#157, Drano Series

Barb v. Board of Bar Overseers, Office of Bar Counsel, Bar Counsel Daniel Crane, Assistant Bar Counsel Susan Strauss-Weisberg, and Commonwealth of Massachusetts

Prosecutor for Board of Bar Overseers to step down May 23, 2006, Boston Globe Daniel C. Crane, bar counsel of the state Board of Bar Overseers, will step down June 30 after nearly seven years as the top prosecutor for the state's bar discipline program.  ``I just decided it was time for me to move on, and it was a good time for the organization to move on," said Crane, 55. Crane's successor at the Office of Bar Counsel, which investi- gates, evaluates, and prosecutes complaints against lawyers, will be appointed by the Supreme Judicial Court.  (by Sacha Pfeiffer)

Drano #156 contains:  (1) Barb's Motion to Strike Appearance of the Attorney General for the Board of Bar Overseers and the Office of Bar Counsel, (2) the A-G's Opposition (when it is scanned in), and (3) Barb's Motion for Leave to File Reply to Motion to Strike Appearance of the Attorney General for the Board of Bar Overseers and the Office of Bar Counsel (intentionally omitted here;  see Drano #157) (4) Barb's Reply to A-G's Opposition This file, Drano #157, contains: (1) Barb's Motion to Strike Appearance of the Attorney General for Bar Counsel Daniel Crane and Assistant Bar Counsel Susan Strauss-Weisberg (2) the A-G's Opposition (when it is scanned in) (3) Rule 9A Notice of Filing (4) Barb's Motion for Leave to File Reply to A-G's Opposition (included here only for use as boilerplate) and (5) Barb's Reply to A-G's Opposition Drano #158 contains: (1) the Motion to Dismiss by Board of Bar Overseers, Office of Bar Counsel, Bar Counsel Daniel Crane, and Assistant Bar Counsel Susan Strauss-Weisberg (2) Table of Contents (Including List of Exhibits) of Opposition to Motion to Dismiss by Board of Bar Overseers, Office of Bar Counsel, Daniel Crane, Susan Strauss-Weisberg, and the Commonwealth of Massachusetts and Their Request to Dispense with Hearing (3) Barb's Opposition to Motion to DismissStrike Appearance of the Attorney General for Bar Counsel Daniel Crane and Assistant Bar Counsel Susan Strauss-Weisberg (4) Barb's Motion for Leave to File Surreply to A-G's Reply to Barb's  Opposition (included here only for use as boilerplate) and (5) Barb's Surreply to A-G's Reply to Barb's  Opposition

COMMONWEALTH OF MASSACHUSETTS

Essex, ss.                                            CIVIL ACTION:  05-CV-01907

Barbara C. Johnson, Esq. 
Plaintiff

v. 
Board of Bar Overseers of Massachusetts, 
Office of Bar Counsel, 
Daniel Crane, Esq., 
in his individual and professional capacities, 
Susan Strauss-Weisberg,
in her individual and professional capacities, 
Commonwealth of Massachusetts, 
Defendants

____________________________________________ 

MOTION TO STRIKE APPEARANCE 
OF ATTORNEY GENERAL FOR

DANIEL CRANE AND SUSAN STRAUSS-WEISBERG

Now comes Plaintiff Barbara C. Johnson [“Johnson”] and moves this court to strike the appearance of the Attorney General as counsel for Defendants Daniel Crane [“Crane”] and Susan Strauss-Weisberg [“Weisberg”].

As grounds, Johnson states that the Attorney General has no statutory authority to represent the two defending entities. Section 3 of Massachusetts General Laws Chapter 12 defines whom the Attorney General may represent.\[1]/

In support, Johnson states that the two entities, Crane and Weisberg, are nonpublic employees, i.e., employees not paid by the Commonwealth but paid from funds collected from attorneys for annual dues. Crane and Weisberg may accept charitable gifts in excess of $15 from entities, including from attorneys and law firms.\[2]/

Respectfully Submitted,
                                                            Barbara C. Johnson, Pro se

5 December 2005 _________________________

Barbara C. Johnson, Esq.

6 Appletree Lane

Andover, MA 01810-4102

978-474-0833

B.B.O. #549972

CERTIFICATE OF SERVICE

I, Barbara C. Johnson, hereby certify that a true copy of this motion was served on 7 December 2005 served by first-class mail on Ronald F. Kehoe, Assistant Attorney General, One Ashburton Place, Room 1813, Boston, MA 02108.

7 December 2005 _______________________

Barbara C. Johnson, Esq.

---

[1] Chapter 12: Section 3 Appearances for commonwealth, prosecution or defense; rendering of legal services:

Section 3. The attorney general shall appear for the commonwealth and for state departments, officers and commissions in all suits and other civil proceedings in which the commonwealth is a party or interested, or in which the official acts and doings of said departments, officers and commissions are called in question, in all the courts of the commonwealth, except upon criminal recognizances and bail bonds, and in such suits and proceedings before any other tribunal, including the prosecution of claims of the commonwealth against the United States, when requested by the governor or by the general court or either branch thereof. All such suits and proceedings shall be prosecuted or defended by him or under his direction. Writs, summonses or other processes served upon such officers shall be forthwith transmitted by them to him. All legal services required by such departments, officers, commissions and commissioners of pilots for district one in matters relating to their official duties shall, except as otherwise provided, be rendered by the attorney general or under his direction.

[2] The Office of the Attorney General is allowed by statute to accept gifts from everyone and every type of entity. The statute, c. 12, sec. 4A (“Acceptance of gifts or grants of money or property”) does not impose a dollar limitation on the value of the gifts, in money or in kind:

Sec. 4A. The department may accept any gifts or grants of money or property, whether real or personal, from any source, whether public or private, including but not limited to the United States of America or its agencies, for the purpose of assisting the department in the discharge of its duties.

ATTORNEY-GENERAL'S OPPOSITION
(TO BE SCANNED IN)

COMMONWEALTH OF MASSACHUSETTS

Essex, ss. CIVIL ACTION: 05-CV-01907

Barbara C. Johnson, Esq.

Plaintiff

v.

Board of Bar Overseers of Massachusetts

Office of Bar Counsel

Daniel Crane, Esq.,

in his individual and professional capacities,

Susan Strauss-Weisberg, 

in her individual and professional capacities,

Commonwealth of Massachusetts,
Defendants

______________________________________________

RULE 9A NOTICE OF FILING

Pursuant to Superior Court Rule 9A(b)(2), I hereby give notice to counsel of record that the following pleadings are herewith filed in the above-captioned action.

1. Johnson's Motion to Strike Appearance of Attorney General

for Daniel Crane and Susan Strauss-Weisberg

2. Defendant BBO and OBC’s Opposition to Motion to Strike Appearance of  Attorney General for Daniel Crane and Susan

Strauss-Weisberg

3. Motion for Leave to File Reply to Opposition to Plaintiff’s Motion  to Strike Appearance of Attorney General for Daniel Crane and Susan Strauss-Weisberg

4. Reply to Opposition to Plaintiff’s Motion to Strike Appearance

of Attorney General for Daniel Crane and Susan Strauss-Weisberg

5. Rule 9A Notice of Filing

I hereby certify under the penalties of perjury that I served the Motion for Leave to File the Reply and the Reply to the Opposition to my Motion to Strike on 26 December 2005.

                  Respectfully Submitted,

                                                       Barbara C. Johnson, Pro se

25 December 2005 _________________________

Barbara C. Johnson, Esq.

6 Appletree Lane

Andover, MA 01810-4102

978-474-0833

B.B.O. #549972

CERTIFICATE OF SERVICE

I, Barbara C. Johnson, hereby certify that a true copy of this motion was served on 26 December 2005 served by first-class mail on Ronald F. Kehoe, Assistant Attorney General, One Ashburton Place, Room 1813, Boston, MA 02108.

25 December 2005 _______________________

Barbara C. Johnson, Esq.

COMMONWEALTH OF MASSACHUSETTS

Essex, ss. CIVIL ACTION: 05-CV-01907

Barbara C. Johnson, Esq.

Plaintiff

v.

Board of Bar Overseers of Massachusetts

Office of Bar Counsel

Daniel Crane, Esq.,

in his individual and professional capacities,

Susan Strauss-Weisberg, 

in her individual and professional capacities,

Commonwealth of Massachusetts,

   Defendants

______________________________________________

MOTION FOR LEAVE TO FILE

REPLY TO OPPOSITION TO
PLAINTIFF’S MOTION TO STRIKE
APPEARANCE OF ATTORNEY GENERAL

FOR DANIEL CRANE AND SUSAN STRAUSS-WEISBERG

Now comes Plaintiff Barbara C. Johnson [“Johnson”] and moves for leave to reply to the opposition by Defendants Daniel Crane [“”Crane”] and Susan Strauss-Weisberg [“Weisberg”] to Johnson’s motion to strike the appearance of the Attorney General [“AG”] as their counsel.

As grounds, Johnson states that where Crane and Weisberg oppose Johnson’s motion on the same grounds and authorities cited in the opposition by the Board of Bar Overseers of Massachusetts [“”BBO] and Office of Bar Counsel [“OBC”] to her motion to strike the appearance of the AG as their counsel, she states and argues the same grounds as those stated in her reply to the opposition of the BBO and OBC with the addition of two arguments re the new legal arguments involving M.G.L. c. 258 §9 and raised by the nonmovants, Crane and Weisberg, to buttress the AG’s representation of them.

In support, she similarly incorporates her statements in the first reply of facts that apply to natural employees and supplements them as necessary.

WHEREFORE, Plaintiff prays this motion be allowed.

                 Respectfully Submitted,

                                                  Barbara C. Johnson, Pro se

25 December 2005 _________________________

Barbara C. Johnson, Esq.

6 Appletree Lane

Andover, MA 01810-4102

978-474-0833

B.B.O. #549972

CERTIFICATE OF SERVICE

I, Barbara C. Johnson, hereby certify that a true copy of this motion was served on 26 December 2005 served by first-class mail on Ronald F. Kehoe, Assistant Attorney General, One Ashburton Place, Room 1813, Boston, MA 02108.

25 December 2005 _______________________

Barbara C. Johnson, Esq.

COMMONWEALTH OF MASSACHUSETTS

Essex, ss. CIVIL ACTION: 05-CV-01907

Barbara C. Johnson, Esq.

Plaintiff

v.

Board of Bar Overseers of Massachusetts

Office of Bar Counsel

Daniel Crane, Esq.,

in his individual and professional capacities,

Susan Strauss-Weisberg, 

in her individual and professional capacities,

Commonwealth of Massachusetts,

   Defendants

______________________________________________

REPLY TO OPPOSITION TO
PLAINTIFF’S MOTION TO STRIKE
APPEARANCE  OF ATTORNEY GENERAL FOR

DANIEL CRANE AND SUSAN STRAUSS-WEISBERG

Now comes Plaintiff Barbara C. Johnson [“Johnson”] and replies to the opposition by Defendants Daniel Crane [“”Crane”] and Susan Strauss-Weisberg [“Weisberg”] to Johnson’s motion to strike the appearance of the Attorney General [“AG”] as their counsel.

As grounds, Johnson states that where Crane and Weisberg oppose Johnson’s motion on the same grounds and authorities cited in the opposition by the Board of Bar Overseers of Massachusetts [“”BBO] and Office of Bar Counsel [“OBC”] to her motion to strike the appearance of the AG as their counsel, she states and argues the same grounds here as those stated in her reply to the opposition of the BBO and OBC with the addition of arguments re the new legal arguments involving M.G.L. c. 258 §9 and raised by the nonmovants, Crane and Weisberg, to buttress the AG’s representation of them. Johnson therefore incorporates in entirety herein by reference both her reply to the opposition to her motion to strike the AG’s appearance for the BBO and the OBC, and the four exhibits attached thereto.

In support, she similarly incorporates her statements in the first reply of facts that apply to natural employees and supplements them as necessary.

ARGUMENTS

1. General Law c. 258, §9, does not authorize the indemnification by the Commonwealth for their intentional tortious acts.

The plaintiff’s motion is about an appearance not indemnification. The primary issue is whether Crane and/or Weisberg are entitled to representation by the AG. Crane and Weisberg appear to have raised the issue of indemnification under c. 258 §9, in order to use it as the alleged reason the Commonwealth has “an extra ‘’interest’” in this court deeming Defendants Crane and Weisberg public employees, which would give the AG under c. 12 §3 the authority to defend them.

Johnson, of course, continues to contend that the BBO and the OBC are private entities, and not public as the AG contends, for were the BBO and the OBC political subdivisions with public employees, they would be funded by the Commonwealth. They are not.

Even assuming arguendo that the BBO and the OBC are political subdivisions of the Commonwealth as required for the application of M.G.L. c. 12, §3, defamation and the intentional interference with prospective advantageous business and/or contractual relationships may not be deemed “official acts” or “doings” of said political subdivisions of the Commonwealth. Thus c. 12 §3 does not authorize the AG’s appearance as counsel for Crane and Weisberg, and c. 12 §9 does not authorize the indemnification of Crane and Weisberg, whose salaries are paid by the annual fees charged the majority of licensed attorneys and not by the Commonwealth’s monies:

General Laws c. 258, § 9, as inserted by St.1978, c. 512, § 15, provides in pertinent part: "Public employers may indemnify public employees from personal financial loss and expenses, including legal fees and costs, if any, in an amount not to exceed one million dollars arising out of any claim, action, award, compromise, settlement or judgment by reason of an intentional tort, or by reason of any act or omission which constitutes a violation of the civil rights of any person under any federal or state law; if such employee or official at the time of such intentional tort or such act or omission was acting within the scope of his official duties or employment. No such employee or official shall be indemnified under this section for violation of any such civil rights if he acted in a grossly negligent, willful or malicious manner."

G.L. c. 258, §9.

Scope of employment. Clearly indemnification is provided only if such employee or official at the time of such intentional tort or such act or omission was acting within the scope of his official duties or employment. See Pinshaw v. Metropolitan Dist. Comm'n, 402 Mass. 687, 694 (1988); Howard v. Burlington, 399 Mass. 585, 589-590 (1987). See also Wang Lab., Inc. v. Business Incentives, Inc., 398 Mass. 854, 859 (1986). To determine, therefore, whether Crane and Weisberg are entitled to indemnification under §9 of c. 258, we must ask whether the acts of Crane and of Weisberg were in furtherance of the OBC’s or BBO’s work:

Factors to be considered include whether the conduct in question is of the kind the employee is hired to perform, whether it occurs within authorized time and space limits, and whether it is motivated, at least in part, by a purpose to serve the employer. Wang Lab., Inc. v. Business Incentives, Inc., and cases cited. See Restatement (Second) of Agency § 228 (1958).

Clickner v. City of Lowell, 422 Mass. 539, 542 (1996). In applying this test to the facts of this case, there are no factors seen tending to show that either Crane or Weisberg were acting in the furtherance of the employer's work. Defendants Crane or Weisberg have also not claimed to have been acting within the scope of their employment when speaking to the reporters.

Where there is evidence only of Crane or Weisberg being private employees and there is no evidence whatsoever to support their metamorphosis into public employees, this court must find that §9 of c. 258 is not only inapplicable in this action but also insufficient to give support to Crane and Weisberg’s argument that the potential vulnerability of the Commonwealth under § 9 is sufficient to support the AG’s decision to defend them in this action.

2. Where under c. 258 §9, the Commonwealth would be vulnerable up to $1,000,000 were Crane and Weisberg to be deemed public employees, the Commonwealth’s real interest would be to admit that Crane and Weisberg are private employees, not to argue that the Commonwealth has an “extra ‘interest’” in this case [Defs.Opp. p. 1].

Were Crane and Weisberg to be deemed public employees acting within the scope of their employment, the Commonwealth would be vulnerable up to $1,000,000, according to §9 of c. 258. The Commonwealth’s real interest, therefore, would be both to admit that Crane and Weisberg are private employees and to let them retain their own private counsel and try to demonstrate that what they did was within the scope of their employment. For the AG to argue that the Commonwealth has an “extra ‘interest’” in this case because it is potentially vulnerable to liability under §9 is not persuasive [Defs.Opp. p. 1]. The AG’s decision to use his discretion in a manner that abuses the public trust creates a conundrum, if not an appearance of impropriety. The common law should have guided him:

. . . “G.L. c. 258, §9 (and the substantially identical G.L. c. 258, §13), are specific in their terms and were intended by the Legislature to confine (on grounds of public policy) indemnification of public employees by their employers to covered cases [meeting the conditions of §9]. By these restrictions, the Legislature apparently sought to limit the ability of public employers to expose the taxpayers to potentially sizeable financial obligations arising out of intentional torts and civil rights violations committed by public employees.... “

City of Boston v. Boston Police Patrolmen's Ass'n, Inc., 48 Mass.App.Ct. 74, 75-76 (1999) (internal cite omitted) (emphasis supplied).

Where the facts of the tort actions—the repeated defamation of Johnson and the intentional interference with her advantageous or business relationships—are indisputable, the AG, by arguing that Crane and Weisberg are public employees, is actually putting the Commonwealth at considerable financial risk.

The AG’s obligation is to the people who are members of the association known as the Body-Politic, not to the nonpublic “affiliated entities” BBO and OBC, and not to their private staff. Moreover, the Body-Politic, the people, has no interest in condoning defamation, whether committed by public or private persons. Even assuming arguendo that Crane and Weisberg are public employees, the AG has abused his discretion in voluntarily choosing to interfere with what must be, unquestionably, the wish of the Body-Politic, the people, to have a society free of defamation and the interference with the fundamental right of all persons, to conduct business for their livelihoods.

That the AG’s obligation to the Body-Politic, the people, is Supreme was demonstrated in Alliance, AFSCME/SEIU, AFL-CIO v. Com., 425 Mass. 534 (1997), where the office of the AG agreed with the plaintiffs and declined to defend the action for the governor. Id. at 537. “[T]he Attorney General does not operate in a wholly subordinate role to the Governor, but may exercise independent judgment as to whether an executive action is so unlawful or against the interests of the public and Commonwealth that he will not undertake to defend it in court.” Alliance, 425 Mass. at 538 n. 6.

Here, where an AG has a common-law duty to represent the public interest [Feeney v. Com., 373 Mass. 359 (1977)], the AG has abused his discretion by voluntarily choosing to act contrary to the public interest, i.e, by choosing to interfere with what must be, unquestionably, the wish of the Body-Politic, the people, to have a society free of defamation and the intentional interference with the fundamental right of all persons, to conduct business for their livelihoods.

WHEREFORE, Plaintiff prays this court, in the interest of justice, allow her motion to strike the appearance of the AG on behalf of the private defendants.

               Respectfully Submitted,

                                                  Barbara C. Johnson, Pro se

25 December 2005 _________________________

Barbara C. Johnson, Esq.

6 Appletree Lane

Andover, MA 01810-4102

978-474-0833

B.B.O. #549972

CERTIFICATE OF SERVICE

I, Barbara C. Johnson, hereby certify that a true copy of this motion was served on 26 December 2005 served by first-class mail on Ronald F. Kehoe, Assistant Attorney General, One Ashburton Place, Room 1813, Boston, MA 02108.

25 December 2005 _______________________

Barbara C. Johnson, Esq.

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Over the years, I have received hundreds of phonecalls and emails for recommendations of and referrals to family-law and civil rights attorneys and self-help groups across this nation, 3500 miles wide and 1500 deep plus Hawaii and Alaska.   Clearly, it is impossible for me to be responsive to these requests.   

Sooooo . . . not only can the few dollars from the ads pay for the expenses of this website, you, too, can also benefit: you can learn on your own which attorneys and which self-help groups in those areas of the law are available to help you.  

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HELP:  Any  HTML programmer know how to get rid of the extra <> below the Google ads at the top of the  files and the <> in the upper right-hand corners of the Google ads on the right-hand side of the screen?  i've wasted hours, if not days, trying to figure out WHY they are there in some files and not in others . . . and how to get rid of them.  THANKS!!

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