|
THE
SJC
DECISION WITH
PETITIONER’S
COMMENTS INTERLEAVED
NOTES
Please
read
Petitioner’s Summaries of Counts I, II, and III at
pages-12-15
of this
Addendum.
The SJC
decision
appears in 9.5-point
Verdana,
the typeface and size in which it appeared on the Internet.
Petitioner’s interleaved comments appear in 12-point,
boldfaced Century Schoolbook.
The
references to Petitioner’s
website files link to some files that are in the Board of Bar
Overseers’
Appendix, which has not been made available to Petitioner, making it
impossible
for Petitioner to provide a page number.
Some
references to
Petitioner’s website files link to some files that might not be in the
BBO’s Appendix,
The
reference to
Drano Series #106 is to a website file that gathers all of Petitioner’s
motions
and opposition that she filed at the BBO. All
those pleadings ought to be in the BBO’s
Appendix, but because she
was also not supplied with a Table of Contents to the 12-volume
Appendix, she
cannot say with certainty that they are in the Appendix.
In The Matter of Ba
rbara C.
JOHNSON.
SJC-09820,
SJC-09866.
November
6, 2007. - December 5,
2007.
Attorney at Law,
Disbarment. Contempt.
INFORMATION filed in the Supreme
Judicial Court
for the county
of Suffolk on May
16, 2006.
The case was heard by Francis
X. Spina, J., and a
petition for contempt, filed on September 27, 2006, was also heard by
him.
Barbara C. Johnson, pro
se.
Susan A. Strauss Weisberg,
Assistant Bar Counsel.
Present: Marshall,
C.J., Greaney, Ireland,
Cowin, Cordy, & Botsford, JJ.
RESCRIPT.
BY THE COURT. Barbara C. Johnson
(respondent) appeals
from judgments of a single justice of this court disbarring her from
the
practice of law and finding her in contempt of the judgment of
disbarment. We
affirm both judgments.
1. Disbarment. a. Background.
Following a
hearing on a three-count petition for discipline, a special hearing
officer
made findings of fact and conclusions of law culminating in a
recommendation
that the respondent be disbarred. The Board of Bar Overseers (board)
adopted
those findings and conclusions, and filed an information in the county
court
recommending disbarment. The single justice
adopted the findings
and conclusions as adopted by the board and entered a judgment ordering
that
the respondent be disbarred. The findings and conclusions as adopted by
the
board are summarized as follows.
i. Count one. The
respondent owns and maintains a
Web site on which she posts information about allegations of child
sexual
abuse. In 2001, the respondent
represented a father in a paternity and custody action in the Probate
and
Family Court who had been accused of sexually abusing his minor son.
The son
had also been the subject of a care and protection proceeding in the
Juvenile
Court.
I met
the client in 2000. He had been accused of sexual abuse in 1987. The care and protection [“C&P”] began in
1987 or 1988 and had reached final judgment soon thereafter . . . no
later than
early '90s. In 1988, the client
had brought a paternity and custody suit (M.G.L. c. 209C, for
out-of-wedlock
situations) in Bristol County
Probate & Family
Court [“P&F”]. The P&F case had also closed years
ago. The
client had had SIX lawyers, none of whom was able to get him custody or
visitation with the child or even an evidentiary hearing.
The
respondent posted on her Web site information that had been impounded
in the
care and protection action, e.g., information identifying the son as
having
been allegedly sexually abused by his father, including the son's full
name and
photographs of him. The respondent also posted the full names of the
son's
mother and a half-brother (the product of the mother's partnership with
a man
whom she married and later divorced); pleadings from the mother's
divorce
action;
I
posted my client’s Complaint, filed in the U.S.
District Court in Boston.
A public record. I absolutely posted NO impounded files. No
file
was ever identified by the OBC, the BBO, Judge Spina, or the SJC panel
as being
impounded.
I had used pseudonyms of two children‘s' names but
had missed a few appearances of
the true names that were in .jpg files. I changed the ones I
found.
The search tools do not work on .jpg
fles. Those I saw, I cut
out of the .jpg files. There
are two or so still in the website
files.
The photos of my client’s child were
taken when he was an infant, when he was at his first birthday
party, and
when he was riding a plastic choo-choo train (á la Fisher
Price).
We were trying to show the father and son together. This was not
an
abusive father. By the time I uploaded
the photo files on my website, the boy
was around 15 or
16. No one would have recognized him from his baby
pictures. Although
the child’s birthname appears in the mother’s affidavit in her divorce
action,
she registered the child in school under his stepfather's surname.
and
comments by the respondent characterizing the mother as a perjurer who
had conceived
both children out of wedlock and who had falsely accused both fathers
of sexual
abuse.
This is
true and the facts of my comments are true. The documents I
posted prove
that the mother had lied. Of course, it
is true that the mother had never been prosecuted for perjury. It would have been rare had she been. Mendacity is a human quality or state
witnessed
daily in every family court across this nation.
Proof
of Mother’s mendacity is in ¶6 of her Affidavit in her divorce
action: i.e.,
in http://www.falseallegations.com-
/drano23-af-rgs.htm. In it,
mother affianced that the subject
child was from a previous marriage. That
was untrue. He was conceived and born
out of wedlock, but apparently she had not told her husband the truth
of the
child’s origins.
The
mother also accused the husband of child sexual abuse.
DSS did not substantiate the accusation. I identified, by name, the social worker who
cleared the husband. Despite her
continuing
mendacity, the mother received child support from each of the men whom
she had
accused of a heinous crime . . . and each of the men was caused
considerable
anxiety and attorneys’ fees, facts which no court considered in its
computations
of child support for the woman who lied.
The mother and son filed
complaints with bar counsel
requesting that the respondent remove the material from her Web site.
The
son did not
file a complaint with bar counsel. A
lawyer claiming to be his counsel filed one. The
problem: the lawyer had been appointed his
lawyer circa 1990, had not been re-appointed,
and had not re-interviewed the then-young
man.
I
served subpoenas on the mother, the son, and the lawyer, but the
BBO quashed my trial subpoenas . . . and on everyone
else I caused to be served. My
application, pursuant to BBO Rule 4.11 and
dated 11 June 2003, for authorization to take depositions of potential
witnesses
was denied.
The
OBC prosecutor did not call any potential or percipient witnesses
to testify at trial.
In
addition, a judge in the Juvenile Court ordered
the
respondent to return any impounded material to the court and remove all
references to that material from her Web site.
Never
having been in or gotten any documents from that
Court, I did not have any impounded material from the Juvenile Court to
return.
If I referred to any document in Juvenile Court, the OBC prosecutor (an
assistant bar counsel) did not identify it. The accusation has
always
struck me as bizarre
in that the Juvenile Court docket was secret and I had no knowledge of
what had
been filed there. My client was never allowed to take the stand
in his
defense and was never allowed to examine anyone. In fact, in the
12 or 13
years after the C&P case was brought, there was never any
evidentiary
hearing of any size or sort or at any time.
My
information regarding the case came from
my client with a few exceptions, e.g., a report from a
Juvenile-Court-appointed
investigator and some reports from some social workers, who had NOT
been
appointed by either the juvenile or the family court in the two subject
cases. The investigator's report came from
one of
the client's former attorneys OR my client. I have no memory from
whom I
got it approximately eight years ago.
The respondent ignored the court orders.
To this
day, I am
aware of only one order from the juvenile court.
Upon
receiving the
order, I wrote a letter to the juvenile court judge who issued the
order on 29
May 2001. I iterated essentially
(1) that a
document\/
which was served upon me
(a)
had
no summons,
(b)
was
not a Complaint,
(c)
did
not comport with any known set of rules of civil procedure, and most
certainly
not with the Massachusetts
Rules of Civil Procedure,
(d)
did
not contain a short and plain statement of the claim showing that the
pleader
is entitled to relief,
(e)
was
not simple, concise and direct,
(f)
did
not inform me of what the plaintiff's claim is and the grounds upon
which it
rests,
(g)
did
not set out the facts in separately numbered paragraphs,
(h)
did
not have numbered paragraphs, making it impossible for me to answer the
complaint in accordance with the rules,
(i)
did
not set out the facts clearly, unequivocally and directly so as to
enable me to
respond directly and intelligently,
(j)
was
verbose, argumentative,
redundant, and contained material that is both impertinent and
scandalous,
(k)
did
not have separate counts founded on separate transactions or
occurrences. I have here omitted the
internal cites,
(2) that
I had no juvenile court documents to return, and
(3) that I
wrote in ¶17 of the letter of 29
May 2001 to the judge, “I would suggest, with all due respect for the
court,
that the court go to my site and see if there is anything there which
the court
believes it has a right to order removed, or references to documents
which it believes
it has the authority to impound.”
I never
received any further communication from either
the court or the judge personally.
Of greater
significance is that that court and/or judge
did not issue any contempt complaint or a summary holding of contempt. Why? Because the
court could not identify any impounded
documents on my
website.
Absent any
basis for
the juvenile-court order, it became clear that I was being retaliated
against
for filing both
·
on or
around 25 September 2000 in the United States District
Court in Boston a §1983 action [Docket No. 00-CV-11048-REK],
which arose
out of the egregious rulings in the original Care and Protection action
filed
in that juvenile court. See
http://www.falseallegations.com-
/drano5-complaint-linn.htm
and
·
on or
around 9 May
2001 in Bristol County Probate & Family Court first a Complaint and
then an
Amended Complaint for Modification [Paper 55, Docket No. 88W0113-P1].
Believing
that the public should be educated as to court’s
retaliation against me for properly representing my client, I uploaded
the
letter to the juvenile-court judge who issued the order.
Although it had a docket number [Docket
No. EQ01N001], the clerk would not release any documents to me.
See http://www.falseallegations.com/drano37-
impound-ment-lawton.htm.
A
subsequent order by a judge in the Probate and Family Court declared
that the materials
filed in that action were also impounded.
The
P&F order was, in fact, simply a judgment
allowing the OBC’s motion for documents filed in the custody and
paternity
case, which had long since been closed. The
judgment did not order me to do anything. I
did not have the documents sought; the
P&F court had them. I did not ask
for them; the OBC assistant bar counsel did.
So the
criticism of me by the OBC, the BBO, and the SJC
single justice for failing to appeal the P&F order was criticism
that was unjust ab initio.
I had not
even met the client until around 2000; I had
never filed an appearance in the custody and paternity case
before it closed; and at the time the OBC
assistant bar counsel filed the motion, I had not been served with a
Petition
for Discipline. I had, however, unsuccessfully
tried twice to open the action with a Complaint and then an Amended
Complaint
for Modification.
As noted,
the P&F court judge allowed the OBC counsel’s motion and gave her
the
documents she sought. I have no clue what the documents were, I
never saw
them, and I was never given even a list of them.
The
documents the OBC counsel received were allegedly put in the OBC/BBO's
Appendix
accompanying their "Information" (the document in which they seek
disbarment) filed in the single-justice session of the SJC, but I was never given a copy of their
12-volume Appendix.
The
decision says that I received all papers. That
is another untrue statement. I was
never given a copy of the 12-volume
Appendix of even a
Table of Contents of the Appendix. I
filed a motion to get them, but the SJC never acted on it.
During oral argument on 6 November 2007, I
requested
the Court to act on it. The Court did
not do so. (A webcast of my oral
argument against disbarment and my statement regarding the unacted-upon
motion is
archived at http://www.suffolk.edu/sjc/archive-
/2007/SJC_09820.html.
It is 14 minutes in length.
The oral argument appealing the judgment of
contempt is archived at
http://www.suffolk.edu/sjc/archive-
/2007/SJC_09866.html.
It is 11 minutes in length.)
THE
BACKGROUND OF THE P&F DOCUMENT STORY
On or
around 9 May 2000, I filed my client’s Amended Complaint for
Modification in
P&F court. It may be seen at http://www.falseallegations.com/drano22-js-rgs.htm.
Two years
prior to filing the Complaint and the Rule 15(a) Amended Complaint, §13 of M.G.L. c. 209C (the out-of wedlock
chapter) had been amended. The amendment became effective
at the
end of March 1998, prior to my meeting the client.
Under the
pre-amended section, all documents in an out-of-wedlock action were
impounded
and could be made public only after a showing of good cause.
Under
the amended section, all filed documents in an out-of-wedlock action
were open
to the public and closed, i.e., impounded, only after a showing of good
cause.
Under
Massachusetts law, to get a modification of a court order, counsel must
show
four things (1) the order which the
client wants modified, (2) the
circumstances that brought that order about, (3) the
substantial change in circumstances "today," and (4)
the proposed new order. Without showing
items 1 and 2, the client will
not get a modification, because unless the client or counsel educates
the court
as to what elements 1 and 2 were in yesteryear, the client or counsel
cannot
show how the
change in circumstances is substantial.
The BBO
and the court found that my using the early information from
the
P&F court for items 1 and 2 in my Complaint was a use of impounded
material,
a use that was forbidden. Clearly, the
BBO and OBC ignored the amendment of §13.
In
fact, I never uploaded to my website “pre-amendment” materials from the
209C
(out-of-wedlock) case. I simply referred in my client’s Amended
Complaint
for Modification to the date of the court order we sought to
modify. The Amended
Complaint for Modification was a PUBLIC record, having been filed two
years
after §13 had been amended.
The BBO
and the SJC (both the single justice and the full panel sessions)
ignored my
argument re §13, although it was an issue of first
impression. Thus
the alleged use of impounded documents formed one of the reasons for my
disbarment.
The
board adopted the hearing officer's conclusions that by engaging in the
foregoing activities, the respondent violated Mass. R. Prof. C. 3.4(c),
426 Mass. 1389 (1998); Mass. R. Prof.
C. 4.4, 426 Mass. 1405 (1998); and
Mass. R. Prof. C. 8.4(d) and (h),
426 Mass.
1429 (1998).
I
addressed each of the professional-conduct rules by moving
to dismiss each one of them. I
also filed a Motion
for More Definite Statement:
. . . moves for more
definite statement of Counts I
and II of the Petition for Discipline, that is, (a) to identify
with
specificity those webpages, statements, and phrases which Bar Counsel
is
claiming are sufficient to constitute a violation of the Professional
Rules of
Conduct and (b) to identify each person who Bar Counsel claims
has been
harmed by those webpages, statements, and phrases.
“These
are adversary proceedings of a quasicriminal nature.” In re
Ruffalo,
390 U.S.
544, 551 (1968) (disbarment of petitioner reversed). “The charge
must be
known before the proceedings commence. They become a trap. . .
.” Id.
“The absence of fair notice as to the reach of the grievance procedure
and the
precise nature of the charges deprived petitioner of procedural due
process.” Id.
at 552.
I filed my Second
Motion for More Definite Statement or in the Alternative Dismiss the
Petition for
Discipline.
I filed motions
to dismiss each and every charge
of alleged violation on the grounds that the OBC failed to state the
elements of the claims
.
All my
motions were
summarily denied without hearing.
All the
motions I filed at the BBO are in Drano Series
#106: http://www.falseallegations.com/drano106-motions-filed-at-bbo-n0603.htm.
I detailed
the procedure by which the BBO broke its own
rules (created by SJC committee), in http://www.falseallegations.com/-drano102-bbo-star-chamber-92503-forum.htm,
an article in which I contend lawyers are entitled to the full sweep of
due
process rights.
ii. Count two. In 1999,
the parents of a mentally
retarded adult daughter paid the respondent a $10,000 retainer to
represent
them in connection with criminal and protective services proceedings
arising
from allegations that the father had sexually abused his daughter.
I was paid
for consulting, not for representation.
In addition to the criminal
case for which they had representation. (I told them to keep the
husband’s
lawyer, since he was a retired judge's son and had political and
judicial clout.)\/
The
husband and wife had several cases in mind: one
against the Department of Mental Retardation. Their niece, a
lawyer,
wanted help on the case. I sent them a contract. They
signed it,
but I did not, because they could not decide for which, if any, of the
cases
they wanted to hire me as a consultant. Also, because their cases
were in
Berkshire County, which is on the other
side of the mountains at the far western end of the Commonwealth, I did
not
want to represent them as legal counsel. I reside in Essex
County,
which hugs the Atlantic Coast.
They were too distant.
NOTE: I supplied to the OBC
assistant counsel every
email and every other piece of paper (approximately 500 pages) that
went between
myself and the complainant wife and mother, her other daughters
(all
married), and sons-in-law. In the package, included the several
beautiful
letters of thanks for my work.
The
respondent deposited the retainer in her personal account rather than
in a
trust account.
I
finished the work (all but 6 hours) and deposited their check.
Then I
sent them a bill. In the same envelope in which I put the bill,
I
returned $3100-plus dollars to them, having deeply discounted the bill
($50/hr
for over half the work and $250 for lawyerly work, e.g., research and
analyzing
their case, etc.). I figured they were facing considerable
legal
fees to defend the father from two counts of rape and, if my memory is
correct,
two of sexual molestation (it is seven years ago and my memory of those
two
other charges is dim).
The
clients subsequently discharged the respondent and requested a refund
of a
portion of the retainer. The respondent refunded less than the clients
had
expected.
This
is NOT true. I was not "discharged." My
work simply was done. They did not expect the return of any
money.
I returned it on my own volition because I felt sorry for them.
It was
only after receiving the
returned money, the wife wrote and wanted all but 1 hour and 26 minutes
of my
fees returned. We exchanged emails about the money and my
bill. She
wrote four lawyers the couple knew, and complained about me, and
cc'd a
copy of that letter to me. She did not, however, send to the four
lawyers
any copies of my correspondence explaining my fees. At an
impasse,
I recommended that we send all the correspondence to those lawyers and
let them
decide the dispute. If she did not want those four lawyers to
mediate,
then she should consider, I suggested, seeking assistance from the fee
arbitration board. She did not pursue either avenue.
Four months later she complained to the
Bar.
When
the clients disputed the amount of the refund, the respondent failed to
place
the disputed sum in a trust account. Thereafter, the clients filed a
complaint
with bar counsel.
There
was no dispute prior to
depositing the money into my account. I had earned it. In
fact, the
BBO hearing officer, who was very hostile, found that I owed no one any money. In other
words, the money in my account was my own earned money.
In 2002, the
respondent posted on
her Web site the identities of her former clients and their daughter
without
their permission;
Bar
Counsel Daniel Crane had gone public (newspapers) with the case.
I had a
right to defend myself publicly. Their daughter, the
alleged
victim, was monosyllabic, had the mentality of a 15-month-old infant,
and had
no "friends." She
certainly did not know my website. And I had implicit permission
to put
their story up on the website. An email from Deb Sano stated that
they
were looking forward to seeing their story on my "wonderful
website." In actual fact, I uploaded my bill and only those
diverse
emails relevant to the accusations by the OBC/BBO.
details
of the sexual abuse allegations;
This is
UNtrue.
and
information regarding the fee dispute.
Yes, I
was entitled to do so under well-settled law.
The
clients demanded that the respondent remove the information from her
Web site.
In a telephone message,
I
received a letter from a retired judge, William Simons (the father of
the
husband’s criminal lawyer), ordering me to remove files re the Sanos/
“Parkers”
from my website. Given that Simons was retired, he did not have
the
authority to order me to do anything. Notwithstanding
that fact, I left a return message
on his answer-machine.
I never spoke to him. He never returned the phone call. He,
instead, complained to the Bar.
the
respondent said that she might remove the information but only if the
clients
withdrew their complaint with bar counsel.
If we
were to negotiate, that was the only thing they could do. The
rules seem
to demand that a lawyer not ask a complainant to withdraw the
complaint.
The board adopted the hearing
officer's conclusions that
by engaging in the foregoing activities, the respondent violated Mass.
R. Prof.
C. 1.6(a), 426 Mass. 1322 (1998); Mass. R. Prof. C. 1.9(c)(1) and (2),
426
Mass. 1342 (1998); Mass. R. Prof. C. 1.15(a)--(c), 426 Mass. 1363
(1998); Mass.
R. Prof. C. 1.16(d), 426 Mass. 1369 (1998); Mass. R. Prof. C. 8.4(c),
(d), and
(h), 426 Mass. 1429 (1998); and S.J.C. Rule 4:01, § 10, as
appearing in 425
Mass. 1313 (1997).
I
addressed each of the professional-conduct rules as
explained, supra, at Addendum pages
25-26.
iii. Count three. In
1995, in connection with
representing a plaintiff in a wrongful termination action in the
District
Court, the respondent filed motions for leave to depose nonparty
witnesses out
of the presence of defendants' counsel.
True, I
filed two motions in February 1995. They were styled after two motions
filed
and allowed in U.S. District Court in Boston by Magistrate-Judge Robert
B.
Collings.
The
judge denied
the motions, found that they lacked a
legal or factual basis and were filed in bad faith, and ordered that
the
respondent or plaintiff pay the defendants' legal
fees incurred
in opposing the motions.
This is not true. The judge, Paul
McGill, simply denied them. TEN
months later, in December 1995, in one of his many orders amending a
previous
one, Judge McGill wrote that I filed frivolous motions but never
identified which motions were frivolous. I only
assumed the two filed in February were those to which he was
referring.
The judge ordered me to pay defendants' legal fees for every
motion and daily sanctions.
THE
BACKGROUND
It all
began on 22 March 1995, when Judge McGill found both my client (living
then in California)
and myself
in contempt of a NON-existent order allegedly dated 3 March 1995, the previous time we
had been in court. The docket sheet shows he never issued
that order.
So does a summary prepared by the clerk (who was dead by the time the
OBC
brought a petition for discipline). And so did the transcript of
the
March 3d hearing. He clearly said he
would take the motion under advisement. He
never ruled on it. I
kept on challenging the judge: Produce the
order. He could not.
When the
BBO/OBC began its so-called investigation
of its case against me, the assistant
bar counsel produced the alleged order. One had been fabricated
either by
the district-court judge or by opposing counsel. I never learned who the culprit was because my
trial witness subpoenas were quashed. See my website:
drano90-part-iii-answer-bbo-count-three-lily.htm.
I scanned the fabricated order, enlarged
it, and included it in my Answer to
the Petition for Discipline.
Judge
McGill repeatedly issued onerous orders from April
through December 1995. After he made each order, I questioned him, after which
he amended the complained-of order. I made a chart. The
chart, too,
is on my website. Never
did Judge McGill write a clear and
unequivocal order, necessary before finding
contempt. Never was there an order with a total amount of what
was to be
paid. Never did he identify who was to be the payee.
Were the daily sanctions due to the Commonwealth or the
defendants? I never learned the answer to
this
question.
I defended
nonpayment by pleading inability
to pay. I produced my financial records, which had been
subpoenaed, to
the judge. He reviewed them in chambers with my then-counsel
present, but
never committed anything to paper, including whether he had seen
them. I
believe they were not given to the defendants, . . . and I never
learned what
happened thereafter.
I was
jailed in October 1998, after an appeal
was decided. There was no order
for me to pay [in 1998]. The judge apparently wrote an
order after the fact. One
of my sons spent a day in Concord District
Court to find out what he had to pay to get me out of jail. The
clerk
simply did not know. Why? Because there had been no order.
In actual
fact, I was not jailed because I
had not paid some mythical order. I was jailed during a motion
session. The defendants had again,
in 1998, subpoenaed my financial records. I
think I had filed either a motion to quash or a
motion to extend the
time to produce the documentation. (Ten years later, my memory is
dim.) It was during that hearing that I
began an answer to the judge with the word "No". As soon as I
uttered “No,” he immediately had me locked up.
It was an
innocent "No." By
coincidence. My lawyer’s husband was in Concord
court for one of his own cases. His wife had given him to return
to me a
package, a box for a ream of paper, containing the papers I produced to
the
court in 1995. The ream box was on the table at which I was
standing. The judge, thinking
the box contained the 1998 papers -- that is, the papers that had been
newly
subpoenaed -- told me to give opposing counsel the box. I was
about to
say, "No. Your Honor, this box does not contain the subpoenaed
papers," but I only got as far as the "No" when he said, "Lock
her up."
I never
could get the tape of that day’s
proceeding. Neither could the OBC or the BBO. The court had
"overwritten" it.
So I was
jailed for not handing a box containing 3-year-old personal
financial
papers to opposing counsel.
Opposing
counsel represented Tyco, whose CEO
at that time was Dennis Kozlowski,
who embezzled $600 million from the company and who
is now in Federal prison, having been found guilty of 38 indictments.
After the
Petition for Discipline was brought against me, I learned
from the
OBC prosecutor that Judge McGill had ex
parte contact with Tyco’s counsel and told him to subpoena my
personal financial
records anew.
When
the payments were not made, the judge imposed civil penalties on the
respondent
and found the respondent and the plaintiff in contempt, warning them
that
failure to pay the fees would lead to dismissal of the plaintiff's
action.
As
noted on page 20, supra, Judge McGill
repeatedly issued onerous orders from April through December
1995.
Following
further nonpayment, judgment entered dismissing the plaintiff's action
and ordering
costs to be paid to the defendants. The respondent did not file a
notice of
appeal following the dismissal but filed a motion for retransfer of the
case to
the Superior Court. The motion was struck with instructions to the
respondent
that an appeal from the dismissal was the proper avenue of relief.
Following
the entry of an amended final judgment dismissing the plaintiff's
action, the
respondent again sought to retransfer the case to the Superior Court
rather
than appeal from the dismissal; the request for retransfer was again
struck.
This
appears to be chronologically scrambled and
difficult to separate. I have put the proper sequence in my
Answer to the
Petition for Discipline, which appears in
http://www.falseallegations.com/drano90-
part-iii-answer-bbo-count-three-lily.htm.
A capsulized explanation follows.
During
1995, Massachusetts
still had remand cases.
I had brought the whistleblower case in superior court, which remanded
the case
to district court. If unhappy with a final judgment in district
court, the
plaintiff was allowed to appeal the judgment to superior court, not the appeals court, but to
superior court.
The so-called judgment by Judge Paul McGill was improperly
written. I
filed to have it done properly. I lost. Opposing counsel
argued the
judgment was fine and final.
So I appealed to superior court.
Once we were in superior court, opposing
counsel, from a well-known prestigious firm, changed his tune and
argued that it
was not a final judgment. So the superior-court judge sent it
back to Concord,
where Judge McGill
once again changed his order, causing the cycle to begin repeating
itself.
In
December 1995, Judge McGill separated the contempts
against my client and myself. My client's contempt stayed under
the original
docket number and the contempt against me was eventually, at the top of
1996,
given a new docket number.
On that
day in December, however, a lawyer who was in
court when Judge McGill declared he was separating the “contempt” issue\/
because it was too confusing to deal simultaneously with the contempts
against
the client and against me, introduced herself to me and offered free
representation. She had experienced, she said, a false charge
in Michigan.
I was
successful in convincing Judge McGill to lower the amount of
money he had
order my client to pay; i.e., the sanction was lowered from
approximately $3500
to a little over $200. The judge had also
said if paid, he would restore my client’s case to the list. I
therefore
paid the two hundred-and-something for her, but the judge never
restored the
case to the list. He broke his promise. (I have the tape
and transcript
of the subject hearings.)
The respondent
filed a notice of appeal from the order
striking the motion for retransfer. The Appeals
Court dismissed the
appeal as
frivolous
After
the superior court struck my motion for retransfer, I appealed my
client's case
to the Appeals Court.
We lost and the court said the appeal was frivolous and ordered my
client to
pay opposing counsel's fees. My
contention was that it was anything but frivolous to appeal from a
contempt of
a NON-existent order. My client was a
geologist and fortunately had started a consulting business
in California, and
was very
successful in so doing. She had, fortunately, enough money to
hire a
lawyer out West, bargained, and settled for some smaller amount, paid
it, and
put it behind her. She has been absolutely loyal to me and
scolded the
OBC for bringing a case against me. We email each other regularly
and
meet when she comes East.
.
Meanwhile, the judge in the
District Court, following
reconsideration of his earlier judgment of contempt against the
respondent, entered
a final judgment of contempt against her. She appealed and the Appeals
Court
affirmed the judgment. HMM Assocs., Inc. v. Johnson, 44
Mass.App.Ct.
1126 (1998).
Eventually
the contempt case against me came to final judgment
and I, through my counsel, appealed to the Appeals
Court. (Contempts
arising in
district court may be appealed directly to the Appeals
Court.) The appeal
was unsuccessful.
The
original defendant was HMM [baby bear], which then
was bought out by Earth Technologies, Inc. [a medium-sized mama bear
company],
which was then bought out by Tyco [papa bear]. Tyco was the
defendant in
the summer of 1995, when all this became heated, and its counsel used
to come
to court saying “Have her bring her toothbrush
next time.” That was Dennis Kozlowski speaking.
Thereafter, the
District Court judge gave the
respondent a deadline for paying the outstanding
fees and
penalties, warning her that failure to comply would result in further
penalties
and referral to the board.
There
was never identified a clear
and unequivocal order with the amount, the payee(s) , and the time or
date by
which money was to be paid.
The respondent
violated the order. Following a hearing,
the judge held her in continuing contempt and ordered her jailed until
she
purged herself of contempt. The respondent did not appeal from those
orders,
but the following day she purged herself of contempt and was released.
Not
so. See above, about the box holding a ream of paper.
In sum, the OBC said the misconduct was that I was found in contempt
and had to
be jailed before paying a sum (unidentified) ordered by the court.
I have always maintained the original order never existed, and it
didn't, and
that every order based on the non-existent order that thereafter issued
was not
only unclear and equivocal but also void.
The
board adopted the hearing officer's conclusions that by engaging in the
foregoing activities, the respondent violated Mass. R. Prof. C. 3.4(c);
Mass.
R. Prof. C. 8.4(d) and (h); S.J.C. Rule 3:07, Canon 1, DR 1-102(A)(5)
and (6),
as appearing in 382 Mass. 769 (1981); Canon 6, DR 6-101(A)(1)--(3), as
appearing in 382 Mass. 783 (1981); and Canon 7, DR 7-101(A)(3), as
appearing in
382 Mass. 784 (1981).
I
addressed each of the professional-conduct rules as
explained, supra.
b. Discussion.
The respondent raises constitutional, procedural, and substantive
challenges to
the disciplinary proceedings. We address them in turn.
I raised
many issues
and the SJC sidestepped them, including but not limited to the
following:
·
the First
Amendment issues (free,
political speech)
·
the lack
of a public trial (to which I
was entitled under the BBO’s rules)
·
the
amendment of §13 of c. 209C, by
which all records in probate and family court became open records and
became closed
only upon a showing of good cause
·
the
deprivation of my entitlement to
issue trial witness subpoenas under M.G.L.
c. 233, §
8
·
the lack
of personal jurisdiction of New Bedford
Juvenile Court
(I had never appeared in the Juvenile Court and there was no case there
in which
I was either a party or counsel)
·
due
process rights to notice and
opportunity to be heard
·
selective
enforcement
·
equal
protection on a “class-of-one”
theory
i. The
respondent claims that, under a "class of one" theory, see Willowbrook
v. Olech, 528 U.S. 562, 564 (2000), the board violated her right to
equal
protection under the Fourteenth Amendment to the United States Constitution
by improperly singling her out for discipline while failing to pursue
disciplinary action against other attorneys involved in the underlying
cases.
Generally, "[w]hether bar counsel pursues discipline of others is
irrelevant
... to the respondent's current disciplinary action." Matter of
Tobin,
417 Mass.
92,
103 (1994).
In any
equal-protection case, one must show disparity. Therefore,
to my case, the quoted conclusion
of Tobin is
inapplicable, if not also bad law.
Moreover,
the respondent fails to point to any evidence adduced before the board
showing
that she was "intentionally treated differently from others similarly
situated
and that there is no rational basis for the difference in treatment." Willowbrook
v. Olech, supra.
This is
untrue. I
identified several cases, including the adjudicated contempt of
Kozlowski’s
counsel for nonpayment of child support and uninsured medical expenses
[61
Mass.App.Ct.
1109, 809 N.E.2d 1099, No. 02-P-1709 (2004)]. No action
for discipline
against Tyco CEO Kozlowski’s counsel issued from the family court, and
my trial
subpoena served on him was quashed.
Cf. Matter
of Cobb, 445 Mass.
452, 479 (2005) (no support for attorney's claim bar counsel
vindictively
sought to punish him for reporting acts of judges).
Unlike me,
Cobb raised allegations of selective
prosecution for the first time on appeal.
On or
around 2 October 2001, I did sue four judges in
federal court [Docket No. 01-CV-11702-GAO].\/ Amongst the grounds for the causes of action
were
the judges’ acts in
contravention of mandatory statutes and outside or in excess of their
jurisdiction. See
Drano #57: http://www.falseallegations.com-
/drano57-omplaint-against-judges.htm. The
case was dismissed on
immunity
grounds. (I had brought it to test
immunity and to bring it eventually to the U.S.
Supreme Court.) (There is more to this,
but irrelevant to the
within document.)
We need
not address the respondent's bald accusation-- unsupported by anything
in the record
of this case--that the disciplinary process suffers from inherent bias,
nor do
we address other claims in which she seeks merely to incorporate
arguments from
prior memoranda. See Matter of London,
427 Mass.
477, 483 (1998).
This
conclusion, too, is specious. If I had not
raised the arguments during the
BBO and the SJC single-justice, the SJC full panel would have found, as
it did
in Cobb, that I raised allegations of selective prosecution for
the
first time on appeal.
See the
detailed the procedure in http://www.falsealle-
gations.com-/drano102-bbo-star-chamber-92503-forum.htm
and the motions in http://-www.falseallegations.com-
/drano106-motions-filed-at-bbo-n0603.htm.
ii. The respondent
argues that the board chair
improperly allowed bar counsel's motion for a protective order in
connection
with the disciplinary proceeding.
There was
no such order in connection with
the disciplinary proceeding. As
I wrote
on page 13 of my appellate brief: On
the scheduled first day of trial, 2 December 2003, the hearing officer
ordered
the public from the hearing room during my opening statement. He claimed that there was an order
commanding
me to use pseudonyms for certain people. The
following excerpt from the transcript supports
my statement that
there was no such order.
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).
Fig. 2. Transcript,
12/2/03 (emphasis supplied).
The respondent
failed to challenge the order.
There was
no order to challenge. As for the use of a
non-existent order: I
moved for a new trial. My motion was
denied without hearing and without reasons—oral or written.
I
did,
however, challenge several months earlier the Bar Counsel’s Motion for
Protective Order re documents. See page 18 of
my Petition for Writ of
Certiorari, where the protective order re documents is discussed, and my
Motion to Strike
Bar
Counsel’s Motion for Protective Order
as
to Counts I and II
(dated 26 August 2003) at
http://www.falseallegations.com-
/drano106-motions-filed-at-bbo-n0603.htm.
See S.J.C. Rule
4:01, § 20(4), appearing in 425 Mass. 1302 (1997); Rule
3.22(c) of the Rules of the Board of Bar Overseers (2007).
See
discussion, supra.
In any event, the
protective order was appropriately
entered where impounded material was at issue in the disciplinary
proceeding.
I was in
the midst of my Opening Statement when the
hearing officer wrongly invoked a protective order that did not exist. Although the protective order also sought the
impoundment of documents, I was not using or offering any documents
during my
Opening Statement.
There is
no way to challenge a hearing officer who is
wading in deception. And the transcript,
which I assume was in the Appendix filed by the BBO, shows clearly
there were no documents whatsoever,
including “impounded material . . . at issue [during my Opening
Statement] in the disciplinary proceeding.”
Consistent with the
protective order, the hearing
officer instructed the parties to use pseudonyms during the hearing.
When the
respondent repeatedly violated the protective order by using the
parties' real
names, the hearing officer properly cleared the public from the forum. [FN1] In such
circumstances, the
respondent cannot be heard to complain about being deprived of a public
hearing
There
was no
protective order with which to be “consistent.”
Despite
the OBC prosecutor informing the hearing officer
that there was no such order [page 48, supra[,
the hearing officer and BBO Assistant General Counsel Carol Wagner
ignored the
prosecutor’s admission that there was no such protective order, and
demanded
that the public leave the hearing room.
Further,
because the hearing officer had
previously “played” with the transcription process [as shown in the
figure
below], I did not dare stay without the public as witnesses, so I, too,
left
the hearing room.
iii.
The respondent contends
that the hearing officer wrongly
quashed subpoenas that the respondent had issued on her own, arguing
that she
was entitled to issue them under G.L. c. 233, § 8. We need not
decide whether
the statute applies to bar discipline proceedings because the hearing
officer
properly quashed the subpoenas on grounds of irrelevance: through the
subpoenaed
witnesses, the respondent had sought to relitigate issues in the
underlying
cases and attack the disciplinary process itself.
It
is significant that the SJC applied M.G.L.
c. 30A, §12 in Matter of Tobin, 417 Mass. 92,
103,
628
N.E.2d 1273, 1279 (1994), to justify its vacating of subpoenas, but in
my case,
the panel wrote, “We need not decide whether the
statute [G.L.
c. 233, § 8] applies to bar
discipline proceedings.” The
non-application appears to be arbitrary and capricious.
There
is no evidence in the record that my subpoenas were irrelevant. There is
evidence that I opposed the OBC’s use of offensive collateral estoppel
for
their alleged proof of Count III, but there is no dispute that the
issues in
Counts I and II had not previously litigated. My
subpoenas should not have been quashed!
There was evidence—from my
summaries of
what each witness’s testimony would be—that their testimony would not be irrelevant.
Where
I had been found in contempt of a NON-existing
order, the contempt finding in 1995 was transparently invalid. Fundamental fairness, the cornerstone of due
process, mandated that I be allowed to show that that order did not
exist. I had an abundance of court-created
records
to show the NON-existence of the order: the clerk’s notes, the docket
sheet, a
court notice, and a transcript of the relevant hearing.
See
http://www.falseal-legations.com/drano90-
part-iii-answer-bbo-count-three-lily.htm, in which
I inserted those documents.\/
See Matter
of Tobin, supra
at 102-103 (refusal to issue
subpoenas appropriate where attorney sought to relitigate underlying
matters in
disciplinary proceeding).
It
is significant that the SJC applied M.G.L.
c. 30A, §12 in Matter of Tobin, 417 Mass. 92,
103,
628
N.E.2d 1273, 1279 (1994), to justify its vacating of subpoenas, but in
my case,
but refused to decide whether c. 30A, §8, was applicable to my
case. As observed above, the SJC opinion
appears
arbitrary and capricious.
iv.
With respect to count one,
the respondent claims that she
cannot be disciplined for having posted impounded material on her Web
site
I
did not post impounded material on my
website. No one—from the OBC prosecutor,
the BBO, the single justice, to the SJC full panel—ever identified any
such
impounded material. The unfettered
power of the OBC is the only support for the accusation of uploading
impounded
material. It simply never existed on my
website. The words “impounded material”
were like words being waved by a Good Fairy’s wand or being let out of
a Genii’s
bottle.
because:
(1) the Juvenile
Court orders were invalid because she
never obtained material from the care and
protection
proceeding and thus never posted impounded material from that case; (2)
the
Probate and Family Court order was invalid because material related to
the
paternity and custody matter was open to the public pursuant to G.L. c.
209C, §
13, as appearing in St.1998, c. 64, § 229; (3) her Web site
postings are protected
by the First Amendment to the United States Constitution; and (4) there
was insufficient
evidence to conclude that she had posted confidential information with
no substantial
purpose other than to embarrass the third parties involved--she claims
that she
intended only to educate the public about her client's plight.
All
of my reasons are discussed above and are
true and/or valid. As to
embarrassment,
the single justice had before
him absolutely
no evidence except the say-so of the OBC prosecutor that the
complainant was
embarrassed, and then the single justice declared that “no live
testimony was required to draw [an]
inference
[of embarrassment.” Given that “arguments of counsel were not evidence and
could not be considered by them as evidence” [Com. v. Correia,
65
Mass.App. Ct. 27, 36 (2005)], it is with some surprise that the single
justice
relied on such am unusual basis for his finding. See
my detailed argument in footnote 7 on page
5 and Issue 3
on pages 44-47 of my appellate brief.
The
problem with the first
three claims is that the respondent
neither sought to appeal from nor otherwise legally challenge the
courts'
orders, and she was not free to ignore them and challenge them for the
first
time in the disciplinary proceeding. [FN2][FN3] See Florida Bar v.
Gersten,
707 So.2d 711, 713 (Fla.1998); Florida Bar v. Rubin, 549 So.2d
1000,
1003 (Fla.1989); Florida Bar v. Wishart, 543 So.2d 1250, 1252
(Fla.1989), cert. denied, 493 U.S.
1044, 110 S.Ct. 839, 107 L.Ed.2d 834 (1990).
As
noted, supra, I was neither a party to nor
counsel in any juvenile court action. See
http://www.falseallegations.com-
/drano37-impoundment-Lawton.htm. This
was one of the few dozen files the OBC
used as evidence and wanted me to delete from my website.
(The files of which the OBC complained are
shown with a green background in the Drano Series table on my Home
Page.)
·
The
juvenile-court judge never had jurisdiction
over me.
·
The
retired judge had no authority to order me to
do anything.
·
I
had no standing to appeal family-court judge’s
judgment and/or order allowing the release of documents in a closed
case to OBC
assistant bar counsel. I never saw the
documents. Nor was I ever supplied with
a list of the documents allegedly supplied. I
do believe they were pre-1998 documents.
In
sum, there were so many appealable
issues, I would have time to do little except appeal from unlawful
decisions
and conduct by the OBC and BBO. And
given that the SJC controls and supervises the OBC and BBO and appoints
both
the General Counsel and the Bar Counsel, any appeal would have been
futile. The SJC was not about to reverse
itself or
its agents.
Since
plaintiffs were challenging disciplinary rules adopted by the Supreme
Court of
New Jersey, they alleged that they had no realistic remedy within the
legal
machinery of the State of New Jersey and that “it would be a futile
gesture to
request the Ethics Committee, which was created by the said Court, or
the
said Court itself, to declare its own pronouncement to be
unconstitutional”
(Emphasis added) . . .
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).
As for the fourth claim,
it was reasonably inferable from the
mother's having complained to bar counsel about the respondent's
postings that
the mother was embarrassed by them. Moreover, the respondent went far
beyond
merely educating the public about her client's case-she violated the
confidences of third parties by publicizing information that she knew
was
impounded. See Matter of Comfort, 284 Kan. 183, 191-195, 159
P.3d 1011
(2007) (under disciplinary rule identical to Mass. R. Prof. C. 4.4,
court held
that objective evaluation of conduct would lead reasonable person to
conclude
that publishing of disparaging information about third party was done
for no
substantial purpose other than to embarrass).
As
to the embarrassment, as noted, supra, I discussed the
issue fully in footnote
7 on page
5 and Issue 3 on pages 44-47 of my appellate brief.
The case law supports my position 100
percent.
c. Sanction.
"We do not
conclude, and the respondent makes no argument, that the sanction
imposed by
the single justice is 'markedly disparate' from sanctions in similar
cases." Matter of Tobin, supra at 103. Cf. Matter of Cobb,
supra
at 479.
As I
stated in my
appellate argument,
Ultimately,
the single justice not only parroted that which the BBO wrote and did. He also failed to follow the written practices
and procedures for a single justice, which set out grounds upon which
bar
counsel may petition the single justice for disciplinary action against
an
attorney. They include:
·
misuse or
loss of
client funds,
·
neglect of
client
interests,
·
fraudulent
conduct,
·
sanction
in another
jurisdiction,
·
conviction
of a crime
and
·
misrepresentation
to
the court.
None,
none, none of those grounds
is in the disciplinary case against me.
I appear to be the exception to the rule.
The
sanction of disbarment imposed upon me could
not have been more “‘markedly disparate’
from sanctions in [other] cases.” There
are no “similar” cases!
2. Contempt.
Pursuant to a petition
filed by bar counsel and following a hearing, the single justice found
the
respondent in civil contempt for failing timely to comply with the
following
provisions of the judgment of disbarment: close her IOLTA account, give
notice
of her disbarment, and submit an affidavit of compliance pursuant to
S.J.C.
Rule 4:02, § 17, as amended, 426 Mass. 1301 (1997). He ordered her
jailed until
she purged herself of contempt, which she did four days later and was
released.
We
reject the respondent's challenges to the contempt judgment as follows.
(a) She
was not entitled to ignore the underlying judgment of disbarment on the
ground
that it was "transparently invalid"; that she needed to fulfil her clients' right to counsel of their choice; or that
she had a
property interest in continuing to receive fees from her clients. She
presents
no persuasive factual or legal grounds to substantiate any of those
claims. (b)
The respondent's argument that she was found in criminal rather than
civil
contempt because she did not "hold the key to the cell door" (and
that she was denied the right to a jury trial for criminal contempt) is
belied
by the fact that she eventually complied with the terms of the judgment
of
disbarment and was released. [FN4] (c) We reject the respondent's claim
that
the single justice lacked jurisdiction to find her in contempt where
she had
appealed from the disbarment judgment. She had moved unsuccessfully for
a stay
of the judgment pending appeal. The cases relied on by the
respondent--a
criminal case holding that an appeal divests a lower court of
jurisdiction to
rule on motions "to rehear or vacate," Commonwealth v. Cronk,
396 Mass. 194, 197 (1985), and a divorce case holding that, absent a
specific
order to the contrary, a husband's obligation to make installment
payments
pursuant to a judgment dividing marital property was stayed by the
husband's
appeal, Huber v. Huber, 408 Mass. 495, 499-500 (1990)--are
inapposite.
Here the single justice merely acted to enforce the disbarment
judgment. Cf.
Mass. R. Civ. P. 62(a), as amended, 423 Mass. 1409 (1996).(d) Finally,
the respondent's
argument that the single justice erred in "implicit[ly]" finding that
she had engaged in the unauthorized practice of law is misplaced
because the
finding of contempt was based on other violations
of the
terms of the judgment of disbarment. [FN5]
I
was
appalled by the abandonment of my clients’ interests by both the SJC
single-justice
session and the SJC full bench session .
. . and the disparate treatment: For
instance, the SJC allowed Attorneys Crossen and Curry to practice until
their appeal
was heard, and Attorney Donohue to practice until he negotiated a
3-year suspension. Why could I not
continue to represent my
then-existing clients, so as to preserve their interests in their cases?
The
judgment of contempt and my subsequent
imprisonment was more a punishment of my clients because they had me as
their
lawyer than a punishment against me . . . although it was that, too.
By
denying my Motion to Stay the Order
to withdraw from my clients’ cases, the single justice both deprived my
clients
of their right to have counsel of their choice and interfered with the
orderly
prosecution of their cases. The
judge
never considered
the immediate and irreparable harm and damage his order would cause my
clients.
The full
Court did similarly when the clerk on the
Court’s behalf, so I’ve been told, summarily denied the Motion to Stay
I filed there. Upon learning of the
denial, I reasonably concluded
that the Judgment of Disbarment was predetermined
and that the single justice, too,
knew that, . . . for
were the SJC bench neutral and the option to reverse the single
justice’s decision
still open, he would have
allowed me to continue, at the very least,
to represent my then-existing clients.
Each of my
clients’
cases was about to be horribly and needlessly prejudiced.
I was
less upset at that time about my own disbarred status than I was for my
clients. Their cases were generally
complex
and at stages which made it unlikely that another lawyer could be
effective. My clients would be left
without their
counsel of choice when they most needed counsel familiar with their
cases. My duty to them and to their cases
was my
responsibility and had priority.
I thought
the court
would understand and would not exalt procedure over substance. And I was unwilling to defy justice by
sacrificing substance for procedure.
During the
30 days
between the Judgment of Disbarment and the date it became effective, I
had been
working to tie up as many loose ends in my cases as possible.
The
disbarment was
effective on September 8th, a Friday, 2006. Prior
to that date, two of my clients had been
ordered to court on the
following Monday and Tuesday. Without
adequate opportunity to find substitute counsel, my clients would be at
a loss
were I not there. So in one court, I
appeared also to deliver what I had been ordered prior to the
disbarment to
write and produce on Monday. And in the
second court, I appeared to inform the judge of my idea for a
reasonable
settlement—as well as to inform him that I had not heard from this
Court regarding
my Motion to Stay.
Those
appearances prompted the assistant bar counsel who was prosecuting the
case
against me to add an allegation of Unauthorized Practice of Law to the
Complaint for Contempt she filed in the single-justice session.
Given that
I had already filed an appeal of the judgment
of disbarment, the single justice no longer had jurisdiction to hear
the contempt.
At that
hearing, I attempted to show that where an order
had no pretense of validity when it issued, it is a transparently
invalid order,
void ab initio, and cannot form the
basis for a contempt citation.
Nevertheless,
because I had failed to withdraw from my cases
as the judge ordered, he found me in contempt and imprisoned me to
force my
compliance. Nothing, however, that the
single justice wanted me to do could be done from prison.
I did not hold the key to my cell door. I was being punished.
The
contempt was thus
criminal in nature with the possibility of indefinite incarceration,
and but
for having friends, a few human angels, I would still be imprisoned. That gave me an entitlement to a jury trial,
for which I asked but was denied.
Further,
where I did
not hold the key to my cell door and the contempt charge brought
against me was de facto criminal in nature, the
County Court had no jurisdiction either to hear or to sentence me to
any
incarceration, definite or indefinite.
Significantly,
the
single justice did not declare it a criminal contempt because there is currently no statute or case law
addressing
the issue of incarceration for criminal contempt in the single-justice
session. He would have had to treat
me
disparately and thus violate my right to equal protection.
The denial
of equal
protection is, unfortunately, done in our courts daily.
For instance, a defendant being tried for
criminal contempt in family court is denied a jury trial, but a
defendant being
tried for criminal contempt in superior court is afforded a jury trial.
In sum,
where I did appeal the
Judgment of Disbarment on the grounds that it was transparently invalid
or had only a
frivolous pretense to validity, I could ignore the order until
the
appeal was resolved. Therefore, the Order issuing simultaneously with the disbarment judgment was void ab initio; the finding of contempt, a
clear error of law requiring reversal; the resulting incarceration, an
egregious abuse of discretion and clear error of law.
Where I
was deprived of equal protection, the judge not only deprived me of the
benefit
of appealing the disbarment to the full panel of the High Court in the
Commonwealth. It gave the appearance
that the right to appeal his judgment was but a sham.
The
practice of law, allegedly a “learned profession,” is
a fundamental right. To have deliberately,
recklessly, and with
callous indifference deprived
me of my fundamental rights to property and subsequently my liberty
before I
had had the benefit of an appeal as other members of the populace have, the single
justice
also
violated
both article IV, section 2, and the Fourteenth Amendment of
the United States Constitution.
I rested
on my brief that the single justice’s implicit
or inferential finding that I was practicing law by my appearance in
court one
business day after the disbarment order became effective (“Axe Day”)
was clear
error. A
criminal charge must have elements
so as not to be vague or overbroad. If
the practice of law cannot be defined, neither can the unauthorized
practice of
law be, making §§41, 46A, 46B, 46C unconstitutionally vague.
I
still
maintain that the contempt was a criminal, not civil, one.
I did not hold the key to the cell door. I could not have complied with the court’s
order but for the help of a few extraordinary friends who did all the
“running”
for me outside of jail. But for their
kind and generous assistance, I would be still sitting in South Bay
prison.
Judgments
affirmed.
FN1.
With members of the
public gone, the respondent refused to participate in the hearing and
left. The
hearing officer considered the matter solely on documentary evidence
submitted
by the parties (exhibits submitted by bar counsel and the respondent's
amended
answer to the petition for discipline). The respondent was furnished
with
copies of bar counsel's exhibits and transcripts of the hearing, which
she used
to prepare her appeal to the board.
Because
the hearing officer had “played”
with the transcription process [as shown in the figure below], I did
not dare
stay without the public as witnesses, so I, too, left the hearing room.
Fig.
1. 11/17/03 Transcript, p. 40, ll. 9-12
It
is
untrue that I was supplied copies of the OBC exhibits.
In fact, the transcript shows that they
changed the numbering system for the exhibits as much as two weeks after the alleged trial was over.
The OBC prosecutor appears to have submitted
even new chalks two weeks after
the alleged trial. The only people present
were the hearing
officer, an assistant general counsel, and the OBC prosecutor. There were no witnesses. Te
prosecutor read exhibit numbers and the titles
and the hearing officer admitted them. That
was the extent of the so-called trial. The
entire process was but a sham.
I
did
move for a new trial, but my motion was denied.
FN2.
While the respondent
claims that she filed a petition in the county court seeking relief
from the
order entered in the Probate and Family Court, she has shown neither
that she
actually filed such a petition nor that, if she had, she obtained any
relief;
she was not free to disobey the order. See Florida Bar v. Wishart,
543
So.2d 1250, 1252 (Fla.1989), cert. denied, 493 U.S.
1044 (1990).
This
is
an inaccurate statement of my assertions. See the Petition of Discipline
and my Answer to Count 1 of the Petition for Discipline: http://www.falseallegations.com/drano90-
part-i-answer-bbo-count-one-linnehan.htm. The
subject family-court order was not
mentioned in the Petition for
Discipline. Therefore, basing one of the
reasons of the disbarment on my alleged failure to appeal that order is
improper. In fact, it is untrue. As the SJC Public Case Information website
reveals,
I filed three appeals on my client’s behalf, one included the Bristol
County
Probate & Family Court.
|
Linnehan, James -
Defendant/Petitioner
2001-J-0718
|
|
Case status: Disposed: Case Closed
|
|
ROBYN L. GERRY SYLVIA vs. JAMES
LINNEHAN
|
|
Linnehan, James - Defendant/Petitioner
2001-J-0717
|
|
Case status: Disposed: Case Closed
|
|
ROBYN L. GERRY SYLVIA vs. JAMES LINNEHAN
|
|
|
|
Case status: Decided: petition denied
|
|
JAMES LINNEHAN vs. ROBYN L. (GERRY) SYLVIA,
BRISTOL COUNTY PROBATE &
FAMILY COURT
|
How
many times must one’s appeals be summarily disposed of before
one may conclude that another appeal would be futile?
FN3.
With respect to count
two, we reject the respondent's claim that her posting of confidential
information about her former clients was protected under the First
Amendment to
the United States Constitution. Whatever rights she may have had to
"defend
herself against false accusations" regarding the fee dispute, those
rights
did not include publishing highly sensitive personal information
regarding
allegations that the father had sexually abused his mentally retarded
daughter.
No
highly
sensitive personal information was identified by the OBC, the BBO, or
the SJC
(both courts). I could not fight
ghosts. Notwithstanding that inability,
as an educational publisher since 1998, I rely on the First Amendment
and have
never been sued for defamation or any other tort associated with my
website.
FN4.
Generally, a civil
contempt proceeding is " 'remedial and coercive,' intended to achieve
compliance with the court's orders," while a criminal contempt
proceeding
is "exclusively punitive. It is designed wholly to punish an attempt to
prevent the course of justice." Furtado v. Furtado,
380 Mass. 137, 141 (1980), quoting Cherry v.
Cherry,
253 Mass. 172, 174 (1925), and Blackenburg
v. Commonwealth, 260 Mass.
369, 373 (1927). See Matter of DeSaulnier (No. 3), 360 Mass.
769,
772-773 (1971), quoting Shillitani v. United States, 384 U.S.
364, 368
(1966) (discussing features of criminal contempt, including that
contemnor does
not hold "the keys of ... [his] prison in ... [his] own pockets"); Commonwealth
v. Raczkowski, 19 Mass.App.Ct. 991, 992 (1985), and cases cited
(constitutional right to jury trial attaches to certain criminal
contempts but
not to civil contempts).
See
my
comments, supra, regarding the contempt
charge.
FN5.
Both parties have
filed motions regarding the proper scope of the record on appeal, and
the
respondent has filed motions that repeat or add to arguments that she
raised in
her briefs. We have considered only those materials that were part of
the
record below and decline to address legal arguments not raised in the
respondent's
briefs.
The
motions to which the Court was referring are the following, about which
I spoke
at the oral argument in November 2007.
The
first motion (Paper 7) arose out of the BBO’s appendix which was filed
in the
single-justice session and was accepted as the record by the full court. The BBO did not give me copies of the
appendix and the Court failed to act on my motion to order the BBO to
give me a
copy. If I or any lawyer tried to file
pleadings or documents that had not been served on opposing counsel, I
or any
lawyer would not be allowed to file those documents.
Therefore
having wrongly accepted for filing the BBO’s appendix which I have not
seen,
the Court should have (1) stricken those documents in the BBO’s
appendix, with
the exception of any and all documents written or supplied by me which
appear
in the 12 volumes of the BBO’s appendix and (2) proceeded only on those
parts
of the original record before the single justice which are my
pleadings.
In the
second motion (Paper 12), I sought an order commanding the BBO to
correct
docket sheets for BBO case, to provide me a table of contents to the
12-volumes
of the appendix, and to provide me a copy of the 12-volume appendix). I am entitled to those three orders. Where they did not reverse the judgment
of
disbarment, I shall need those items should my intended petition for
certiorari
by the Supreme Court be granted.
In the
third motion (Papers 20 and 22, the reply), I moved for a declaration
as to
what constitutes the unauthorized practice of law.
As the Court has stated, it is difficult to
define the unauthorized practice of law. Given,
however, that the statute carries a
criminal punishment, it is mandatory
that this Court set out the elements before charging anyone, including
myself,
with the unauthorized practice of law.
The
fourth (Paper 24) was my motion (1) to reverse the denial of my motion
to stay
and allow me to continue representing my then-existing clients’ cases,
(2) to
hold the Office of Bar Counsel and the BBO in default, (3) to dismiss
the
petition for discipline, and (4) to vacate the judgment of disbarment.
The
fifth (Paper 28) was my motion to exceed the page limit for a reply
brief for
the reasons set out in the motion.
I, of
course, opposed all of the BBO prosecutor’s motions, which were for the
most
part, motions to impound everything or almost everything I filed in the
SJC.
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#184, Drano Series
