#170, Drano Series

  

Barb's Motion for Declaration As to What Constitutes the Unauthorized Practice of Law under G.L. c. 221, §41 and As to Other Related Matters ~~~~~~~~~~~~~~~~ NOTE that Drano ##159, 160, and 161, 167, 168, and 169  were sent to the Massachusetts Supreme Judicial Court for the Commonwealth, where the full panel (minus the judge who sat in the single-justice) will hear the case. ~~~~~~~~~~~~~~~~~~ NOTE that Drano ##162, 163 and 164,  were sent to the Massachusetts Supreme Judicial Court for Suffolk County, where every month a different SJC justice is assigned to sit as a  judge  in the single-justice session. Amongst the many types of cases heard by a "Single Justice" are petitions invoking the "SUPERINTENDENCY" of the SJC and Board Discipline cases. ~~~~~~~~~~~~~~~~ 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) Send letters by snail mail or email of both. Snail mail address above. Email addresses below.

 

hief Justice Margaret H. Marshall chiefjustice.marshall@sjc.state.ma.us margaret.marshall@sjc.state.ma.us Justice John M. Greaney john.greaney@sjc.state.ma.us Justice Roderick L. Ireland roderick.ireland@sjc.state.ma.us Justice Francis X. Spina francis.spina@sjc.state.ma.us Justice Judith A. Cowin judith.cowin@sjc.state.ma.us Justice Martha B. Sosman martha.sosman@sjc.state.ma.us Justice Robert J. Cordy robert.cordy@sjc.state.ma.us   Keep the letters going to the Court. I was there on October 6th to file my appeal.   One of the clerks said the letter file was a few inches thick. Whether the judges will ever read them is unknown, but they are sure to know that they are there.  I'll inquire as to whether a "reader" has been assigned.  Let's also try emails.  The judges' secretaries will certainly let them know how many are coming in.

COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT for the Commonwealth Docket No. SJC-09820 IN RE BARBARA C. JOHNSON ~~~~~~~~~~~ JOHNSON’S MOTION FOR DECLARATION AS TO WHAT CONSTITUTES THE UNAUTHORIZED PRACTICE OF LAW UNDER G.L. c. 221, §41 AND AS TO OTHER RELATED MATTERS Now comes Barbara C. Johnson, Esq., [“Johnson”] and moves for a declaration as to what constitutes the unauthorized practice of law under G.L. c. 221, §41.   As grounds, Johnson states that having been disbarred and having been threatened with the charge of unauthorized practice of law, Johnson is entitled to either a declaration that is clear and unequivocal of what constitutes the unauthorized practice of law or a declaration that G.L. c. 221, §41, is both unconstitutionally vague and unconstitutionally overbroad.  The failure to act as requested will be seriously and likely irreversibly prejudicial to Johnson.     The BBO/OBC prosecutor, Susan Strauss-Weisberg, has complained that Johnson was practicing law without authorization after 8 September 2006, “Axe Day,” the last day on which Johnson was to practice law in the Commonwealth.   Although Judge Spina declared in an order dated 2 November 2006 that “[t]he essence of the respondent's contempt was her failure to send certain specific notices in accordance with the order of disbarment,”     This matter came before the Court, Spina, J., on respondent's Motion to Seek Disposition of Her Motion For a Declaration as to What Constitutes the Unauthorized Practice of Law.  Upon consideration thereof, and without hearing, it is ORDERED that no action be taken.  It was not necessary to define the practice of law to reach a decision on the contempt petition. The essence of the respondent's contempt was her failure to send certain specific notices in accordance with the order of disbarment.   he, in his Findings and Rulings on Bar Counsel’s petition for Contempt,  wrote—“in passing”?—about Johnson’s appearance in a court on September 11th.  He did not go on to find Johnson in contempt because of that appearance, but Johnson perceives his memorialization—albeit incomplete and inaccurate\[1]/,\[2]/—of the event as a threat of future action, which makes the requested declaration a pressing necessity, particularly where §41 carries with it possible incarceration and §46B says the crime shall be heard in equity.  That means that were Johnson ever charged with such a crime, she would not have a jury.   That is, of course, unacceptable, if not outrageous, where Johnson has never in the four or five years that she has been harassed by the OBC and the BBO, and recently in the single-justice session, she has never had an opportunity to be heard!  No witnesses, no evidence, no rules, no right to cross-examine.                 Thus, between now and the time this Court issues an opinion, and after the opinion if this Court does not reverse and vacate Judge Spina’s Judgment of Disbarment, Johnson needs to know what she is permitted and not permitted to do by this Court.    Given that, nationwide, court after court has defined the words “unauthorized practice of law” differently, it is inescapable that this Court must issue a clear and unequivocal declaration of what actions constitute the unauthorized practice of law here, in the Commonwealth of Massachusetts.               Absent such a declaration, this Court must declare §§41, 46, 46A, and 46B both unconstitutionally vague and unconstitutionally overbroad.    The rule against vague penal laws has been rested on various constitutional premises. In State v. Hodges, 254 Or. 21, 457 P.2d 491 (1969), this court suggested that abdication of the lawmakers' responsibility to define a crime to prosecutors, judges, or jurors in case-by-case adjudication allowed those charged with enforcing the law to make the law after the event:   “A law that permits the judge and jury to punish or withhold punishment in their uncontrolled discretion is defective as much for its uncertainty of adjudication as for its failure to notify potential defendants of its scope and reach.   “... A vague statute lends itself to an unconstitutional delegation of legislative power to the judge and jury, and, by permitting the jury to decide what the law will be, it offends the principle, if not the rule, against ex post facto laws.  See Oregon Constitution, Art I, s 21.”   State of Oregon v. Robertson, 293 Or. 402, 408, 649 P.2d 569, 573-574 (1982) (emphasis supplied).  Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, -- ,  102 S.Ct. 1186, 1193 (1982).  See also Town of Brookline v. Commissioner of Dept. of Environmental Quality Engineering,  387 Mass. 372, 378 (1982), citing Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688 (1971) (“A vague rule subjects people to an unascertainable standard”).\[3]/             In principle, however, a claim of “overbreadth” asserts that the terms of a law exceed constitutional boundaries, purporting to reach conduct protected by guarantees such as, for instance, Oregon Constitution, article I, section 8 (freedom to speak and write) or section 27 (right to bear arms).   State of Oregon v. Robertson, 293 Or. At 410, 649 P.2d at 575.   For a law is overbroad to the extent that it announces a prohibition that reaches conduct which may not be prohibited. A legislature can make a law as ‘broad’ and inclusive as it chooses unless it reaches into constitutionally protected ground. The clearer an ‘overbroad’ statute is, the harder it is to confine it by interpretation within its constitutionally permissible reach.   State of Oregon v. Robertson, 293 Or. At 410, 649 P.2d at 575 (internal citation omitted).               It is because the concept of the “practice of law” has not been defined in this Commonwealth, the statutes—c. 221, §§41, 46, 46A, and 46B—are both vague and overbroad.  They are subject to arbitrary, capricious, and whimsical interpretation, as well as to dangerous overreaching of constitutional boundaries, such as the First Amendment, to interfere with free speech, political speech, and, of course, to preclusion of free enterprise by creating monopolies.\[4]/   The vagueness and overbreadth doctrine are not always separate and distinct.  As stated by Mr. Justice Douglas in Karlen v. Cincinnati, 416 U.S. 924, 925 (1974) (dissenting opinion),  'A vague statute may be overbroad if its uncertain boundaries leave open the possibility of punishment for protected conduct and thus lead citizens to avoid such protected activity in order to steer clear of the uncertain proscriptions.   Grayned v. City of Rockford, supra, at 109 (408 U.S. 104 (1972)); Dombrowski v. Pfister, 380 U.S. 479, 486 (1965).  A statute is also overbroad, however, if, even though it is clear and precise, it prohibits constitutionally protected conduct.  Aptheker v. Secretary of State, 378 U.S. 500, 508-509 (1964); Shelton v. Tucker, 364 U.S. 479, 488 (1960).' Com. v. A Juvenile, 368 Mass. 580, 586 (1975).               Unfortunately, the cases in the Commonwealth interpreting “the practice of law” are very narrow.                In the Matter of Darryl Chimko, 444 Mass. 743 (2005), this Court held that using a law firm's letterhead on letters to, for instance, a debtor and a bankruptcy court did not constitute the practice of law.  Id., at 751.  “‘Chimko's preparation of the notice did not constitute the practice of law because the ‘assistance’ he provided did not relate to any specific legal problem.”  Id., at 751-752. We have rejected the proposition "that whenever, for compensation, one person ... performs for another some service that requires some knowledge of law, or drafts for another some document that has legal effect, he is practising law."    Chimko, 444 Mass. at 749-750 (emphasis supplied), quoting Lowell Bar Ass'n v. Loeb, 315 Mass. 176, 181 (1943).    The Court in Lowell Bar Ass'n wrote specifically, “The drafting of documents merely incidental to work of a distinct occupation is not the ‘practice of law,’ though documents have legal consequences.”  Id. at .  G.L. c. 221, § 46B. "[T]he mere general dissemination of legal information by nonlawyers does not constitute the unauthorized practice of law." Oregon State Bar v. Smith, [149 Or.App. 171], 182, 942 P.2d 793 [1997), cert. denied, 522 U.S. 1117, 118 S.Ct. 1055, 140 L.Ed.2d 117 (1998)].  Equally significant in our view, however, is the fact that the notice was addressed to the court, and not to the debtor.  Although Chimko included the notice with his initial correspondence to the debtor, seemingly as a courtesy to a party acting pro se, the notice itself made clear that its intended audience was the court.  In such circumstances, we cannot conclude that Chimko furnished legal advice to the debtor and thereby engaged in the unauthorized practice of law. [citation omitted].  Chimko, 444 Mass at 751.             Chimko leaves open the questions, (1) What is a “specific legal problem”?  (2) How does something “relate” to a “specific legal problem”?  (3) What is a “service” that requires some knowledge of law?   (4) What is a “distinct occupation”?  (5) In this Court’s opinion, is, for instance, consulting a “service” that requires some knowledge of law?   (6) In this Court’s opinion, is, researching a “service” that requires some knowledge of law?  (7) In this Court’s opinion, is consulting a “distinct occupation”?   (8) In this Court’s opinion, is researching a “distinct occupation”?    (9) In this Court’s opinion, is publishing a “distinct occupation”?   (10) In this Court’s opinion, is editing legal documents for pro se parties a “distinct occupation”?   (11) In this Court’s opinion, is drafting legal documents for pro se parties a “distinct occupation”?                Johnson suggests that questions ##5-11 must be answered in the affirmative. Given, however, that all seven judges in this Court denied Johnson’s Motion to Stay the Judgment of Disbarment, and given that had Johnson been in the shoes of the justices, she would have allowed it, the thought processes of this Court and those of Johnson are clearly disparate in nature.\[5]/  Thus, as Johnson wrote, there is a pressing necessity for this Court to declare clearly and unequivocally what constitutes the “practice of law” and the “unauthorized practice of law.”             Equally as exigent is the need to know whether this Court opines that it has jurisdiction over how the holder of a law degree uses his or her legal knowledge.    Is the public justified in rumbling that our society is now Orwellian?   Given that OBC Assistant Bar Counsel Susan Strauss-Weisberg moved to “impound Johnson’s thoughts and written conclusions” (a motion allowed by then-BBO-Chair M. Ellen Carpenter, a long-time colleague and former law partner of one member of this panel), secretly subpoenaed Johnson’s bank records, and stalked Johnson electronically, Johnson fears that the public is justified. \[6]/  Does this Court want to issue declarations that will fuel those fears? Johnson argues that this Court need not be our Big Brothers and Sisters.   For instance, in other jurisdictions, the functions of consulting, researching,\[7]/ investigating,\[8]/ publishing,\[9]/ advising, \[10]/ editing, drafting,\[11]/ are not deemed the practice of law.  Where the individual is not practicing law, however, and "does not purport to be exercising judgment on behalf of any particular individual with whose circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice with only incidental impact on speech”, but rather impermissibly interferes with that individual's First Amendment rights (see, Lowe v. SEC, 472 U.S. 181, 232, 105 S.Ct. 2557, 2584, 86 L.Ed.2d 130 [White, J., concurring], Thomas v. Collins, 323 U.S. 516, 544, 65 S.Ct. 315, 328, 89 L.Ed. 430 [Jackson, J., concurring] ).  In this case, respondent was exercising his right to free speech by publishing his article (see, Matter of New York County Lawyers' Assn. v. Dacey, 28 A.D.2d 161, 176, 283 N.Y.S.2d 984, revd. on dissenting opn. below 21 N.Y.2d 694, 287 N.Y.S.2d 422, 234 N.E.2d 459, supra).   The Appellate Division, by applying its order to foreclose him from doing so, improperly "prohibit[ed] him from engaging in endeavors which he could have undertaken had he never been admitted to the Bar in the first place" (see, Matter of Rosenbluth, 36 A.D.2d 383, 384, 320 N.Y.S.2d 839). In the Matter of Rowe, 80 N.Y.2d 336,  604 N.E.2d 728,  590 N.Y.S.2d 179 (1992).  The problem, from Johnson’s perspective, with current law is that many of the other jurisdictions require a barred attorney to supervise a disbarred attorney.   That, Johnson contends, is too Orwellian.  The BBO/OBC’s accusations do not involve either Johnson’s competence or client-complaints.  Nor do the accusations involve any matter that implies that Johnson is in need of “rehabilitation.”   Johnson was merely a vigorous advocate of court reform, the abolishment of judicial and quasijudicial immunity, and the people’s rights to due process and equal protection.   And at 72 and having grown accustomed to working out of her home-office, Johnson is absolutely not seeking to work for any other attorney, and supervision is not required to protect customers or clients.  So an Orwellian solution would be patently and fundamentally unfair. Further, in a county of this Commonwealth, a Clerk of Court holds a law degree but he has never been sworn in and authorized by this Court to practice law in the Commonwealth.   That same Clerk teaches civil procedure at a law school.  Still another “for instance”:  in some courts, judges do not need to be lawyers.\[12]/  In fact, in some jurisdictions, neither do county attorneys have to be lawyers.\[13]/ Another exigent need is the declaration by this Court as to the difference between a lawyer, an attorney, an attorney in fact, and an attorney at law. Conclusion             Given (1) that Weisberg has demonstrated that she has been using the buckshot approach in accusing Johnson, (2) that  “[i]t is not easy to define the practice of law”  [Chimko, 444 Mass at 749, citing Lowell Bar Ass'n v. Loeb, 315 Mass. at 180], and (3) that “[t]o a large extent each case must be decided upon its own particular facts” [Matter of the Shoe Mfrs. Protective Ass'n, 295 Mass. 369, 372 (1936)], a clear and unequivocal declaration of what constitutes the unauthorized practice of law is mandatory, lest Johnson again be seriously, and likely irreversibly, prejudiced and deprived of her constitutional rights.   For the same reason, the clear and unequivocal declarations and answers to questions ##5-11, supra, are equally as mandatory. Wherefore, Johnson prays this motion be allowed.            CERTIFICATE OF SERVICE   I, Barbara C. Johnson, hereby certify that on ___ December 2006 I served a true and accurate copy of the within pleading to the opposing OBC counsel, 99 High Street., Boston, MA 02110.                                 Barbara C. Johnson ___ December  2006        Respectfully submitted,     Barbara C. Johnson, Pro Se 6 Appletree Lane Andover, MA 01810-4102 978-474-0833 BBO #549972 (pending appeal)   [1]          In his Findings and Rulings on Bar Counsel’s petition for Contempt, Judge Spina failed to write that she did not appear before the bar, that she merely filed the memo that the court had months earlier ordered to be filed that day, that the court defaulted the defendant and told Johnson to write a motion for the assessment of damages.    Had Johnson been called before the Bar, as Johnson explained to Judge Spina, she was prepared to inform the court both of her status and of her purpose in being there, to wit, to help her relatively monosyllabic client to get an extension long enough for him to find successor counsel.    Cf. David Rand, Jr., J.D., Annotation,  Nature of Legal Services or Law-Related Services Which May Be Performed for Others by Disbarred or Suspended Attorney, 87 A.L.R.3d 279 (1978 & 1999 Supp.), citing  Columbus Bar Assn. v. Smith, 100 Ohio St. 3d 278, 2003-Ohio-5751, 798 N.E.2d 592 (2003), for the proposition that an “[a]ttorney's appearance in common pleas court on behalf of a client did not constitute [the] practice of law, . . . , given [the] attorney's explanation that he had intended only to advise the judge of his client's need for other counsel and that if his efforts created the impression of representation it was by mistake.” [2]           On September 11th, after Johnson left the superior court, Judge Spina—or someone on his behalf— ordered the case be taken off the list.  That act did not punish Johnson.  Instead it deprived Johnson’s client of his constitutional rights to due process and equal protection, and is making it more difficult for him to find successor counsel.  E.g., as a result, any successor counsel will find an unnecessary obstacle in front of him or her as soon as he takes the case.   What possible reasonable rationale was there for such an arbitrary and capricious action, to wit, to  punish the client because he had Johnson as his counsel.  It was nothing but an egregious abuse of discretion.             Clearly, Spina was not considering the client’s interests when he issued his order.  Given that his order to dismiss the client’s action was more harmful to Johnson’s client than to her, his action was not only robotic, it interfered with the justice his court pretends to dispense for the public.  That client is still looking for replacement counsel, but because of the maverick nature of the OBC, the BBO, and this Court, counsel have been fearing to take over Johnson’s cases lest they inherit her disciplinary problems on the false pretense that they associated with her.   The First Amendment is in peril. [3]            A law is not vague, however, if it requires a person to conform his conduct to an imprecise but comprehensible normative standard so that men of common intelligence will know its meaning.  Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct. 2908, 2914 (1973).  Coates v. Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686 (1971).   Com. v. Orlando, 371 Mass. 732, 734 (1977).  This argument cannot be made here, for this Court and other jurisdictions have agreed that “[i]t is is not easy to define the practice of law” [Chimka, infra], inferring that “men of common intelligence will [not] know its meaning.”  Orlando, at 734. [4]      “State and federally sanctioned legal advice is educational speech and cannot be banned absent a compelling state interest and means narrowly tailored to further the state's interest while protecting the speakers right to speak freely.”   Defendants’ argument in Oregon State Bar v. Smith and People's Paralegal Service, Inc., 149 Or.App. 171, 188, 942 P.2d 793, 803 (1997). [5]      See Houts v State, 486 P2d 722 (Okla., 1971), where the court noted that it has permitted disbarred attorneys to practice pending action on petition for rehearing. [6]      Proof may be found on the disk of the contempt hearing before Judge Spina on Day 1, October 17, 2006, when Weisberg admitted knowing where and when Johnson was.  The only way Weisberg could have known is by having stalked Johnson. [7]     Werner v State Bar of California, 42 Cal 2d 187, 265 P2d 912 (1954); Re Application of McKelvey, 82 Cal App 426, 255 P 834 (1927) (rejecting assertion that evidence tended to show that attorney practiced law indirectly); The Florida Bar v Thomson, 310 So 2d 300, 87 ALR3d 272 (Fla. 1975). [8]      The Florida Bar v Thomson, supra. [9]     Oregon State Bar v. Gilchrist, 272 Or. 552, 558-59, 538 P.2d 913 (1975). (holding advertising and selling generic, noncustomized do-it-yourself divorce kits does not constitute the practice of law).     It cannot be claimed that the publication of a legal text which purports to say what the law is amounts to legal practice. And the mere fact that the principles or rules stated in the text may be accepted by a particular reader as a solution to his problem, does not affect this. * * * " 'Dacey's book is sold to the public at large. There is no personal contact or relationship with a particular individual. Nor does there exist that relation of confidence and trust so necessary to the status of attorney and client. This is the essential of legal practice--the representation and the advising of a particular person in a particular situation.' New York County Lawyers' Association v. Dacey,  28 A.D.2d 161, 283 N.Y.S.2d 984, rev. 21 N.Y.2d 694, 287 N.Y.S.2d 422, 234 N.E.2d 459 (1967).  “Thus, the mere general dissemination of legal information by nonlawyers does not constitute the unauthorized practice of law.”  Oregon State Bar v. Smith and People's Paralegal Service, 149 Or.App. at 182, 942 P.2d at 799. [10]         The legal ingredient in the advice may be so insubstantial as to call for the application of the principle of de minimis non curat lex. This is not to say that we adopt the view permitting the practice of law where the legal element is merely incidental to the business activity being carried on. To fall outside the proscription of the statute the legal element must not only be incidental, it must be insubstantial.   Oregon State Bar v. Smith and People's Paralegal Service, 149 Or.App. at 181, 942 P.2d at 799. [11]      The Florida Bar v Thomson, supra.   Re Application of McKelvey, supra. [12]     North v. Russell, 427 U.S. (Ky.) 328, 96 S.Ct. 2709, 2709. 49 L.Ed.2d 534 (1976) (Chief Justice Burger, held that an accused, subject to possible imprisonment, is not denied due process when tried before a nonlawyer police court judge with a later trial de novo available under a state's two-tier court system; and state does not deny equal protection by providing law-trained judges for some police courts and lay judges for others, depending upon the State Constitution's classification of cities according to population. “The State Constitution requires cities in Kentucky to be classified according to population size. By statute judges of police courts in cities of less than a certain population need not be lawyers, but in larger cities they must be, and all circuit court judges are lawyers ”). [13]    Hobson v,. State of Oklahoma, 1955 OK CR 28, 280 P.2d 735, 739 (1955) (“We are cognizant of the fact that in many counties of the State it is difficult to obtain lawyers to take the position of county attorney because of the low salaries that are paid and that in many counties the county attorneys are young graduates of a law school just recently admitted to the practice of law and that it is at their request that more mature attorneys assist them in the prosecution of serious cases in order that justice might be duly administered and the rights of the people to an enforcement of the law upheld.”).  State v. Swan, 60 Kan. 461, 56 P. 750, 751 (1899) (“A county attorney who has been an attorney at law, but whose license to practice has been revoked, or a person elected to that office who has never been admitted to the bar, acts in the capacity of agent for the state in discharging his official duties which are prescribed by law. The disbarment of a lawyer, who at the time holds the office of county attorney, does not revoke his agency as the servant of the state”).