Massachusetts
Rules of Professional
Conduct\FN
/
Former
Canon 1, DR 1-102(A)(5) and (6). (A) A
lawyer
shall not: .
. . (5) Engage in conduct that is
prejudicial to the administration of justice. (6)
Engage in any other conduct that adversely reflects on his fitness to
practice law.
Former
Canon 6, DR 6-101(A)(1)-(3) .\FN / (A) A
lawyer
shall not: (1) Handle a legal matter which he
knows or should
know that he is not competent to handle without associating with him a
lawyer
who is competent to handle it. (2)
Handle
a legal
matter without preparation adequate in the circumstances.
(3) Neglect
a legal
matter entrusted to him.
Former
Canon
7, DR 7-101(A)(3).
(A)
A
lawyer shall
not: (3)
Prejudice or damage
his client during the course of the professional relationship except as
required
under DR 7-102(B).
Supreme
Judicial
Court Rule 3:07.
Massachusetts Rules of
Professional Conduct
Mass.R.Prof.C. 1.6(a,
b(2)). Confidentiality
of
Information. (a)
A lawyer shall not reveal confidential
information relating to
representation
of a client unless
the client consents after consultation, except for
disclosures that are impliedly authorized in order to carry out the
representation,
and except as stated in
paragraph (b). (b) A lawyer may
reveal, and to the
extent required by Rule 3.3, Rule 4.1(b), or Rule 8.3
must reveal, such information: . . . (2)
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 . . . civil
claim against the lawyer . . . , or to
respond to allegations in any proceeding concerning the lawyer's
representation
of the client. . . .
Mass.R.Prof.C.
1.9(c). Conflict of
Interest:
Former Client.
(c)
A lawyer
who has
formerly represented a client in a matter . . . shall not thereafter,
unless
the former client consents after consultation: (1) use
confidential information relating to the representation to
the disadvantage of the former client, to the lawyer's advantage, . . .
except as Rule 1.6, Rule 3.3, or Rule 4.1 would permit or require with respect
to a
client; or (2) reveal
confidential information relating to the representation except as Rule
1.6 or Rule 3.3 would permit or require with respect to a client.
Mass.R.Prof.C.
1.15(a-c). Safekeeping Property (in
effect
through 12/31/03).\FN/
(a)
A lawyer shall hold property of
clients or third persons
that is in a lawyer's possession in connection with a representation
separate from
the lawyer's own property. Funds shall be kept in a separate account
maintained in the State where the lawyer's office is situated, or
elsewhere with the consent of the client or third person. . . . (b)
Upon receiving funds or other property in which a client or third
person has an interest, a lawyer shall promptly notify the client or
third person. .
. . (c) When
in the course of representation a lawyer is in
possession of property in which both the
lawyer and another person claim interests, the property shall be kept
separate
by the lawyer until there is an accounting and severance of their
interests.
If a dispute arises concerning their respective interests, the portion
in
dispute shall be kept separate by the lawyer until the dispute is
resolved.
Mass.R.Prof.C. 1.16(d),
Declining or Terminating
Representation\FN/ (d)
Upon
termination of
representation, a lawyer shall take steps to the
extent
reasonably practicable to protect a client's interests, such as
giving
reasonable notice to the client, allowing time for employment of other
counsel,
surrendering papers and property to which the client is entitled, and
refunding
any advance payment of fee that has not been earned.
Mass.R.Prof.C. 3.4(c). Fairness
to
Opposing Party and
Counsel.
A
lawyer shall not: (c) knowingly disobey an
obligation under the rules of a tribunal except for an
open refusal
based on an
assertion that no valid
obligation exists;
Mass.R.Prof.C.
8.3(b). Reporting
Professional Misconduct.
A lawyer having knowledge
that a judge has committed a violation of applicable rules of judicial
conduct
that raises a substantial question as to the judge's fitness for office
shall
inform the Commission on Judicial Conduct.
Mass.R.Prof.C.
8.4(c, d, h). Misconduct. It
is
professional misconduct for a lawyer
to: (c) engage in
conduct involving
dishonesty, fraud, deceit, or
misrepresentation; (d)
engage in conduct that is
prejudicial to the administration of
justice; (h)
engage
in any
other conduct that adversely
reflects on his or
her fitness to practice law.
Supreme
Judicial Court Rule 4:01.
Bar
Discipline
§5(3)(i). The Board of Bar
Overseers.
(3)
The Board
of
Bar
Overseers . . . (i) with the approval of this
court,
may adopt
and publish rules of
procedure and other
regulations
not inconsistent with this rule…
§10.
Refusal of Complainant to Proceed; Compromise; or Restitution. .
.
. A lawyer shall not, as a
condition of
settlement,
compromise or
restitution, require
the complainant to refrain from filing a complaint,
to withdraw the complaint, or to fail to cooperate
with the bar
counsel.\FN/
Board
of Bar
Overseers Rules
BBO
Rules, §3.2. Procedure to
Apply. Except where inconsistent with these Rules,
formal proceedings before hearing
committees,
hearing panels, special hearing officers and the Board shall conform
generally
to the practice in adjudicatory proceedings under Chapter 30A of the
General
Laws (State Administrative Procedure).
BBO Rules,
§3.15(f).
Service of Petition on Respondent
and
Answer. (f) Request
to Be Heard in Mitigation. The respondent
shall
include in the answer any facts in
mitigation and may request that a
hearing be held on the issue of mitigation. Failure
to include facts in
mitigation
constitutes a waiver of the right to present
evidence of those facts.
BBO
Rules,
§3.18(a). Prehearing Motions. (a) Motions
Other Than
Motions to Dismiss. . . . the
motion shall be
submitted
to a
member of the Board for determination.
The Board
member may refer the
motion to . . . or to
the
special hearing officer for determination. A
hearing
on
the motion may be held at the discretion of the . . .
special
hearing
officer. . .
.
BBO Rules, §3.22(b). Public Access to
Proceedings;
Protective Orders. (b) Upon the service of
a petition for discipline, the Board's proceedings
are open to the public…
BBO
Rules, §3.39. Admissibility
of Evidence.
In
any
proceeding the admissibility of evidence shall be governed by the
Rules of Evidence observed in
adjudicatory proceedings under Chapter
30A of the
General Laws (State Administrative Procedure).
BBO Rules,
§4.5(a-b).
Hearing
Subpoenas. (a) Bar
Counsel and the respondent may request that
the . . .
special hearing officer or the Board issue a subpoena
requiring the
attendance and testimony of a witness,
including the respondent, and
the
production of any
evidence, including books, records, correspondence or
documents,
relating to any matter in question in the
proceeding. (b)
The request shall be made in writing
. . . to the special hearing
officer, or to a member of
the Board who may forthwith issue the
subpoena.
SINGLE
JUSTICE PRACTICE
AND PROCEDURE
published
at
http://www.sjccountyclerk.com/singjusprpr.html
SJC Rule
4:01 of the Supreme Judicial Court grants the county court jurisdiction
over bar discipline matters
involving Any lawyer admitted to, or engaging in, the practice of law
in the Common- wealth and empowers the Board of Bar Overseers
(board) with the
responsibility to investigate and prosecute such matters. Those actions
most frequently
filed by the Office of Bar Counsel (bar counsel) are petitions for
suspension (temporary, term or indefinite), disbarment and reciprocal
discipline.
The grounds upon which bar counsel may petition the single justice for
disciplinary action against an attorney include:
- ·
misuse
or loss of client funds,
- ·
neglect
of client interests,
- ·
sanction
in another jurisdiction,
- ·
conviction
of a crime and
- ·
misrepresentation
to the court.
.
. . An
order of the single justice in bar docket
matters is appealable to the
full court
and the
standard by which the sanction imposed is
reviewed is whether
the
sanction is markedly
disparate from those ordinarily entered in
similar
cases.\FN/
STATEMENT
OF THE CASE
I.
Nature
of the Case: The Underlying Attorney
Disciplinary
Proceeding
This
case
involves a litigator, Barbara C. Johnson
[“Johnson”], against whom the
Massachusetts Office of
Bar Counsel [“OBC”] brought disciplinary
charges before
the Massachusetts Board of Bar Overseers [“BBO”] two
months after the
November 2002 election, in which she
ran for governor on a platform of
court
reform, the need
for judicial accountability, particularly in the
family-law
court,
and the abolishment of judicial and quasi-judicial
immunity.
Johnson
also maintains a website,
falseallegations.com, which has drawn the
attention of
millions across our nation and on which she publishes
fundamental
legal “how-to” and “what-is” information,
some of her state and federal
pleadings, and opinions
—hers and occasionally some of diverse
courts. A
few
dozen
of her website files were the
primary evidence in
the disciplinary
action against her.\FN/
How the
Federal Question Was Presented
The
federal
question arose out of the OBC
charging that Johnson violated Mass.R.Prof.C
8.4(d)
by
“engag[ing] in conduct that is prejudicial to the
administration of
justice.”
Constituting
the conduct that was allegedly
“prejudicial to the administration of
justice” was (a) Johnson’s run
for governor
in 2002 on the aforementioned platform, (b) the website publication of
pleadings
that criticized judges, and (c) filing appeals
when she believed judges
had controverted existing
law, abused
their discretion, and deprived her clients
of their constitutional and
statutory rights.\FN/
Case
law in Massachusetts
and in other state and federal jurisdictions is overwhelmingly in favor
of Johnson, i.e., supports her positions that lawyers have a duty to
report judicial wrongdoing and judicial inequities and that the First
Amendment guaranteed free, political speech. \FN/
References
to Johnson’s rights to free, political
speech, the First Amendment, and
retaliation for
exercising her First Amendment rights are throughout
the
pleadings below—beginning with her Amended
Answer to the Petition
through 6
November 2007, when
she orally argued her appeal to the full panel of
the
SJC.\FN
How the
BBO Avoided “Spelling Out” the Federal
Question
To
camouflage the Court’s admitted dismay at
Johnson’s free, political
speech about
the judiciary, the
OBC— supervised and controlled by the SJC—brought
three
counts of charges for which there was no
supporting, evidence. The
purpose: to deflect Johnson’s
criticism
of the judiciary, particularly in family-law
cases.
The
OBC and BBO also improperly used the
doctrine of offensive collateral
estoppel
to deprive
Johnson of a defense to Count III. By
so doing, the BBO precluded the use by Johnson
of a clearly fabricated
document supplied her by the OBC prosecutor or of any other document to
defend
against that count.
On
2
December 2003, the
OBC prosecutor
declared during her opening statement that she would
establish Count III “largely but not totally . . . by the
Chair's ruling on issue
preclusion,
and by certain
admissions by the respondent in her answer.” The
so-called admissions by Johnson were never
identified
by the prosecutor before, during, or after the so-called
trial.
Because
the SJC affirming decision contains a very
different
version of the
facts of
Counts I, II, and III,
Johnson
has appended to the decision in the
Appendix
summaries
of the facts of those counts at APP-41
and a
second copy of the SJC decision with her own commen-
tary interleaved
at APP-44, which she incorporates
in
entirety herein by reference.
II.
Proceedings
in the Massachusetts
Board of
Bar Overseers
In
the BBO, Petitioner filed diverse motions,
including motions to
dismiss, motions
for protection
orders, motions to preclude.\FN/ All
of
Petitioner’s motions, without
hearings, were summarily
endorsed “Denied” and all the OBC prosecutor’s
motions
were, without hearings, summarily endorsed “Allowed.”
Motions to
Dismiss
Specifically,
Johnson
filed (a) a motion to dismiss
Count
II on the grounds that the Parkers’ (pseudonym)
consent to the website
publication of their story consti-
tuted a waiver of confidentiality, (b)
a motion to dismiss
Count III on
the grounds that during the 5-8 year delay
in bringing a disciplinary
action,
the tape of a necessary
hearing was overwritten by the Commonwealth and
an
eyewitness had passed away, and (c)
a motion to dismiss
Count III based both on the admission by the
prosecutor
that an ex parte communication occurred between the
judge and
opposing
counsel, and on a material document
having been physically altered.
OBC’s
Motion for Protection Order and Impoundment
The
OBC
prosecutor moved for a protective order,
but 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
The
OBC
also 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
scope of the website
censorship sought, failed to state how the censorship
was to be
implemented, failed to state the authority
giving the Bar the right to censor Johnson’s website
and
stifle
her political speech and free expression
and to override Johnson’s
First
Amendment rights,
and failed to identify with sufficient
particularity that
which Bar Counsel wanted to prevent disclosure and that
which he wanted to
impound.
Despite
the flaws in
Bar Counsel’s motion, the BBO summarily allowed it.
Motion to
Preclude
The
BBO
Chair did
with Bar Counsel’s motion for
issue preclusion that which she did with Bar Counsel’s motion for a
protective
order: she usurped the power of the special hearing officer [see BBO
Rule 3.18(a)] and precluded
Johnson from showing that the lower-court orders were based on
fabricated facts
and findings and on, literally, a materially altered document.
Other
examples of OBC’s bad behavior in the
disciplinary action are (1) that
the charges were never clear
or identified, (2) that Johnson was
never given an opportunity to be heard, (3) that
Johnson was told she would be precluded from
presenting any exculpatory
facts to the court, and (4) that at
a pretrial hearing, the hearing officer repeatedly ordered the
transcriptionist
not to record when Johnson spoke. [See
on APP-63 Figure 1, an image excerpted from a transcript of
the
first and final pretrial conference. Johnson
believes the instruction to manipulate the
record was
inadvertently left in the transcript].\FN/
Mitigation
Johnson
pled mitigation, as allowed by Rule 3.15(f).
The
Day of “Trial”
On
the day
of the
scheduled trial, 2 December
2003, the OBC prosecutor confirmed that she
had no
witnesses and the BBO hearing officer quashed all of
Johnson’s trial
witness subpoenas. See,
supra, M.G.L.
c.
233,
§1, and
BBO Rules, §4.5.\FN/
Johnson also
learned that the prosecutor’s
primary documentary
evidence
were unauthenticated copies of dozens of
Petitioner’s
website files, again raising First Amendment free,
political
speech issues.
During
Johnson’s
opening statement, the hearing
officer ordered the public out of the
hearing
room
[Appendix A at APP-4]. Johnson
left with the public
[Appendix
A at APP-4 and Appendix G at
62-63].
The stated reason for excluding the public was
that
Johnson had
used the given name of a complainant and that by so doing, she had
violated an
order commanding her to use pseudonyms. That
was untrue. There
was no
such order. The prosecutor, confirming
what Johnson said, also told the hearing officer there was no such
order, but
he refused to reverse himself. [See
Appendix G, APP-62, on which there is an
excerpt from the trial transcript of the conversation between
the prosecutor and the hearing officer regarding the non-existent order].
Remembering
that the hearing officer had
previously ordered the stenographer to go
off the
record
when the petitioner spoke and to go back on when he
spoke (as
memorialized in the excerpted image at
Appendix
G at APP-63) and fearing that were the
hearing officer to
manipulate
the tape and transcript
again, she would have no proof of what she said
and did
not say at the hearing, Petitioner left with the public.
The
“trial” went on in the absence of both
the petitioner
and the public. Only an
assistant
general counsel for the
BBO, the BBO’s hearing officer, and the OBC
prosecutor
attended.
From
the
transcript provided her, she learned that as long as two weeks after
the
so-called trial ended, the prosecutor offered
and the hearing officer marked admissible
even more exhibits . . . and
chalks .
. . which
Johnson
had never seen. Even
the prosecutor’s exhibit
numbers
were changed.\FN/
Deprived
of her right to a fair and impartial trial,
Johnson
moved for a rehearing. That,
too, was denied.
Because
historically,
in Massachusetts,
attorney-
discipline cases have been identified as being on the
common-law side
of the court, Johnson had moved for a
jury trial, and was promised a
hearing on
the motion,
but ultimately she was, without a hearing, denied the
jury
trial
she sought.
III. Proceedings
in the Massachusetts Supreme
Court
for Suffolk County
After
“trial,” the BBO filed in the SJC single-justice session an
“Information,” recommending
that Johnson be disbarred. None
of the
grounds which are listed in the “Single Justice Practice and Procedure”
and
upon which Bar Counsel may petition the single justice to discipline an
attorney was charged against Johnson.\FN/
In the SJC single-justice session, Johnson
was entitled to a trial de novo, but
that, too, was denied her. She was, however,
during the contempt hearing allowed to call the prosecutor to the
stand.\FN/
On
9
August 2006, the SJC single justice issued a
judgment of disbarment and
ordered
Johnson to withdraw from her existing cases. Johnson
immediately
filed a notice of appeal and a
motion to stay the
disbar-
ment, which was denied.
Johnson
filed a
second motion to stay with the
Full Court. Waiting for the Full Court’s
decision on that
motion, believing
that her obligation to her clients was
greater than to the single
justice, and
not wanting to
abandon them, Johnson did not comply with the order.\FN/
The
prosecutor filed
a complaint for contempt.
On
19
October 2006, Johnson was held in civil
contempt and jailed to force
her compliance
with the
disbarment order. Because
Johnson could not comply
from jail, and therefore did not hold the key
to her cell,
four human angels graciously came
to her assistance
and ran errands for 5 days in order to get her
released
from jail, where she had been held from the morning of
October
19th until the
evening of October 23d, 2006.
IV.
Proceedings
in the Massachusetts
Supreme
Judicial Court
for the Commonwealth
Johnson
filed two appeals from the judgments of
disbarment and of
contempt. In the
appeal
of the
contempt
judgment, Johnson argued (1) given that she
had
filed a
notice of appeal, the SJC single justice did
not have the jurisdiction
to find her
in contempt of the
disbarment order and (2)
given that the
contempt was in actuality criminal contempt, Johnson had been entitled
to a
jury trial, which she had been denied.
She
also filed a half-dozen motions regarding
procedural due
process. The SJC
acted on none of them.
Prior
to the day for oral argument, the court clerk notified Johnson that she
would be
allowed 10 minutes for argument rather than the 15 minutes allowed
other
parties. Upon arriving at the SJC on 6 November 2007, she was informed
that she would be allowed only 5 minutes in which to argue both
appeals. The
Court had no questions of her. Standing her ground, she
complained. Ultimately, the
SJC panel relented and
Johnson was allowed 10 minutes for each argument. The arguments
are memorialized in webcasts,
which are available at the URLs identified in note 11, supra.
On
5 December 2007, the Full Court affirmed both the judgment of
disbarment and the judgment of contempt.
The
SJC’s opinion speaks for itself [APP-1].
Because
Johnson
disagrees with the panel’s
iteration of facts, which standing alone would be tantamount to an ex
parte communication with this Court, she
has interleaved her comments with the opinion [APPENDIX G
at APP-44].
REASONS
FOR GRANTING THE WRIT
I.
Review
is warranted because attorney
disciplinary proceedings that are
admini-
strative
in nature conflict with such
actions that are quasi-criminal or
judicial
in
nature, depriving
attorneys in those
States
where such actions are administra-
tive in nature of their Fourteenth
Amend-
ment
rights to due process and equal
protection
The
dispute as to the
nature of these “adversary
proceedings” adds another dimension
legally.
The U.S.
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) (Brennan, J., concurring).
In
some
State jurisdictions, disciplinary actions
are neither civil nor
criminal but sui generis. In
some
States, such actions are judicial in
nature, and in other
States, they are administrative in
nature. Massachu-
setts
is one of the latter
States.
The
Massachusetts
scheme allowed Petitioner’s
Fourteenth Amendment rights to due process
and
equal
protection to be denied; e.g., it allowed insufficient notice, no
prosecution
witnesses and therefore no
opportunity to cross-examine complainants,
the
quashing of her trial witness subpoenas and the pre-
clusion of documents
necessary to her defense and
therefore
no opportunity to be heard, no
public
trial as
allowed by
BBO rules, no compliance with well-
established
rules of
practice and procedure and of
evidence,
and no fair and impartial
tribunal.
The
genesis of the
disciplinary action arose out
of Petitioner’s exercise, during
her
gubernatorial
campaign in 2002 and
on her website, of her First
Amendment right
to free, political speech, which the
Massachusetts SJC found was
prejudicial to
the
administration
of justice and thus violative of Mass.R.
Prof.C. 8.4(d).
If
these
deprivations
happened to Petitioner, the
likelihood of such deprivations happening
to other
attorneys is high.
Were
Massachusetts
proceedings
criminal in nature, article
XII of the Massachusetts
Declaration of Rights would have been
triggered. She
would
have had
to be
allowed 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.
The
disbarment proceedings in Pennsylvania,
too,
are
“of an “unusual nature.” Suber
v.
Pennsylvania
Com'n on
Crime and Delinquency.
885 A.2d
678, 683
(2005). They are “outside of the normal
administrative
process [and] do not involve the Administrative Agency
Law in
any way” [id. at 682], but
“the application of the
‘clear
and convincing’ standard [ ] appl[ies] because . . .
our
Supreme Court decides the case as fact-finder from
which there is no appeal.” Id. at
683
(internal cite
omitted).
California
“State
Bar disciplinary proceedings
are
administrative in nature
but
have been denominated
‘quasi-criminal’ adversary proceedings.
. . . These
proceedings are not
governed by the rules of civil or
criminal procedure.” Giddens
v. State Bar, 28
Cal.3d
730, 734, 621 P.2d 851, 853-854
(1981) (internal cites
omitted). The
Court in Giddens made it clear that an
attorney facing
discipline “shall
also have the right to
the issuance of subpoenas for attendance of
witnesses
to
appear and testify or produce books and papers” [id.,
28 Cal.3d
at 735, 621 P.2d at 854] by ruling “that
a
fair hearing did not take place [because] Petitioner was
not afforded
the
right to ‘defend against the charge by
the introduction of
evidence.’” Id.,
28 Cal.3d at 735,
621 P.2d at 854. He also never had an
opportunity to
cross-examine the complainants' testimony. Id.
“California
provides [notice, an opportunity to be
heard,] and other protections.
It allows
the lawyer
to call witnesses and cross-examine them. . . . At
the hearing, the burden is on the state to
establish
culpability ‘by convincing proof and to a reasonable
certainty’; ‘all
reasonable doubts must be resolved
in favor of the accused.’ The
California Supreme
Court, in deciding
whether to accept the bar's
recommendation, grants the bar's findings
‘great
weight’ but is not bound by them. . . . It must
‘independently examine
the
record, reweigh the
evidence and pass on the sufficiency.’ . . . ”
In
re Rose,
22
Cal.4th 430, 458, 993
P.2d 956, 974-975
(Calif.
2000) (internal cites
omitted). The California
safeguards
do not exist in Massachusetts,
at least in
the
experience of
Petitioner . . . and the standard used
is capricious,
inconsistent, and
sometimes absent.
\/
Unlike California,
Texas
deemed a jury trial fair
although the
attorney
involved in
the disciplinary pro-
ceeding was
in the hospital. The court’s rationale was
that the counsel of
the attorney being
disciplined had
informed the court that his client
was in
the hospital
but invited the court to go ahead with the trial. Drake
v. State,
488 S.W.2d 534,
538 (Tex.Civ.App. Dallas 1972,
writ ref'd n.r.e.)
“Having
exercised his
right to refuse the three-year suspension given him by the Grievance
Committee
appellant became subject to the State Bar rules which permitted the
institution
of a formal complaint seeking disbarment.”
Id.
at 537.
Texas
“requires only a preponderance
of the
evidence standard” in
disbarment proceedings. Pretzer v.
Motor
Vehicle Bd.. 125
S.W.3d 23, 39 (2003), citing Drake,
488 S.W.2d at 538. Texas “administrative system
include[s]
substantial evidence review, as an
alternative to trial in district
court.” Pretzer, at 39. That there is no imposition
of a right to a
trial de novo
in the Texas Code appears to arise out of a
desire to
conserve judicial resources. See id., at
40.
Had
Johnson been a California
attorney, it
is
likely her trial would have been deemed unfair . . . given
that she
had been
entitled to a public trial, the public
was commanded to leave the
hearing room,
no com-
plainants were called as trial witnesses, and her trial
witness
subpoenas
were quashed. Those
circumstances
would
likely have increased the likelihood that her
motion for a rehearing
would have
been allowed.
Had
Johnson been a Texas
attorney, it is
likely
she would have been granted a jury trial. If
not, under
the circumstances of her
case, she might not have been
granted a new trial, but she very likely
would
have
obtained a “substantial evidence review,” something her
case was
not given
in Massachusetts.
In
further contrast, the
Massachusetts SJC deems, as do many other States, disciplinary
proceedings
to be civil and
administrative in nature, where live
witnesses are considered
superfluous and unnecessary,
where hearsay and totem-pole hearsay are admissible,
where a
prosecutor’s
argument is deemed evidence, where the prosecutorial and adjudicative
functions
of the OBC and BBO, respectively, are commingled within a
multi-administrative
board, and where the Article III court (the SJC) not only appoints the
heads of
the OBC and BBO, which together comprise the disciplinary arm of the
judicial
branch, but also controls and supervises the entities and the
appointees, leaving no walls of division between the functions. In
this scheme, which is found in other
States as well (for instance, Montana),
the
appearance
of bias exists and with that appearance the failure of due
process. It is a flaw inherent in the process, in the
scheme, itself. Cf. Goldstein v. Commission on
Practice of Supreme Court, 297
Mont.
493,513-514, 995
P.2d 923, 936-937 (2000). In
re Murchison, 349 U.S. 133
(1955) (ruling, combining the functions of
prosecutor, judge, and jury
in an attorney
disciplinary
proceeding violates due process).
The
case against Johnson below is definitive proof of the latter
assertions: she
was entitled to but was denied (a) procedural
due process, (b) fair
notice of the charge (e.g., including but not limited to the
identifica- tion of the
offending published
criticism of judges, the psychologist’s report, the funds commingled),
and (c)
an
opportunity afforded for
explanation and defense. The infirmity
of proof and the deprivations result in only one reasonable conclusion,
to wit,
that the “state procedure was wanting
in due process’’ [Ruffalo, 390
U.S.
at 550, quoting Selling
v. Radford, 243 U.S.
46, 51], making the disbarment of Johnson unlawful.
Under Randall v.
Brigham,
74 U.S. (Mass.)
523
(1868), in which this Court wrote,“[I]n
any essential
particular, the proceeding is irregular
or
defective, the
conviction will not be by ‘due process of law,’
and the
judgment will be a nullity. FN9,” the judgment of
disbarment against
Johnson
should be deemed a nullity.
Id.,
74 U.S.
at 529 (italic
emphases in
original case). See also
FN9 at 529 in Randall for the more than two dozen
cases in which judgments were deemed a nullity.
Administrative
procedures that have no
safeguards against “[s]uch procedural
violation of [even minimal] due process would never pass muster in any
normal civil or criminal
litigation.” Ruffalo, 390 U.S.
at 551. “Confrontation and
cross-examination are so
basic to our concept of due process that no proceeding by an administrative agency is a
fair one that denies these rights.” Hannah v. Larche, 363
U.S.
420, 504 (1960) (involving
the
form and extent of due process and the procedural rules in
proceedings under the Civil Rights Act of 1957),
citing (Peters v. Hobby, 349 U.S. 331,
351-352 (concurring opinion).
Further,
where this
Court has held that “federal
administrative law requires that agency
adjudication
contain many of the same safeguards as are available in the judicial
process” [Butz
v. Economou, 438 U.S. 478, 513 (1978)], what reasons can
justify the absence of those
safeguards in the Massachusetts
attorney-
disciplinary scheme or in those of other State jurisdic-
tions?
Why
should Massachusetts
and other
States
be
allowed to circumvent the due process clause of the
Fourteenth
Amendment, creating a conflict with
jurisdictions whose disciplinary
schemes
are judicial or
quasi-criminal in nature and with this, the United
States Supreme
Court?
Moreover,
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 disciplinary
prosecution,
which the Massachusetts administrative scheme circumvents and
thereby
deprives
its attorneys rights they would have in
other jurisdictions, including
the
right to appeal a ruling
by the BBO. In
Massachusetts, it would be
a futile
gesture to request the SJC, which created, controls, and
supervises
the BBO, to declare the BBO’s, or its
own
pronouncements, to be unconstitutional. See Middlesex
County Ethics Committee
v. Garden State Bar Ass'n,
1981 WL
389660 (Petitioner’s
brief), opinion at 457 U.S.
(N.J.) 423 (1982).
“Where
a
person's
good name, reputation, honor,
or integrity is at stake because of what
the government
is doing to him, notice and an opportunity to be heard
are essential.” Paul
v. Davis, 424
U.S.
(Ky.) 693, 708
(1976), quoting Wisconsin
v. Constantineau, 400 U.S.
(Wis.)
433, 437 (1971).
A
person’s livelihood should also
be of sufficient
concern to be deemed
“essential.”
Remaining
unanswered by the Court is
the
question, whether under the Fourteenth Amendment,
not only notice
and
opportunity to be heard but also the totality
of procedural due process must be uniformly applied in
attorney-discipline
actions across our nation.\/
II.
Review is
warranted because attorney
disciplinary proceedings that are
administrative in
nature contravene the
due process or equal
protection
clauses of
the Fourteenth Amendment and thereby
deprive
attorneys of
their secured
constitutional rights\FN/
The
BBO
proceedings (a) were
administrative,
not
judicial in nature, (b) did not
implicate important state
interests, (c) did
not provide an adequate opportunity to
raise federal claims, and (d) grew
out of exceptional
circumstances and ire, if not bias, against Johnson
fulfilling her duty
to
report professional misconduct,
\/ exercising her
right to free speech during
her
gubernatorial campaign,
and publishing
her work on her
Internet website.\/
The
decision of disbarment is wrong and affects
not only the petitioner but
also other
attorneys and
laymen as well. Attorneys
will fear retaliation for
speaking out when they should, and the public
as a
whole, which relies on zealous representation, will be
deprived of that
zealous
representation when seeking
a remedy or relief from the courts.
“It is
. . . important both to society and
the
bar itself that lawyers be unintimidated—free to think, speak, and act
as
members of an Independent Bar.” Konigsberg v. State Bar of California, 353 U.S.
252, 273 (1957).
The
American Colonists were not willing, nor
should we be, to take the risk that ‘(m)en who
injure and oppress the
people
under their
administration (and)
provoke them to cry out and
complain’
will also be empowered to ‘make that
very complaint the foundation for
new
oppressions
and prosecutions.’ The Trial of John Peter Zenger,
17 Howell's St.
Tr. 675, 721-722 (1735) (argument
of counsel to the jury). To impose
liability
for
critical, albeit erroneous or even malicious,
comments on official
conduct
would effectively
resurrect ‘the obsolete doctrine that the governed
must not criticize their governors.’
New York
Times Co. v.
Sullivan,
376 U.S.
254, 300
(1964) (citations omitted).
The
reason is starkly clear and important. If
attorney discipline proceedings were judicial in nature,
the OBC, BBO,
and SJC would have
to acknowledge
that they blithely ignore the well-settled rules of
procedure and evidence and constitutional
safeguards.\FN/
Although
unwritten in its opinion, the SJC must
find solace in Randall
v. Brigham, 74 U.S.
(Mass.)
523,
7 Wall. 523
(1868) (action by attorney for damages
against judge for disbarring
him), in
which this Court
wrote 140 years ago “that
it was not essential
to the
validity of the order of removal that it should be
founded on
legal
process according to the signification
of the words ‘per legem terrae’
as used in Magna Charta,
or in the Declaration of Rights.” Id. at
541.
Those words are out of fashion
today. The public wants
their
constitutions and
declarations of rights restored.
The Law
of the Land is what made this country great.
Justice
Black’s words
still reflect the pulse of our
people today:
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 v. Hurley, 366 U.S.
117, 142 (1961), , at 142
(Black,
J., with
whom Warren.
C.J., and Douglas, J.,
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
‘cooperate’ with a judge’” [id. at 145], Judge Black
continued:
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).
In
Petitioner’s case, the absence of
due process was
admitted and blatant, statutes and well-settled common
law were
ignored or deemed, inappropriately, inadmis-
sible, and the BBO and OBC
failed to
follow the rules
promulgated by an SJC committee without statutory
authority—all
of which worked to deprive Petitioner of
her constitutional
rights.
III.
Review is warranted where
the BBO’s
findings were transparently invalid, the SJC
single justice adopted
them, causing
the
judgment of disbarment to be void, and the
subsequent affirmance by the SJC full panel
of that void judgment
imparted to it no
validity, making Petitioner’s disbarment
unconstitutional.
Where
the
BBO’s proceedings were
devoid of due
process—insufficient notice and no opportunity to be
heard, e.g.,
no prosecutorial trial witnesses, the
quashing of all of Johnson trial
witness
subpoenas, and
the preclusion of her documents bearing
on the issues at
the
time of trial—the BBO findings
and conclusions were
transparently
invalid.
“[A]
departure from established modes
of procedure
will often render the judgment void.” Windsor v.
McVeigh, 93 US
274, 282 (1876).
The
commonwealth of Massachusetts is free to
regulate the procedure of its
courts
in accordance
with its own conception of policy and fairness,
unless in
so
doing it offends some principle of
justice so rooted in the traditions
and
conscience
of our people as to be ranked as fundamental.
Snyder
v. Com. of Mass., 291 U.S.
97, 105 (1934). Due
process is one of
those principles of justice.
To
conform
to modern
conditions, [states] may
substitute a new form of procedure for one
long
practiced and recognized. But,
whatever
the form or method of procedure adopted, they remain always subject to
the
prohibition against that which is commonly thought essentially unfair
to him
who is to be afforded a hearing. Tested by this principle, . . . the
deprivation of the right to present evidence bearing on the issue [has]
been
adjudged to deny due process.
Snyder,
291 U.S.
at 128,
citing Saunders v. Shaw, 244
U.S. (La.)
317
(1917) (judgment reversed).
As
the SJC noted
in its
opinion: “The
single
justice adopted the findings and conclusions as adopted
by the
board and
entered a judgment ordering that the
respondent be disbarred” [
APP-2].
Given
that the
BBO’s
findings and conclusions,
having been reached in a vacuum devoid of due
process,
were transparently invalid, the SJC single justice’s
subsequent
judgment of disbarment must be deemed to
have had no legal force or
effect. See Black's
Law
Dictionary 861
(8th ed
2004).
That
a
void order is
appealable does not permit us
to consider the appeal on its merits and
to affirm
the order if we were so disposed, because our
affirmance would impart
it no
validity and would
be similarly void. [Citations.] One
of
the cases
mentioned (Pioneer
Land Co. v. Maddux, [109
Cal. 633 (1895)])) has been cited for the further
proposition that the
dismissal of an appeal from
a void order imparts it no validity, either.
Adohr Milk
Farm, Inc. v. Love,
255
Cal.App.2d 366, 371
(1967). Sullivan
v. Gage,145 Cal. 759, 771, 79 P. 537,
542 (1905) (“[T]he affirmance
by an appellate court of a
void judgment imparts to it no
validity, . . .” also quoting
Pioneer Land Co. See also Butler v. Eaton,
141 U.S.
(Mass.) 240,
242-243 (1891) (judgment of Mass. SJC
“subverted and rendered null and
void.” . . . Execution
in force prior to judgment being
found null and void and
reversed became entirely annulled. “[T]he
whole
foundation of that part of the judgment which is in favor
of the
defendant is . . . without any validity, force, or
effect, and ought
never to have existed”).
Lastly,
and significantly, were proceedings in
Massachusetts deemed to be
quasi-criminal, as in
Ruffalo, the judgment and order
of
disbarment would be
void of the grounds that under Article XII of the
Massachusetts Declaration of Rights, Petitioner was
entitled to a trial
by jury, which she was denied.
CONCLUSION
For the foregoing reasons, petitioner prays that
this Court grant
a
writ of
certiorari to review the
affirmance of both the judgment of disbarment
and
judgment of contempt—with consideration of the validity
of the
judgments themselves
and the proceedings at the BBO—by the Massachusetts Supreme Judicial
Court
issued on 5 December 2007 and rescript entered on 4 January 2008.
Respectfully
submitted,
#183, Drano Series