondent denies violating any canons of ethics.

Neither the BBO nor the OBC appear not to know the difference between a Final Judgment on the Merits and a Final Judgment of Contempt.   They could not have read the many appeals Johnson filed on behalf of Lily. They—both entities—also had negligently or purposely and maliciously to ignore O'Connor's activities.

If any ethics were violated, they were broken by the diverse courts. Johnson had warned them all of the egregious conduct of O'Connor and they all ignored those warnings. Johnson even reported O'Connor to the OBC a week or so prior to his causing Carla to have an anxiety attack in his office and being removed by ambulance to the hospital, an event followed 10 days later by the sudden heart attack brought on by O’Connor’s conduct and threats to both Carla and her husband, and her 42-year-old husband’s death an hour later, an event leaving her a widow with three elementary-school aged children.

In Respondent's opinion, all the courts—and there were many—aided and abetted what a jury might have concluded was a murder.

In both Lily's and Carla's and in Johnson's case, justice became a sham and the conduct of the courts, the OBC, and the BBO a shame.

As to Canon One: DR 1-102(A)(5) and (6):   Respondent solemnly believes that she did absolutely everything possible on Lily's behalf. Given that the higher courts were disregarding Judge McGill's scurrilous decisions and violations of fundamental fairness, Respondent accomplished a miracle to get the judge to "clarify" and correct his errors of judgment and reduce the imposed assessments from $3809.25 to $261.25, which Respondent paid pursuant to several orders between 5 April 1995 and February 1996, and expecting that the judge would obey his own memorialized promise that he would restore Lily's complaint to the list when the assessment was paid in full. Once the amount had been reduced to $261.25, it was much more cost- and time-efficient to pay the $261.25 than to spend many hours and expend many dollars to effect an appeal which would likely be unsuccessful.

As Weisberg and Crane themselves admit in their petition, an appeal from the superior court was deemed frivolous. How dare the Office of Bar Counsel presume that appealing, as opposed to paying the $261.25, would be in the best interests of the client. Respondent denies violating any canons of ethics.

Weisberg and Crane themselves are vulnerable to a charge of frivolity and malice and bad faith. Their position reveals that they do not know the difference between a Final Judgment on the Merits and a Final Judgment of Contempt.   They could not have read the many appeals Johnson filed on behalf of Lily. They also had negligently or purposely and maliciously to ignore Mark C. O'Connor's activities.

If any ethics were violated, they were broken by the diverse courts. Johnson had warned them all of the egregious conduct of O'Connor and they all ignored those warnings. Johnson even reported O'Connor to the OBC a week or so prior to his causing Carla to have an anxiety attack in his office and being removed by ambulance to the hospital, an event followed 10 days letter by the sudden heart attack and death of her 42-year-old husband, who had been upset and concerned about O’Connor’s threats and intimidation. The young man’s death left Carla a widow with three elementary-school aged children. Although they were notified of the untimely death of Carla’s husband, neither the OBC nor the BBO did anything to investigate the matter.

In Respondent's opinion, all the courts—and there were many—aided and abetted what a jury might have concluded was a murder.

In both Lily's and Carla's and in Johnson's case, justice became a sham and the conduct of the courts, the OBC, and the BBO a shame.

As to Canon Six: DR 6-101(A)(1):   Johnson denies handling for Lily any matters which she was incompetent to handle, and neither the OBC nor the BBO has identified any occasion when Respondent allegedly handled a matter which she knew or should have known that she was not competent to handle, with or without associating with her a lawyer who was competent to handle it. Johnson clearly cannot respond otherwise to a false accusation without hearing or seeing any evidence supporting the accusation.

As to Canon Six: DR 6-101(A)(2):   Johnson denies handling for Lily a legal matter without preparation adequate in the circumstances, and neither the OBC nor the BBO has identified any occasion when Respondent allegedly handled a legal matter without preparation adequate in the circumstances.   In fact, Johnson was prepared for every matter in Lily’s action.   Johnson clearly cannot respond otherwise to a false accusation without hearing or seeing any evidence supporting the accusation.

As to Canon Six: DR 6-101(A)(3):   Johnson denies neglecting a legal matter entrusted to her, and neither the OBC nor the BBO has identified any occasion when Respondent allegedly neglected a legal matter entrusted to her.    Johnson clearly cannot respond otherwise to a false accusation without hearing or seeing any evidence supporting the accusation.

As to Canon Six: DR 7-101(A)(3):   Johnson denies having intentionally prejudiced or damaged her client during the course of their professional relationship, and neither the OBC nor the BBO has identified any occasion when Respondent allegedly intentionally prejudiced or damaged her client during the course of their professional relationship. Johnson clearly cannot respond otherwise to a false accusation without hearing or seeing any evidence supporting the accusation.

BBO Factors in aggravation, ¶1: In aggravation, the special hearing officer considered the fact that the respondent had a history of prior discipline, an admonition in 1995 for repeated insults to the opposing party, and interruptions and other interference in the course of witness examinations in a civil matter. AD-95-80, 11 Mass. Att'y Disc. R. 468 (1995) (Ex. 105). Because this prior discipline was for related misconduct, that is, refusing to conform her behavior to professional norms and showing contempt for the legal process, the special hearing officer appropriately gave it additional weight in determining the sanction. See Matter of Gross, 435 Mass. 444, 453, 17 Mass. Att'y Disc. R. 271, 280-281 (2001).

Johnson’s Counterpoint: After the death of Johnson’s father, her mother [“Mother”] was substituted in a business collection case as plaintiff in her capacities as an individual and as administrator of he deceased husband’s estate.   Johnson had not represented her father; she, in fact, was not a lawyer until years later. After her father’s demise, his lawyer disappeared, literally, whereupon Johnson’s mother retained another attorney.   With the help of the BBO, her mother’s attorney gained possession of the miss7ing file.   Displeased with the progress being made, Mother retained a second attorney (Attorney #3 on the case [“JP”] through a friend of Johnson.   JP and Mother had a contingency fee agreement.

            Prior to being retained by Mother, Attorney JP had entered into a contractual arrangement, which included the rental of office space in a small Worcester lawfirm, with Stephen J. Gordon, a partner in the lawfirm.   Because Worcester was too far and difficult to travel to for Johnson’s aging mother, JP met with her in Newton, where she lived.

            At some point, Attorney JP and Gordon had arguments over money.    Gordon had been allowed to put an attorney’s lien on Mother’s case. But Gordon had never represented Mother. Nor had he ever met or spoken to or seen Mother. Gordon had never appeared for Mother in the district court except for the time he argued in favor of his attorney’s lien.   Mother laid eyes on Gordon for the first time that day.

            When Johnson tried to distract her anguished mother by taking her for lunch and shopping, Mother passed out with an anxiety attack in a department store and was taken from the store by ambulance to a local hospital. Efforts to “straighten” out the mess and the hanky-panky in the local district court were to no avail and the judge allowed no appeal.

            Mother was more than distressed at the rip off.   JP had achieved an award that was tens of thousands of dollars lower than Mother had anticipated, and Gordon’s lien was for far more money than JP would have received as a contingent fee . . . and Mother certainly did not owe Gordon any money.   JP wimped out of the dispute and Gordon was a liar. All Gordon wanted was the money JP allegedly owed him. In fact, Gordon attached the cases of another lawyer who had rented office space from him, even though he also did not represent her clients.

            So Johnson, who had by then been sworn in as a lawyer, jumped in on behalf of her widowed mother. She gathered signed and unsigned versions of a material order at the district court. She purchased, at diverse times, certified docket sheets of the district court case. She obtained documentary evidence that Gordon claimed to be her mother’s attorney. The district court judge remained recalcitrant and did not allow her to appeal the remanded case—even though she had timely filed the notice of appeal.

            According to the BBO, Gordon’s false representations were not a breach of legal ethics!!!

            How to solve the legal conundrum?   Judicial estoppel. Gordon got the lien because he swore he was Mother’s attorney. He should not be allowed to plead that he was not her attorney in a subsequent case. So, on behalf of her Mother, Johnson filed a suit for legal malpractice.   The theory: But for Gordon’s negligence, Mother would have obtained a greater award than she did.

            When confronted about his never having been in court with her, Gordon claimed that he had supervised JP and assisted him in writing the Complaint for the case. That was a preposterous lie. Johnson’s father’s lawyer—the one who had disappeared—had filed the Complaint in Middlesex Superior Court in 1982, from which it had later been remanded to a district court.   JP had not even yet entered law school in 1982.

            Fast forward to the deposition of Mother at the office of Gordon’s malpractice attorney on 7 February 1995.   Gordon’s demeanor was offensive, not only to Johnson but particularly to Mother: he was slurping on the table, hanging onto his attorney’s body, making faces.   Johnson was convinced his antics had been planned to provoke a reaction from Mother, then 83 years old with no understanding of legal proceedings. The questions to Mother were for the most part, Johnson contends, totally inappropriate and unethical.

Q. Do you think that Mr. Gordon did something that, for which you seek compensation in this lawsuit in your capacity of administratrix of the estate of Isador Cholfin?

A: Yes, I think he did wrong. I don't know--

Q: What do you think he did wrong?

A: I don't know where he came from. He appeared out of nowhere.

Cholfin v. Gordon, 3 Mass. L. Rptr. 357, 1995 WL 809916 at 1, No. 94-3623 (Middlesex Mass.Super. March 22, 1995) (Memorandum and Order on Motion for Sanctions and Stay of Discovery) (McHugh, J.) (with counsel’s colloquy redacted).   Essentially, Gordon’s lawyer is asking Mother to say what did Gordon do.   “[H]e did wrong.”

Q. Is it your position that the estate of Isador Cholfin has somehow been damaged by Mr. Gordon's conduct?

A: I don't know. Of course, of course.

Q: When you say of course, how was it damaged?

A: In every possible way that a damage could be done.

Q: Well, give me some examples.

A. I don't know how he came into this picture at all. I never knew such a person existed.

Id. at 2.   The questions were problematic for Mother because they assumed that Gordon did something I her case, when, in fact, Gordon did nothing in her case. As far as she was concerned, it was his mysterious appearance in the case that caused damage. That later became clear.

            Q: Well, what was the activity or what were the actions that Mr. Gordon did that you have characterized as interference?

A: I never heard from the man. I never saw the man, I never talked to the man, I didn't know where he came from.

Q: My question is what actions of Mr. Gordon have you just characterized as being interference?

Ms. Johnson: What did he do?

A: By coming into the picture. Exactly what he did?   He didn't do anything.

Id. at 4, quoting from Mother’s deposition, Tr. 26.

Q: Who told you that he interfered?

A: Well, from what I hear. Why am I here?   Why did you call me?   Why am I here?

Q: Are you aware that you brought a lawsuit against Mr. Gordon?

A: I am aware that whatever my lawyer thinks is necessary and correct, my lawyer will take care of it.

Q: Did you authorize your lawyer to file a lawsuit on your behalf against Mr. Gordon?

A: Yes, I did.

Q: Why was that?

A: Because it was the proper thing to do.

Q: Were you aware of any facts that Mr. Gordon's conduct somehow caused the estate harm?

A: His entire conduct from A to Z.

Q: The question is were you ever aware of any facts that Mr. Gordon's conduct caused the estate of Isadore Cholfin harm?

A: I don't know what he did, and I really don't know what he did or what he tried to do or didn't do.

Id. at 4, quoting from Mother’s deposition, Tr. 28.

Q: Do you recall that Barbara Johnson told you that Mr. Gordon was trying to get a settlement from Millis?

A: I don't remember any conversation like that.

Q: Do you recall any conversation whatever from Barbara Johnson that described activities of Steven Gordon?

A: No, I don't remember anything about him, I really don't.

Q: Has anyone described for you the conduct of Steven Gordon?

A: Well I don't what he was doing in the whole thing, I don't know why he was there.

Q: This is just a Yes or No. Has anyone described for you any conduct of Steven Gordon?

A: What kind of conduct?

Q: Any kind.

A: As I said, it's like an apparition. I don't know who he is, if he came for good or bad, I don't know.

Id. at 5, quoting from Mother’s deposition, Tr. 40 (excluding attorney comment).

            As Judge McHugh accurately concluded: “At page 64, however, matters began a steady downward spiral from which they never recovered.” Id. at 5.

Ms. Johnson: Mr. Gordon, I would appreciate it if you would stop making snide little looks in my direction. I'm, I really don't appreciate them. I think that you are one of the lowest scumballs that I've seen in a long time--and I shouldn't say it and it's on the record and Judge McHugh is going to be angry--but I do not appreciate those slimy looks that you make to me. Thank you.

I apologize Your Honor, If you read this, but it's true.

Steven Gordon: Let the record reflect that I was blowing my nose at the time.

Ms. Johnson: At that moment you were doing that, but you have been making them for the last half hour. It's disgusting. I can't begin to tell you the looks that you have been giving me. I am not pleased by that kind of behavior.

Id. at 5. Significant is that neither Gordon nor his counsel denied that Gordon had been making “snide little looks.”

The Witness: I have to laugh watching you. You belong on television.

Ms. Johnson: It is disgusting what you are doing, Mr. Gordon, it really is.

The Witness: I don't think it's funny.

Id. at 8, quoting from Mother’s deposition, Tr. 98. Again, significantly, neither Gordon nor his counsel denied that Gordon was acting out physically in such a way that it provoked comment from the 83-year-old deponent.

Ms. Johnson: . . . I would appreciate it that you don't slurp all over the table. Sit up straight like a man.

Mr. Hutchinson: One more comment like that and this deposition is going to be adjourned.

Ms. Johnson: I think its leading to his sluffing off the questions, his whole body language, and I think if he sit up straight in his chair like a school child he might say yes or no, maybe.

Q: I'm going to ask--

Mr. Hutchinson: The record should reflect that we're all laughing right now.

Ms. Johnson: He's a fool.

Mr. Hutchinson: That's it. This deposition is over.

<>
Id. at 8-9, quoting from Gordon deposition, Tr. 48. And still again, significantly, neither Gordon nor his counsel denied that Gordon was not merely sitting in a chair as the average deponent does,

            Most significant is what Judge McHugh wrote in his “Discussion”:

Hundreds of depositions take place each week without incident and in conformity with those standards. Plaintiff nevertheless opposes defendant's motion and has filed a lengthy rejoinder setting out the reasons why allowance of the motion would be inappropriate. The sum and substance of the opposition is threefold: Counsel inappropriately lost her temper and regrets doing so, she was provoked into losing her temper and defendant's alleged lies make some of her anger justified.

Clearly, counsel's loss of temper, if that's what it was, was inappropriate. Just as clearly, counsel's conduct cannot be justified by defendant's alleged lies. Indeed, none of the alleged lies had been uttered during the morning session. More important, counsel is the advocate, not the judge. Determination of the responses' truth is for others. And surely, name-calling is grossly inappropriate even if the responses in fact are false.
<>            That leaves the "provocation" defense. Obviously, I was not present at the deposition and the "cold record" does not reflect what people did as opposed to what they said. I do not know what body language or non-verbal conduct took place during the deposition. In addition, I recognize that non-verbal conduct sometimes can be just as oppressive and just as disruptive as words. But the answer to counsel's "provocation" claim is clear and simple: No provocation one can imagine is sufficient to permit a lawyer to call a witness during the course of the deposition a "fool," "liar" or "son-of-a-bitch."   No provocation is sufficient to permit a lawyer to call another lawyer a "scumball."   Faced with disruptive conduct, verbal or non-verbal, a lawyer's obligation to his or her client and to the system of justice in which we all participate is to terminate the deposition and to seek judicial intervention, not to engage in retaliatory strikes.

Id. at 10 (emphasis supplied). Johnson does not now dispute that what she did was inappropriate and unprofessional. Nor did she then. She regretted that lost her temper because of her anger at Gordon’s provocative conduct. He, with the assistance of his counsel, was taking advantage of her mother’s advanced age.   He, Gordon, had just stolen from her widowed mother money that was rightfully hers and that she sorely needed to supplement the pittance she received monthly from social security. Clearly the case was not going to put on through her mother, who knew nothing of what Gordon had done other than as she so aptly said, “It was like an apparition. I don't know who he is, if he came for good or bad, I don't know.”

At the end of Mother’s deposition, Johnson sent Mother, feeling very ill and crying, home in a taxi, and then remained to depose Gordon.

            Gordon’s demeanor changed from physical-acting-out to yelling. At one point, Johnson said, You can say the same thing without yelling. Gordon kept on increasing his volume. Johnson said that to him several times. Finally she said “Sonuvabitch.” She argued to Judge James McHugh, III, from whom Gordon’s counsel sought an order for sanctions against Johnson, that she said “Sonuvabitch” as an exclamation, not as an epithet.

            Johnson has always appreciated Judge McHugh for recognizing and acknowledging that “non-verbal conduct sometimes can be just as oppressive and just as disruptive as words.”    Her sanction was the payment of $75 for the transcript and embarrassment. Both were appropriate. To re-sanction her by using that incident, when she was trying to protect her mother, as an “aggravating factor” in this disciplinary action would not be appropriate.

BBO Factors in aggravation, ¶2: The special hearing officer also considered in aggravation the respondent’s conduct during the disciplinary proceeding, in which the respondent was insulting, vituperative, demonstrated utter disrespect and contempt for the process, and refused to participate in the hearing.

<>
Johnson’s Counterpoint: Assuming arguendo that Johnson was all those things, ask yourself
<>·        would you be insulted if falsely accused?

·       would you be vituperative if ____________ ?

·       would you have utter disrespect and contempt for those

o        who were relying on falsities to support the allegations in their case-in-chief?

o        who were using orders based on fabricated evidence against you?

o      who themselves fabricated false complaints to intimidate you?\[42]/

o       who self-righteously proclaimed that what occurs at the OBC and the BBO was confidential and private but put up on their website that you were being investigated for discipline?

o         who then charge you with putting up confidential and private information on your website in order to defend against and offset their publication on their website of defamatory information about you?

·        would you have utter disrespect and contempt for those

o        who were not applying not only the law but their own rules?

o        who denied you your right to know with what you were charged?

o        who chose to call no witnesses to present their case-in-chief and also denied you the right to present witnesses in your defense?

o        who denied you the right to ask the witnesses to bring certain documents with them to trial?

o       who denied you a public trial when you were entitled to one?

Of course, you would be.

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 counts, which are addressed below. The respondent has made no offer of proof as to any factual evidence she would have presented in defense of the charges, other than her continual effort to litigate here the underlying cases, which are irrelevant to the charges in Counts I and II and have been deemed irrelevant by the application of issue preclusion to the charges in Count III.

Johnson’s Counterpoint: Yes, indeed, Johnson was denied due process.    “The hallmarks of due process are notice and ‘an opportunity to be heard at a meaningful time and in a meaningful manner.’”   Matter of Tobin, 417 Mass. 92, 101 (1994) (internal cites omitted).   Johnson had none. Passim.    “In a disbarment proceeding an attorney is entitled to procedural due process which includes fair notice of the charges and an opportunity for explanation and defense.”   Matter of Tobin, 417 Mass at 101, citing Matter of Kenney, 399 Mass. 431, 436 (1987), and In re Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 1225 (1968).   Given that the SHO had ordered the reporter/transcriber at the November pretrial hearing to go off the record when Johnson spoke and to go back on the record when he spoke, and that the SHO ordered the public out of the hearing in December, Johnson was justified in leaving with the public, for it was more likely than not that the SHO would repeat his prior conduct, to wit, ordering the reporter/transcriber to go off the record when Johnson spoke. Thus, whether or not the SHO have Johnson “an opportunity for explanation and defense,” Johnson had no confidence whatsoever that her “explanation and defense” would be memorialized and be available for a record sufficient for an appeal.

The arguments re issues re selective prosecution, subpoenas, and protective orders appear below. All were argued in diverse pleadings below. They are gathered here.

Had there been a public trial as required by the rules, Johnson would have stayed and proffered certain documents for evidence:

1.               Assistant Bar Counsel C. Arcos’ letter to a member of the public, “[F]ee disputes are not generally within the jurisdiction of this office.”   Although the letter is not part of the records in the disciplinary action, it does not come as a surprise to either the OBC or the BBO. It was attached as Exh. D to a Verified Complaint, Johnson v. BBO et al, filed during November 2003 in both the SJC (summarily dismissed, Spina, J.) and in U.S. District Court and entered into the docket there as No. 03-CV-12314-WGY.

2.               O'Connor v. O'Connor, 61 Mass.App.Ct. 1109 (2004),\[43]/\[44]/ in which the Appeals Court affirmed the contempt finding of Mark C. O’Connor, who was both the opposing counsel in the case underlying Count III of the OBC’s petition and one of the witnesses subpoenaed by Johnson to the BBO “trial” and released by the Special Hearing Officer quashing Johnson’s subpoena.

3.               Pictorial proofs of the fabricated Concord District Court Order of March 3d, 1995, and

4.               the OBC’s motion for a protection order, Johnson’s opposition, the decision by the Chair, and an expert on the law.

BBO Selective Prosecution: The respondent contends that Bar Counsel improperly refused to investigate and prosecute opposing counsel in Counts I and III. It is well-settled that “[w]hether bar counsel pursues discipline of others is irrelevant … to the respondent’s current disciplinary action.” Matter of Tobin, 417 Mass. 92, 103, 10 Mass. Att'y Disc. R. 256, 267 (1994). Moreover, the respondent has provided no evidence in support of her allegations and has failed even to allege, as is necessary to sustain such a defense, that the prosecution is based on impermissible discrimination, “such as race, religion or other arbitrary classification.” 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>.

Johnson pointed specifically and reported to the OBC the wrongdoing of two attorneys, namely, Attorneys Marc O’Connor [B1-98-0268A] and Deborah Wolf.   The OBC took no action. O’Connor’s wrongdoing, which Johnson witnessed, culminated in the premature death by heart attack of the husband of one of Johnson’s clients. When Johnson subpoenaed O’Connor as a witness and he appeared as ordered, the SHO unconstitutionally invalidated the subpoena and told O’Connor he could leave, he need not testify.

Wolf’s wrongdoing culminated both in a father being wrongly deprived of a relationship with his child for a dozen or so years and fraud upon diverse courts and the Commonwealth’s treasury by suspected fraudulent billing. The OBC took no action. With the motive to retaliate against Johnson for exposing Wolf’s fraud of the Commonwealth for thousands of dollars, Wolf was a co-complainant against Johnson. Weisberg did not want to call Wolf as a witness for Wolf would not have been able to withstand the scrutiny of cross-examination. And, of course, Johnson’s subpoena of Wolf was one of the many the SHO invalidated.

            Significantly, Assistant Bar Counsel Susan Strauss Weisberg avoided discussing Johnson’s assertion of selective enforcement vis-à-vis O’Connor and Wolf. Weisberg spoke about it generically, instead. Not good enough. Specificity, not evasiveness, was required.

            In the Matter of Tobin, argued by the BBO, for the proposition that the OBC’s failure to “investigate alleged disciplinary violations of the diverse attorneys in the underlying case” was irrelevant. The facts surrounding that statement are sparse. But the facts, generally, in Tobin are very different from those in the instant case, and Johnson’s two complaints of selective enforcement are different from Tobin’s complaints . . . what little we know of Tobin’s.

First, she was very specific as to who and why. One was grounded on an abuse of discretion, if not an outright lack of jurisdiction over a certain type of case, namely, de mimimus fee disputes. As proof, Johnson has a letter from an Assistant Bar Counsel writing in lay language. to a member of the public at large that the OBC/BBO did not have jurisdiction over de mimimus fee disputes, which is all that Count II was, and even a biased SHO found that there was no excessive fee charged and that there was no fraud or deceit or misrepresentation . . . 180 degrees away from Tobin’s conduct. Whether bar counsel pursues discipline of others is irrelevant, however, to the respondent's current disciplinary action.

The second example of prejudicial selective enforcement occurred when the BBO selectively chose not to charge Attorney Mark C. O’Connor with a violation of professional ethics but chose to charge Johnson.   The relevant facts: (1) Johnson wanted O’Connor as a witness at trial, (2) the SHO quashed Johnson’s subpoena duces tecum served on O’Connor, (3) it is believed that O’Connor partook in the fabricating of an order to simulate what the non-existent March 3d order would have looked like had it existed on March 3d, (4) O’Connor caused one of Johnson’s clients to have an anxiety attack and admitted in a deposition transcript that his vicious conduct was purposely his modus operandi, (5) O’Connor was disqualified as counsel because he was dishonest and withheld information from the court . . . all that and the BBO selectively chose not to charge him with a violation of professional ethics but chose to charge Johnson with the contempt of a non-existent order. The failure to charge O’Connor proves that the laws are not being applied equally. That is the true relevance of Johnson’s complaint of selective enforcement.

BBO Subpoenas, ¶1: The special hearing officer properly refused to issue subpoenas to witnesses whose testimony was irrelevant. The respondent’s witness list included a number of individuals whose testimony would have constituted, in essence, an effort by the respondent to re-try the merits of the underlying cases in Counts I and II, when the issue was the propriety of the respondent’s disclosure of confidential information on her website, and to contest the validity of the court orders in Count III, which had been established by the allowance of the issue preclusion motion. For the same reason, the special hearing officer’s refusal to issue subpoenas to judges, clerks, Bar Counsel, and BBO employees and BBO members was also proper because testimony regarding judicial proceedings and deliberations and the investigation, prosecution and handling of this matter was all irrelevant to the charges. See Liacos, Brodin & Avery, Handbook of Massachusetts Evidence, § 13.7, at 817-823 (7th ed. 1999).

Johnson’s Counterpoint:

Due process requires that an applicant be informed of the "charges" against him and provided with an opportunity to confront witnesses who supply information adverse to him. See Matter of Tobin, 417 Mass. 92, 101 (1994); In re Application of Feingold, 296 A.2d 492, 498 (Me.1972), citing Willner v. Committee on Character & Fitness, 373 U.S. 96, 83 S.Ct. 1175 (1963).

In re Admission to Bar of Com., 444 Mass. 393, 399 n. 14 (2005).

The right to cross-examine witnesses and the right to present evidence in one's defense are essential elements of due process. See G.L. c. 30A, § 11(3). See also Matter of Tobin, 417 Mass. 92, 102 (1994). But due process does not countenance a fishing expedition; it is limited to the presentation of relevant evidence and a relevant line of questioning on cross-examination.

In re Foley, 439 Mass. 324, 336 n. 13 (2003).

Johnson vigorously suggests that the two cases -- Massachusetts Bonding & Ins. Co. v. Commissioner of Ins., 329 Mass. 265 (1952), and Bloom v. City of Worcester, 363 Mass. 136 (1973) -- regarding subpoenas in the context of administrative hearings and cited by Weisberg on page 14 of Bar Counsel’s Opposition to Johnson’s appellate brief do not stand exactly for the proposition for which Weisberg is citing them.   Bloom, the court wrote: “The [chapter 233] commission must adopt rules of procedure for its hearings which ‘shall ensure the due process rights of all persons. . . .’” Id. at 158. To Johnson that meant that an accused retains the right of calling witnesses in his or her defense.   That is the issue Weisberg had to address, but did not.

The plaintiffs appear to have overlooked the power to subpoena witnesses under G.L. c. 233, s 8 (see 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).
<>Foster from Gloucester, Inc. v. City Council of Gloucester, 10 Mass.App.Ct. 284, 292 (1980).
            Here, we have a conundrum . . . one that Weisberg also failed to address, that the BBO did not, but that this Court must not. Chapter 233 of the General Laws deals with witnesses and evidence in proceedings in civil cases, and section 8 sets out the bodies authorized to summon witnesses.\[45]/ But the BBO and OBC have been omitted from the list, clearly because the BBO and OBC are creatures birthed by a Supreme Judicial Court rule and not by legislative enactment. That Caesarean birth has worked improperly to deny lawyers the equal protection of the laws against discrimination. The result in the Commonwealth: lawyers as a class are unconstitutionally subjected to disciplinary proceeding that does not allow an accused to call witnesses in his or her defense.\[46]/\[47]/   “[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).

            As Johnson set out in her appellate brief:

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

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

It seems to me that the majority takes a fundamentally unsound position when it endorses a practice based upon the artificial notion that rights and privileges can be stripped from a man in his capacity as a lawyer without affecting the rights and privileges of that man as a man.
                              Id. at 145 (dissent).
            Attorneys must be able to avail themselves of “the general rules which govern society.” Cohen, at 136 (dissent).

[Thus, i]n Cohen, some 40 years ago, Messrs. Justice Black, Chief Justice Warren, and Justice Douglas eloquently warned that the important role that lawyers are to play in society makes it all the more imperative that they not be discriminated against and not be deprived of “the basic freedoms that are designed to protect the individual against the tyrannical exertion of governmental power.” Cohen, at 138.

Only one reasonable conclusion may be drawn, viz, to deny the Commonwealth’s subjects, of which Lawyer Johnson is one, their rights to due process in any proceeding in which a remedy is sought for wrongdoing is unconstitutional.

BBO Subpoenas, ¶2: On the same grounds, the special hearing officer’s order quashing the subpoenas issued by the respondent was proper to prevent the respondent from circumventing his prior ruling refusing to issue subpoenas to witnesses whose testimony was irrelevant.

The SHO was wrong. Had the SHO acted in a timely fashion on Johnson’s motion for the issuance of subpoenas. Had the SHO not waited to a few days prior to the scheduled trial. Had the SHO left on the subpoenas he issued space for Johnson to write in the documents she wanted the witnesses to bring with them—as General Counsel Michael Fredrickson would be done.   Had the SHO compelled ABC Weisberg to identify those passages, sentences, paragraphs that offended any rules regarding confidentiality or privilege or privacy. Had the SHO compelled Weisberg to describe the purpose of the documents that she was proffering—documents that would be as surely admitted as surely as Weisberg’s motions had been allowed. Had all those things been done properly and honestly and with fundamental fairness, some part of Johnson’s rights to due process and equal protections might have been salvaged. As stated above,

The right to cross-examine witnesses and the right to present evidence in one's defense are essential elements of due process. See G.L. c. 30A, § 11(3). See also Matter of Tobin, 417 Mass. 92, 102 (1994). But due process does not countenance a fishing expedition; it is limited to the presentation of relevant evidence and a relevant line of questioning on cross-examination.

In re Foley, 439 Mass. 324, 336 n. 13 (2003). Had Weisberg been compelled to state the purpose of the documents, identify the offending words, alone or together with others, identify the money she claimed was coomingled (she never did), Johnson would have been spared the necessity of submitting a long witness list, for she would have known the scope of Weisberg’s case, she would have known the "charges" against her. She has never been told. See Matter of Tobin, 417 Mass. at 101.   And those words, phrases, or passages are not self-evident. Johnson has no crystal ball.

BBO Subpoenas, ¶3: Moreover, as the special hearing officer properly ruled, the respondent’s subpoenas were invalid under 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, rejected because statute is limited to certain listed tribunals and does not apply to administrative hearings; specific statute pertaining to the Commissioner of Insurance grants subpoena power to commissioner, not a party to administrative proceedings); Bloom v. City of Worcester, 363 Mass. 136, 158 (1973) (subpoena power granted by city ordinance to commission does not grant subpoena power to persons appearing at hearing). Finally, the respondent asserts that she needed to issue her own subpoenas because the Board-issued subpoenas did not require document production. We reject that argument because our review of the record establishes that the respondent made no request for document production in her subpoena request to the Board.

Johnson’s Counterpoint:   See discussion, supra, re Massachusetts Bonding & Ins. Co. v. Commissioner of Ins., 329 Mass. 265 (1952), and Bloom v. City of Worcester, 363 Mass. 136 (1973), and subpoenas.

BBO Protective Order, ¶1: The respondent contends that the protective order should not have been issued and the special hearing officer erred in excluding the public when she persisted in using the true name of one of the individuals whose identity was protected. We disagree. The Board Chair properly entered the protective order under S.J.C. Rule 4:01, § 20(4) and BBO Rule 3.22(c).FN8 Those rules specifically allow an appeal to the single justice from the grant or denial of a protective order; the respondent made no such appeal, and therefore, waived her objections here.

Johnson’s Counterpoint: The appeals would have been futile. S.J.C. Rule 4:01, §20(4) speaks about “a protective order prohibiting the public disclosure of specific information otherwise privileged or confidential. . . .” Weisberg wanted to impound records she was about to procure from the Juvenile Court. Johnson did not care. She did not know what those records were. She had not obtained any of the Juvenile Court records. She had not uploaded them to her website—despite what Weisberg swore to the contrary. She had already uploaded to her website all that she wanted.   Nothing was from the Juvenile Court.   Further, Weisberg never identified the specific information she want to impound other than Juvenile Court records in general. Totally irrelevant. Johnson was not shown those records at any time by Weisberg. Nor did Johnson have any interest in seeing them.

BBO Rule 3.22(a) puts the burden on the BBO and OBC to keep things confidential. The BBO did not do that. It put on its website that discipline of Johnson was pending. In addition to opposing OBC Weisberg’s motion for protection and impoundment, Johnson also moved to strike it [Vol. II, Tabs 53 and 54], both of which pleadings Johnson incorporates herein by reference.

The protective order should not have been issued on both procedural and substantive grounds. ABC Weisberg did not distinguish between a protection order and an order of impoundment. Her motion was not only a motion for a “protective order” but also

·       a motion for impoundment

·       a motion to censor Johnson’s website

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

·       a motion for secret hearings

            Weisberg and Bar Counsel failed to acknowledge and identify the standards to be followed when determining such potpourri motions as Bar Counsel’s, failed to show good cause, failed to follow the procedures for impoundment, failed to state the authority giving the Bar the right to censor Johnson’s website and stifle her political speech and free expression, failed to state the scope of the website censorship sought, failed to state how the censorship was to be implemented, failed to state the authority giving the Bar permission to override Johnson’s First Amendment rights, and failed to identify with sufficient particularity that which Bar Counsel wants to prevent disclosure and that which he wants to impound.

            Despite all the flaws in the legally bizarre motion, which would never pass muster before any judge in any superior court, Chair Carpenter allowed Bar Counsel and Weisberg’s motion.

            But according to Rule 3.18(a), nondispositive motions are to be determined by the hearing panel or hearing officer, not the Chair. In response to Johnson’s inquiry about the noncompliance with Rule 3.18(a), BBO General Counsel Michael Fredrickson pointed to Rule 3.22(c). But Rule 3.22(c), as well as 3.22(b)(2), presumes that “the Board” issues a protective order. And Rule 3.22(b)(3) presumes the SJC issues the protective order.   None of the subsections of Rule 3.22 gives Ellen Carpenter the authority as Chair to rule on a motion for a protective order.

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

            “But the rules make a distinction between ‘the Chair’ and ‘the Board,’ and she’s not acknowledging that. Every word has meaning.”

            “We’ve done it that way ever since I’ve been here,” Fredrickson said, in words for all intents and purposes.

            To a similar excuse in Cohen, infra, Justice Black wrote:

. . . This argument -- that constitutional rights are to be determined by long-standing practices rather than the words of the Constitution -- is not, as the majority points out, a new one. It lay at the basis of two of this Court's more renowned decisions -- Dred Scott v. Sandford, 19 How. 393 [1857], and Plessy v. Ferguson, 163 U.S. 537 [1896]. But cf. Brown v. Board of Education, 347 U.S. 483 [1954]. The notion that a violation of the plain language of the Constitution can gain legal stature by long-continued practice is not one I can subscribe to. A majority group, as de Tocqueville observed, too often “claims the right not only of making the laws, but of breaking the laws it has made.” De Tocqueville, Democracy in America, Vol. 1, at 261.

Cohen v. Hurley, 366 U.S. 117, 142 n.23 (1961) (dissent), a 5-to-4 decision, was overruled in Spevack v. Klein, 385 U.S. 511, 514 (U.S.N.Y. 1967).\[48]/

            To interpret Rule 3.22(c) as Carpenter and Fredrickson did, Rule 3.22(c) is in conflict with Rules 3.18(a) and 3.18(b). To interpret Rule 3.22(c) literally, in accordance with the words used and the definitions given in Rule 1.2, the words “the Board” means the 12 people appointed from time to time by the SJC.

            Doing it Michael Wolsey and Ellen Cranmer’s way, the rules become arbitrarily interpreted and imposed. . . . harsh, and arbitrary!\[49]/

Clearly the OBC and the BBO knew what they could get away with. Johnson was unlikely the only person or the first person against whom such action was taken. An appeal would have been futile. “[T]he law does not require the doing of a useless act.” Loomer v. Dionne, 338 Mass. 348, 353 (1959), citing Mowry's Case, 112 Mass. 394, 400; Schayer v. Commonwealth Loan Co., 163 Mass. 322, 323-324.

Johnson was convinced that the entire action was politically motivated, such motivation having arisen out of her campaign for office on a platform of court reform and the abolishment of judicial immunity . . . in fact, all the quasi immunities also. In addition, the time consumed on the BBO case was extraordinary and burdensome.

            Further, having seen sanctions on “Lily’s” case, on Abend’s case, on her mother’s case—all cases that should have been otherwise decided—Johnson’s trust or faith in justice coming from the Appeals Court had spiraled downward to the point where trust of and confidence in the Appeals Court had totally waned.

BBO Protective Order, ¶1, footnote 8: FN8 Indeed, one of the conditions of the Juvenile Court’s order permitting Bar Counsel to use impounded documents in Count I in this matter was that Bar Counsel keep the information confidential.

Johnson’s Counterpoint: Whether Bar Counsel kept the documents Weisberg procured from Juvenile Court is unknown to Johnson. And whether she did, is irrelevant to the Petition for Discipline.

BBO Protective Order, ¶2: The Chair’s protective order specifically ordered that “the hearings be conducted in such a way as to preserve the confidentiality of the information subject to the order.” We conclude that the special hearing officer acted properly in closing the hearing to the public when the respondent refused to comply with the protective order.FN9

Johnson’s Counterpoint:   Given that no documents that were ordered protected or impounded were identified or shown to Johnson, the first statement in the above paragraph by Bar Counsel is curious and cryptic. Why the second sentence is included in the above paragraph is also curious,   but it is also a lie. The names of no people were included in the motion for a protection order. In fact, Weisberg informed SHO Phillips, with BBO Asst. General Counsel Wagner by his side, that there was no list of names that were not to be used. Weisberg’s admission may be seen in Vol. VII, Tab 201, Transcript, I: 56-57.

BBO Protective Order, ¶2, footnote 9: FN9 The respondent, in her brief on appeal, for the first time, contends that the special hearing officer, in listing the subpoenas that had been issued by the Board, stated orally the true names of some of those whose identities had been protected by the order. However, it should be noted that the subpoenas had to be issued in the witnesses’ true names and that, unlike the respondent, he did not in any way reveal their identities in connection with the charges or other information.

Johnson’s Counterpoint:    Of course the subpoenas had to be issued in real names, but SHO Phillips said the real names aloud in front of the public. So the rule was: It is OK for the BBO to use the real names, but it is not OK for the respondent to use them. Similarly, it is OK for the BBO to make the respondent use pseudonyms for the people involved in the cases underlying Counts I and II, but the BBO does not have to use them for the one private person involved in the case underlying Count III, for she was “agin” us, i.e., the OBC and the BBO, for what they were doing to Johnson.   So, not only do we have selective enforcement by the OBC and the BBO, but also selective protection by the OBC and the BBO.

First Amendment, sentences 1-3 of 8: With respect to Counts I and II, the respondent argues that she had a 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. An attorney’s right to speak, in contrast with that of other citizens, can be and, in fact, is constrained by ethical rules. Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991); Anthony v. Virginia State Bar, No. 050948 (Va. November 4, 2005). For example, Comment [6] to Mass. R. Prof. C. 1.6 provides: “The requirement of maintaining confidentiality of information relating to representation applies to government lawyers who may disagree with the policy goals that their representation is designed to advance.”

Johnson’s Counterpoint: The table below appeared in Johnson Proposed Findings of Fact and Rulings of Law, at pages 25-29. Johnson absolutely was exercising her First Amendment rights to political speech and free expression. The cited cases are discussed below the table. Mass. R. Prof. C. 1.6 does not have any application to this disciplinary action.

[1]         MS. WEISBERG: “[A]s you will see from the order of Judge McGill [sic, read Judge XXXXX] that I have introduced in evidence, although she did not in her Internet posting include the attachments you will see on the court copy.”   Trial Transcript. Day 1, at page 118 [Impounded Vol. VII, Tab 201]..

[2]         Johnson never acted in the capacity of Sano’s counsel. Johnson acted only as a consultant. She also never met Sano or any members of her family face-to-face.

[3]     MS. WEISBERG: This very large stack which is Exhibit 67 is Ms. Johnson's initial response to the grievance of the complainant in Count 2 of the petition with all her attachments. These attachments essentially constitute Miss Johnson's work product for that case, mostly, but not all, e-mails, billing records, and at the end a set of approximately 366 pages of documents, copies of documents that she, in turn, had received from the complainant, the wife, in Count 2.

Trial Transcript, Day II, pp. 8-11.

[4]      The CEO of the opposing party was Dennis Kozlowski, who has been convicted of “taking” over $600 million from Tyco International, the entity which took over the original defendant company, and sentenced to decades of incarceration in federal prison.

[5]      When searching for counsel upon being served with the Petition for Discipline, Johnson was warned to put everything in the Answer, otherwise you will never be able to get it into evidence. Johnson could not afford to retain that counsel, but his advice during that consultation was excellent. Hence, the highly unusual pleading, now acknowledged as the Amended Answer. But for his advice, there would be nothing in the record to which to refer this Court.

[6]              Because footnote 3 of the Board Memorandum is quite lengthy, Johnson does not reproduce it here. Johnson readily admits she was so frustrated with continually being abused by SHO Phillips and Assistant General Counsel Carol Walker [“Walker”], and being denied her rights to due process and equal protection by then-Chairperson of the BBO, M. Ellen Carpenter, as well as Phillips, Walker, and Weisberg, that she expressed that frustration freely.

Given the outrageousness of the BBO and OBC conduct, Johnson’s feisty manner was inevitable and appro-priate. Every emotion is legitimate. That is why emotions have evolved and exist. They are appropriate at times when anyone, including Johnson, is unfairly provoked.

Finally, it would have been fairer if the BBO had provided the entire transcript of the hearing on 17 Novem-ber 2003 and the beginning of the mutant trial on 2 December 2003, so that the context of Johnson’s remarks would be readily discernible.

[7]        In Jones, at 1008, the Court reiterated that “[b]ar discipline cases are not criminal in nature.”

[8]     Johnson was denied any opportunity to litigate (a) the validity of the underlying order, namely, Justice Prudence McGregor’s order, in which the judge incorrectly gave M.G.L. 209C, §13, retroactive effect and upon which the BBO and OBC relied for Count 1, (b) the validity of the underlying order, namely, Justice Mark Lawton’s order, upon which the BBO and OBC also relied for Count 1, (c) the validity of the underlying quasi-order(?), namely, a letter to Johnson from Retired Justice William Simons on behalf of his and his son’s client, a letter upon which the BBO and OBC relied—partially—for Count 2, and (d) the validity of the underlying order, namely, Justice Paul McGill’s alleged order, upon which the BBO and OBC relied for Count 3.

[9]      In the year prior to establishing the OBC and BBO, the SJC held that disbarment proceedings were civil in nature and the “‘rules of evidence applicable to civil trials . . . (are) rightly enforced.’” Matter of Troy, 364 Mass. 15, 24-25 (1973), quoting Matter of Ulmer, 268 Mass. 373, 392 (1929) and Matter of Mayberry, 295 Mass. 155, 166-167 (1936); and Collins v. Godfrey, 324 Mass. 574, 577-578. After the establishment of the OBC and the BBO, the rules of evidence were no longer applied or enforced in disciplinary proceedings.

[10]     In the year prior to establishing the OBC and BBO, the SJC held that disbarment proceedings were civil in nature and the “‘rules of evidence applicable to civil trials . . . (are) rightly enforced.’” Matter of Troy, 364 Mass. 15, 24-25 (1973), quoting Matter of Ulmer, 268 Mass. 373, 392 (1929) and Mayberry, supra, at 166-167; and Collins v. Godfrey, 324 Mass. 574, 577-578.

[11]       On Day 1 of trial, SHO Phillips announced that on 10 September 2003, three months prior to trial, Chairperson Carpenter had issued a protective order requiring the parties to use the pseudonyms at all times for persons in Counts 1 and 2 [Impounded Vol. VII, Tab 201, transcript, Day I:13, 47)], and declared Johnson in violation of that order [id. at 47-48]: The order “has been intentionally violated by the respondent because she refuses to allow the pseudonym that we have agreed to use for Mr.Blank to be John Jones.” Id. at 47. Johnson never agreed to using pseudonyms. She had been ordered to amend her Answer by substituting for the real names the pseudonyms used by the Bar Counsel in Counts 1 and 2 of the Petition for Discipline.

[12]   . . . Most of these people did not file these reports in court, I understand. I looked through some of the papers. Didn't see all of them. There are six lawyers. Some of them didn't respond. So there are chunks of that case I never saw ever. I wasn't allowed to see it from the juvenile court, and the lawyers were non-responsive, the case was old, it wasn't filed, it was thrown out, it was shredded. So there are lots and [54] lots of stuff that I never saw in that juvenile case.

          I myself never set foot in that juvenile court, so I have no clue how records are kept or where they are kept even. I never had a juvenile court practice.

[13]   In Impounded Vol. VII, Tab 201, Day 2 at 18-20, 22-23, it can be seen that ABC Weisberg had not yet identified those words, phrases, sentences, or paragraphs on Johnson’s webpages which Weisberg alleged contained confidential or private information. Circumstantially, this is proof that Weisberg had, indeed, not provided such information to Johnson before or at trial.

[14]    So this comparison would have been of interest and of help to Johnson. She had never seen this Chalk B.   Weisberg’s comment about the Salt deposition is also of interest, given that that deposition was not taken in the Juvenile Court action. It was taken under the Probate & Family Court action and was never filed in court and was, therefore, never impounded under the original §13 (pre-March-1998) of G.L. c. 209C.

[15]   Robyn is the mother’s real name. It is significant in the story because of the Batman costume and the false allegations of sexual abuse. She also ran for public office several times and is a public person. When reiterating the Bill Clinton/Monica story, we do not call it the Eddie/Monica story. What entitles Robyn to more consideration than that given our other contemporary politicians? That she is a female?

[16]   Robyn and Brown’s child left Robyn and now lives with his father. Jones’ child had a very disturbing childhood due to Robyn’s behavior. Since the BBO “trial,” he, too, has left Robyn’s home. Robyn, the child’s court-appointed attorney, and the judge whom Johnson criticized on her website caused tragic events in the lives of those children. accountability was when Johnson uploaded the pleadings to her website . . . and still is . . . . needed. The robe can only be as respected as much as the man or woman inside it merits. The professional saying, “With all due respect,” means just that: respect must be given only when it is due. The lack of accountability throughout the system breeds the courthouse violence we see today.

[17]           . . . [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). Johnson was denied any opportunity to litigate the validity of the underlying order, namely, the order of Justice Prudence McGregor.

[18]    ABC Weisberg changed the numbering or lettering system of her potential documents. When she did that, she sent a new banker’s box or two to Johnson with the new identification label. The task of continuously going through them became harassing and burdensome to Johnson.    Weisberg appears to even have changed the labeling after the so-called trial.   Johnson simply does not have an extra week to determine whether the latest batch comports with the numbering or labeling in the trial transcripts. So, for all intents and purposes, Johnson states she does not know whether she has seen all of the documents so vaguely described by Weisberg to be a “letter.”

        It must be noted that the documents Weisberg lists as being from the Juvenile Court in Exhibit 45 are not documents Johnson has likely seen, for she did not have access to documents from Juvenile Court. Given that they are simply identified by a number and/or letter in the trial transcript and no discussion of why they were offered or what they contained appears in the transcript, mention of them in this pleading is unnecessary. They are there, it appears, for fluff or window dressing.

[19]   Christopher Salt’s deposition was taken under the caption of the Probate & Family Court paternity action.

[20] The denial of access to the files of a divorce case requires “a showing of overriding necessity.” Globe News Co., Inc. v. Clerk of Suffolk County Superior Court 2002 WL 202464 at 4, No. 01-5588-F (Sup.Ct. Feb. 4, 2002) (Gants, J.), citing Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 509 (1984), and George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 279. No showing of an overriding necessity to impound Robyn and Michael’s divorce was made or even attempted. And discussion by a third party of the public record of a divorce does not constitute a violation of a professional obligation of confidentiality or a breach of professional ethics.

[21]           The document served upon Johnson was not accompanied by a summons and was not a Complaint. It did not comport with any known set of rules of civil procedure, and most certainly not with the Massachusetts Rules of Civil Procedure. It did not contain a short and plain statement of the claim showing that the pleader is entitled to relief. Mass.R.Civ.P. Rule 8(a)(1). The complaint was not simple, concise and direct, as Mass.R.Civ.P. 8(e)(1) requires. The purpose is to inform a defendant of what the plaintiff's claim is and the grounds upon which it rests. Conley v. Gibson, 355 U.S. 41 (1957).   The complaint did not set out the facts in separately numbered paragraphs, as required under Mass.R.Civ.P. 10(b). Vigor v. Chesapeake and Ohio Railroad Co., 101 F.2d 865 (7th Cir. 1939). Newman v. Commo-wealth of Massachusetts, et al., 115 F.R.D. 341 (D. Mass. 1987); see also Mmoe v. Commonwealth of Massachusetts, 393 Mass. 617 (1985) (dismissal of a complaint for failure to meet the pleading requirements of Rule 8 is, as Rule 41(b)(2) provides, a matter of discretion for the judge and defendants are entitled to the proper exercise of that discretion). Kuehl v. Federal Deposit Insurance Corporation, 8 F.3d 905 (1st Cir. 1993) (plaintiff ordered to submit amended complaint conforming to the concise pleading requirements of Fed.R.Civ.P. Rule 8(a)(2)).

               The absence of numbered paragraphs made it impossible to answer the complaint in accordance with the rules. The facts in the complaint were not set out clearly, unequivocally and directly so as to enable Johnson to respond directly and intelligently. Coburn v. Moore, 322 Mass. 204 (1948); Stoney v. Soar, 322 Mass. 408 (1948). The complaint was verbose, argumentative, redundant, and contained material that was both impertinent and scandalous. Martin v. Hunt, 28 F.R.D. 35 (D.Mass. 1961). Claims founded on separate transactions or occurrences must be stated in separate counts. Mass.R.Civ.P. 10(b). Feutz v. Mass. Bonding and Insurance Co., 85 F.Supp. 418 (E.D. Mo. 1949). They were not.

[22]     Whether the caseworkers are called investigators or social workers or psychologists is irrelevant.

[23]     To point out those flaws, she had to comment on those subjects, including but not limited to the following:

·        the mother, Robyn Gerry Sylvia,

·        that Robyn conceived out of wedlock had special significance

·        that Robyn was living with a man (Joseph Fitzgerald) when she accused Linnehan of sexual abusing the child of her out-of-wedlock union with Linnehan

·        that the court-appointed investigator, Christopher Salt, knew that Robyn and the child lived with Fitzgerald, but failed to include that in his report (a lie by omission)

·        that Robyn swore in her Complaint for divorce that the out-of-wedlock child was a child of a previous marriage (a lie)

·        that Robyn told different people different dates of her marriage (she wedded her husband only once)

·        the subject child

·        each and every “report” recommending that Linnehan be deprived of any type of relationship with his son.

[24]         Dishonestly, OBC Counsel Weisberg accused Johnson of uploading to her website reports from Juvenile Court. Johnson never uploaded such a report from any case to her website. And Weisberg recanted at trial, passim.

[25]        An order of impoundment may be entered by the court, after hearing, for good cause shown and in accordance with applicable law. In determining good cause, the court shall consider all relevant factors, including, but not limited to, the nature of the parties and the controversy, the type of information and the privacy interests involved, the extent of community interest, and the reason(s) for the request. Agreement of all parties or interested third persons in favor of impoundment shall not, in itself, be sufficient to constitute good cause.

Paragraph 1, Rule 7 of Trial Court Rule VIII, Uniform Rules of Impoundment Procedure (emphasis supplied).

[26]   Because Rule 7 of the Uniform Rules must be implemented in accordance with applicable law, it supports the shift of the burden of showing “good cause” to the person seeking denial of public access. Globe, 2002 WL 202464 at 4.

[27] “When a document in a court case is filed with the court, that document is presumptively available to the general public and the press as part of the general principle that judicial proceedings, both criminal and civil, are open to all.” Globe, infra, 2002 WL 202464 at 2, citing generally Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 546 (1977) and Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 603-611 (2000).

[28]    Upon learning from Deb Sano (1) that she wanted to pay for only 1 hour and 36 minutes of Johnson’s time and (2) that she had sent a letter to four attorneys (one to whom Johnson had referred the Sanos, one of whom was a personal friend who happened to be an attorney, one of whom was a niece, one of whom was Harry Sano’s criminal defense counsel and the son of Retired Judge Simons), Johnson then suggested to Deb Sano that they have those four attorneys in whom she confided be arbitrators of the fee dispute [see Impounded Vol. IX, Exhs. 59-65]. Parker rejected that notion and three months later, on 13 March 2000, sent her complaint against Respondent to the Bar. Johnson thus contends that the evidence is sufficient to prove that she never intended to keep any moneys that were not hers to keep, and that she did not violate Mass. R. Prof. C. 1.15(a)-(c), 1.16(d), and 8.4(c) and (h).

Having found insufficient evidence of excessive fees and of misrepresentation, etc., the BBO now complains only that money was commingled. Johnson asks, Where the BBO has found that Johnson did not owe any money to the family, what money was Johnson to hold separately? Her own money? Money that she had earned?

               Moreover, where is the authority from whence the Office of Bar Counsel derives the power of a court of common law to hear contract cases?

There was also no dispute as to records, receipts, or accounting. There was only one dispute: After sending approximately $10,700 to Johnson, of which Johnson returned approximately one-third, the wife decided she only wanted to pay for 1 hour and 36 minutes of Johnson’s time. As Abraham Lincoln explained it, “a lawyer’s time and advice are his stock in trade.” In other words, lawyers bill for their time. The wife and her family acknowledged this at the beginning of their relationship with Johnson. They denied it at the end . . . but the emails from the family prove their delight with the services rendered by Johnson.

               No honest investigator would have considered the OBC’s claim to be anything more than a de minimus fee dispute.

[29]      In the few years, ABC Weisberg was prosecuting the case, she never stated an amount of money that was allegedly commingled.   Neither did SHO Phillips state an amount that he believed was commingled with Johnson’s own funds. This is critical. Johnson had been providing services since 31 October 1999 before she ever received the $10,000 check from June Edward, Deb Sano’s sister, on or around 20 November 1999.   In fact, but for a few hours all the services Johnson provided were provided before receiving the check and before depositing it. Therefore, when Johnson deposited the check, the money had already been earned. But for Johnson deeply discounting the bill for the Sanos, there would be no question that the money was already Johnson’s before she deposited it into her personal account.

[30]     Johnson mailed another $343 dollars to Weisberg to send to Deb Sano/“Mary Parker” when an arithmetic error was later discovered.

[31] See textbox above paragraph 56 of the Amended Answer [Vol. I, Tab 46]. The OBC has copies of all the emails called out below. (It is not clear, but Johnson believes the emails from/to the Sanos and to/from Johnson are in Impounded Vol. X and XI.)

Look for the letter dated 11/6/99 from one of “Sarah’s Sisters” and the closing: “THANKS AGAIN FOR ALL YUR HELP”.

Look also on page 39 for another sister’s thanks: “Thank you for your time and we hope to hear from you soon, Pearl & Josh.”

Look at page 41 in textbox for “Know a few reporters who'd jump on this in a minute. It's a damn potential front-page story.”

Look at textbox for email dated 12/12/99 from Deb Sano on page 51: “We will be forever grateful for your help and concern. You have given us great hope and re-instilled out courage to fight. ”

And look also on page 95 on page 119, for Deb’s letter in which she wrote to Johnson:

Dear Barbara, Thanks. Know that your are not on our payroll anymore but would love to be able to

keep you posted. Who knows we may someday be a story on your wonderful educational web site. . . .

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

[32]    Johnson had asked ABC Weisberg for the source of OBC’s authority to hear contract cases, but Johnson never received an answer from her.

[33] The BBO has refused to give copies of the volumes to Johnson. Finding the pages in some of the volumes—those having tabs—should not be excruciatingly difficult, but finding the correct page in one exhibit that occupies two volumes [Impounded Volumes X and XI] will require patience and fortitude, for there is no index into the volumes. To make two trips into and out of Boston, each trip being anywhere between 45 minutes to an hour and a half (depending on the time of day), to spend $30-35 to park, and then to spend time to look up a few pages is burdensome and harassing to Johnson. The BBO is far more able to expend the money to copy a set of volumes for Johnson than Johnson is.

[34]   The list provided Respondent by BBO reads Dec 29^th for Exh. 61, not the 28^th, but there was no document dated December 29^th, so Respondent assumes this was an error by the transcriptionist. Given also that documents were renumbered at trial, Respondent is not attempting to go through the thousands of pages to find the exhibit.

[35]            The following abbreviations are related to the underlying case of Lily against her former employer and a few of its executives. Johnson has left them in place here for the sole purpose of showing that there was a basis for the assertions made by Lily and her counsel in all courts hearing or reviewing that case. Their definitions may be found in Johnson’s Answer at Count III on page 126-127 [Vol. I, Tab 46].

·        OPINION

·        ADD.

·        ADD-S.A.

·                JRA

·                CRA

·                Symbol @

·                ADD/CRA

LILY is the pseudonym for Johnson’s client. Her true name is used in the Petition for Discipline. For public purposes, Johnson began calling her "Lily" since Asst. Bar Counsel Weisberg gave pseudonyms to people who were the subject of Counts I and II of the petition. Lily had opposed Weisberg in bringing an action against Johnson, which is why Weisberg was not concerned about Lily’s privacy.

[36]   After the decision on Defendants’ first summary judgment in Superior Court, (1) the action was reduced to retaliation by constructive discharge against public policy (Count III) [A47], and (2) while Plaintiff’s motions were pending, Defendants were granted remand in August 1994 to Concord, where Defendants moved for but were denied further summary judgment [A20 @ 11/23/94].\FN1/

FN1   O'Connor in bad faith attached to Defendants’ second summary-judgment motion excerpts from Lily's deposition transcript: Lily had been sent only volume 1, and 30 days for reading had not passed. She had not yet received the remaining two volumes [A845-46].

In Concord, the court allowed in part Lily’s motion to compel production of documents [A813-835, 884-931]. When Defendants failed to comply with the order, Plaintiff moved to show cause why they should not be held in contempt for noncompliance [A1025]. The court took no action.

[37]   The OBC prosecutor, ABC Weisberg, informed Johnson that there was no complainant that caused Count III to be brought. It was brought sua sponte by the OBC when the office was alerted to an appellate decision. In 2005, when certain events occurred, however, after Johnson sought a Certificate of Good Standing, Johnson learned from documents produced by Weisberg that it was Judge McGill himself who wrote the OBC/BBO, apparently upon the court receiving the transcript from a higher court.

[38]   The company had been bought out and had undergone, amongst other things, a name change.

[39]     Years later, O’Connor was disqualified as counsel because of his dishonesty. See Winter Gardens Condominium Trust v. Winter Gardens Development Corp., 2005 WL 1132635 (Mass.Super. 2005) (McLeod, J.) (O'Connor and the law firm of Rich May, P.C., as counsel for Winter Garden Condominium Trust ("Condominium Trust"), were disqualified pursuant to Mass. R. Prof. C. Rules 3.7 and 1.10.   The BBO or the OBC did not act sua sponte against O’Connor, as they did against Johnson. “Thus, attorney O'Connor's act of withholding discoverable information, in an attempt to shield his own liability on the contribution and indemnity claims, is a situation that implicates a conflict of interest and therefore falls squarely within the purview of Rule 1.7(b).” Id. at *4.

The prior year, in O'Connor v. O'Connor, 61 Mass.App.Ct. 1109 (2004), he judgment of contempt was affirmed against Appellant O’Connor.   Then, too, the BBO or the OBC did not act sua sponte against O’Connor, as they did against Johnson.

[40]   The words of one of the observers who spoke after SHO Phillips ordered the public out of the hearing room were not included in the transcript of 2 December 2003 [Vol. VII, Tab 201 between pages 62 amd 64]. Redaction of a public record is not beyond the unlawful acts of those present representing the BBO.

[41]     In ¶122 of the Petition for Discipline, ABC Weisberg wrote that on 3 December 1998, Judge McGill ordered O’Connor to serve Johnson with a subpoena duces tecum for her production of designated records at the hearing. “The subpoena,” Weisberg wrote, “was served on the respondent in hand on or about December 5, 1998.”

[42]   Ultimately the assistant bar counsel, Weisberg, did not bring a charge based on that fabricated false complaint therefore evidence of that falsity was not presented at trial, but that did not lessen the acrimony electrifying the trial at its onset. Johnson anticipated, however, that ABC Weisberg would use it as a false factor in aggravation.

[43]        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?

[44]        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.

[45]     “Section 8. Witnesses may be summoned to attend and testify and to produce books and papers at a hearing before a city council, or either branch thereof, or before a joint or special committee of the same or of either branch thereof, or before a board of selectmen, a board of police commissioners, a fire commissioner or a board of fire commissioners, a commissioner of public safety, a school board, the alcoholic beverages control commission established by section forty-three of chapter six, a licensing board or licensing authorities, as defined in section one of chapter one hundred and thirty-eight, a board of registrars of voters, the police commissioner or election commissioners of Boston, the Massachusetts Water Resources Authority, the state racing commission, the parole board or a board of appeals designated or appointed under section thirty of chapter forty, as to matters within their authority; and such witnesses shall be summoned in the same manner, be paid the same fees and be subject to the same penalties for default, as witnesses in civil cases before the courts. . . .” G.L. c. 233.

[46]    A proceeding – whether judicial, administrative, quasi-judicial, or quasi-administrative – that does not allow an accused to call witnesses in his or her defense would or should be deemed unconstitutional. See U.S. Constitution, Sixth Amendment (“. . . the accused shall enjoy the right . . . to have compulsory process for obtaining Witness in his favor . . .”). Constitution of the Commonwealth of Massachusetts, Part the First, Article XII (“And every subject shall have a right to produce all proofs, that may be favourable to him, to meet the witnesses against him face to face, and to be fully heard in his defence . . . ”). Although a disciplinary proceeding has been deemed a civil proceeding, there is much similarity between it and a criminal one.

[47]    The penumbra of unlawful discrimination might also cover the medical professions. Johnson has not checked, given that the effect of discrimination on those professions is beyond the scope of this Reply.

[48]         “[L]awyers also enjoy first-class citizenship.”   Spevack v. Klein, 385 U.S. 511, 516 (1967) (overruling Cohen v. Hurley).

[49]   Johnson had seven days within which to appeal Carpenter’s decision. But it would have been futile. The BBO and OBC are the SJC’s offspring. Not only is Carpenter’s colleague and former partner sitting on the SJC bench, but the SJC had made unconscionable decisions on the few cases Johnson had recently brought to that body. For details of author’s then-recent SJC cases, see

·        http://www.falseallegations.com/drano88-abend-rule-27-letter-to-appeals-court.htm

·        http://www.falseallegations.com/drano87-gordon-rule-27-letter-to-appeals-court.htm and

·        http://www.falseallegations.com/drano94-restraining-order-in-another-state.htm

In shaded italic Comic Sans type below, Johnson states what Weinberg did not state,

to wit, the purpose of the documents offered and accepted as trial exhibits.

5

An Amended Complaint Based on the Deprivation of Parental Rights
Suit against doctor, court investigator, mental-health counselor, psychologist, social worker, trial court and child protective service

Linnehan was exercising his First Amendment right to petition to the federal court. Johnson had a right to publish the pubic record. Johnson also had an obligation to expose the unscrupulousness of the state courts throughout the course of the Linnehan proceedings.

Linnehan and Brown

9

Opposition to Motion to Dismiss on Immunity Grounds

Another pleading in Linnehan’s federal court case. Same rights, same obligations.

Linnehan and Brown

12

Opposition to Motion for Judgment on the Pleadings on Grounds of Sovereign Immunity: A Creative Look at Its Unconstitutionality. It Could Change the Way Massachusetts Treats Its Citizens

Another pleading in Linnehan’s federal court case. Same rights, same obligations.

Linnehan and Brown

17

Opposition to Motion for Judgment on the Pleadings

Another pleading in Linnehan’s federal court case. Same rights, same obligations.

Linnehan and Brown

20

Jim's Story: The Devastating Story People Have Been Waiting For

Another pleading – Linnehan’s affidavit -- in his federal court case. Same rights, same obligations.

Linnehan and Brown

21

Opposition to Eileen Kern's Motion for Judgment on the Pleadings

Another pleading in Linnehan’s federal court case. Same rights, same obligations.

Linnehan and Brown

22

Amended Complaint

A complaint for modification of child custody. Brought to expose Robyn’s dishonesty, the reversible errors of Judge Ronald Harper’s court(s), and Robyn’s lack of fitness to remain the custodial parent.   Another public record, not impounded, filed years after §13 of G.L. c. 209C was amended. Same rights, same obligations.

Linnehan v. Robyn Gerry Sylvia Paternity Case

23

AFFIDAVIT OF ROBYN GERRY-SYLVIA IN HER DIVORCE CASE

Another public record, not impounded. Purpose to show how Robyn changed the facts to suit her purpose.

Bar Counsel Is Playing Censorship Police: the Thought Police

MS. WEISBERG:   Next is Drano Number 23. It is not a pleading from either the probate case or the federal case. It is a pleading that came from the mother's divorce case. It is not an impounded record. If I may add, however, my case does not depend on the information being impounded. My case -- Bar counsel's allegations include the publication of sensitive personal information with an impermissible purpose, irrespective of whether the source is impounded.

[Transcript, I:101-102, marked as Trial Exh. 24]. Bar Counsel has no evidence that the information was uploaded with an impermissible purpose. The only evidence that can be properly gleaned from Robyn’s affidavit is that Robyn is a liar: that she identified Linnehan’s child as being a “child from a previous marriage.” She was never married to Linnehan. The inference is that her husband did not know the truth. The inference is also that Robyn’s complaint to the Bar about Johnson is equally as fallacious.

Robyn Gerry-Sylvia v. Michael R. Sylvia Divorce Case

24

AFFIDAVIT OF MICHAEL R. SYLVIA IN HIS DIVORCE CASE

Another public record, not impounded. Purpose to show that Linnehan’s son had moved seven times, which proved that the stability that Robyn claimed the boy had was non-existent. Robyn had lied to the court and to the diverse therapists that her husband played the role of father to the boy. In truth, her husband did not live with the boy but for two or so years before Robyn accused him, too, of sexually abusing his children born of the union with his deceased wife.

Robyn Gerry-Sylvia v. Michael R. Sylvia Divorce Case

25

Complaint

Another public record, not impounded. Purpose to show that Robyn told the divorce court that Linnehan’s son was from a prior marriage. Interesting is that it demonstrates she even lied to her husband about her background and that of the child.

Robyn Gerry-Sylvia v. Michael R. Sylvia Divorce Case

26

Obituary of a Grandfather Who Longed to See His Grandson Before He Died . . . AND THE LETTER OF THE PSYCHOLOGIST WHO RECOMMENDED DENIAL OF GRANDPARENTS' VISITATION

That the OBC should find offensive for whatever reason an obituary of Linehan’s dad is remarkable!   Or maybe the OBC simply did not want the inhumane recommendation of a psychologist that the very fine, respectable grandfolks should not see their grandchild.

Linnehan Grandparents v. Robyn Gerry Sylvia

28

Jim's Family Pictures: This site is dedicated to Brenden Linnehan so that he can see his family and particularly his dad!

And what is so terrible that a child get to see his own family, a child that has never known a family to call his own?

Linnehan related

31

Plaintiff James Linnehan's Opposition and Combined Memorandum in Support of His Opposition to Children's Hospital's and Eli Newberger's Motion to Dismiss

Another public record from federal court. Same rights, same obligations.

Linnehan and Brown

32

Linnehan's Opposition and Memorandum in Support of Opposition to Jack McCarthy's Motion to Dismiss

Another public record from federal court. Same rights, same obligations.

Linnehan and Brown

34

Renegade Juvenile Court Judge Orders Impoundment of Materials Being Sued on in Federal Court. The outrageous order is reminiscent of edicts issued by tyrants, autocrats, and sociopaths who have climbed to the pinnacle of power in countries other than OUR U.S. of A.

My disgust at Lawton’s order is self-evident. Deborah Wolf’s so-called complaint was nothing that even remotely resembled a complaint.   She wanted Juvenile Court to order me to remove files that allegedly had info deriving from Juvenile Court. None of my material was derived from Juvenile court. I did not upload Juv. Ct. documents and Judge Lawton had no jurisdiction over me. If he had, he would have taken further action. He did not, because he could not.

Linnehan related

37

Letter to Judge Mark E. Lawton about Order to Impound Reports of Social Workers, Psychologists, and Eli Newberger-Childrens Hospital and Certain Documents on This Website

Worth reading.

Linnehan related

42

Letter to Chief Judge Martha P. Grace, Juvenile Court, and Chief Judge Sean M. Dunphy, Probate & Family Court

Deborah Wolf and Bruce Lider were trying to get the Probate and Family Court action into Juvenile Court. It did not belong there. The “higher” judges agreed with me…only because they had no excuse legally to disagree with me.

Linnehan related

66

Petition for Interlocutory Relief for Temporary Child Custody
This petition is unlikely to be successful. The court will likely say that relief will be available after final judgment, but it WON'T BE. The child will be too old and will likely leave the home of the mother and go to points unknown. The father does not want to risk losing track of him.

In either event, the petition shows the format -- at least in Massachusetts -- to be used for such an interlocutory appeal. It may also work in other States. The law, primarily from the United States Supreme Court, is good in all States.
DENIED on 12/27/01 without hearing or explanation.

As predicted, the petition was unsuccessful. As I wrote in my Drano Table, I uploaded the petition so that pro-se-ers could see the format to use for such a petition. The purpose of the petition was clearly to have a higher court review what had occurred below.

Linnehan domestic relations case

70

Complaint in the Nature of a Petition for a Writ of Certiorari and to Invoke the General Superintendence of the Court
In Massachusetts, this is the only way to "appeal" a denial by a single justice in the Appeals Court to give relief from the application of the Massachusetts Child Support Guidelines where a father has no visitation

This file, too, had a dual purpose. To educate those of the public who had to learn how to write a 211:3 petition and to possibly convince the highest court in the Commonwealth to help Linnehan.

Linnehan v. the mother of his child and the court

72

Reply of Brown and Linnehan to Defendants' Appellee Briefs
The Primary arguments are immunity and state action, i.e., whether the defendants were state actors.

This file, too, had a righteous purpose. To teach those of the public who had a need to know how to reply to appellee briefs.

Linnehan & Brown against Evil Evaluator ELi Newberger et al
in the multibillion $,$$$,$$$,$$$ sex-abuse industry

81

The Bar War: Barb's Second Response to the Complaint by Robyn (mother of Jim Linnehan's child) to the Office of the Bar Counsel and/or Board of Bar Overseers

This file had the purpose of teaching lawyers that they do NOT have to let the OBC/BBO intimidate them, that they should speak out, that they should do “right” by their clients and not wimp out and be fearful of retaliation by the judiciary and by the OBC/BBO acting on behalf of the judiciary.

Barb's fight for her First Amendment rights continues

82

The Bar War: Barb's Second Response to the Complaint by Deborah D. Wolf (the child's Juvenile-Court-appointed attorney) to the Office of the Bar Counsel and/or Board of Bar Overseers

This file, too, had the purpose of teaching lawyers that they do NOT have to let the OBC/BBO intimidate them, that they should speak out, that they should do “right” by their clients and not wimp out and be fearful of retaliation by the judiciary and by the OBC/BBO acting on behalf of the judiciary.

Barb's fight for her First Amendment rights continues against the court-appointed attorney

83

The Bar War: Barb's Response to the Complaint by the Office of the Bar Counsel

Same purpose as that for Drano ##81 and 82.

Barb's fight against Bar Counsel

            As noted several times, supra, “[L]awyers also enjoy first-class citizenship.”   Spevack v. Klein, 385 U.S. 511, 516 (1967) (overruling Cohen v. Hurley).    It is borne out in the two cases cited by Weisberg: Gentile v. State Bar Nevada, 501 U.S. 1030, 1991.SCT.43663 <http://www.-versuslaw.com> (1991) (reversed; petitioner's conduct did not demonstrate any real or specific threat to the legal process, and his statements have the full protection of the First Amendment), and Anthony v.Virginia State Bar, ex rel Ninth District Committee, 621 S.E.2d 121, 270 Va. 601, 2005.VA.0000608< http://www.versuslaw.com> (2005) (a derogatory statement concerning the qualifications or integrity of a judge, made by a lawyer with knowing falsity or with reckless disregard of its truth or falsity, tends to diminish the public perception of the qualifications or integrity of the judge, and creates a substantial likelihood of material prejudice to the administration of justice as a matter of law and is not, therefore, constitutionally protected speech).

            Gentile does not limit Johnson’s speech as Weisberg contends. In Gentile, the attorney gave a statement to the press while a criminal case was ongoing.   Although that is permissible, the attorney may not, under the relevant Nevada rule, make

"an extra-judicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding."
Gentile, 1991.SCT.43663 at ¶11 <http://www.-versuslaw.com>. The case was reversed because Gentile did not make a statement materially prejudiced an adjudicative proceeding.
Neither did Johnson.   Johnson also did not make statements while the cases in the files complained-of by the OBC and BBO were ongoing. Johnson uploaded pleadings, which are public records.

“At issue here is the constitutionality of a ban on political speech critical of the government and its officials.” Id. at ¶15. “[T]his case involves punishment of pure speech in the political forum. . . . His words were directed at public officials and their conduct in office.” Id. at ¶17.

The same issue is at the core of this case against Johnson. The officials of whom Johnson was critical were judges— a by-then-retired judge and a sitting Juvenile Court judge before whom Johnson never appeared\[1]/—and their conduct in office.

There is no question that speech critical of the exercise of the State's power lies at the very center of the First Amendment. Nevada seeks to punish the dissemination of information relating to alleged governmental misconduct, which only last Term we described as "speech which has traditionally been recognized as lying at the core of the First Amendment." Butterworth v. Smith, 494 U.S., (1990) (slip op., at 7).

The judicial system, . . . , play a vital part in a democratic state, and the public has a legitimate interest in their operations. See, e. g., Landmark Communications, Inc. v. Virginia,435 U.S. 829, 838-839 (1978). . . . Without publicity, all other checks are insufficient; in comparison of publicity, all other checks are of small account." In re Oliver, 333 U.S. 257, 270-271 (1948). As we said in Bridges v. California, 314 U.S. 252 (1941), limits upon public comment about pending cases are

"likely to fall not only at a crucial time but upon the most important topics of discussion….

“No suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expression." Id., at 268-269.

In Sheppard v. Maxwell, 384 U.S. 333, 350 (1966), we reminded that "the press . . . guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism."

Gentile, 1991.SCT.43663 at ¶¶18-22 <http://www.-versuslaw.com>.

At the very least, our cases recognize that disciplinary rules governing the legal profession cannot punish activity protected by the First Amendment, and that First Amendment protection survives even when the attorney violates a disciplinary rule he swore to obey when admitted to the practice of law. See, e. g., In re Primus, 436 U.S. 412 (1978); Bates v. State Bar of Arizona, supra. We have not in recent years accepted our colleagues' apparent theory that the practice of law brings with it comprehensive restrictions, or that we will defer to professional bodies when those restrictions impinge upon First Amendment freedoms. And none of the justifications put forward by respondent suffice to sanction abandonment of our normal First Amendment principles in the case of speech by an attorney regarding pending cases.

Gentile, 1991.SCT.43663 at ¶82 <http://www.-versuslaw.com>.

            The instant case is distinguishable from the Virginia case Anthony in that Johnson has had considerable documentary evidence that she spoke the truth regarding the judges she criticized. There is nothing parallel in the two cases. Anthony sounds like a movie script. It contains “Deep Throat” telling Anthony about an improper ex parte communication in an anonymous letter signed only "A Grateful Wife.”    There seemed also to be a subplot of “conspiracies” in Anthony.
In comparison, Johnson’s criticisms were based on the law, namely constitutional statutes and the federal and state constitutions. Significantly, in Anthony, the Virginia Supreme Court wrote, “Judges are no more immune from criticism in the public forum than are any other public office-holders, although their ability to reply to it is extremely limited.” 2005.VA.0000608 at ¶36 < http://www.versuslaw.com>.

A judge's errors are subject to correction on appeal, and judicial misconduct is subject to discipline by independent bodies created by statute. Judges are subject to removal or impeachment for wrongdoing pursuant to constitutional provisions, and they are responsible for violations of the law as are all other citizens.

Id. Again significantly, these cautionary statements are not applicable to the instant case. 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: With respect to Count I, the respondent had a duty to raise her First Amendment claims by challenging the court orders specifically impounding the information she published on her website – and, in raising them, refrain from disclosing the impounded material. See Mass. R. App. P. 16(m). Instead, she simply defied the orders and belatedly claims here her First Amendment rights as a collateral defense to her disobedience of the court orders. See Florida Bar v. Rubin, 549 So.2d 1000 (Fla. 1989) (attorney may not refuse to obey court order based on personal belief it is erroneous); Florida Bar v. Gerstein, 707 So.2d 711 (Fla. 1998) (attorney must obey order where he had exhausted all appeals); Florida Bar v. Wishart, 543 So.2d 1250, 1252 (Fla. 1989) (attorney obligated to obey court orders “until such time as they are properly and successfully challenged”).

Johnson’s Counterpoint: The BBO’s assertion has reached the height of absurdity, and the cases the BBO cites have absolutely no applicability here. Due process requires notice and an opportunity to be heard. Johnson was never served with a complaint . . . and to Johnson’s knowledge, the OBC did not introduce a complaint alleged to have been served on Johnson.   Johnson was never in Judge Lawton’s court. His order, as repeated passim, supra, commanded Johnson to return documents from his court to his court. Johnson did not have documents from his court to be returned to his court. Johnson did not even have a docket sheet of the subject 1987 or 1988 Care & Protection case. By the time Johnson met the child’s father in 1999 or 2000, the child was already around 15 or 16 years of age and suffering deeply from all the ills that statistics tell us children deprived of their father suffer. The judge who deprived this child of his father, Judge Ronald Harper, had retired. He had immunity. He was not accountable, though he should have been. It is that grotesque circumstance which Johnson was publicizing.

            As an Internet publisher, had Johnson either wanted or needed access to Juvenile Court documents, she could have sought access to the Juvenile Court documents, as she described in her opposition to the protection order [Vol. II, Tab 54, p. 16], but she did not want or need them:

            . . . when a document in a court case is filed with the court, that document is presumptively available to the general public and the press as part of the general principle that judicial proceedings, both criminal and civil, are open to all. See generally Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 546 (1977); The Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 603-611 (2000). When that access is denied despite the "rigorous presumption of openness," The Boston Herald, Inc. at 608, any member of the general public or the press may seek relief from the court to obtain access to these filed documents. See generally, Uniform Rules on Impoundment Procedure, Rule 10 (allowing "any interested third person" to move to modify or terminate an order of impoundment). Documents filed with the court are treated differently from documents obtained through discovery because " 'the public often would not have a 'full understanding' of the proceeding and therefore would not always be in a position to serve as an effective check on the system' if it were denied access to judicial records." The Boston Herald, Inc. at 606, quoting Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 502 (1st Cir.1989). In other words, the law gives the public a presumptive right of access to all documents filed with the court because the right to a public trial is one of the means devised to ensure the right to a fair trial, and the public often needs access to the court papers to determine whether a trial has been conducted fairly. There is no similar presumptive right of access to documents obtained through discovery but never filed with the court, because the former documents are not needed to obtain a full understanding of the judicial proceeding.

Petrell v. Rakoczy, 2001 WL 1631575 *2, No. 01-2849-F (Mass.Super. Dec.19, 2001) (Gants, J.). If the mainstream press had taken interest in the files uploaded to Johnson’s website, their lawyers could have sought access. It was Johnson’s goal to capture the interest of the mainstream press in the unaccountability of the court system. Much to Johnson’s disappointment, she did not succeed reaching that particular goal.

First Amendment, sentences 7-8 of 8: Because the respondent failed to timely raise her First Amendment claims by challenging the validity of the court orders, it was misconduct to defy them, and she waived any such claim in this proceeding. As a result, we need not address any First Amendment claims, except to note that they would likely fail under authority of Gentile, supra.

Johnson’s Counterpoint: First, despite Weisberg’s false assertion to the contrary, Johnson has raised her First Amendment rights since and before Day I of the disciplinary action. See, for example, ¶¶34, 35 (in the textbox and below it), and 37 of Johnson’s Amended Answer [Vol. I, Tab 46]. See Johnson’s Opposition to Motion for Protection Order [Vol. II, Tab 54]. See Johnson’s Brief on Appeal of the Findings and Recommendation of the Special Hearing Officer [Impounded Vol. VII, Tab 233], as well as many other of her pleadings in the case below.

            Second, the high court should sanction OBC ABC Weisberg, former Bar Counsel Daniel Crane, and the BBO for their intentional misrepresentations to the Court. Should this Court not sanction them, this Court will encourage those entities and their staffs to continue the dishonorable habit of bringing false charges against innocent attorneys, a habit evidenced through the Board Memorandum, and a habit that should not be countenanced by this Court.

BBO Issues on Appeal re: Count I: The respondent claims that the court orders impounding the records in the care and protection and paternity matters were erroneous and therefore invalid. The respondent received the order from the court in May 2001, informing her that all juvenile court records are confidential. Despite actual knowledge of the order, the respondent took no action to challenge it, but rather simply ignored it. The same was true of the 2003 court order. As a result, the special hearing officer properly rejected the respondent’s claim that she was not subject to the juvenile court orders (for lack of proper service and lack of personal and subject matter jurisdiction), since she made no effort to challenge them at the time. Again, the respondent’s avenue of relief was to challenge an order she believed to be improper; she could not simply ignore it with impunity. Rubin, supra; Wishart, supra. By failing to present a timely challenge to these orders in the underlying action, she waived her claims of error and cannot pursue them in this proceeding.

Johnson’s Counterpoint:   See the preceding discussion. This is more of the same. See also Johnson’s Drano Series #34 [Impounded Vol. VIII, Exhs. 31A and 31B].    Significantly, neither the OBC nor the BBO produced proof of service of a Complaint filed in Judge Lawton’s court. The Florida Bar cases against Rubin and Wishart are simply not applicable.

BBO Issues on Appeal re: Count II, ¶1: The respondent contends that Mary Parker’s statement that she hoped, sometime in the future, to see the Parkers’ story on the respondent’s website constituted consent to the respondent’s publication of all of the information concerning the Parkers that she put on her website. Under the disciplinary rules, a “consultation,” defined as “communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question,” Mass. R. Prof. C. 9.1(c), is required before a client can be deemed to have consented to the revelation of a secret. Mass. R. Prof. C. 1.6(a). There is no evidence of any such consultation with the Parkers, nor should what is simply a speculative statement be construed as such.

Johnson’s Counterpoint: This, too is discussed, supra. When “Mary Parker” wrote to Johnson that someday their “story” would be “on your wonderful educational website,” it was reasonable for Johnson to conclude that she meant the entire “story” not just pieces of it.

BBO Issues on Appeal re: Count II, ¶2: Similarly, the respondent’s claim that, once the Parkers disputed her fee, she had a right to defend herself by publishing this information must be rejected, because the rules permit revelation of confidential information only to the extent that the attorney “reasonably believes necessary” to defend allegations of wrongdoing. 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. A review of the respondent’s website clearly establishes that the respondent’s publication exceeded any conceivably reasonable limit.

Johnson’s Counterpoint: A bill is not confidential 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).

[A] plaintiff 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). Either this is good law or it is not. Reading the OBC Petition and subsequent pleadings and the BBO decisions and other memoranda convinces the reader that the OBC and BBO do not countenance the law that limits their excessiveness and overreaching.

The plaintiff made bald assertions that the defendant intended to harass witnesses and create confusion in the proceedings, but these claims are unsupported by the record.

C.O. v. M.M., 442 Mass. 648, 658 n. 6 (2004). Here, this is, of course, exactly what both the OBC did and what the BBO approved and adopted.

BBO Issues on Appeal re: Count II, ¶3: Finally, the respondent argues that the criminal charges were not confidential because they were a matter of public record and that the Parkers waived confidentiality by discussing their problems with family and friends. These contentions are clearly at odds with Comment [5A] to Rule 1.6 of the Mass. R. Prof. C.: “[T]he mere fact that information disclosed by a client to a lawyer is a matter of public record does not mean that it may not fall within the protection of this rule.” As the information about the Parkers, published by the respondent on her website, was not “generally known,” it remained confidential within the meaning of Mass. R. Prof. C. 1.6. See Restatement (Third) of the Law Governing Lawyers, § 59, comment d (1998).

Johnson’s Counterpoint: Where neither the OBC nor the BBO has identified a statement that it condemns, it is impossible to respond to this paragraph. The OBC and BBO should read the case it cited: the Gentile case. There, Gentile made a statement, it was identified, it was analyzed first by the Nevada State Bar and then by the United States Supreme Court, and next a conclusion was reached. Without identification of any particular offending statements, it is impossible for Johnson or for this court to analyze anything. The BBO’s recommendation based on this ground must fail.

[A] plaintiff 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 Count III – Issue Preclusion, ¶1: Before commencement of the disciplinary hearing, the Board Chair allowed Bar Counsel’s motion for issue preclusion with respect to the essential factual charges in Count III, namely that, in the course of representing a client in a civil action, the respondent filed frivolous motions in bad faith, for which she was sanctioned, that after those orders were affirmed on appeal she knowingly disobeyed the orders, and that she thereafter refused to purge her contempt until after she was incarcerated. The factual issues underlying this conduct had already been litigated and determined in the respondent’s contempt proceedings, which were then upheld on appeal. HMM Associates, Inc. v. Johnson, 44 Mass. App. Ct. 1126, further app. rev. denied, 427 Mass. 1108 (1998). The Appeals Court expressly affirmed the finding that the respondent had filed, without legal or factual basis and in bad faith, certain motions, and that the orders for payment of attorney’s fees and costs as sanctions were proper. The Court also affirmed the district court’s finding of contempt.

Johnson’s Counterpoint: This paragraph is quite interesting. Originally on 22 Match 1995, Johnson was found in contempt of a non-existent Order. The Order, the District Court Judge Paul McGill claimed, issued on 3 March 1995.   But there was no such Order.   That Order was later fabricated. The OBC and Weisberg, however, ignored all the evidence Johnson had produced prior to bringing the Petition for Discipline of Johnson and relied on the non-existent but later fabricated Order [Vol. V, Exh. 83]. See Petition ¶¶105-107 [Vol. I, Tab 1] and then the corresponding paragraphs in Johnson’s Amended Answer [Vol I, Tab 46].

            BUT in this paragraph, the BBO seems to have switched theories. The contempt, the BBO concluded, was no longer for noncompliance with the non-existent March 3d order but for failure to pay sanctions for “frivolous” motions. See the references Johnson pointed out in her Amended Answer [Vol I, Tab 46] regarding the allegedly frivolous motions . . . motions that were declared frivolous on 17 January 1996, 11 months after they had been denied because the court could not produce the non-existent motion and Johnson kept on challenging the court to produce it:

·       page 125, Table C, column for 1/17/96

·       page 130, Table 8

·       page 146, Table 12

·       page 162 note 3, Table 31 (following ¶111)

·       page 166, Table 33 (following ¶111)

·       page 167, Table 34 (following ¶112)

·       page 169, Table 35 (following ¶113)

·       page 176, ¶116

·       page 177, ¶116

·       page 181, Table 44

·       page 195, ¶127

·       page 196,¶132

            Additionally, the OBC, the BBO, and Johnson could only guess at which motions they were. The Court never identified the motions.   The February 1995 motions were the only possible motions because Johnson’s other pleadings were all essentially defensive: oppositions or notices of appeal or transfer. It was all a cover up by the court, by Judge Paul McGill.

            Johnson was absolutely not incarcerated because of nonpayment of the bizarre order about so-called frivolous motions. Johnson was incarcerated because she began answering a question regarding a box with the word “No.”

            Johnson incorporates herein by reference her larguments on pages 51-55, supra, regarding the offensive use of collateral estoppel. Preclusion of the issue was improper and fundamentally unfair.

BBO Count III – Issue Preclusion, ¶2: Based on the Appeals Court decision and the finality of the subsequent district court orders, we conclude that the 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). There was “an identity of issues, a finding adverse to the party against whom it is being asserted, and a judgment by a court or tribunal of competent jurisdiction.” Matter of Goldstone, supra at 558-559. Moreover, the respondent had a “full and fair opportunity to litigate the issue in the first action.” Id. at 558. The facts demonstrate that the district court held several hearings concerning the respondent’s contempt and gave her ample opportunity to litigate the issues.

Johnson’s Counterpoint:    Johnson incorporates herein by reference her argument on pages 51-55, supra, regarding the offensive use of collateral estoppel. Preclusion of the issue was improper and fundamentally unfair.

BBO Count III – Issue Preclusion, ¶3: In her pleadings, the respondent contended that she lacked notice of the court’s order. However, this issue was properly a matter for the trial court, in the first instance, and then the Appeals Court. It appears from the orders of both courts that she did previously raise this issue and it was rejected. Now, for the first time, the respondent argues that a March 3, 1995 district court order on which the contempt orders were based was fabricated after March 3, and claims that she only recently discovered this issue. There is no question that the respondent had personal knowledge of the facts pertaining to entry, service and notice of the order during the relevant time and should have ascertained and raised any issues concerning the validity of the order then.FN10 We conclude that she should not be permitted at this late date to collaterally attack the validity of the court order in these proceedings. See Matter of Cohen, supra; Matter of Goldstone, supra. Moreover, she was bound to obey the court orders until she was able to demonstrate their invalidity. See Rubin, supra; Wishart, supra.

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.   The tape would have proved that Johnson was jailed, as Johnson has contended, because she said “No” at the beginning of an answer about the contents of a box.   She was not jailed because—as Weisberg has contended—of the pseudo-contempt with which Johnson was charged, nor because of her failure to pay money to the court or to Kozlowski’s counsel. (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.

The admissibility of evidence in board proceedings is governed by the [430 Mass. 365] State Administrative Procedure Act. (FN7) G.L. c. 30A, § 11(2). See Matter of Tobin, 417 Mass. 92, 102 (1994); Board of Bar Overseers Rules § 3.39 (1999). Massachusetts appellate decisions have repeatedly permitted administrative agencies to consider transcripts of other proceedings in reaching determinations.

In re Segal, 430 Mass. 359, 364-365 (1999).

            It follows that the tape of the December 17^th hearing, to which Weisberg refers, would have been better than merely probative, it would have provided definitive proof of that Weisberg’s version is false and that Johnson”s iteration of the facts of that day is true. Given that the OBC had Judge McGill’s letter in 1998, and the judge clearly knew in 1995 or certainly in 1996 that he was going to report Johnson to the Bar, he should have saved a copy of the tape of that material hearing. He might have. He also might have given it to the OBC and/or the BBO. It might also be that because it proved Johnson’s iteration of the facts, the OBC and/or the BBO intentionally withheld it.   Johnson’s efforts to get the tape were to no avail. Mr. Clerk Suleski would also been a source of truth. Sadly, he had passed by the time the OBC let Johnson know that they would be going forward on Count III.

            Clearly documentary evidence produced by Weisberg did not have sufficient indicia of reliability. Under Tobin, 417 Mass.at 102, the “documentary evidence introduced [had to be] clearly relevant and carr[y] with it sufficient indicia of reliability.” Coupling the unreliable documentary evidence proffered by Weisberg with the failure to give Johnson a fundamentally fair opportunity to rebut the documentary evidence. Johnson was not afforded due process, as required.” Cf. Tobin, 417 Mass.at 102

Ironically, Weisberg argued Johnson’s case for her when Weisberg quoted Jarosz v. Palmer, 436 Mass. 526, 531 (2002):\[2]/

. . . a proceeding has preclusive effect when the court below "had before it the relevant ... documents" and "read and heard the litigants' opposing views on what meaning and effect should be afforded to those documents.’” Id., quoting J. Friedenthal, Civil Procedure § 14.11 at 672, 673 (1985).

Weisberg Brief, at 17 (emphasis supplied). That is exactly the point, McGill read and heard nothing! And there was no order of March 3d. That mythical order had to be fabricated. See the “pictures” in Johnson’s Amended Answer.\[3]/ (They are in color on Johnson’s website.)

On March 3d, 1995, in McGill’s court, no decision was made regarding Motion #157, which was handed to Johnson as she got to the podium. See the clerk’s endorsement of that fact at the very top of the motion itself and as noted in the docket sheet.

On March 22d, 1995, the day McGill found Johnson in contempt of the non-existent order of March 3d. On March 22d, McGill did not hear Johnson say much more than “there had been no such order on March 3d.”

See Johnson’s Amended Answer, into which she incorporated pleadings she had written in the mid-90s.

·        Figure 1.          Motion #157 and Comments

            ·        Figure 2.          Notice of Disposition Made on March 3d,
1995.

                                        The Notice is dated March 7, 1995; Motion
#157 is not on it.
·        Figure 3-1.    Docket Sheet for Concord District Court Action

                            See entry for #157: filed in open court

·        Figure 3-2.    Docket Sheet for Concord District Court Action

                              See notice as recorded in docket sheet. Motion #157 not decided

Table 15.              Hearing of 22 March 1995

In Table 12, Johnson wrote “FN Johnson's claim that she had no notice was deemed by the lower court and by the appellate panel as having no merit [A216 (March 22, 1995) and OPINION at 4 and OPINION at 4 n.6].   It is well-settled that notice is central to due process.”

That our courts deem an argument about not having notice as being meritless is a travesty of justice and something about which we should all feel ashamed: that we let our courts run amok.

Weisberg is thus 100 percent wrong by saying there is not a shred of evidence showing a conspiracy between the judge and the opposing counsel, O’Connor.\[4]/ Look at the scanned images. Look at the evidence, the real evidence, such as the clerk’s notice, the docket sheets. Read Johnson’s Amended Answer.   It addresses each of Weisberg’s bogus claims in detail and references Johnson’s proofs, all of which were precluded – in advance -- from the proposed OBC/BBO trial. Look at Weisberg’s file . . . See if she has dared put the fabricated document into it.

Johnson hopes that the Board will acknowledge the deficiencies in Weisberg’s arguments as well as deem Weisberg’s failure to deal with the real issues fatal to her positions. And certainly Johnson also hopes that the truth will ultimately prevail.

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: It appears the OBC and BBO theory changes again. They’ve taken the buckshot approach, hoping something will stick.   Johnson cannot bear writing about the events of 1995 and 1996 for the dozen^th time. Instead, Johnson beseeches this Court to read her Amended Answer for Count III thoroughly [Vol. I, Tab 46]. The happenings were many and convoluted by Judge McGill’s convoluted and inconsistent and continuously changing decisions and orders.

BBO The Appropriate Sanction, ¶1: Based on the misconduct in the three counts and the factors in aggravation, the special hearing officer recommended disbarment. We agree.

Johnson’s Counterpoint: And Johnson disagrees.

BBO The Appropriate Sanction, ¶2: The respondent’s misconduct has been directed toward her clients, opposing parties, other counsel, judges and other adjudicators, witnesses and innocent third parties. She has ignored court orders repeatedly. She has made inflammatory and contemptuous statements both verbally and in writing on her website and in this disciplinary proceeding. Her misconduct demonstrates her outright refusal to conform her conduct to professional standards and ethical requirements. As a result, the judicial system and the public must be protected from her repeated misconduct.

Johnson’s Counterpoint: And 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).

[A] plaintiff 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 The Appropriate Sanction, ¶3, sentences 1-2 of 9: In Counts I and III, the respondent repeatedly violated court orders, for which the standard sanction is at least a suspension. See, e.g., Matter of Cohen, supra; Matter of Tobin, supra.

Johnson’s Counterpoint: In Count I, there was Judge Lawton’s unlawful order, described supra. In Count III, there was a series of unlawful orders by Judge McGill, all changed one after another for an entire year. There was no logical and clear explanation for his mysterious judicial obstinancy to hold on to orders that had no basis either in fact or law. To speculate on the reasons for his irrationality is beyond the scope of his pleading. All Johnson ever wanted since this OBC- and BBO-generated nightmare began is an opportunity to have a fair hearing—not only one with the appearance of fairness—with the opportunity to examine the judge and O’Connor in front of a jury. Given the absence of fundamental fairness, the contempt order may not stand. Labor Relations Commission v. Fall River Educators' Ass'n, 382 Mass. 465, 469 n. 5 (1981).

    As to Matter of Tobin, supra: Tobin attempted to collect an excessive fee and disregarded appellate procedures and the finality of judgments. A single justice of the Supreme Judicial Court held that that conduct warranted a 18-month suspension from practice of law. Johnson was not found to have collected excessive fees. She also did not disregard appellate procedures.   Johnson does not know to what event the BBO is referring by writing that she disregarded finality of judgments.

            As to Matter of Cohen, supra: For violating court orders not to represent clients on claims resolved in a class action, Cohen was suspended from the practice of law for one year and one day.   Johnson did not violate any valid court order or orders.

. . . [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).

BBO The Appropriate Sanction, ¶3, sentences 3-5 of 9: Moreover, in Count III, her misconduct resulted in the dismissal of her client’s complaint. In Counts I and II, the respondent publicized confidential and private information on her website. In doing so, in Count I, she flouted court orders and publicized private information about a minor who was simply related to opponents in litigation. In Count II, she disclosed confidences of her former clients in retaliation for disputing her fee and refused to remove that information from her website.

Johnson’s Counterpoint:     Johnson did not once misconduct herself in McGill’s court. She was unjustifiably sanctioned and her client’s case was unjustifiably dismissed. She paid the $261.45 when the sanction was reduced from over three thousand dollars. The sanction was uncalled for and unlawful but the judge said he would restore the case to the list. He had no honor. He did not restore the case.

In none of the three counts did Johnson publicize confidential and private information on her website.   At no time or in any pleading did the OBC or the BBO identify the alleged confidential and private information they allege Johnson posted on her website.   Johnson also did not “publicize[] private information about a minor who was simply related to opponents in litigation.” Where was the evidence for such accusations?   Saying, Here’s a file, guess which statement was improper or inappropriate, is insufficient to conclude that there is confidential and private information in it. Every case opinion published in an official or unofficial reporter may be construed as a publication of confidential and private information. Does that mean that the judge or judges who wrote the decision must be sanctioned for publicizing confidential and private information?

BBO The Appropriate Sanction, ¶3, sentences 6-9 of 9: Such misconduct, standing alone would warrant substantial discipline. Matter of Pool, 401 Mass. 460, 5 Mass. Att'y Disc. R. 290 (1988) (disbarring attorney who furnished confidential client information to U.S. Attorney in order to collect his fee). Under the ABA Standards for Imposing Lawyer Sanctions § 6.21 (1992), “Disbarment is generally appropriate when a lawyer knowingly violates a court order or rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party, or causes serious or potentially serious interference with a legal proceeding.” In this case there can be no doubt that the respondent has repeatedly defied court orders over substantial periods of time, has revealed confidential information solely to harass, and has interfered with the judicial process and this disciplinary proceeding.

Johnson’s Counterpoint:   As to Matter of Pool: Pool was “disbarred for a serious breach of client confidentiality, coupled with a failure to disclose to his client significant facts which had a bearing on the amount of the fee the petitioner received.”   Pool at 460-461.

Johnson did not violate a court order or rule. Johnson did not violate a court order or rule with the intent to obtain a benefit for herself or anyone else. Johnson did not cause anyone serious injury or potentially serious injury. Johnson did not interfere with any legal proceeding. Nor did she cause serious or potentially serious interference with a legal proceeding. Johnson was found not to have misrepresented to any client regarding a fee.

There is serious doubt that Johnson defied valid court orders over substantial periods of time. In fact, there is no evidence that she defied valid court orders. And she has not revealed confidential information solely to harass anyone. No witness came forward to testify that he or she was harassed. There is absolutely no evidence that Johnson interfered with the judicial process or with the disciplinary proceeding at the OBC or BBO. Nor has the OBC or BBO shown how Johnson interfered with their disciplinary proceedings.

BBO The Appropriate Sanction, ¶4: The sanction should be more severe where, as here, the respondent has engaged in a pattern of misconduct, persisting over a period of time, including prior related discipline. Matter of Saab, 406 Mass. 315, 6 Mass. Att'y Disc. R. 278 (1989). We agree with the special hearing officer that, “Of utmost concern … is the respondent’s patent refusal to comply with, or even acknowledge, her ethical responsibilities as an attorney.” In our view, her misconduct is analogous to that in Matter of Cobb, supra. Our review of the record establishes that the respondent, like Cobb,

          “has demonstrated rather convincingly by [her] quick and ready
   disparagement of judges, [her] disdain for [her] fellow attorneys,
   and [her] lack of concern for and betrayal of [her] clients that
   [s]he is utterly unfit to practice law.”

Id. at 479.FN11

Johnson’s Counterpoint:   As to Matter of Saab: For his long-standing and continuous pattern of unethical conduct involving fraud, deceit, and misrepresentation, Saab was suspended for18 months from the practice of law.

Again the SHO and the BBO indulge in spewing against Johnson “bald assertions, unsupportable conclusions, and opprobrious epithets” [Dartmouth Rev., 889 F.2d at 16], as well as “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). Johnson’s conduct was absolutely nothing like the conduct of Saab.

            As to Matter of Cobb:\[5]/ The SJC found that substantial evidence supported a finding (1) that Cobb converted client funds; (2) that Cobb had no good ground to support his allegation of bias on the part of a motion judge in pending proceedings, and to impugn the integrity of other judges; (3) that Cobb had no reasonable basis to believe that his statements about a United States District Court judge would be supported by admissible evidence; and (4) that Cobb betrayed his clients’ interests.

Holding that where Cobb’s statements about one or more judges were in the courtroom, the Court rejected Cobb’s invocation of First Amendment protection of free speech in defending against the charge that he impugned the integrity of a judge—allegedly without basis—during a pending case.

Distinguishing Cobb’s case from Johnson’s, Johnson notes that her statements about judges were outside the courtroom and did implicate the protection of the First Amendment.

Of further concern to Johnson is 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)]. Judicial immunity originally protected only the “higher judges of the King’s courts.” Id., at 531.

But in a writ of false judgment, the plaintiff shall have a direct averment against that which the Judges in the Inferior Court have done as Judges, quia recordum non habent; and with this accords 21 H. 6.34.

Floyd and Barker, 12 Co.Rep. 23, 77 Eng. Rep. 1305 (1607) (case of conspiracy).

. . . in Floyd and Barker, . . . , Coke and his colleagues of the Star Chamber had declared the judges of the King's Bench immune from prosecution in competing courts for their judicial acts. In doing so, they announced the theory upon which the concept of judicial immunity was built.

Pulliam, 466 U.S. at 530.

Although the court in Pulliam iterated the history of judicial immunity, it did so ambiguously. For instance, the court in Pulliam failed to state what Barker did, what the conspiracy was about, who the co-conspirators were, and who Floyd was. The inescapable conclusion from Pulliam must be that the entire authority for the modern “doctrine” of judicial immunity is based on royal prerogative and edicts emanating from the Star Chamber, which was dissolved and outlawed in 1641, and remains a blot on the landscape of England’s juridical history.

In fact, a copy of the 396-year-old report of Floyd and Barker, which may be seen on Johnson’s website, reveals that William Price was indicted by a grand jury. He pled not guilty, but was tried by a jury and convicted. After his execution, the jurors who convicted him “were charged in the Star Chamber for conspiracy against him, and indicted and convicted.” Floyd, 12 Co. at 1306, 77 Eng.Rep. at 23.

The report identifies Floyd only as “Rice ap Evan ap Floyd,” with nothing more and notes that the suit occurred after William Price was convicted in Judge Richard Barker’s court for murder and executed by the sheriff . The reason Floyd sued Barker and others in the Star Chamber for conspiracy—at that time allowed for diverse reasons—is not revealed.

The ruling chief justices, Popham and Coke (after whom Coke’s King’s Bench Reports are named), did not convict Barker. Instead, they established judicial immunity for the King’s judges. Their rationale was that if the judges were convicted, it would “trench to the scandal of the King himself.” Floyd, 12 Co. at 1307, 77 Eng.Rep. at 25.

Thus judicial immunity became the backflow valve to keep in check any scandal that might flow to or through the judicial branch of government.   In effect, judicial immunity became the fount of the “Don’t tread on us, we need our independence even if we are and continue to be malicious or corrupt” doctrine for the judiciary. That is the obscenity of Bradley v. Fisher, a case that one can only hope will eventually be overruled. It is a scourge used in the name of American justice on American freedom. The argument against Cobb would have been more persuasive without the invocation of Bradley v. Fisher.

Despite the new declaration of judicial immunity in England, the Floyd report declares in a footnote that “in truth the whole set of Judges were then so corrupt that the King was forced to try [Judge Thorp] by commission.” Id.

The report then ends with another note:

. . . Thomas Weyland, Chief Justice of the Common Bench, Sir Ralph Hengham, Justice of the King's Bench; and the other justices, were accused of bribery and corruption; and their causes were determined in Parliament, where some were banished, and some were fined and imprisoned.

Floyd, 12 Co. at 1308, 77 Eng.Rep. at 25.

The facts on which the judges were convicted are also not revealed, of course, in Floyd, the report of which was written by the chief justices of the most corrupt court in English history and ultimately contributed to the execution of the monarch.

That medieval England in 1607 established judicial immunity to insulate its nobility from accountability does not highly support the continuation of that doctrine in Postrevolutionary America, it, instead, recreates the causes of the Revolution.

That our high courts should use a doctrine established by the Star Chamber both to defy the public demand for accountability and to defeat article V of the Massachusetts Declaration of Rights, which guarantees us accountability by the judiciary, is unfathomable and shameful.

And that the practices of the BBO/OBC should mimic those of the Star Chamber should also be embarrassing to the Chief Justice of our high court.

            Given that by judicial fiat, judges have insulated themselves from suit, there is no need to insulate themselves from criticism. In fact, it is the obligation of the public, including attorneys, to scrutinize the courts to ensure that justice is performed and does prevail. Just because someone, whether an ordinary person, again including attorneys, criticizes a judge, the conclusion by any of the judiciary simply may not be drawn that that criticism interferes with the administration of justice. In fact, that criticism may help perfect the administration of justice where otherwise justice is absent.

BBO The Appropriate Sanction, ¶5, footnote 11: FN11 Cobb was disbarred for impugning the integrity of two judges with no objectively reasonable basis, converting clients’ funds to pay sanctions that had been assessed against him personally, filing groundless complaints against opposing counsel, persisting in a frivolous appeal, settling a case without his client’s authority, continuing to represent her when their interests were in conflict, disclosing privileged client communications without authorization and making misrepresentations to a judge and bar counsel.

Johnson’s Counterpoint:   Given the falsities put forth by the OBC and the BBO in Johnson’s case, and the ease with which they become perpetuated, it is with great cynicism that Johnson looks upon the Court’s conclusions. 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: For all of the foregoing reasons, we adopt and incorporate by reference the hearing officer’s findings of fact and conclusions of law, with the two exceptions set out in note 7, supra. An Information shall be filed with the Supreme Judicial Court recommending that the respondent, Barbara C. Johnson, be disbarred.

Johnson’s Counterpoint:   For all of the reasons in her pleadings, this Court must not adopt the recommendation of the BBO, as recorded by Secretary Pro Tem James B. Re, to disbar Johnson.

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

Part Five:   Johnson incorporates herein by reference her Proposed Findings of Fact and

Rulings of Law: Introduction at Impounded Vol. VII, Tab 217,

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.

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

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

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

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

Notwithstanding the controversy over whether bar disciplinary proceedings are civil, criminal, or quasi-criminal in nature, so long as they are on the common-law side of the court, attorneys are entitled to a jury trial in a prosecution brought by the Bar Counsel.\[6]/

            Historically, in Massachusetts, attorney-discipline cases have been identified as being on the common-law side of the court, making a jury trial legally possible. Boston Bar Ass'n v. Greenhood, 168 Mass. 169, 183 (1897).\[7]/

            Article XV of the Massachusetts Declaration of Rights is another source of Respondent Johnson’s right to a jury trial.\[8]/, \[9]/

2.         Board of Bar Overseers Rules are unconstitutional facially
and as applied.

            The Rules of the Board of Bar Overseers were promulgated pursuant to Supreme Judicial Court Rule 4:01, Section 5(3)(i). There are actual controversies, including but not limited to, the following:

·       whether the secrecy of the initial so-called investigation is unconstitutional. See Board Rules 4.4 and 4.7,

·       whether giving the Board the right to subpoena whomever they want but denying the identifiable class of practicing lawyers the right to subpoena whomever they want is discriminatory and thus unconstitutional both on the face of the rules as well as how they are applied, \[10]/

·       whether the denial of Johnson’s right to rely on the Rules of Civil Procedure, such as those for discovery, is unconstitutional,

·       whether the absence of a provision allowing discovery, such as

o      the right to serve Interrogatories on the opposing party,

o      the right to serve Requests for Production of Documents,

o      the right to conduct depositions – such absence being more akin to those of Criminal Procedure,

coupled with the BBO’s assertion that the proceedings are civil in nature and not quasi-criminal in nature, makes the Board Rules unconstitutional on their face and/or as applied,\[11]/

·       whether the denial of Johnson’s Motion for a More Definite Statement is unconstitutional.

The Massachusetts judicial branch has not yet resolved them^\.[12]/ The Board Rules are unconstitutional, and Johnson was hampered by them. There were no predictable rules of evidence, no available records as to the admissibility of documents in past cases. There was a unique interpretation of the scope of confidentiality and entitlement at the Bar, Johnson was not able to take a deposition unless the witness was not subject to service of subpoena or unable to attend hearing because of age, illness, or other infirmity, and needed the prior approval of the Board or the hearing panel or officer being required before the deposition may be taken (which was not going to happen (given that every motion Johnson filed was denied summarily). See Rule 4.7(a),

            There were no due-process provisions and no safeguards for Johnson from abuse by the Board and its Chair or General Counsel.

            Bestowed with extraordinary powers and themselves unregulated, the BBO and the OBC used arbitrary procedures and violated their own Board Rules. The bestowal of quasi-judicial immunity, pursuant to §9(3) of Massachusetts SJC Rule 4:01, on “[t]he Board, members of the Board and its staff, members of hearing committees, special hearing officers, and the bar counsel and members of his or her staff” has violated Article V of the Massachusetts Declaration of Rights.\[13]/

            Historically, Article V of the Massachusetts Declaration of Rights abrogated the common law rule of sovereign immunity, which had theretofore immunized public entities from suit in tort claims arising from both the intentional and the negligent acts or omissions of public employees.

            The lack of accountability, afforded by the bestowal of immunity from liability is violative of Article V of the Massachusetts Declaration of Rights. The Board Rules failed to ensure that Johnson had an opportunity to exercise her rights to due process and equal protection of the laws. The Board Rules provided no safeguards as to the competency and honesty of the Board, its members, its staff, the hearing committees, any special hearing officer. The Board Rules provided no standards by which the Board, its members, its staff, the hearing committees, and any special hearing officer were to work. The Board Rules provided no standard of review to be used to determine that competency or honesty prevailed in the process. The Board Rules provided no requirement of an evidentiary hearing at which Johnson could rebut any materials adverse to her. There was no remedy as guaranteed by Article XI of the Massachusetts Declaration of Rights. There was no accountability as guaranteed by Article V of the Massachusetts Declaration of Rights. In so doing, the Board Rules violated the Fourteenth Amendment of the United States Constitution.

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

            Johnson, as a lawyer, has a right to the full sweep of rights, privileges, immunities, due process and equal protection, including the First Amendment rights to political speech and free expression, and the right to defend herself against adversaries. At all relevant times, Johnson has had a right under the due process and equal protection clauses of the state and federal constitutions not to be deprived by the government of her constitutionally protected interest in her license to practice law and her right to political speech and free expression. U.S.C. Const.Amend. 1, 14; M.G.L. Const. Pt. 1, Art. 10.

Attorneys must be able to avail themselves of "the general rules which govern society." Cohen v Hurley, 366 U.S. 117, 136 (1961) (Mr. Justice Black, with whom The Chief Justice and Mr. Justice Douglas concur, dissenting). Cohen, a 5-to-4 decision some 40 years ago, was overruled in Spevack v. Klein, 385 U.S. 511, 514 (U.S.N.Y. 1967).   In Cohen, Messrs. Justice Black, Chief Justice Warren, and Justice Douglas eloquently warned that the important role that lawyers are to play in society makes it all the more imperative that they not be discriminated against and not be deprived of “the basic freedoms that are designed to protect the individual against the tyrannical exertion of governmental power.” Cohen, at 138.   Singling out “groups for special treatment with regard to certain constitutional privileges” is “clearly unconstitutional.”   Id., at 137 n. 13, citing Barsky v. Board of Regents, 347 U.S. 442, 456-467 (1954).

When the Founders of this Nation drew up our Constitution, they were uneasily aware of this English practice, both as it had prevailed in that country and as it had been experienced in the colonies prior to the Revolution. Particularly fresh in their minds was the treatment that had been accorded the lawyers who had sought to defend John Peter Zenger against a charge of seditious libel before a royal court in New York in 1735. These two lawyers had been summarily disbarred by the judges presiding at that trial for [filing Exceptions after being warned not to do so]. It is to the lasting credit and renown of the colonial bar that Andrew Hamilton, a lawyer of Philadelphia, defied the hostility of the judges, defended and brought about the acquittal of Zenger.

Cohen, at 140-141.   Such language throughout the dissents to the later-overruled majority report in Cohen makes Johnson confident that were these high justices here today, it is likely they would write, “In Medieval England, the twin affiliated entities, the BBO and the OBC, would have become as justly vilified as the Star Chamber.”

            The BBO and the Bar Counsel disagree with Johnson (a) that she has a right under the due process and equal protection clauses of the state and federal constitutions not to be deprived by the government of her constitutionally protected interest in her license to practice law, (b) that she has a right under the First Amendment to political speech and free expression, (c) that she has a right to defend herself against adversaries, (d) that she has a right to pierce immunities not made into law by our legislatures, (e) that article V of the Mass. Declaration of rights make all magistrates and officers of all three branches of government accountable to all the people, including Johnson, at all times, and (f) that the BBO has no right to limit Johnson’s rights only to those of which they approve.

            As a result, acting under the color of law, the OBC and the BBO worked a denial of Johnson's rights, privileges or immunities secured by the United States Constitution or by Federal law [Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997); McNamara v. Honeyman, 406 Mass. 43, 52 (1989)] and guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution.   And the OBC and the BBO unlawfully and knowingly also breached the Board Rules 1.2, 3.15(f), 3.18(a), 3.18(b), 3.22(b)(2), 3.22(b)(3), 3.22(c), which unlawful acts were expressly committed in the absence of jurisdiction [Rankin v. Howard. 633 F.2d 844 (1980), cert. denied sub nom., Zeller v. Rankin, 451 U.S. 939 (1980)], to wit,

·       Chair Carpenter did not have the power and/or authority or the discretion to usurp the powers of other persons as named in the Board Rules,

·       Chair Carpenter and SHO Phillips ignored the common law,

·       Chair Carpenter and SHO Phillips and the BBO knowingly impeded and hindered the due course of justice, with the intent to deny Johnson due process and the equal protection of the laws, which unlawful acts were expressly committed in the absence of jurisdiction,

·       SHO Phillips, aided and abetted by Assistant General Counsel Carol Wagner, knowingly deprived Johnson due process and the equal protection of the laws when Phillips ordered the public out of the room in which the trial against Respondent was taking place. Johnson was entitled to have a public trial, and the public had the right to participate in that trial,

·       SHO Phillips knowingly deprived Johnson due process and the equal protection of the laws when he ruled Johnson’s duly served trial-witness subpoenas invalid,

·       SHO Phillips knowingly deprived Johnson due process and the equal protection of the laws when he ruled that the merits of the underlying cases were irrelevant when, in fact, they contained Johnson’s defenses.

            As a result of Defendants' concerted unlawful and malicious conduct, Johnson was at jeopardy of being irreparably harmed not only from being deprived of her right to remain free from having to answer and stand trial for baseless charges but also from the obloquy of the community.

·       Without due process of law, and deprived of her rights to due process and the equal protection of the laws, the due course of justice has been and shall be impeded, in violation of the Fourth, Fifth, and Fourteenth Amendments of the Constitution of the United States.

·       Johnson was harmed and has been suffering from worry about the stress, humiliation, anxiety, loss of trust, loss of confidence in and feelings of betrayal by the justice system, shock, and emotional scarring, all compensable as emotional distress, and other damages.

·       Carpenter did not have the power and/or authority or the discretion (a) under Board Rule 3.18(a) to decide Bar Counsel’s motion for a protective order and motion to preclude Johnson’s defenses. Carpenter intentionally interfered with Johnson's exercise and enjoyment of her clear and established rights secured by the state and federal constitutions or laws of the United States and/or the Commonwealth of Massachusetts, and thereby deprived her of those rights and caused her injuries.

·       As a result of the concerted unlawful and malicious action of Carpenter, Johnson was deprived of her rights to both due process and the equal protection of the laws, and the due course of justice was impeded, in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States.

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

SJC Rule 4:01 §§ 9(1), 9(2), and 9(3) are unconstitutional both facially and as applied. They may not supercede article V of the Massachusetts Declaration of Rights. The SJC violated the separation of powers provisions in our State constitution when it approved the promulgation of SJC Rule 4:01 §§ 9(1), 9(2), and 9(3).

            By the immunity granted in § 9(1), 9(2), and 9(3), Johnson has been deprived of her rights under the due process and equal protection clauses of the state and federal constitutions. And by the government, Johnson has been deprived of her constitutionally protected interest in seeking a remedy for wrongs done her. U.S.C. Const.Amend. 14; M.G.L. Const. Pt. 1, Art. 10.

            Section 9(1) of Massachusetts SJC Rule 4:01 provides immunity to Complainants to the Board. By so doing, (a) Johnson has been put at risk by Court permission of becoming a victim of false reporting and (b) the Court has not only intentionally aided and abetted but intentionally encouraged false reporting by Complainants: in the instant case by Robyn Gerry-Sylvia, Deborah Wolf, Deborah Sano, and Judge Paul McGill.

            While there is a constitutional right to petition, Complainants in courts of general or limited jurisdiction are not immune from counterclaims of malicious prosecution, abuse of process, frivolous pleading, and the like. Where the BBO is, like police departments, in the business of enforcement, the Complainants to the BBO should be no less responsible for false reporting to the BBO than the general public is for reporting falsely to the police. See criminal statute M.G.L. c. 269 §13A, false reporting to the police.

            Section 9(2) of Massachusetts SJC Rule 4:01 provides immunity to the Complainant and to each witness giving sworn testimony. By so doing, Johnson has been put at risk by Court permission of becoming a victim of false swearing and false testimony and by so doing, the Court not only intentionally has aided and abetted but has intentionally encouraged false swearing and false testimony by Complainants and witnesses.

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

            SJC Rule 4:01, §10, impedes settlement between a complainant and a respondent in a disciplinary proceeding by impairing the respondent’s right to contract.
            When two parties settle a matter, the parties enter into a contract. Each must perform their side of the bargain. It would stand to reason, common sense, common logic, that whether one is compromising, or making restitution (if appropriate), or settling, the termination of the disciplinary proceeding is the goal of both parties. If one party still wants a disciplinary proceeding to continue, there is nothing to compromise or settle.

Section 10 interferes with the parties’ constitutional rights to resolve their dispute in a manner acceptable to both entities.

In interfering with or impairing the right to contract, which existed long before 1974, when the BBO and OBC came into existence, §10 is an unlawful attempt to override Johnson’s diverse constitutional rights, e.g., under article I of our Mass. Declaration of Rights; the Fourteenth Amendment to the U.S. Constitution; and clause 1 of section 10 of article 1 of the U.S. Constitution.

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.

            For example, in a letter from Asst. Bar Counsel Christa Arcos to a member of the complaining public, Arcos, an agent for the OBC, wrote “fee disputes are not generally within the jurisdiction of this office” [Exh.D], in which case the OBC selectively prosecuted Johnson in Count II over a de minimus fee dispute. The complained-of attorney whom the OBC chose NOT to prosecute was a member of the Massachusetts Judicial Nominating Committee. Not having seen the pleadings and other documents in the case, Johnson takes no position on the complaint, but the letter from Arcos clearly shows no investigation whatsoever was performed by the OBC.

            Bar Counsel also selectively excludes from prosecution attorneys whom they might need to prosecute other attorneys they have previously selected for prosecution. For example [Exh. E, of the state and federal complaint against the BBO, et al], a complaint against Attorney Deborah Wolf by the pained parents of a sightless daughter, for whom Attorney Deborah Wolf was appointed counsel.   Wolf, who was one of the complainants against Johnson in Count I, was needed to testify against Johnson if her written complaint was deemed sufficient by SHO Phillips. The OBC did not respond to the Danns.

            Similarly, the OBC and BBO selectively excluded from prosecution Mark C. O’Connor, who, like Johnson, was found in contempt. To be sure that Johnson would not be able to call him testify, SHO Phillips quashed Johnson’s subpoena served upon him and released O’Connor from appearing.

Johnson’s bill to the Sanos is not privileged and even if the bill is assumed arguendo to be privileged, under Montgomery v. Pickering, 116 Mass. 227, 231 (1874), the privilege is waived only as to the subject matter of the Sanos’ testimony, and under Woburn v. Henshaw, 101 Mass. 193, 200 (1869), the Sanos were liable to full cross-examination. Neitlich v. Peterson, 15 Mass.App.Ct. 622, 626-627 (1983).

The harm and damage Johnson has suffered has continued after selective prosecution.\[14]/ The OBC and the BBO have acted and unlawfully and knowingly in the absence of jurisdiction.

Defendants BBO and OBC, acting in a nonadministrative fashion, suspended SJC Rule 4:01 and usurped a legislative function\[15]/ in violation of the constitutionally guaranteed separation of powers, and thereby violated Arts. XX and XXX of the Mass. Declaration of Rights:

(a)             the BBO and OBC decided to assume jurisdiction over a First Amendment matter: Johnson’s website, falseallegations.com

(b)            without an adjudication by a constitutionally approved court, as to whether Johnson’s website contained speech violative of the First Amendment, a Bar Counsel Daniel Crane assigned Assistant Bar Counsel Susan Strauss Weisberg to perform an investigation and evaluation of Johnson’s website.

(c)             the BBO and OBC knowingly impeded and hindered, and continued to impede and hinder, the due course of justice, by threatening Johnson with not being able to put witnesses on in her defense if she did not reveal her defense strategy by writing paragraphs summarizing the anticipated testimony of her witnesses BUT NOT requiring the Bar Counsel to reveal his strategy by writing paragraphs summarizing the more-than-100 documents Bar Counsel wants admitted into evidence in lieu of testimony by living witnesses

            Weisberg addressed the selective prosecution in her motion to strike Johnson’s affirmative defenses [Vol. II, Tab 109].

Nevertheless, the court may “eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets” [Dartmouth Review, 889 F.2d at 16], and “periphrastic circumlocutions and outright vituperation.”   .[United States v. AVX Corp., 962 F.2d at 115].

[A] plaintiff 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).

The plaintiff made bald assertions that the defendant intended to harass witnesses and create confusion in the proceedings, but these claims are unsupported by the record.

C.O. v. M.M., 442 Mass. 648, 658 n. 6 (2004)

As a result of the unusual acts in Coughlin and Johnson (Coughlin had been bifurcated), the need for deposing the judge was critical, but (1) the BBO has already denied Johnson the opportunity to depose him and (2) the Commonwealth had destroyed exculpatory evidence by destroying or writing over the tape of the hearing on 17 December 1998.    Where the exculpatory evidence was destroyed by the Commonwealth, and the Commonwealth could not prove its point by a judge who altered the endorsement on Motion #157, who prevaricated – provable by both judge-authored and clerk-authored documents\2/ -- in sundry decisions, and who had ex parte communication with the opposing counsel [see petition 122 on page 191 of the Amended Answer and Respondent’s answer for that paragraph on pages 191-192], the charge must be dismissed.   Com. v. Ocasio, 434 Mass. 1, 5 n. 4 (2001); Com. v. DiBenedetto, 427 Mass. 414, 419 (1998).

            Johnson incorporates herein by reference her affirmative defenses.

                                                     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

                                                       BBO #549972
<>

CERTIFICATE OF SERVICE

I, Barbara C. Johnson, hereby certify that on 18 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 sitting Juvenile Court judge ordered Johnson to return to the court unidentified documents, but Johnson had no documents from his court and therefore had nothing to return. The OBC and the BBO claimed that Johnson disobeyed the judge.   Johnson had never even seen this judge and had never been in his court. It appears the OBC and the judge were getting fallacious information from an attorney, Deborah Wolf, who was, in Johnson’s opinion, defrauding the Commonwealth on several levels not relevant here at this moment. Johnson subpoenaed this attorney to the BBO trial to get at the bottom of the circumstances, but SHO Phillips quashed Johnson’s subpoena. That attorney, Deborah Wolf, was a co-complainant of Count I against Johnson. The OBC and the BBO did not want and did not call Wolf to testify. Heaven forbid, Wolf just might be impeached by Johnson!

[2]   The other cases cited by Weisberg on pages 15-16 – Matter of Cohen, 435 Mass. 7 (2001), and Bar Counsel c. Board of Bar Overseers, 420 Mass. 6 (1995) – merely contribute to the smokescreen being used by Bar Counsel to cover up unlawful activity on the part of Judge Paul McGill and Attorney Mark O’Connor. The cases have no significance here whatsoever.

[3]   After the petition was brought against Johnson, Johnson wrote an Answer interleaved into the petition and uploaded it to her website. Subsequently, an attorney phoned soliciting her business. He abridged and slightly otherwise altered the Answer Johnson had on her website, and submitted it to the BBO. The BBO then requested certain amendments. The attorney, already representing another client before the Board, not only did not meet the “deadline,” he also met secretly with Weisberg.   Having inadvertently learned of the meeting, Johnson sought to learn the substance of it, but neither the attorney nor Weisberg would tell her what was discussed. Johnson and the attorney parted ways rather abruptly when Johnson surmised that he was trying to curry favor for his other client by offering up Johnson as bait. Then, rather than try to decipher how her Answer had been abridged and altered, Johnson submitted her original Answer to the BBO. That latter submission became the “Amended Answer.” It was, however, actually the original Answer.

[4]   Amongst the documents and tangible things Johnson was precluded from introducing at trial was proof of Judge McGill allowing O’Connor fees for being in court on 1March 1995. March 1^st had been the original date set by for the motions hearing. [See Amended Answer, Table 11. Both O’Connor.and Johnson marked motions for that date.] O’Connor tired of waiting for the case to be called and suddenly told the clerk he had to leave for another court. He left. Then, down the road, McGill allowed O’Connor’s motion for fees for his appearance on March 1^st. That decision was an insult both to Johnson and to justice. A judge capable of such a decision is capable of conspiring. And Weisberg’s written communication to Johnson which made mention of O’Connor and McGill ex parte communication(s) is further proof of opportunity to conspire. Both O’Connor and McGill knew that such communication is forbidden by the rules. Talk about the appearance of impropriety!

[5]           445 Mass. 452 (2005).

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

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

[7]              In In re Mayberry, 295 Mass. 155, 166, 168 (1936), however, the Court found that the respondent was not prejudiced by the findings of a single justice rather than by jurors because the “. . . jurors [were] of low grade in respect to intelligence and character.” In re Sleeper, 251 Mass. 6, 12 (1925).

[8]              Article XV. In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practiced, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners' wages, the legislature shall hereafter find it necessary to alter it

Article XV of the Declaration of Rights, Part the First, Constitution of the Commonwealth of Massachusetts.

[9]             The Massachusetts judicial branch has failed to resolve this conflict, which has inevitably led to this litigation, and has neither provided a remedy, as guaranteed by Article XI of the Massachusetts Declaration of Rights, nor been accountable, as guaranteed by Article V of the Massachusetts Declaration of Rights, for the unlawful acts of the judiciary. In so doing, the Massachusetts judicial branch has violated the Fourteenth Amendment of the United States Constitution.

[10]            Johnson understands well that there are circumstances when a witness is not allowed, but in the circumstances of the BBO actions, the exclusion for unidentified reasons is violative of her rights to due process and equal protection.

[11]            The word “respondent” is a euphemism. The property rights of respondents are at risk.

[12]           See note 4, supra.

[13]     Art. V of the Massachusetts Declaration of Rights reads: "All power residing originally in the people, and being derived from them, the magistrates and officers of government, visited with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them."

[14]            The congressional purpose seems to me to be clear. A condition of lawlessness existed in certain of the States, under which people were being denied their civil rights. Congress intended to provide a remedy for the wrongs being perpetrated. And its members were not unaware that certain members of the judiciary were implicated in the state of affairs which the statute was intended to rectify. It was often noted that "[i]mmunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress." Cong. Globe, 42d Cong., 1st Sess., 374. . . . "[T]he courts are in many instances under the control of those who are wholly inimical to the impartial administration of law and equity." Id., at 394. . . . The members . . . were apprehensive that there had been a complete breakdown in the administration of justice in certain States and that laws nondiscriminatory on their face were being applied in a discriminatory manner, that the newly won civil rights of the Negro were being ignored, and that the Constitution was being defied. It was against this background that the section was passed, and it is against this background that it should be interpreted.

Pierson v. Ray, 386 U.S. 547, 559-560 (1967).

[15]            Where a judge usurps the authority of the legislature, and for the exercise of such authority, no excuse is permissible. Allard v. Estes, 292 Mass. 187, 196 (1935).

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.

· 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)

· Letter Sent 11/6/03 from Johnson to Strauss-Weisberg’s Letter of 11/4/03 To Johnson (Filed under a caption) [Vol. , Tab (6 November 2003)]

· Supplement #1 to Respondent’s Lists of Expected Witnesses and Proposed Documents [Vol. , Tab (7 November 2003)]

· Supplement #2 to Respondent’s Lists of Expected Witnesses and Proposed Documents [Vol. , Tab (10 November 2003)]

· Supplement #3 to Respondent’s Lists of Expected Witnesses and Proposed Documents [Vol. , Tab (18 November 2003)]

· Respondent’s Summaries of Testimony of Expected Witnesses Ordered over Respondent’s Objections [Vol. VI, Tab 125 (20 November 2003)]

(1) Motion to Dismiss All Counts on Grounds of BBO Violating Board Rule 3.22(b) and Constitutional Rights to a Public Hearing [Impounded Vol. VII, Tab 169 (5 December 2003)],

(2) 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

Part I-A: Proposed Subsidiary Findings of Fact from Trial Transcript

Transcript, I:117-118.

· Johnson’s Opposition to Bar Counsel’s Motion for Release of Impounded or Segregated Records (14 December 2002)

· Complaint in the Nature of a Petition for a Writ of Certiorari and to Invoke the General Superintendence of the Court

· 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 (8 December 2003)

It occurred to Johnson that the members of the BBO either did not understand procedural or jurisdictional law or were exercising their muscle to further their agenda to discipline Johnson.

21 February 1995

· 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

Linnehan was exercising his First Amendment right to petition to the federal court. Johnson had a right to publish the pubic record. Johnson also had an obligation to expose the unscrupulousness of the state courts throughout the course of the Linnehan proceedings.

CERTIFICATE OF SERVICE