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450 Mass.
165,
877 N.E.2d 249
Supreme
Judicial Court of Massachusetts, Suffolk.
In the
Matter of Barbara
C. Johnson.
SJC-09820, SJC-09866.
Argued
Nov. 6, 2007.
Decided
Dec. 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.
**250 Barbara C. Johnson, pro se.
Susan A.
Strauss Weisberg, Assistant Bar Counsel.
**251 Present: MARSHALL, C.J., GREANEY,
IRELAND,
COWIN, CORDY, & BOTSFORD, JJ.
RESCRIPT.
*165
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.
*166
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. 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; 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.
The mother and son filed
complaints with bar counsel
requesting that the respondent remove the material from her Web site.
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. The respondent ignored the court orders. A subsequent
order by a
judge in the Probate and Family Court declared that the materials filed
in that
action were also impounded.
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).
*167
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. The respondent deposited
the
retainer in her personal account rather than in a trust account. 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. 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.
In 2002, the respondent posted
on her Web site the
identities of her former **252 clients and their daughter
without their
permission; details of the sexual abuse allegations; and information
regarding
the fee dispute. The clients demanded that the respondent remove the
information from her Web site. In a telephone message, the respondent
said that
she might remove the information but only if the clients withdrew their
complaint
with bar counsel.
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).
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. 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. 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 *168 action. 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. The respondent
filed a
notice of appeal from the order striking the motion for retransfer. The
Appeals Court
dismissed
the appeal as frivolous.
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, 694 N.E.2d 1318 (1998).
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. 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.
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).
b. Discussion.The
respondent raises constitutional,
procedural, and substantive challenges to the disciplinary proceedings.
We
address them in turn.
**253[1][2][3]
i. The respondent claims that, under a “class
of one” theory, see Willowbrook v.
Olech, 528 U.S. 562, 564, 120
S.Ct. 1073, 145 L.Ed.2d
1060 (2000),
the board violated her right to equal protection under the Fourteenth *169
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, 628 N.E.2d 1273 (1994).
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.
Cf. Matter of Cobb, 445 Mass. 452, 479, 838 N.E.2d 1197 (2005)
(no
support for attorney's claim that bar counsel vindictively sought to
punish him
for reporting acts of judges). 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, 694 N.E.2d 337 (1998).
[4]
ii. The respondent argues that the board
chair improperly allowed bar counsel's motion for a protective order in
connection with the disciplinary proceeding. The respondent failed to
challenge
the order. 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). In any event, the protective
order was
appropriately entered where impounded material was at issue 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.
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.
[5]
iii. The respondent contends that the hearing
officer wrongly quashed subpoenas that the respondent had issued on her
own, *170
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. See Matter of Tobin, supra at 102-103, 628 N.E.2d 1273 (refusal
to issue
subpoenas appropriate where attorney sought to relitigate underlying
matters in
disciplinary proceeding).
[6][7][8]
iv. With respect to count one, the respondent
claims that she cannot be disciplined for having posted impounded
material on
her Web site for the following reasons: (1) the Juvenile Court orders
were
invalid because she never obtained material from the care and
protection
proceeding and thus never posted impounded **254 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. 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 *171 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 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).
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, 110 S.Ct.
839, 107 L.Ed.2d 834
(1990).
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.
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, 628 N.E.2d 1273. Cf. Matter of Cobb, supra at 479, 838 N.E.2d 1197.
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.
[9][10][11][12]
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 **255 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*172
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, 484 N.E.2d 1330 (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, 561 N.E.2d 863 (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
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.” span style="color:
black;" Furtado v. Furtado, 380
Mass. 137, 141, 402 N.E.2d 1024 (1980),
quoting Cherry v. Cherry, 253 Mass. 172, 174, 148 N.E. 570 (1925),
and Blankenburg v. Commonwealth, 260 Mass. 369, 373, 157 N.E. 693 (1927).
See Matter of DeSaulnier (No. 3), 360 Mass. 769, 772-773, 279 N.E.2d 287 (1971),
quoting Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct. 1531, 16 L.Ed.2d
622 (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, 475 N.E.2d 417 (1985),
and cases cited (constitutional right to jury trial attaches to certain
criminal
contempts but not to civil contempts).
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.
Judgments affirmed.
Mass., 2007.
In re
Johnson
450 Mass. 165, 877 N.E.2d
249
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#184, Drano Series
