#90,
Drano Series
Barb's Answer
to the Bar Counsel's
Petition for Discipline:
Counts I, II, and IIIA Battle in the War between Barb
and
the Office of Bar Counsel and the Board of Bar Overseers
<>The Board of Bar Overseers is the adjudicatorial arm.
General Counsel of the BBO reports to the Board.
The Office of Bar Counsel is the prosecutorial arm.
Bar Counsel of the BBO reports to the SJC.
However, before a Petition for Discipline is sent out,
the OBC needs the approval of the BBO.
This WAS Barb's First Answer to the Bar
This answer was the one produced by my counsel. He had amended my original answer as shown in ##90A, 90B, and 90C.
After I fired him for secretly meeting with the Assistant Bar COunsel assigned to my case, I submitted my own original drafts as shown in 90A, 90B, and 90C.
.
COMMONWEALTH OF MASSACHUSETTS
BOARD OF BAR OVERSEERS
OF THE SUPREME JUDICIAL COURT______________________
BAR COUNSEL B.B.O. File No. C2-01-0091
Petitioner C2-01-0090
C2-00-0078
v. C2-98-0580BARBARA C. JOHNSON
Respondent
______________________ANSWER OF RESPONDENT BARBARA C. JOHNSON
TO PETITION FOR DISCIPLINERESPONDENT DEMANDS TRIAL BY JURY ON ALL ISSUES SO TRIABLE
COUNT ONE
1. Paragraph One of the Petition states a legal proposition and therefore requires no answer.
2. The Respondent admits the allegations in Paragraph 2.
3. The Respondent admits the allegations in Paragraph 3.
4. The Respondent admits the allegations in Paragraph 4.
5. Respondent specifically denies that she uses her "web site as a vehicle to solicit legal business."The Respondent admits that she uses the web site to provide various legal services including providing answers, after receiving a reasonable fee, to "simple questions," and that she offers to provide "various types of `consulting services' for which she charges hourly rates."
By way of further answer, the Respondent states that she informs website visitors that she provides "`legal representation' pursuant to written fee agreements.'" Respondent also states that her website was and still is intended to be a resource for people who seek assistance have been victimized by the courts and who cannot afford legal representation. The website was only one of several steps Respondent took to effect her intended retirement for many reasons from the practice of law.
6. For her answer, the Respondent repeats and reaffirms her answers to the allegations of paragraphs 1-5 of this Petition.
7. The Respondent admits the allegations in Paragraph 7.
8. Respondent admits so much of Paragraph 8 that alleges ". . . William was born in 1985. From and after 1988, William was the subject of a care and protection proceeding (C & P action) in the Bristol County Juvenile Court (juvenile court)." Respondent is without sufficient knowledge or information to admit or deny the remainder of Paragraph 8.
9. Paragraph Nine of the Petition quotes a Standing order and therefore requires no answer. By way of further answer, Respondent states she does not know the history of the Standing Order. By way of further answer, Respondent states that the Petitioner has the burden of establishing that has not been changed, altered, revoked or amended during all relevant times of this petition.
10. Respondent is without sufficient knowledge or information to admit or deny Paragraph 10.
11. Respondent admits so much of Paragraph 11 that states ". . . respondent has never appeared for Jones in the C & P action and has never been an attorney of record in that action," By way of further answer, Respondent states that the court has held one or more hearings and issued one or more orders affecting the Respondent without notice to her, without providing her an opportunity to be present and despite the fact that she is neither a party or an intervenor to any action in that court.
12. Respondent denies the allegations as stated in Paragraph 12. By way of further answer, Respondent states that Respondent states that William was the subject a proceeding not only for paternity but also for custody. Absent a demand for custody of the child, the Probate and Family Court would not have had exclusive jurisdiction over Jones's action
13. Paragraph Thirteen of the Petition quotes M.G.L. c. 209C and therefore requires no answer. . By way of further answer, Respondent states that the M.G.L.. c. 209C as revised in 1998 applies to both paternity and custody actions under that chapter.
14. Paragraph Fourteen of the Petition requires no answer. By way of further answer, Respondent specifically denies the allegations made by Bar Counsel as to the effect, intent and practice with respect to M.G.L. c. 209C, as amended, after its effective date.
15. Paragraph Fifteen of the Petition requires no answer. By way of further answer, Respondent specifically denies the allegations made by Bar Counsel as to the effect, intent and practice with respect to M.G.L. c. 209C, as amended, after its effective date.
16. Respondent is without sufficient knowledge or information to admit or deny the specific allegations of fact made in Paragraph 16. By way of further answer, Respondent does have sufficient information to form the belief that Jones's visitation rights were terminated in Juvenile Court without due process, including a duly-noticed hearing at which he could confront accusers and/or defend himself. Respondent does have sufficient information to form the belief that Jones was also denied due process under Ch. 119 despite repeated efforts, extending over a decade, to obtain review and re-determination.
17. The Respondent denies the allegations in Paragraph 17. By way of further answer, Respondent has sufficient information to state that the facts are in dispute is because Jane Doe has repeatedly committed perjury in the course of various court matters.
By way of further answer, Respondent states that Bar Counsel has knowingly chosen to allege only those assertions made by Jane Doe to suit Petitioner purpose in pursuing the Respondent despite either knowing such statements were actually false or failing to make diligent and reasonable investigation to determine that such allegations were false.
By way of further answer, Respondent states, has Bar Counsel made diligent inquiry, the contradictory sworn allegations made at various point by Jane Doe are posted and available on the Respondent’s website.
Specifically, the allegations are as follows:
(a) that in 1994, Jane Doe told her own divorce lawyer, Moira Tierney, that William born out of a marital union between herself and Jones: "I assumed complete responsibility for raising [Brown's] children and my child from a previous marriage" [see Par. 6 of Jane's affidavit, filed on 11 July 1994 in the Doe-Brown case in Bristol County Probate & Family Court];
As to the remainder Par. 17, By way of further answer, Respondent that she has learned the following information:(b)that Jane Doe told Brown, her husband, that William was born out of a marital union between herself and Jones [see Doe-Brown divorce file in Bristol County Probate & Family Court];
(c) that in 1988, Jane Doe told Christopher Salt that she had "no live-in boyfriend" [CS 7/1/88 report at 25], causing Salt to write, with the exception of Mr. Fitzgerald, who babysat William, "there appears to be no significant males in [William's] life other than Mr. [Jones]." Id. at 3;
(d) that in her affidavit filed in the Bristol County Probate & Family Court in New Bedford, Jane claimed to have married Brown on "August 28, 1988 after living together for approximately two years" [Jane's affidavit at 1];
(e)that in 1992, Jane Doe told Eli Newberger, a doctor at Children's Hospital, that she had married Robert Brown "in August 1988," [EN 9/8/92 report at 4, Par. 2].
(a) that David Brown was also conceived out of wedlock but born in it,
18. The Respondent denies the allegations as stated in Paragraph 18. By way of further answer, Respondent has sufficient information to form a belief that William has lived with his mother, Jane, and his half-brother David, and has been known not in one community but in seven or eight or more communities as William Brown.(b) that Jane and Robert Brown were separated by 1991, re-united for a short period, and then separated again,
(c) that in 1994, Jane initiated divorce proceedings, which resulted in a judgment nisi in November 2001,
after seven arduous years;(d) that on page 2 of Brown's affidavit filed in the divorce case, he corroborates Jones's assertions: "My wife has moved with her son [William] at least seven or eight times." Neither the Juvenile nor the Probate & Family Courts cared. They never allowed Jones to give or take evidence.
19. The Respondent denies the allegations as stated in Paragraph 19.
20. The Respondent denies the allegations as stated in Paragraph 20. By way furher answer, Respondent states as follows:
(a) Respondent also calls upon Petitioner to name the psychologist and to produce the alleged reports, which Respondent believes are non-existent;
21. Respondent admits that she filed a complaint for modification and an amended complaint for modification for Jones. Respondent specifically denies that these pleadings were filed in a paternity action. Respondent states that they were filed in a paternity and custody action. The Respondent denies the remainder of the allegations as stated in Paragraph 21.(b) If the alleged psychologist is an individual named Jack McCarthy, then Respondent also states that the so-called report(s) are but letters to one or two attorneys and "To Whom It May Concern" of only a few lines in length;
(c) If the alleged psychologist is McCarthy, then Respondent has sufficient information to form the belief that McCarthy did NOT treat William, and did, in fact, see William only one time for a few minutes with his mother Jane;
(d) Respondent denies possessing reports from McCarthy containing privileged, confidential and personal information of a highly sensitive nature about William, David, and Jane. Respondent only has copies of a few short letters containing purposefully false information and bills sent to Jones for alleged services;
(e) Respondent has never known any more about David than his date of birth and information as to whom his father is, and has never inquired of any potential source seeking information about David.
22. The Respondent admits the allegations in Paragraph 22.
23. Respondent admits that she posted on her web site a copy of her amended complaint for modification for Jones, but denies that it was filed in a paternity action. She states that it was filed in a paternity and custody action. The Respondent denies the remainder of the allegations as stated in Paragraph 23. By way of further answer, Respondent specifically denies the allegations made by Bar Counsel as to the effect, intent and practice with respect to M.G.L. c. 209C, as amended, after its effective date.
24. The Respondent denies the allegations as stated in Paragraph 24.
25. The Respondent denies the allegations as stated in Paragraph 25. By way of further answer, Respondent denies that she ever posted on her website a copy of a psychologist's report on any individual.
26. Respondent admits posting materials concerning Jane and her children, including the amended complaint, Jones's affidavit, federal-court pleadings and Doe-Brown divorce pleadings. The Respondent denies all remaining allegations as stated in Paragraph 26.
27. Respondent admits that she posted certain materials on her website. The Respondent denies all remaining allegations as stated in Paragraph 27 and specifically denies that any information she posted was impounded by any court or law.
28. Respondent answers the allegations in Paragraph 28 as follows:
27A. Respondent denies posting materials from an affidavit of Eileen Kern, who reported the sexual abuse allegations against Jones pursuant to M.G. L. c.119, sec 5. Respondent has no knowledge of an affidavit by Kern written at that time.27B. Respondent admits she certain phrases and summarized the so-called social worker for all intents and purposes as follows:
Salt drew no negative conclusion from [Jane] having left Maine with [William] while a court order allowing [Jones] visitation was operative [CS, depo at 13-17]. Instead, he [Christopher Salt] held to his belief that [Jane] had "justification" to disobey the Maine court order [CS, depo at 15, lines 7 and 4] by fleeing and hiding with [William] in Massachusetts [CS depo at 16].To Christopher Salt, [Jane] claimed to have "no live-in boyfriend" [CS 7/1/88 report at 25], but Salt knew this to be untrue, viz., Salt knew that [Jane] and [William] shared an apartment for about three months with Joseph Fitzgerald, who was the tenant of record [id. at 17]. [Jane] and the divorced Fitzgerald, Salt wrote, "dated a few times and have remained good friends" [id.] and with the exception of Mr. Fitzgerald who baby-sat [William] , "there appears to be no significant males in [William's] life other than Mr. [Jones]" [id. at 25].Salt's conclusion that [Jones] had to be the perpetrator of the suspected sexual abuse because there was no male around except [Jones] and because [William] feared men was specious [CS 7/1/88 report at 25; CS depo at 28].Salt further insisted that even though "there was no diagnosis of sexual abuse, the possibility is not to be eliminated. His fear and anxiety about his father had been confirmed[;] he had undergone a traumatic experience and now suffered from post-traumatic stress" [CS depo at 34].By 1991, Salt updated his report -- a "parenting" assessment -- and submitted it to the court in January 1992. [Since Respondent wrote this, she received the docket sheet from the OBC and it is not clear that the report was ever filed in court.] Again Salt recommended that [Jones] be denied visitation with his son [CS 1/5/92 report at 16]. The court accepted Salt's recommendation.The complaints allegedly made by [William] were communicated to Salt by [Jane] and not by [William] . Salt irrationally accepted as truth [Jane] 's assertion that [William] at 6 years of age believed that his therapist (Ferreira) conspired with [Jones] so that [Jones] could take him to his house. And given that his assignment was to investigate the parents, it was grossly negligent to accept without a visit to [Jane] and [William's] home environment [Jane] 's assertion that "her husband Michael is very important to [William] and that Michael treats her son as if he were his own" [CS 1/5/92 report at 2; also 15].Specifically Salt himself lied in that report of 5 January 1992 to Judge Harper: he wrote that Reuben Ferreira had acknowledged that [William's] visiting [Jones] "might well be detrimental." Salt's statement was false because Salt never spoke to Ferreira at that time.Salt's goal, it appears, was to continue to win favor with a judge (now retired) from whom he had received 30 or 40 assignments for reports [CS depo at 8-9]. Of the 60 court investigations that Salt had performed in two-and-a-half years [id. at 8], he found abuse in all but three [id. at 10] and all were done for the Bristol County Juvenile Court "except for one or two" [id. at 8].Respondent further states that the Juvenile Court rule "only imposes a requirement of confidentiality on the [records], and not on witnesses or persons outside the [court]." In re Enforcement of Subpoena, 436 Mass. 784, 797 (2002). "Nothing in the impoundment order prevents the witness from "speak[ing] publicly about the proceedings before the commission and about these proceedings." Id.An order impounding the papers filed with this court in this matter is not a gag order on the witness or a prior restraint on his speech, and he has in fact spoken out publicly concerning this matter on many occasions without repercussion. His desire to speak out, however, does not compel this court to open its files on the matter.In re Enforcement of Subpoena, 436 Mass. 784, 797 (2002). Therefore Respondent's summarizing events is violative of any rule or regulation or statute. Indeed, Respondent was simply exercising her free-speech rights, and it is the Bar Counsel who is attempting to interfere with those rights of the Respondent.27C. Respondent denies this allegation. By way fo further answer, Respondent states that, in 1988, other than Salt, there were no "social workers and other clinicians who conducted court-ordered sexual abuse and parenting assessments."27D. Respondent denies this allegation. By way of further answer, Respondent states that she knows of no report from DSS or from the nonprofit corporation for which the mandatory reporter, Eileen Kern, worked in 1992. Kern claimed in the U.S. District Court case that she had nothing to do with the "Jones" case after 1988.
27E. Respondent denies this allegation. By way of further answer, Respondent states that the so-called evaluation by the team headed by the charlatan of the multibillion dollar sexual-abuse industry, Eli Newberger, was not filed in any court by him. Respondent states that Dr. Newburger specifically stated this fact in the U.S. District Court action against him to assert that there could be no state action. Therefore, Juvenile Court Standing Order No. 1-84 simply does not apply to any such report
(a) Respondent admits posting on her website the "amended complaint for modification, federal pleadings and other materials," but does not recall the dates when such documents were posted.
29. Respondent admits that she never sought or obtained order or relief from Juvenile Court. Respondent also admits that she never sought permission to post anything on her website because any material she posted was already open to the public pursuant to G.L. c. 209C, sec. 13, as amended 31 March 1998.(b) Respondent admits identifying "William as `William Jones,'" a name by which he was NOT known in any Massachusetts community in which he lived with his mother. She also admits identifying "Jane and David by name, and disclos[ing] their home address."
(c)Respondent admits "characteriz[ing] Jane in her postings as a perjurer who had conceived both her children out of wedlock and then falsely accused both fathers of sexual abuse."
(d) Respondent denies that "[t]he postings described, among other things, the history and details of the abuse allegations against Jones."
(e) Because William was never evaluated or treated by any therapist, whether properly credentialed or competent or not, Respondent denies identifying any "therapists who had evaluated or treated William, the particulars of his evaluations and therapy, and the therapists" findings concerning the abuse and ensuing trauma to William."
(f) Respondent denies that she derived all or substantially all that information from the juvenile court reports and other records under impoundment in the juvenile or probate courts and from the reports of William's treating psychologist, on the grounds that it is unclear that any report other than possibly Salt's was filed in juvenile or any other court and that William had NO treating psychologist.
30. Respondent has sufficient knowledge and information to form the belief that "Jane was a candidate for elected town office" until 3 April 2001, the same date that she filed her complaint against Respondent with the Board of Bar Overseers. Respondent is without sufficient knowledge or information to admit or deny the remaining allegations of fact made in Paragraph 30.
31. Respondent admits that she "posted on her web site an array of photographs provided by Jones, including photographs of William between the ages of about one and three." The Respondent denies each and every remaining allegation as stated in Paragraph 31.
32. Respondent admits (a)that she posted photographs of the infant and toddler William, (b)that she announced the candidacy of Jane for public office in Fairhaven, but does not recall how long the announcement remained on her website, and (c)that Jane was an ""out-of-wedlock mom." Respondent believes she might have identified William as William Brown at some point, but that she changed the name when it was called to her attention.
Respondent does not recall in which file the name William Brown appeared or when she changed it. The Respondent denies each and every remaining allegation as stated in Paragraph 32.
33. Respondent admits announcing on her website that Jane lost her bid for public office in Fairhaven. The Respondent denies each and every remaining allegation as stated in Paragraph 33.
34. Respondent admits she received notice of complaints to the OBC by Jane and by Deborah Wolf. Respondent denies that she received notice of a complaint by William. Respondent admits that she submitted responses to the OBC. Respondent admits that she "did not remove any of the material" and also states that she was not requested to remove any material, likely because such a request would have been an unlawful exercise of censorship by the Commonwealth and in violation of Respondent's First Amendment rights.
35. Respondent answers Paragraph 35 as follows:
(a) Jones is not a party to this petition,
Respondent denies the remainder of the allegations in Paragraph 35.(b) Jones has no control over Respondent's website,
(c) Respondent was never a party, an intervenor, or a third party to any action in Juvenile Court,
(d) Respondent was not properly served with a copy of the relevant order; instead, on 1 May 2001, an unscrupulous private attorney sent Respondent by facsimile a copy of the order, which can be seen on Respondent's website at http://www.falseallegations.com/drano34-juvenile-ct-order.htm;
(e) on 7 May 2001, Respondent was served with a pleading which, although entitled "Verified Complaint for Equity Relief," was not legally cognizable as a Complaint and in which neither Jones nor Respondent is named as a defendant,
(f) Respondent has never been inside New Bedford Juvenile Court, has never filed an appearance in a case in New Bedford Juvenile Court, has never been served with a Complaint filed against her in New Bedford Juvenile Court,
(g) the Juvenile Court has no personal jurisdiction over Respondent or subject-matter jurisdiction over what is on her website. No pleadings from the Juvenile Court are or ever have been on the website,
(h) Juvenile Court has no jurisdiction over torts,
(i) on 29 May 2001, Respondent wrote the New Bedford Juvenile Court. Some excerpts follow from the letter, which appears in entirety on her website at http://www.falseallegations.com/drano37-impoundment-Lawton.htm and which is incorporated as if set forth herein by reference.
36. The Respondent denies the allegations as stated in Paragraph 36. By way of further answer, Respondent states that the Juvenile Court had neither personal jurisdiction over Respondent or subject matter jurisdiction over her website. Therefore, Respondent had no legal obligation to follow Judge Mark Lawton's order. Further, Respondent had a moral obligation not to follow the unlawful order. See, the Principles of the Nuremberg Tribunal (1950).
The Nuremberg tribunal held that the defendants could not escape responsibility for these acts by pointing to their domestic law obligations. They had a privilege under international law to violate domestic law in order to prevent the ongoing crimes against humanity that their country was perpetrating through them. Id. We echo this explanation.
37. The Respondent denies the allegations as stated in Paragraph 37. By way of further answer, Respondent states she did not publish any Juvenile Court reports on her website. Respondent admits publishing certain quotes noted above and sets forth herein the specific quotes as follows:
United States v. Maxwell, 254 F.3d 21, (2001) 266 at par. 54, (www.versuslaw.com). Respondent contends that, although Bar Counsel has cited Juvenile Court Standing Order No. 1-84 as the basis for the Petition, Standing Order No. 1-84 repeatedly fostered crimes against humanity because it effectively overrides basic state and federal constitutional canons of due process and equal protection.By way of further answer, Respondent states that she therefore did not, of course, comply with the offending order. She chose the moral high road. She had learned of the unscrupulousness of the Harper court and was obligated to make the lack of any due process whatsoever in the Juvenile Court since 1988 known to the public. The nexus between Jones having lost his son for 15 years and perhaps forever and Harper's unscrupulousness was clear.
But for Standing Order No. 1-84’s cloak of secrecy, coupled with judge-made judicial immunity allowing judges to scoff at the moral obligation to act responsibly and be accountable, Juvenile Court Justice Ronald Harper's arrogance against Jones was enabled and his unscrupulous and malicious acts were hidden from public scrutiny. He was able to perpetuate a crime against humanity in the penumbra of a Kangaroo Court sanctioned not by the people but by some politically appointed committee at some time in the recent past.
In the context of the Jones case, Standing Order No. 1-84 is too broad to accomplish the stated goal of privacy. There are less onerous alternative means, means that are narrowly tailored to serve a compelling State interest, to accomplish the desired privacy. Respondent knows that Jones is not the only parent victimized by unscrupulous and court-sanctioned malicious and corrupt acts hidden by Standing Order No. 1-84.
So Respondent's moral choice was clear. She had to stand on the side of principles, to stand against judicial crimes. She again risked being branded bombastic by a sitting justice because she invoked the lofty Nuremberg Principles. Far from bombast, she faced the the absence of justice in our courts, particularly in domestic issues; and she had to act in the moment.
Justice Harper's choice was also clear. He had a moral choice [See Principle IV of the Nuremberg Tribunal]: to follow due process or do the reprehensible act of denying any indicia of due process, such as a hearing to Jones, and keep the fact cloaked in the darkness defined by the Standing Order. Like Harper, Justice Lawton and the Office of Bar Counsel have had a moral choice: to apply the Standing Order or to allow disclosure of the unscrupulous acts of the Harper Court and make the judiciary take responsibility for the unconscionable conduct of the Juvenile Court in the Jones case.
If the Nuremberg Principles, and particularly Principle IV, address crimes against humanity and apply to member states of the United Nations (as Secretary of State Colin Powell has stated on Meet the Press (February 9, 2003) such principles govern the body politic in Iraq), why should those principles not apply also to the Commonwealth of Massachusetts?
Certainly the qualified doctrine of judicial independence must defer when faced with a crime against humanity.
(a) "justification" [CS, depo at 15, lines 7 and 4]
Respondent submits that no reasonable person could find these words and phrases, to have "embarrassed" or "burdened" Jane or William as alleged in Paragraph 36.(b) "no live-in boyfriend" [CS 7/1/88 report at 25],
(c) "dated a few times and have remained good friends" [CS 7/1/88 report at 17],
(d) "there appears to be no significant males in [William's] life other than Mr. [Jones]" [id. at 25].
(e) "there was no diagnosis of sexual abuse, the possibility is not to be eliminated. His fear and anxiety about his father had been confirmed[;] he had undergone a traumatic experience and now suffered from post-traumatic stress"[CS depo at 34].
(f) "parenting"
(g) "her husband Michael is very important to [William] and that Michael treats her son as if he were his own" [CS 1/5/92 report at 2; also 15].
(h) "might well be detrimental" [CS 1/5/92 report]
(i) "except for one or two" [CS depo at 8].
By way of further answer, Respondent states that any embarrassment suffered by Jane arose from Respondent's published opinion, after reviewing all the pleadings including those written by Jane herself, that Jane is both manipulative and a liar. Respondent’s opinions, expressed in good faith and without malice, were truthful statements of Respondent’s view as to how Jane’s perjury had contaminated the judicial process and how corruption had denied justice in the Jones case.
Respondent further states that she was unaware of Standing Order I-84 prior to receiving a facsimile from Attorney Deborah Wolf informing her of Judge Lawton's ex parte order. Respondent admits that she was nonetheless charged with knowledge of the rule even before that time. By way of further answer, however, Respondent submits that she has at all times acted in good faith and in accordance with obligations as advocate and officer of the court.
38. The Respondent denies the allegations as stated in Paragraph 38. By way of further answer, Respondent statesthe allegations in Paragraph 38 are overly broad and vague and Respondent is unable to respond.
39. The Respondent denies the allegations as stated in Paragraph 39. By way of further answer, Respondent statesthat she has never received any notice for the Office of Bar Counsel. Respondent admits she has, had oral communication regarding the "Jones" matter with Assistant Bar Counsel Susan Strauss Weisberg ["Weisberg"].
By way of further answer, Respondent statesthat Weisberg often told Respondent that the investigation would be over soon. When Respondent asked whether a petition for discipline would be issued, Weisberg on several occasions stated, to the effect, " I did NOT say that charges would issue."
Respondent denies that she received notice directly or indirectly from Bar Counsel, as alleged in the Petition, "that formal disciplinary proceedings would shortly be instituted against her and that the disciplinary charges would involve, among others, the Jones matter."
By way of further answer, Respondent statesthat Weisberg's tone and manner became increasingly hostile after Respondent's positions against judicial immunity and for court reform became publicly known during Respondent's recent gubernatorial campaign. After the campaign, Weisberg dealt with
Respondent in a fashion that suggested she had decided to file a petition for discipline despite not having completed her protracted investigation.
As to the postings referred to paragraph 39, by way of further answer, Respondent states the allegations in Paragraph 39 are overly broad and vague and Respondent is unable to respond.
40. Respondent admits that "[o]n or about December 19, 2002, the respondent posted on her web site her answers to the requests for investigation filed by Jane and Wolf, with William's name only redacted." The Respondent denies the allegations as stated in Paragraph 40.
41. Respondent admits that, except for removing the announcement of Jane Doe's loss of the election after such information had long been in the public domain, she has not removed any other material relating to John Jones, Jane Doe, William Jones, Robert Brown, and Christopher Salt.
42. The Respondent denies the allegations as stated in Paragraph 42.
43. The Respondent denies the allegations as stated in Paragraph 43.
44. The Respondent denies the allegations as stated in Paragraph 44.
COUNT TWO 45. The Respondent realleges and incorporates by reference her answers to Paragraphs 2 through 44 as if fully restated herein.
46. Respondent admits that for a considerable period, including October through December 1999, she provided visitors to her website with information concerning her reasonable and usual fees for certain services. By way of further answer, respondent has no present memory of her regular and usual charges for legal services for the period October through December , 1999.
47. Respondent denies the allegations as set forth in Paragraph 47.
By way of further answer, Respondent denies that she does not tell visitors to the website or "prospective clients of charges for telephone calls with them or for reading, answering or writing e-mail or other correspondence." By way of further answer, Respondent states that this allegation is frivolous, without factual basis and demonstrates Bar Counsel’s ulterior motive in filing the instant petition.
By way of further answer, Respondent has in the past posted and continues to post considerable information on her website regarding fees for "non-clients" as well as "prospective clients." For instance, a pricing structure appears at the following links on her website:
Further, set forth below are examples of the information and disclosures (i) Fee-based Information Without Legal Representation, (including fees for answers to questions by email);
http://www.falseallegations.com/pricing.htm (Simple Questions);(ii) Fee-based Consulting Services – (This is NOT legal representation)
http://www.falseallegations.com/pricing.htm (Consulting services)(iii) Fee-based Legal Services
http://www.falseallegations.com/pricing.htm (Legal Representation)
available to website visitors:http://www.falseallegations.com/agr-hour.htm
Last updated Sunday, 08-Oct-2000 02:12:50 EDT.
10. It is understood and agreed that the hourly time charge for legal services includes, but is not limited to, the following: Court appearances (including travel time to and from Court); conferences; telephone calls; correspondence; legal research and writing; depositions; drafting and filing legal documents; reading and reviewing of file materials and preparation for any Court hearings and trial. Telephone calls and correspondence shall be billed at a minimum rate of one-quarter of one hour.
http://www.falseallegations.com/agr-hr-2.htmhttp://www.falseallegations.com/agr-cont.htm
Last updated Sunday, 08-Oct-2000 02:12:46 EDT.9. In any event, the Client is liable for all reasonable expenses and disbursements of the Firm and shall reimburse the Firm for such amounts.
http://www.falseallegations.com/agr-cnt2.htm9. In any event, the Client is liable for all reasonable expenses and disbursements of the Firm and shall reimburse the Firm for such amounts.
http://www.falseallegations.com/agr-cnt3.htm8. In any event, the Client is liable for all reasonable expenses and disbursements of the Firm and shall reimburse the Firm for such amounts.
http://www.falseallegations.com/disclaim.htm Respondent submits that Bar Counsel has failed to conduct even a rudimentary investigation before making the allegations in this Petition regarding Respondnet’s billing practices. The information above has been and continues to be available without limitation on her website.48. Respondent denies the allegations set forth in Paragraph 48.
By way of further answer Respondent states that Richard Parker, a retired school teacher of Japanese extraction, was charged in four indictments for attacking his daughter "Sarah" in the shower and for burning her while in a car with a cigarette, as well as raping her twice. He and his family prefer NOT to call Sarah mentally retarded. They prefer to say she was "mentally challenged" from "a series of massive strokes which left her with partial paralysis and serious learning disorders and a serious lack of language skills." During and prior to October 1999, Sarah was living in a residential placement under the supervision of the Massachusetts Department of Mental Retardation (DMR). The DMR had initiated a protective services action for Sarah on account of the allegations against Richard. Richard and Mary Parker, Richard's wife and Sarah's mother, were then barred from all contact with Sarah by a restraining order entered in the protective services action.
49. Respondent denies the allegations of Paragraph 49.
By way of further answer Respondent states that the Parkers' troubles began in 1992, seven years earlier than Bar Counsel avers. Just weeks after Sarah left the Parkers' home to live in Specialized Home Care, "complaints" were made and parental access to Sarah was restricted. These matters were not resolved until mid 1994. The events of 1999 and the history of leading to those events are far more complicated and involved than Bar Counsel’s allegations.
By way of further answer, Respondent states that the she has been threatened by Assistant Bar Counsel not to reveal the history leading up to the events alleged by Bar Counsel on the grounds of confidentiality and privacy. Respondent states and avers, however, that the factual predicate for Bar Counsel’s allegations against her are based on a selective choice of facts and time period designed solely to diminish the apparent value of the Respondent's services.
50. Respondent has insufficient knowledge and information to admit or deny paragraph 50.
By way of further answer, Respondent states that at all relevant times, Richard was represented by Attorney Richard Simons on the criminal charges against him.
51. Respondent has insufficient knowledge and information to admit or deny paragraph 51.
At all relevant times, Richard and Mary were represented by Attorney Simons and Attorney Karen Schultz Breda in connection with the adult protective services action. Mary wrote many emails to Respondent about Attorney Breda's representation. Attorney Breda acted as both a courier of messages between various persons and as a supervisor for visitation purposes.
52. Respondent has insufficient knowledge and information to admit or deny paragraph 52.
By way of further answer, the Respondent states that the Parkers denied any misconduct toward Sarah. They suspected that Sarah might have been sexually abused by someone else at her residential placement.
53. Respondent has insufficient knowledge and information to admit or deny paragraph 53.
54. Respondent denies the allegations of Paragraph 54.
By way of further answer, the Respondent admits that "Mary made her initial contact with the respondent by e-mail." Respondent also admits that almost "all her communications with the respondent were by e-mail correspondence." Mary and her husband phoned Respondent on various occasions. Respondent denies that she "encouraged this exchange of e-mail communications." Mary compulsively wrote Respondent about every communication she had with her family. For example, Mary compulsively wrote Respondent about her four daughters, her niece Karen and other lawyers.
These various email communications are set forth below. So as to separate their text from the Respondent’s answer, the emails are placed in text boxes.
THE BACKGROUND 10/31/99 MARY : Please we need help. We are in a fight for our life and for the survival of our family. This is but a brief history of what is happening.
At the age of 15 months our youngest daughter had a series of massive strokes which left her with partial paralysis and serious learning disorders and a serious lack of language skills. For 25 years she lived with us and her sisters in a very close knit loving family. She went to school, to camp(same camp for 15 years), to workshop and there was never any complaint or question, or even a hint that something terrible might be going on.
As her sisters left, she too wanted to move on. As she will always be in need of a "guardian angel" we went to the state for help.
In May 1992, she left our home to live in Specialized Home Care. At the request of the state we limited our visits and contacts for the "adjustment" period. 6 weeks later the first complaint was filed to DPPC. It was never properly investigated and we did not know what the charges were until 10 months later. But we were restricted in our visits. At that time the report from DPPC was that the allegations were not substantiated and the case was closed.
After 2 years she was placed in another home.
From there things began going down hill. We were not advised of many things going on with our daughter and when we questioned we were investigated again. A proper investigation was done and we were cleared as we had had no contact with her at the time of the alleged incident. And now this. On March 2, 1999 we met with the social worker and case coordinator about concerns we had about the treatment and condition of our daughter. 8 days later a complaint was made to DPPC accusing sexual and physical abuse. We knew nothing until April 14, 1999 and on April 16, 1999 we were served with a restraining order. A guardian et litem was appointed and now he has been appointed temporary guardian. Not only her parents but all members of the family. Her sisters have seen her twice. The first meeting in July was disastrous, she is so over medicated at this point it is a threat to her health.
Her father has been indited and arraigned on 4 counts of rape and abuse. After scouring your wonderful site this horror story is just getting worse. Everything that could be done wrong has been. We have not seen our daughter since Feb 16, 1999 and chances are slim to none that we will get to her in the near future and perhaps never. After talking with our attorneys we feel that we have already been convicted and yet at no time has anyone in the last 7 years taken a family history or even discussed this with us. Our daughter remains in the same house where she has been. If in fact, she has been sexually abused then she should be in protective custody from all who have had contact with her and not just her family. There are many reasons to believe her current placement may be an abusive situation. This comes from DPPC's Behavior of Caregiver/Abuser. Our rights, the family's rights, our daughters rights have all been violated. We just do not know where to go from here.
We have spent hours and hours going over all the reports from the Grand Jury and finding errors, incorrect testimony and in some cases outright lies. We have proof to refute what has been said but no one wants to listen. We are just told that our daughter said..... We know she did not because she does not have the physical ability to speak as they claim. Due to her brainjury she is very easily influenced and she quite frequently says "yes" when she means "no" and vice versa. She is and has been continually influenced by her caregiver and the state employees who work with her.
The emotional stress on everyone in the family is all most unbearable. We are a strong family and we will survive but we will also pay a price. I know that one of our other girls contacted you earlier and that you tried to respond. She is a full time teacher, the mother of 2 & 4 year sons and another baby due in a month and just has not had time to do anything. How do we fight this nightmare? How do we get our daughter out of this situation? Thank you for your time and for listening.
55. Respondent admits that Mary informed her about the facts set forth in Paragraph 55.
11/6/ 99
Dear Mrs Johnson,
I've just finished reading all the info my mother (dsano)and you exchanged and i'm a litle confussed You refered to both cases What are the two cases i was under the impression that there was only a criminal case against my father or were you refering to the civil action my sister amber is supposed to put into action when she gets back from vacation . I am Sarah's other Half , since she first came home (before the Strokes) we were together she had to do everything i did. with less than two years apart we were very close.when she came home the second time we became closer Sarah and I became "we" we did everything together from taking naps to climbing trees,(even with one arm not much stopped her) we did it all the only time she and i were apart was when she went to camp and when we went to school other wise we were together . I still say we because she is a part of me .. we talk with out the need for words before she moved into elaine's house she would tell me everything when you read what is said some is true Sarah does over drammatizes her injuries which is why i don't by the bite marks She was with me from friday morning at 11:00 when she got off the plane . That was an experence I'llnot soon forget I was a nervous wreck waiting for her plane to land . yet when she got off the airline attendents and the passangers all knew who i was because that was all she talked about "my Sister Sam" if she had been bitten to the point of bruseing and scabs she woould have let the whole world know threat or no threat ..
Because Sarah dosenot comprohend cause and effect so if i were to tell her you can't tell or they will Kill me she would tell but she would say SSSShhhhuuu Kill me . with her fingure over her lips to b Quite. Another Interesting thing is that in the interview with the foresnic Nurse Sarah sayes that she calls for help ... and my mother dials 911 ...well a litle family history is in order we are a fun loving group and yes some would say a litle weird but every action we did taught Sarah a vitle skill such as 911 we used to tese and tickle and run around and play there comming to take me away or some such thing usually mom would be the one we were getting away from but the point being that Sarah thought it was ffun because she got to pick up the phone and go 'Help help help police" in a high squeaky voice . she now adds a hand gesture to that and she does it in jest she did it when playing with my nefews just the other day she has been told that if ANYONE ever did anything to her she was to yell for help and we would call 911 .. which leeds me to my last point is that Sarah can not or dosen't do it very well and that is Past Present and Future They asked her if this Happened Before or after Elaines If i were Sarah i would not know that After ment Durning the time I'm at Elaines Or dose it mean After (when i Move From Elaines) My Guess is that she is Refuring to After she moves from Elaines
Because that is how Sarah works time segments don't work I've told her that i would visit her in two weeks only to get a call in one because Sarah is hestaracal because i did not pick her up she has refused to get on the van because she swears i'm picking her up .. My sister is a very stubborn women when she throws a hissy fit i've learned not to be in stricking distance ... she fighhts dirty and if any one tried to bite her breast you can bet that they did not get away with out damage of there own...so if i can answer or provied any info I'm the family expert on how she works ... She is not working right now there is stress in her voice and an anxious look in her eyes ... like a frighten rabbit .
I want her out of that House and away from that women . She has always corrected me when Sarah and i are talking we always say thing like your weird or strange and elaine corrects me and tells Sarah she is normal ... I'm Scared that Sarah won't make it out in one peice she has already back slided to a point of dependency on other people (the person in charge) that is not Sarah this is a women that rode her bike across a major intersection through down town and out past the town nursing home because she wanted to go swimming and there was no one to go with her .. I don't buy any of it ... and wish to help.. now i'll leave you to do your work. I wish you could have meet Sarah when she was herself.. she is a shadow that is fading and I don't know what to do with out Her.
THANKS AGAIN FOR ALL YUR HELP
Sarah' s Sister S.By way of further answer, Respondent states that Mary also informed her about many other equally important facts that are not stated in the Petition.
56. Respondent admits that Mary informed her about the facts set froth in Paragraph 56.
By way of further answer, Respondent states that Mary also informed her about many other important facts that are not stated in the Petition.
57. Respondent admits that she "advised Mary that she had to review all available documents from the criminal and protective services cases in order to determine whether she could assist the Parkers."
By way of further answer, Respondent denies that she "told Mary in writing that her fee would be $1.00 per page for this service." Respondent did, however, receive a phone call from Mary on 1 November 1999, as noted in her accounting to Mary. By way of further answer, the Respondent states she has no present memory of the phone conversation. By way of further answer, the Respondent states that her usual practice, however, was to tell a person such as Mary to consult the "pricing.htm" page on Respondent’s website.
58. Respondent admits that she received a check dated 11/4/99 and in the amount of $350. Respondent has no memory of counting the pages of the documents Mary sent, but Mary wrote in her complaint to the Bar that Respondent reviewed "about 500 pages of materials and responding to emails over a 3 week period."
59. Respondent admits that she "asked for and received additional information from Mary, answered questions posed by Mary, and provided advice and recommendations to Mary about the criminal and protective services proceedings."
Respondent denies that she "did not tell Mary during this period that there were or would be any additional charge for those services." Mary acknowledged having read and signed the fee agreement. All those services are mentioned in the agreement as well as on Respondent's pricing.htm page.
60. Respondent admits the allegations of Paragraph 60.
61. Respondent admits the allegations of Paragraph 61.
62. Respondent admits the allegations of Paragraph 62.
63. Respondent admits the allegations of Paragraph 63.
64. Respondent admits the allegations of Paragraph 64.
65. Respondent admits the allegations of Paragraph 65.
66. Respondent admits that she "and the Parkers never reached an agreement regarding the nature [and] scope" of further services.
By way of further answer, Respondent states that there was never a question as to whether she ever ". . . discussed with the Parkers what fees, if any, would be due for further services after that date and prior to the execution of the written fee agreement." The Parkers had the attorney-client fee agreement, which they had signed, and had read the pricing.htm page. Respondent's intentions to charge for services rendered could not have been clearer. The Parkers were not illiterate. Both were retired school teachers and were running their own retail business. Mary knew how to ask questions and was not shy. Had she or her husband or her three daughters who were not mentally challenged had any doubts about Respondent's fee structure, it is reasonable to assume they would have asked for clarification.
67. Respondent denies the allegations of Paragraph 67. By way of further answer, Respondent states that she did keep timeslips and, if she had no time slips for a task, she did not charge for the task.
68. Respondent admits that "[f]rom about November 13 through November 30, 1999, the respondent and Mary continued to exchange e-mail communications." Respondent also admits that "[i]n those communications, the respondent replied to questions and discussed her possible role in the cases in relation to the Parkers' existing attorneys." Respondent admits that "[d]uring that period, Mary advised the respondent that Simons was questioning the respondent's recommendations and that they were considering whether to engage other defense counsel."
Respondent admits, with one correction, that "[t]he respondent spoke to Simons once by telephone and made calls to other defense attorneys regarding Richard's case." That correction is that Respondent contacted the other attorneys to determine their availability to represent Richard Parker and their interest in representing him.
Respondent admits that "[she] provided Mary with additional explications of her recommendations and copies of cases in purported justification of her recommendations.
Respondent denies that "[she] did not tell Mary that she was or would be charging for those services."
Respondent denies that "Mary did not understand that the respondent would be charging for those services prior to execution of the written fee agreement. To the contrary, Mary absolutely and clearly knew the respondent would be charging for those services prior to execution of the written fee agreement.
69. Respondent admits that "[d]uring November 1999, the Parkers scheduled a meeting with the respondent for December 9, 1999."
Respondent has no present memory as to whether she orally informed Mary that "she was or would be charging the Parkers for clearing or arranging her schedule to accommodate this meeting," Respondent submits that the Parkers were fully aware that Respondent was not working with or for them pro bono.
70. Respondent admits that "[o]n or about November 22, 1999, the respondent received a $10,000 check representing the Parkers' retainer payment." Respondent admits that "[she]did not place or maintain those funds in a trust account. "
Respondent denies that "[she]then knew that those funds represented, at least in part, an advance payment for services yet to be rendered to the Parkers."
By way of further answer, Respondent states that, at the time she received the payment characterized as a "retainer," she believed in good faith that she had already proved services with a fair and reasonable value, based upon the rates already disclosed to the Parkers, that were substantially in excess of the total amount payment received.
As such, Respondent had earned the entire amount of the retainer and was justified in considering the funds to be earned income and immediately depositing them to her personal checking account. By way of further answer, Respondent states that, even if she had first deposited the funds in a trust account, she would then have immediately withdrawn the funds as payment for fees already earned.
71. Respondent admits that "[o]n or about November 24, 1999, the respondent deposited the $10,000 retainer check to a non-trust, personal account in her name. " Respondent also admits that "[t]he respondent used that personal account for the deposit and disbursement of her own business or personal funds.’
Respondent denies that "[she] commingled at least a portion of the Parkers' funds with her own funds in her personal account."
By way of further answer, Respondent states that, at the time she received the payment characterized as a "retainer," she believed in good faith that she had already proved services with a fair and reasonable value, based upon the rates already disclosed to the Parkers, that were substantially in excess of the total amount payment received.
As such, Respondent had earned the entire amount of the retainer and was justified in considering the funds to be earned income and immediately depositing them to her personal checking account.
By way of further answer, Respondent states that, even if she had first deposited the funds in a trust account, she would then have immediately withdrawn the funds as payment for fees already earned.
By way of further answer, Respondent states that, after further consideration and as a personal accommodation and courtesy to the Parkers, she deeply discounted the fee she actually charged. In particular
Respondent states that she knew the they were facing considerable fees for Richard's criminal defense. As such, the total fee she ultimately charged was less than $10,000. Immediately upon making the decision to discount her bill so deeply, Respondent then sent the Parkers a refund check in the amount of $3,174.50.72. Respondent admits the allegations of Paragraph 72
By way of further answer, Respondent states that at that point Respondent had earned the entire amount of the retainer and was justified in considering the funds to be earned income and immediately depositing them to her personal checking account.
By way of further answer, Respondent states that a daily or weekly accounting is not required and was not promised to the Parkers. Respondent deposited into her personal account funds that she had fairly and rightfully earned. Her later good faith decision to provide a refund to the "Parkers" cannot at this late date be held against her.
73. Respondent admits the allegations of Paragraph 73.
By way of further answer, Respondent states she advised the Parkers that she did not sign the Fee Agreement because it was never clear as to which cases the Parkers wanted her handle or what tasks they wanted her to do beyond the consulting she was doing at the time.
74. Respondent has insufficient knowledge and information to admit or deny paragraph 74.
By way of further answer, Respondent states that the Parkers vacillated. One day Simons was IN, the next day "OUT." Respondent does not know if Simons was on the criminal case until the end.
"Mary" had sought Respondent's advice regarding her and her husband's interaction with Simons. Set forth below in text boses are the various email exchanges between Mary and the Respondent concerning Attorney Simmons
MARY: Just a quick note to let you know we have a 2PM meeting with Rich Simons to discuss stratagey. Any suggestions you might have to offer would be appreciated.
RESPONDENT: Where are interviews by other folks EW contacted? Did Simons get them?MARY: Will find out Monday.
RESPONDENT: (6) They didn't bring support person in with Sarah the second time because she "constrains" Sarah. That IS weird. MARY: I think Jennifer(the support person) had her concerns that Sarah had been prompted by EW and JK didn't really believe the whole thing. I think JK knows Sarah better than EW. We have asked Simons to get all JK reports as she has seen Sarah once a week from the beginning.
RESPONDENT: Withholding evidence, such as exculpatory dr's report, is a NO NO.
MARY: We asked Simons to get that and the report from 1993
RESPONDENT: (8) Production of certain documents is easier in certain instances in the criminal case than in the probate case. [[[By the way, I didn't see copies of any motions Simons may have filed?]]] MARY: Simons has not given us copies of motions filed. We need to make sure on Monday that he has filed all necessary motions.
RESPONDENT TO ONE OF THE SISTERS: One issue which I forgot to mention in the other email is the likelihood that the two indecent A&B's should be dismissed on the basis that the alleged crimes (the shower door incident) took place around June 1984, when Sarah was 15 years old, more than 6 years prior to the indictment on 19 August 1999. The statute of limitations on c. 235 sec. 13F is SIX years. Attorney Simons should have moved for dismissal . . . provided [your parents] had told him when the shower incident took place. Proof of that would be the hospital records showing that Sarah was brought in for stitches. RESPONDENT, LATER, TO THE PARKERS: Be sure to tell him [Simons] to file a motion to dismiss the two A&B counts on the ground that the statutory limitation -- 6 years -- has passed. In factual support of the motion, he should attach (1) a copy of the medical records from the hospital to which Sarah was brought in 1984, (2) an affidavit from the woman who drove you and Sarah to the hospital in 1984, (3) an affidavit from [Sister] describing how it happened (see the papers from the 1993 incident), and (4) an affidavit from you stating you accompanied Sarah to the hospital. The statute is a legal issue and with such factual proof as the hospital record from 1984, the judge may make that decision without a jury.
STILL LATER TO PARKERS: Well, he'll [Simons will] be surprised about the motion to dismiss . . . if you never told him that the shower event occurred in 1984. With those four attachments I suggested, the DA would be hard-pressed to say there were TWO events in the shower.
MARY: I do not believe we told you but our 1 and only shower is a 34" square stall shower. If someone is in the shower then no one can open the door or get it unless both very skinny and Veryyyyyyy friendly. We even took a couple poloriods for Rich [Simons].
MARY: I am also sending a copy of a letter we received from Rich today regarding Tim Carlson's bill. He is recommending we pay. We agree with you we shouldn't pay. If we had had a choice as to who the temporary guardian was that would be a different story. But we had no choice. As a matter of fact back in march we had, as a family, decided that [Sister] should be Sarah's's guardian and we never got to put the wheels in motion. In July when Tim was appointed we had another person who was overqualified and who has known Sarah for 15 years. The judge wouldn't even listen.
The gal we had in mind and who volunteered to do it is an Elaine Kessler. She has her master's in Social service and has 10 years experience in the field. Further more her husband Eric is a rape counselor at Bridgewater State. We would gladly pay them.
We are spending the night organizing thoughts and questions for our meeting with Rich on Monday.
RESPONDENT: The operative word in Simons’ letter to you is "discretion" . . . the court has discretion. The court need not saddle you with the fee. It may if it wants to, it needs not do so. Given your incredible legal obligations now, the court should not further burden you with something which is not mandatory.
Tell Simons to tell Carlson that you cannot afford to pay given that you need money to defend [Richard] against false charges and that had DPPC/DMR properly investigated the situation, [Richard] would not be in the defendant's position, Sarah would not be isolated from her family, and you and [Richard] would not have the need to fight for both [Richard] and Sarah's lives. And those fights will be costly.
If Carlson seeks the court to compel you to pay, Simons should put into your opposition to Carlson's motion to compel the reasons I've just set out.
RESPONDENT STILL LATER TO MARY (after Mary wrote saying that she thought payment to the GAL was a "done deal"): Nope, not a done deal. I've attached for you the case to which he [Simons] refers. It doesn't say what he is saying. Also he cited chapter 215 section 3. Section 3 simply says that the probate court has the power to appoint a guardian. Does not mention costs. I think section 56A of that chapter (chap 215) applies. It says that probate court can appoint GAL to "INVESTIGATE the fdacts of any proceeding pending in said court relating to or involving questions as to the care, custody, or maintenance of minor children [[[you can include incapacitated in that ]]]] . . . . The compensation shall be fixed by the court and SHALL be paid BY THE COURT. . . ." In fact, there are a few nice little cases which say we can cross-examine the GAL who conducted the investigation and filed the report, as well as "call" anyone he interviewed to testify. With that, we can also depose!. [See Carlson's his memorandum.] He also was present when Sarah was interviewed by McCarthy, etc.
"SHALL" is an important word in a statute. That means the court MUST pay and CANNOT put the cost onto you. I'm glad I reread both Simons' letter to you and the statute. I smelled a rat when I saw the wording.
MARY: Why do I feel Simons is not going to be happy with us on Monday? Hope my gut feeling isn't correct.
RESPONDENT: But don't anger him [Simons] if possible. He'll be embarrassed on his own. Uhhh, maybe. We want him available for emergency appearances and to do some local legwork and to use his office for depositions. Of course, the court reporters have offices for depos, so his office is not a necessity for that purpose. I want to do the depos. My eyes . . . and ears . . . might be more eaglelike than his for the depos. But he would be handy as a local for some of the more prosaic motions. He's local also. He'll know the judges out there.
And at time of trial, you want to have a local computer handy. Laptops are fine, but but a real one with a real printer is best. Jury instructions and special questions for trhe jury, etc., can be done and are usually done ahead of time but there is always last-minute stuff . . . such as a brief on a particular legal point.
Fortunately a case like [your husband's] is not one that has lots of documents to be submitted as exhibits. In fact, we would strive to keep them all out. I would just use them prodigiously to cross-examine on. After the depos, some of the key players will want to vanish from the scene. They get embarrassed when they know they screwed up and don't want to take the stand.
Some we will put trial subpoenas on. Others we'll let go.
Also the asst DA doesn't want to call them as witnesses if he/she knows they are likely to be impeached on the stand. Asst DAs are not accustomed to having their witnesses impeached by prior testimony.
Of course, all of this is now just speculation. Lots will happen between now and then.
RESPONDENT: I've attached an attorney-client agreement. Read it carefully and then feel free to ask any questions you might have. Important to determine is whether Simons and Karen Breda will stay on the cases. I am assuming they will be.
MARY: I am assumming they will also. Karen we have no problem with, We will know more about Rich [Simons] after Monday. We had no questions about his competencany until we started corresponding. Now we have a ton of questions and a lot depends on his answers MARY (AFTER MONDAY'S MEETING: Barbara, We had our meeting with Simons today. It went well. This is what we found out.
1. He wants to hire an investigator. He is trying to question Sarah and Tim has not agreed.RESPONDENT: What is the investigator going to investigate? Who is the investigator going to question? What is he going to ask Sarah? Is he going to have a certified reporter there. Not someone to take illegible notes as were taken before.
MARY: 2. He wants to have [husband] take a polygraph. We are not concerned about that. RESPONDENT: You should be. I agree that a polygraph should be taken, but it os [of] considerable importance that [husband] be properly prepared ahead of time.
Go to my site and at the bottom any page, type in polygraph and see what I have written there about polygraphs and preparation and agreements regarding the polygraph. Too much to retype this time of night about polygraphs.
You realize, of course, that polygraphs are NOT admissible in Massachusetts. They are good for only waving around in front of law-enforcement officials if the defendant passes.
MARY: Yes. Rich's hope is that with a passed poly and other factors that the DA May withdraw case. I don't think so.
RESPONDENT: Agreed, I don't think so either. DAs know polygraphs aren't admissible
. . . although ask Rich if he has ever done a 702 hearing. Never mind, I'll ask him when I speak to him.
RESPONDENT: Actually, [husband] should take a battery of psych tests, objective, projective. MMPI-2, MCMI-II and MCMI-III, CAPI, MCI, Abel screen, plethysmograph.... I use Theoharis Seghorn. Great guy, competent. Used to run Bridgewater sex unit. Great credentials. Excellent on the stand. Easy to understand. Affable. Not pompous. He recommends Jim Johnson or Dennis Peloquin as polygraphers. Simons may have polygrapher out there whom he likes. MARY: We agree to all but the plethysmograph..Just the nature of it is very humiliating.
RESPONDENT: But Seghorn is worth the trip here.
MARY: That is do-able.
MARY: 3. Re: Motion to dismiss 2 counts. His thinking is that he wants to leave them in so he can use that as "previous false allegations" Makes sense to us. RESPONDENT: It shouldn't make sense to you. Jury is liable to see it as "continuing abuse". . . as if it was a habit . . . something customary.
MARY: Even though they were unsubstantiated and if this was a habit where are the accusations etc from the 1st 25 years of her life.
RESPONDENT: Right, even though . . . . Two less counts are two less counts he can be convicted of. Also it would be a shock wave to the DA to lose two counts right off the bat. Will make them look at the rest of the case.
You want to get rid of as much as you can ahead of time!!!! Isn't finding false allegation re rape enough to satify you folks???
MARY: Not sure of interpretation of this.
RESPONDENT: A little sarcasm crept in. The meaning was: Aren't two indictments enough to worry about? Do you need four indictments in place to make your day?
MARY: We are still having a lot of trouble accepting the fact that the law doesn't really care if we are innocent or if we have proof of our activities. It is a game and we are the pawns.
RESPONDENT: Welcome to the criminal justice system.
MARY: That is why we feel very strongly that you and Rich need to talk. You have the legal mind and we don't.
RESPONDENT: Yes, he and I are going to need to talk. Don't worry. I'll be pleasant. Probably will not speak to him today though. Likely tomorrow or Thursday. Will give him time to think about what you said and what I wrote. Will give me time also to simmer down.
MARY: 4. Disagrees with Carlson being both attorney and GAL but Sarah does not have an attorney. RESPONDENT: Simons is wrong. Carlson seems to have been appointed as both. Let him be atty for Sarah and get another DECENT GAL for her. Carlson is not doing what is in her best interests. That is what a GAL is for: to do things which are in her best interests.
MARY: We know that but Carlson thinks he is. We are not even allowed to contact him. I do think [Sister] am is going to as nothing has been done for Holidays yet.
MARY: 5. Still contends that court has the decresionary choice to make us pay for Carlson. RESPONDENT: Where the hell is he coming from? Whether he believes it is discretionary or not, HE SHOULD STILL PUT THE ISSUE BEFORE THE COURT. That statute I wrote to you about is not there for nothing. There is a reason. There is absolutely nothing to lose to bring the issue to court. If you win you are ahead thousands of dollars. Carlson's bill was only the first one! If you lose the issue, you'll still be where Simons is putting you now . . . that is, you'll be no worse off than you are now.
MARY: We know but we do not have the legalese to convince Rich. I even went on line to search and to print it out. We will be financially devastated anyway you look at it. Just when we thought we might enjoy our golden years.
MARY: 6. He is willing to work with you as a consultant but he is not as enthusiastic as we are. He wants to talk to you and to know more of your credentials. He is being save. RESPONDENT: Is he willing to speak to me if I call him? Or does he want to call me?
Tell him I won the first prize from my law school for the Nathan Burkan Competition sponsored by ASCAP and I won West Publishing Company's Corpus Juris Secundum award upon graduation from law school. Each year of law school someone is first. In my last year, I was first and because I Aced it across the board, my annual average for that year was higher than the ANNUAL average of the others who had been first for a year, so I won the award. It was a feather. My kids were excited when I was called up onto the stage.
What the hell does he want to know stuff like that for? It means nothing. On the criminal side of my ledger, no one ever went to jail because of me on my shift. That counts. (Early on I took appointed cases -- public defender -- and 95-98 percent of them were guilty as hell. Some were picked up on a new charge but had an old charge on which they had defaulted -- for instance, violation of probation 5 years earlier. That's a mandatory sentence. Had nothing to do with me. So in some instances, they had to go because they violated probation -- black and white situation. Don't report when you should, go to jail for, say, 60 days or for the time that was revoked for the previous sentence. But none went to jail for the charges I was defending against for them. In those days, I took everything to trial in order to learn. Would buy the tapes and listen in my car's tape deck. Never committed the same mistake twice. Developed my style that way.)
MARY: Yes he is willing to speak with you. I think you should call him.
MARY: We are running scared.
RESPONDENT: Understandable. It is an appropriate reaction to what has happened.
MARY: MARY: 7. He does agree that we need to become very aggressive on the civil side. RESPONDENT: Good.
MARY: 8. New laws prevent us from getting Jennifer Klines's reports as a Social Worker. They are now confidential.
RESPONDENT: Obviously we disagree.
MARY: 9. Asked him to request all tapes, video or audio even though we don't think there were any. No law that states they have to. In MLM report she mentions at least twice, "break in recording". No, they did not have a certified reported.
RESPONDENT: Ask and ye shall learn.
MARY: 10. Simons has worked both sides of this issue, prosecutor and defense. On defense he has taken 2 to trial both with "Not Guilty" verdicts and 2 that were dismisses.
RESPONDENT: When was he an assistant DA? That's the only way he could have been a prosecutor. How long has he been working the defense side? That is, when did he leave the DA's office???????
MARY: 11. Asked him point blank if he believed in our innocence and with out hesitation he said "yes"
RESPONDENT: Doesn't matter. What is important is whether he has the passion and the necessary accoutrements to do what is necessary.
MARY: It matters to us. But he has not shown the passionate fighting side of himself.
MARY: 12. Elaine is not a mandatory reporter but a fresh complaint witness, therefore not under immunity as she believes she is. RESPONDENT: Right. Mandatory reporters are teachers, doctors, nurses, "mental-health workers" such as soc.workers, rape-crisis counselors, psychologists, law enforcement. Go to my site and type in "mandatory reporter" in the site-search tool.
Also go to my site and type in "fresh complaint". I have a lot written there about fresh complaint witnesses, fresh complaint testimony. What Elaine thinks she has is unimportant. That's her problem, not yours.
MARY: Yes but it may be to our benefit later. Let her think she is immune and let her hang herself.
MARY: 13. Questioned about Dr. C. not reporting and he stated same as I did "She knew complaint had been made therefore did nothing" Gave him your side. RESPONDENT: My side is a helluva lot better than his. That is, mine is more favorable to you than his.
MARY: 14. I gave him copies of all correspondence we have had (eliminating specific references to him) to ponder.
RESPONDENT: Good.
MARY: 15. We have read and re-read your Client Fee agreement. Did not show it to Simons . Forgot to include in papers we took. It looks to be very upfront and forward.
Question "undesirability" of case, Please explain furtherRESPONDENT: Say someone comes in and says he was discriminated against because of his age. No evidence that he was discriminated against because of his age. He just may have been, for instance, a salesman who never met the goals set for him for his territory. (Let's assume for the sake of argument that the goals were not set artificially or unfairly high.) Since discrimination cases are taken on contingency, lawyers would think if they don't win, they won't get paid for all their work. Because the case looks like a loser, it is an UNDESIRABLE case. Not the best example I could give you, but the easiest one to give you at 3 o'clock in the morning.
MARY: Awards in similar cases. From where we sit no awards in this case. Just a "NOT GUILTY" and a return of our daughter to us.
RESPONDENT: Right. There are no awards in criminal cases. Only in civil cases.
MARY: 16. We also asked Simons to request police and 911 records because Sarah stated this happened.
Knowing there are no records. This should go to the credibility of the witness.
MARY: 17. DA is planning to call all the same witnesses for trial as were at GJ. Have not provided him with a list of experts.
RESPONDENT: Has the DA provided him with a written witness list?MARY: Not to our knowledge or we haven't seen them. We cannot get it across to him that we want copies of everything. Or if we have he hasn't sent them.
RESPONDENT: It must be made clear to him that you want to see everything.
MARY: 18. Simons wants to hire a Neurological specialist in Stroke victims. He will be asking you about that.
RESPONDENT: Good.
MARY: 19. During family conversations and reminiscing this came out and hit us like a ton of bricks.
Very difficult to explain with out visual.
In our family when something makes you sick or disgusted, we always use the index finger, pointed to the mouth, in an in and out motion, the comment is "Barf city". Thus the references in MLM report that Sarah point to her mouth with gesture is not signifying oral sex but simply "barf city". This whole thing makes me sick. What ever happened at Elaine's with either Ken or Sonny made her want to "barf" and not that anyone had performed oral sex as they claimed.
Can you understand this?
RESPONDENT: Yes, I do. It's a common gesture, seen on TV in sitcoms. The kids today use it.
MARY: We don't watch sitcoms and very little TV. Do know it has been around a long time.
RESPONDENT: I don't watch them either, but a friend of mine who does it all the time says that's where she lerned it.
MARY: 20. Simons has promised us copies of all motions. We shall see.
RESPONDENT: I am anxious to see them too.
MARY: Rich [Simons] has asked me for all Sarah's IEP's so that is what I do tonight. Would you like copies also?
RESPONDENT: Yes, yes, yes.
MARY: We assume you haven't spoken to Simons yet. He called today and he has bad feelings. Can't sy how or why, because we don't know. Will wait any further action until you 2 speak. WE CAN'T AFFORD TO LOSE.
A very depressing day for many rasons. Not just this God Awful nightmare.Won't someone pinch us and wake us.
Waiting yiu comments on your conversation with Simons .
I should get a chance to speak to him -- I'm hoping on Friday -- if not tomorrow late in the day.
...
RESPONDENT: Simons’ father is a retired judge. So young Simons should fit with the court to some degree. He was an assistant DA for a few years. Then worked for a firm in Needham, civil work. That means he handled misdemeanors, not felonies. Although he obviously would have gained trial experience. It also means he's wooden. I could be wrong. I'm guessing. I'm assuming. His greatest asset would be his father. It looks like Richard went home to start a firm, then a year or tweo later dad got off the bench and went in with his son.
11/19/99 Friday Phone to and from Richard Simons
RESPONDENT: Simons did call back. I was pleasant. He was pleasant. He was uncomfortable about working with other counsel. I told him my credentials -- and told him to visit my site -- and let him know I knew his. He didn't know what plethysmograph was. I know you felt that [your husband] would feel uncomfortable about this, but the penile plethysmograph is acceptable evidence in Mass. -- the Rosenberg case in June 1991 -- and [your husband's] passing it would be excellent! I remember that case well because Theoharis Seghorn, who gives the test, was an expert in a case of mine which I tried in March 1991, three months earlier.The plethysmograph had been admitted in the "June" case but had still been on appeal in March. In my "March" case, all worked out well because I tried so hard to get it admitted and the judge had let in ALL the other tests Seghorn conducted and all the info related to the plethysmograph, that the judge knew that my client had passed it . . . and the judge adored Seghorn for his friendly professionalism. Judge found my guy (Probate & Family court, divorce case) to be "a good man."
So when the "June" case came down, I was delighted. Made things easier for the cases to follow. It's a good defense tool for an innocent man.
(I made Seghorn into a character in my book. Got his permission last year to use his trial testimony. Didn't need it 'cuz it was public record, but in deference to professional courtesy, I asked him. He was great . . . and said Yes. I'm using him on another case now, in fact. Seghorn used to run Bridgewater sex unit for years before he went into private practice. For most of his early (first 20 years) he was, because he was working for the Commonwealth) a prosecution witness, so he cannot be attacked as being a hired gun for the defense.
Spoke about the motion to dismiss the two A&B counts. He said he had filed a Bill of Particulars. When I explained my strategy about getting the records, etc., he became more receptive, thinking that his B/P would would give means, manner, time, and date. (Go to my site and see the Bill of Particulars there.) His defense was that they didn't charge [your husband] with anything in 1984, I said that was the point. They mistook it for happening in 1993. I said when he produced the medical records (and possibly insurance) in addition to the testimony of your friend who drove you and Sarah to the hospital, the DA would be hard-pressed to prove that Sarah put her leg through the shower door TWICE. That seemed to register with him and I thought I sensed a little excitement in his voice. He didn't commit to bringing the motion to dismiss but edged closer to doing so.
I pointed out to him some of the most obvious things: no questions and investigation about Sarah's present living conditions, no mention of Sonny, no depo exam of Elaine, etc., etc., etc. I sensed he was embarrassed that none of that had ever occurred to him. So he said, he was worried that if we opened up discovery in the guardian case, they could take [your husband] on depo.
I explained to him that it didn't matter. First line of defense if [your husband] were called to depo is to move for a protective order because it would prejudice him on his defense in the criminal trial. But in truth, it wouldn't make any difference . . . unless there is something which I do NOT know. A man like [your husband], no criminal record has nothing to hide and therefore no reason to avoid a civil depo. I would prepare him very well ahead of time, so he wouldn't be surprised, and would know what to expect. And unless [your husband] has something to hide from a jury, there would be no reason he could not take the stand in the criminal case. Jurors like to see false-acc defendants take the stand. Would want motions to get character evidence in also.
If that motion for a PO were not allowed, [your husband] would go to the depo and tell the truth: he didn't molest, abuse, or rape Sarah. I told him I felt comfortable with that because the family seemed like a FUNCTIONAL family, warm, loving, obviously tight-knit, and that I had heard from all the adult sisters as well as you and all said, No way that [your husband] did this.
I told him he could keep control of the case, but I thought I'd be valuable and available for taking depositions. I didn't bother mention it to him, but there is the competency of Sarah to give information to others. If she wasn't competent to give info, then the fresh-complaint witnesses and the others cannot have accurate information to convey and testify to. There are lots of motions to be filed and I'm not sure Simons has a clue. I'll speak to a few more criminal-defense counsel and see if they know someone in your locale who ie either more savvy in these cases or is willing to work with outside counsel. You should check fro there too.
We also want psych tests of Sarah, to give us more proof of her time-space shortcomings, to show us her abilities now. Her med records can be introduced to show her abilities after the shock and as she grew into adulthood.
I would request a Daubert hearing to determine ahead of time what the prosecution could put in and what would stay out. Would be wonderful to take Elaine ahead of time and keep her so-called fresh complaint evidence out as well.
There should be a motion immediately to get Sarah away from Elaine. She is in danger of being brain-washied by Elaine. She has to be un-brainwashed. Similar to when the kids come home after being with a cult. There should also be a motion to stop any so-called therapy she is having. To treat her for alleged damage if none occurred can be damaging to her.
Depos for the DPPC/DMR and other investigators are a must.
Frankly, I'm not sure Simons understands all of this. I'm willing to work with him. His hesitation or reservation to work with me is I think grounded in embarrassment on his part, concern that someone would learn that he doesn't know quite what he is doing. But he would be handy in court because he IS a retired judge's son.
This is all something [your husband], you, and your daughter must think about. Is Karen available this weekend?
RESPONDENT: Got to hear what you're going to do about Richard Simons: stick with him or interview Cohen. I will also as promised make some calls to colleagues (some of the best crim attys in and around Boston) and ask if they can recommend local counsel for you.
MARY: This is a major dilemma. We like him, and he is liked by the court. And there is his father. If he is willing to work with you then fine but if not he has to be out. And then how do we fire him. It is tops on [my husband's] list tomorrow to talk with Simons and get a definite answer.Will toss out a couple other names David Hoose from Springfield. I talked to him when we first found out about this mess. Last April. Got his name from Kevin Reddington. Reddington is a friend and customer of [my daughter and her husband]. Roderick McLeisch. Also from Reddington. Them all come at a high price. We are working on more financing but it will take time.
MARY: What is a Daubert hearing? RESPONDENT: A Daubert hearing, by the way, is a preliminary hearing before the judge and at which he determines which scientific evidence can be presented in court. I/you want an expert to show extent of Sarah's capabilities, the time-space disability, etc., to determine her "competency.". . .
MARY: Simons is looking for an expert. We are not much help in that. Suggested he ask you.
RESPONDENT: He's going to ask me diddly.
MARY: He was supposed to.
. . .
MARY: First call of the morning is to Simons . Will put it to him. Either you work with us and Barbara and get off your ass or else we move on. We have not seen any motions etc or anything he has done. Think [my husband] has finally gotten his ire up. He is so slow to anger. A peace loving man.... MARY: Thanks for the call. and all the help. Did you get a hold of Karen? She didn't return ours. [Daughter] just spoke to her and told her we needed to talk to her.
Simons finally called back at 4. Asked him out right if he could or would work with you and he said no, he didn't think he would be able to. Asked again about motions and could we have copies. Got no place. Also asked about getting an out of the area attorney and he didn't see the need.
He doesn't see the 93 incident as we do. But sees it as a separate thing.
The only definite motions we could get was a bill of particulars and all medical and psych records.
That's it for him. [My husband] told him he would get back to him by Monday at latest with our decision.
Put in a call to David Hoose. Spoke with his secretary and left message to call us back. Not yet so we will call again in AM.
In the mean time we have made calls for help in financing. Unfortunately for us this is a holiday and a couple of our contacts are gone till Monday.
RESPONDENT: No, didn't get in touch with Karen. Crazy day. Probably too late to try to reach her now. I you want, you can have her call me before she leaves. Of course, she is leaving early.
I spoke to the other atty from Springfield who called while I was speaking to you. He had used the polygrapher Seghorn had talked about and then called in Charles Honts for the Daubert hearing last week in Springfield. I'll get in touch with Honts next week to ask his opinion about the polygrapher (also "Johnson" but no relation). He was using Honts as the expert to get the polygraph admitted once again in Massachusetts. The Stewart case let it be known that under the new standard -- Daubert -- it may be admitted if done by a proper tester and with reliable methodology. I'll stay on top of that. Charles Honts has sent me many of his articles. Fascinating. He's amongst the top in his field. He wrote that amicus brief on polygraphy on my site.
Will feed what I know to Hoose. Hoose will be on vacation a week, if I remember correctly. Holiday weekend. So don't worry about your not being able to reach whomever until then. Only I'll be here reading and writing away. I'll be grateful. No phones ringing. (Am hoping!)
MARY: Found out why Simons does not want to work with you.
Karen to Kevan to me.
Simons Simons feels that you are not completely "ethical" and that you antagonize and allienate judges, attorneys etc. [See above. Click.RESPONDENT: He doesn't even know me. I never heard his name until you put it in an email.
Lest silence be used against me, let me say, I am probably the most ethical lawyer I know. As for antagonizing or alienating judges: Yes, I probably have. Some don't like to be told that they're wrong. Some don't like to be reversed on appeal (and I've done that!). But I'm RESPECTED by all of them I've been before. I'm always on time, always prepared, always present them with issues of law they have to work at to answer. There is only one attorney I hate with a passion. He's been opposing counsel on four cases I've had. He's unethical to the extent that I have been quite open in seeking his disbarment. My anger is that the courts and the Bar have done nothing even to rein him in. I don't know of any other attorney I've antagonized or alienated. Cannot imagine who Simons has been talking to. I have a pretty good reputation. Excellent, in fact, amongst attorneys.
I only got into "trouble" once when I was doing a legal malpractice case: at a deposition I said "Sonofabitch." Opposing counsel said I swore. I said it was "an exclamation, bot [sic, "not"] an epithet." The lawyer kept on yelling. I kept on saying, "You can say the same thing without yelling." This happened about five times. Have transcript to prove it. At the end of the fifth time, I exclaimed, "Sonuvabitch!" It really was an exclamation. I couldn't believe he wouldn't stop yelling. But the sound of my voice cannot be recorded on a black and white page, so the judge made me pay for 70% of the other guy's transcript. But since he had attached his copy to his motion, I cancelled my order and saved $70. And that order got into Lawyers Weekly newspaper.
It was funny, but for about "nine days" I became the role model of incivility . . . and the Bar picked up on it through the paper. At that time, the MCLE (Mass Continuing Legal Education, sponsored by the Bar) was giving a seminar entitled "How to Deal with the SOB Lawyer" (at depositions. So I asked the Bar, Am I to understand that I can use the initials but I can't say it spelled out? Naturally they didn't do anything. There was nothing to do anything about.
The lawyer whom my client was suing was a Worcester lawyer who wanted $11,000 for fees from someone who was not his client. That person was not only NOT his client, she didn't even know him. That someone was, of all people, my mother. My mother, who was already in her 80s at the time, hadn't even been to Worcester in almost as many years. She's now 87+. Did she have to pay him $11,500? No, of course not.
I suspect Simon's just throwing a smokescreen out there to cover his own ass, which at the moment seems to be incompetent.
MARY: He cannot find any information on line with any search engines.
RESPONDENT: He can look everywhere. There is nothing. Maybe Lopez. Maybe that's what he found, something she wrote. Crazy broad. She was on the make for opposing counsel. (He WAS attractive and she was available. I didn't give a damn that she wanted him, but my case wasn't going to have to pay the price for the satisfaction of her groin.) She reported me to the Bar and I reported her to the Commission on Judicial Conduct. It was a draw. Both were dismissed. [Note: This was written BEFORE Maria Lopez's behavior became public!]
New on the bench at the time. She should never have been appointed. They needed a Hispanic and a woman on the bench. She was a two-fer. She was from wealthy Cuban family which fled her around Castro time; she went to Smith College. But she was so unfit for the bench -- combination of her tempestuous personality and lack of any trial experience -- that there were many complaints by lawyers about her, so the Globe did a special on her. There was a concerted effort made to unseat her.
She was rollerblading along the Charles in one of the Globe pictures. In that article, she was quoted as saying that one of her sons was in court one day when she yelled so badly at the attorney (not me, some other atty) that her son said he'd never return to court again.
There's still a scandal out there, where she was accused as being into drugs. Nothing will happen to her, because they'll never prove it. She finally married the publisher of the Phoenix, the newspaper. Steve Mindich. Beauty and the Beast. I know Steve well. I used to work for him as a reporter! Her problems escalated when she used to hang out at Mindich's restaurant on Charles St., Beacon Hill. She apparently did [redacted] there. Investigators were on the job, staking it out.
For a while there, Steve was busy protecting her. He's gone public several times with the "I'll get you" kind of thing at various people who verbally attacked her. I don't know who all of them were. I don't keep up with it, but a friend of mine who was in court with me before Lopez was sending me the newspaper clippings. This year, Steve has quieted down.
MARY: You know we had a scheduled meeting with David Hoose on Wed., Dec. 1,1999. We met with him for 1 1/2 hours. He declined to keep all the papers we had for him. His recommendation was to remain with Simons and try to work things out as far as the lack of communication we feel. He thinks Simons is a good attorney and will do well by us. If we can resolve the lack of communication problem we should stick with Simons . Hoose does not know you and would want to have much more information before he would agree to a co-council. [My husband] spoke with Kevin Reddington at great lengths. His response was that Simons was a good attorney as was Hoose. His recommendation was that we should stay with Simons . He will assist in any way possible.
We know that Karen has spoken with you at great lengths. She listened to what you had to say and her feelings are also to stay with Simons .
RESPONDENT: BTW, why didn't Hoose take the case?
MARY: Hoose didn't refuse the case. He just didn't want to commit right now. He strongly recommended that we stick Simons as he has spent a lot of time etc.
RESPONDENT: Not a good enough reason to stick with Simons.
MARY: We should work out the differences in communication.
RESPONDENT: Sure. If you stick with him, you must work out communication differences.
MARY: If after all that we cannot work with Simons we need to get back to Hoose with papers and $20,000 and from what we gathered an open unlimited pocket book.
RESPONDENT: True, these cases take a lot of time.
75. Respondent admits the allegations of Paragraph 75.
MARY: We have spoken with Schultz-Breda and she has discussed this with Simons. The concensus is that $1000 is a correct and fair cost for your services. 76. Respondent admits the allegations of Paragraph 76.
By way of further answer, Respondent denies that the sum of $750 had a time limitation. It was on November 11th when Respondent wrote the "Parkers" and reminded them what her fees were: " "At my bargain price of $50 an hour for reviewing papers -- compliments of my website -- the 15 hours to read them all and take notes and strategize, etc., the total is $750."
Respondent denies that she was paid pursuant to a written fee agreement but under the theory of quantum meruit, payment for services rendered. By way of explanation, Respondent states the following.
Respondent could not continue responding to each and every question all the Sanos -- the mother and three daughters -- their niece, their lawyer -- for $750. There is not a lawyer in the profession would be able to provide such services for $750. The emails were incessant. Respondent tried to determine from the logorrheic Mary Parker and her daughters what services they wanted Respondent to perform. Respondent sought an advance payment of $25,000 and received $10,000. Until the Parkers would make that determination,
Respondent could not sign the written fee agreement, the first paragraph of which read as follows:
We, Deborah and Harry H. Sano, Jr., 76 East Street, Great Barrington, MA 01230 (the "Clients"), hereby agree to retain the law firm of Barbara C. Johnson, 6 Appletree Lane, Andover, MA 01810-4102 (the "Firm"), in connection with In the Matter of the Guardianship of ASarah Sano, in Berkshire County Probate and Family Court, Docket No. 99-P-0237, and Commonwealth v. Harry H. Sano, Jr., in Berkshire County Superior Court, Indictments 990434-990437.It is clear from the correspondence from the Parkers that not only did they not want Respondent to make an appearance on either of those two cases, Respondent did not want to make an appearance in cases in the distant courts, which is why she recommended to them to continue with Attorney Simons or select a successor counsel.
But it is also clear that they wanted to use Respondent as a consultant. Their pleasure at Respondent's performance is unmistakable and the written documents previously supplied to Bar Counsel demonstrate their satisfaction with Respondent’s services.
77. Respondent admits the allegations of Paragraph 77.
78. Respondent admits the allegations of Paragraph 78.
79. Respondent admits that her "bill to the Parkers set forth time and tasks aggregated by date and listed the e-mail communications between the respondent and the Parkers."
By way of further answer, Respondent denies that the "bill did not itemize the claimed time spent by the respondent on specific tasks included in the daily aggregates,"
Respondent also denies "duplicat[ing]charges for the same services." It appears to have been done is to list the same email twice in the entry for November 24th when she was putting the emails into chronological order.
It is ludicrous to suggest that such a minor mistake rises to the level of misconduct supporting a petition for discipline by Bar Counsel.
80. Respondent denies that her "bill to the Parkers was inaccurate and intentionally false, deceptive, or misleading".
By way of further answer, Respondent demands that Petitioner identify those facts which Petitioner alleges are inaccurate or intentionally false or deceptive. Respondent further states that charges of dishonesty, fraud, deception, misrepresentation are factual matters sounding in criminal conduct and as such are within the province of a jury and that a hearing before a hearing officer or a panel selected by the Board deprives Respondent of her the duties of a jury. For this reason, the Respondent demands a trial before a jury of her peers.
80A. Respondent denies the allegations of Paragraph 80A.
81. Respondent denies the allegations of Paragraph 81.80B. Respondent denies the allegations of Paragraph 80B.
80C. Respondent denies the allegations of Paragraph 80C.
80C(1)-(8). Respondent denies the allegations of Paragraph 80C, subparagraphs (1) through (8).
82. Respondent denies the allegations of Paragraph 82.
83. Respondent denies the allegations of Paragraph 83.
By way of further answer, Respondent denies that "[i]n December 1999, Mary notified the respondent that she and Richard disputed all the respondent's charges in excess of about $1,100." Respondent states that Mary wrote to Respondent the following: "We have spoken with Schultz-Breda and she has discussed this with Simons. The consensus is that $1000 is a correct and fair cost for your services."
By way of further answer, Respondent states that Karen Shultz-Breda is Mary's niece, with whom Mary has -- according to Mary herself -- a very close relationship, Karen's bias for her aunt is clear
Simons was Mary's criminal defense counsel. His ulterior motive was to get paid for his services. One way to accomplish that was to force Respondent to return the money to Mary, who then would have it to give to Simons.
Among other facts, Mary and her husband were vacillating at that time whether they wanted to continue retaining Simons for representation of Mary's husband. Mary wrote in successive emails to Respondent the following:
"He [Simons] is OUT. Got the feeling from Karen that she is surprised we didn't do it before this. Rather excited about having Hoose o the case."84. Respondent denies the allegations of Paragraph 84."If he is willing to work with you then fine but if not he has to be out. And then how do we fire him. It is tops on [my husband's] list tomorrow to talk with Simons and get a definite answer."
"If after all that we cannot work with Simons we need to get back to Hoose with papers and $20,000 and from what we gathered an open unlimited pocket book."
By way of further answer, Respondent states that Simons did not like Mary. She was troubled about this, and wrote the following to Respondent:
"What it boils down to is that Simons thinks that I(Mary) am a loose canon and he doesn't know how to deal with me. My questions are good but irrelevant at this time.
"Simons has read all the material we have sent him. He just doesn't know how to deal with me.
Karen is working on being a mediator between Simons and myself. In the long run R is the one with the most to lose. He has an appointment with Simons on Dec 13, 1999 without me. I will still coach R as to questions and comments when he sees Simons."Respondent states that Mary wrote her, on or around 20 December 1999, the following: "We need to resolve this matter immediately as we have major expenses to meet. We feel that you owe us a balance of $6425.50."
By way of further answer, Respondent has set forth below the entire series of emails that relate to the allegations of Paragraph 84.
By way of further answer, Respondent states that she refunded and additional $343 dollars after she discovered an arithmetic error. Prior to that as the first two boxes below show, Respondent suggested voluntary arbitration conducted by the four attorneys as a fair and proper way to resolve the fee dispute.
Subject: RE: Replies
Date: Wed, 2 Feb 2000 18:34:50 -0500
From: "dsano" <dsano@bcn.net>
To: "Barbara C. Johnson" <barbaracjohnson@worldnet.att.net>Your comments are entirely uncalled for.
85. Respondent admits that she received from the Office of Bar Counsel a document purporting to be a complaint submitted by the "Parkers." By way of further answer, Respondent notes that the complaint is dated 13 March 2000 and date-stamped received by the Office of Bar Counsel on 16 March 2000.
86. Respondent has insufficient knowledge and information to admit or deny paragraph 86.
87. Respondent admits the allegations of Paragraph 87.
88. Respondent has insufficient knowledge and information to admit or deny paragraph 88.
By way of further answer, Respondent states that Attorney Weisberg often told Respondent that she would finish her investigation soon. When asked by Respondent whether charges might issue, Weisberg on several occasions said, in words for all intents and purposes, "I did NOT say that charges would issue." Respondent therefore denies that she received notice directly OR indirectly from Bar Counsel, as alleged in the Petition, "that formal disciplinary proceedings would shortly be instituted against her and that the disciplinary charges would involve, among others, the Parker matter."
By way of further answer, Respondent denies that Bar Counsel ever at any time "cautioned the respondent against posting on her web site or otherwise disseminating any confidential information without prior authorization."
89. Respondent admits that "[o]n or about December 19, 2002, she posted on her web site the Parker bill, correspondence between her and Mary."
Respondent denies that she uploaded "copies of her responses to the Parkers' request for investigation." Respondent uploaded copies of her responses to Weisberg regarding the Parkers' alleged request for investigation. Specifically, Respondent posted on website the following documents:
- the original bill, dated 12 December 1999,
- an email dated 20 December 1999 to Deb in response to one of her emailed letters,
- a letter dated 28 December 1999 to Deb Sano in response to one of her emailed letters,
- a letter dated 19 April 2000 to the Bar in response to the Complaint,
- a link to the annotated bill (dated 19 April 2000) replete with all the emails (in entirety) cited in the original bill,
- a letter dated 8 May 2000 to the Bar, and
- a letter dated 11 September 2001 to the Bar.
By way of further answer, Respondent denies that "[t]he posted materials disclosed confidential information." Respondent admits that the information contained in the postings was "gained in the course of her professional relationship with the Parkers.By way of further answer, Respondent contends that Richard and Mary waived their privacy when they revealed their problems to friends, acquaintances, and family members. "[T]he history and particulars of the sexual abuse allegations" against Richard were made public by the law-enforcement and judicial proceedings as well as by the State agencies.
By way of further answer, Respondent states that she has always published truthful and accurate information about the Parkers, their family members, or their attorney, Richard Simons.
90. Respondent admits that she "never . . . sought the Parkers' permission to disclose or disseminate . . . information about them on her website,"
By way of further answer, Respondent denies both that she never obtained permission from the Parkers to disclose or disseminate their story on her website:. By letter dated 12 December 1999, after their relationship was ended, Mary Parker wrote to Respondent:
Dear Barbara, Thanks. Know that your are not on our payroll anymore but would love to be able to keep you posted. Who knows we may someday be a story on your wonderful educational web site. . . .
By way of further answer, Respondent also denies that the information was" confidential." As such, Respondent had no obligation to ". . . notify the Parkers before posting that information. . . "91. Respondent admits that she "never . . . sought the permission of anyone authorized to consent for Sarah before posting . . . information about Sarah on her web site.
By way of further answer, Respondent denies that she never obtained permission from the Parkers to disclose or disseminate their story on her website. By letter dated 12 December 1999, after their relationship was ended, Mary Parker wrote to Respondent:
Dear Barbara, Thanks. Know that your are not on our payroll anymore but would love to be able to keep you posted. Who knows we may someday be a story on your wonderful educational web site. . . .
By way of further answer, Respondent also denies that the information was" confidential." As such, Respondent had no obligation to ". . . notify the Parkers before posting that information. . . "
92. Respondent admits that she received a letter from Retired Judge William Simons, who asserted he was the Parkers' counsel. In his letter, William Simons did not make "`demand' on the respondent for the immediate removal of their confidential and personal information from the web site." Rather, the retired judge "ordered" the Respondent to remove the material. As the retired judge had no authority to order Respondent to do anything, Respondent was offended by what she perceived as a blatant, impolitic attempt to intimidate Respondent.Respondent has no present memory as to when she received the letter from William Simons.
93. Respondent does not have present recollection sufficient to admit or deny paragraph 93.
By way of further answer, Respondent recalls only that she placed a telephone call to Mr. Simmons upon receiving his letter.
94. Respondent admits that she "has refused or failed to remove any . . . information about the Parkers or their family from her web site."
By way of further answer, Respondent denies, that the information posted was or is "confidential or personal."
95. Respondent denies the allegations of Paragraph 95.
By way of further answer, Respondent states that her fees complied with Rule 1.5 as follows:
(1) Her fee was fixed according to a schedule (Factor #8). (2) Respondent had devised a price schedule for online customers. The lowest rate was $50 per hour, which is far lower than the fee customarily charged in the locality for similar legal-consulting services (Factor #3). Specifically, Respondent's schedule was: $50 per hour for reviewing papers, $200 per hour for research, and $200 per hour for strategizing. Most of the tasks performed for the Parkers fell into the "strategizing" category.
(3) The amount involved was $7,232.50. Respondent's was providing consulting services rather than representation, and more than one case was involved. Given that Respondent did not ultimately represent the Parkers nor was privy to any of the cases after contact between her and the Parkers ended, Respondent does not know what results were obtained. (Factor #4). See other results in item 5 below.
(4) There was no time limitation imposed by the client or by the circumstances, although the level of the family's anxiety -- evidenced by both the number and timing of emails sent by the Parkers to Respondent -- was great, time was considered of the essence (Factor #5)
(5) The length of the professional relationship with the client was between 10/31/99 and 12/4/99 (Factor #6), and the nature of the relationship with the client was, in addition to reviewing the work done in both the existing criminal and civil cases, researching, and strategizing, supportive (Factor #6). In her experience, Respondent learned that clients who become educated about their cases fare better than those kept in ignorance of the legal process and that clients who are put at ease fare better than those who are in a constant state of anxiety. That the entire family was relieved of some of their pressure is revealed by the words of thanks from "Mary" and her daughters.
(6) Respondent's experience, reputation, and ability in performing services in the area of false allegations is significant, as attested to on her website www.falseallegations.com (Factor #7). 96. Respondent denies that she made intentionally false, deceptive or misleading representations to the Parkers about her fees, time and charges/"(7) the likelihood that the acceptance of the three Parker matters would preclude Respondent from performing services for others depended on the scope of the consulting services sought and the other lawyers the Parkers retained to defend and prosecute the other cases (Factor #2). Respondent never intended to take the criminal case. Father Parker had legal counsel, Richard Simons, the retired judge's son, but the Parkers, particularly Mary, were displeased with Simons the Younger at the time Mary and her daughters contacted Respondent. The bad-mouthing of Respondent was the way, at least so it appears from Mary's emails, by which Simons turned the Parkers against Respondent.
The guardianship case had already caused great difficulty for the Parkers. The deposition of a monosyllabic mentally challenged 28-year-old woman with the mental age of a 1- to 2-year-old toddler was ludicrous. The woman's guardian (Attorney Carlson) went along with the deposition and apparently tried to take notes of the woman's grunts, groans, and movements of her body and appendages. The so-called deposition transcript resembled white pages on which chickens ran across, a transcript of hieroglyphs. On this evidence, Father Parker was impaled and the Parkers were precluded from seeing their child. The court, the DMH, the GAL, all had ignored all evidence of differential diagnoses. And remarkably, the Parkers' lawyers were telling them the guardianship case was not a civil action.
The second civil case was yet one which the Parkers' niece, Schultz-Breda, was going to institute, one against the DMH for the failure to provide proper care of the young Parker woman. It was unknown the amount of assistance Schultz-Breda would be seeking.
(8) During the 4-1/2 weeks, the time and labor required was 61.90 hours. The novelty and difficulty of the questions involved was considerable or noteworthy. See (a) observations and questions presented in a review of the ±500 pages, (b)the inherent conflict presented by Timothy Carlson acting as both the G.A.L. and counsel for the mentally challenged woman, (c) more observations, (d) the different rules for the production of document in criminal and civil cases, (e)other civil case involving abuse of the mentally challenged woman, in addition to the psycho-social problems of the Parker family members. All the issues as noted by Respondent in the links were not recognized by any of the other attorneys -- Simons, Carlson, Schultz-Breda. It is reasonable to conclude that the cases involved difficult, if not novel, questions of both fact and law, and the skill requisite to perform the legal service properly is possessed by Respondent and not the other attorneys with whom the Parkers were involved (Factor #1). In fact, Respondent's forté is attention to minute details, the details that many attorneys unfortunately overlook owing to impatience, or the lack of time and care to find and absorb the facts, or the knowledge that they will not be compensated for the time it would take to analyze the facts a case presents.
Therefore Respondent's fee was clearly not excessive.By way of further answer, Respondent demands that Petitioner identify those facts that Petitioner alleges are inaccurate or intentionally false or deceptive or misleading. Respondent further states that charges of dishonesty, fraud, deception, misrepresentation are factual issues sounding in criminal charges and are therefore within the province of a jury. As such, adjudication before a hearing before a hearing officer or a panel selected by the Board usurps the Respondent’s right to a jury trial. For this reason, the Respondent demands a trial before a jury of her peers.
Respondent further denies that she engaged in any other conduct that adversely reflects on her fitness to practice law, and consequently denies that she violated M.R.Prof. C. 8.4(h).
97. Respondent denies the allegations of Paragraph 97.
Respondent acted in good faith at all times and never intended to keep any funds to which she was not entitled. Therefore, she did not violate, as Petitioner contends, Mass. R. Prof. C. 1.15(a)-(c), 1.16(d), and 8.4(c) and (h).
98. Respondent denies the allegations of Paragraph 98.
99. Respondent denies the allegations of Paragraph 99.
COUNT III 100. Respondent admits that she brought suit on behalf of Lily in 1992 "in a wrongful termination action against HMM Associates, Inc., its parent company, and two of its employees (Coughlin action)."
101. Respondent admits the allegations in Paragraph 101.
102. Respondent admits that "[o]n or about January 4, 1995, the district court entered a discovery compliance order for the respondent to inspect documents and pay for supervision of the inspection at $55 per hour." By way of further answer, Respondent states that the order violated fundamental fairness because the defendants had not complied with one discovery request and had been granted EIGHT protective orders. The plaintiff was thereby denied any and all discovery for no lawful reason. The Respondent denies each and every remaining allegation in Paragraph 102 and specifically denies that she failed to appear for an inspection ". . . without justification or adequate prior notice to counsel for the defendants."
By way of further answer, Respondent states that the allegation that ‘. . . . The defendants incurred costs in setting up the document inspection . . ." is false and without factual basis. First, no costs had been occurred on January 4th, 1995. Second, the notion of inspection was suggested by Johnson on that day. Third, the date of inspection had not yet been determined. Fourth, there were no costs to incur. The HMM Associates, Inc., documents, according to O'Connor, had been stored in 26 boxes stored on site. Fifth, the person for whose services the defendants charged was the secretary of the defense counsel. Sixth, O'Connor had advanced notice that Respondent would not be at the Concord facility that day. Finally, Johnson sought to subpoena defense counsel’s secretary but the subpoena was quashed and no hearing was allowed.
Respondent denies the statement that "[w]ithout justification or adequate prior notice to counsel for the defendants, the respondent failed to appear for the scheduled inspection."
103. Respondent admits that on or about February 22, 1995 and February 24, 1995, she filed emergency motions in the district court to reconsider the court's January 4, 1995 order and for leave to depose nonparty witnesses outside the presence of the defendants' counsel. Respondent denies the that "[t]he respondent brought those motions without legal or factual basis and in bad faith." Respondent further denies the "defendants incurred costs in opposing those motions." The motion "to depose nonparty witnesses outside the presence of the defendants' counsel" was based upon Respondent’s experience with the specific issue in other earlier matters. Respondent drafted these motions using as a model two motions that had previously filed in another action seeking the same relief and which had been allowed Magistrate-Judge Robert Collings. Respondent alleges that the motion as filed had legal and factual basis and was brought in good faith.
104. Respondent admits that "[o]n or about March 3, 1995, the district court denied the respondent's emergency motions."
Respondent denies the allegation ". . . [t]hat same day, the court entered orders requiring the respondent or Lily to pay the defendants $261.25, for paralegal fees incurred in setting up the document inspection, and $720 for legal fees incurred in opposing the motions." The Court did not enter an order on March 3, 1995. Johnson disputed that either Johnson or Lily owed $261.25. The judge had erred because of O'Connor's material misrepresentation to him that an order had previously issued. The amount $261.25 was not written as an order until almost a year later.
Attached hereto as Exhibit A are true and accurate copies of the Court’s order (or portions thereof) as it appeared at various points on and after March 3, 1995. Attached as Exhibit B are true and accurate copies of the court docket reflecting the various orders as issued and docketed chronologically. The Respondent submits that Exhibit A and B demonstrate beyond reasonable dispute that the Court did not issue an order on March 3, 1995 as alleged by the Petition and as asserted by Respondent.
Further, by way of further answer, Respondent has attached as Exhibit C a copy of the Court’s order as filed by Attorney O’Connor thereafter in the Superior Court proceeding. The Respondent submits that Attorney O’Connor committed fraud on the Court by filing the court order after he either personally altered the Court’s endorsement or was actually aware that the endorsement had been altered.
105. The Respondent denies each and every allegation in Paragraph 105. By way of further answer, Respondent denies that any payments were required by the order dated March 3, 1995 because no order had issued on March 3. Further, at no time during the March 3d hearing did the judge suggest or order that he was imposing fines.
106. Respondent denies that "[o]n or about March 22, 1995, the district court held the respondent and Lily in contempt for nonpayment under the March 3, 1995 orders," By way of further answer, Respondent states that District Court Judge McGill did not issue any order regarding payment until March 22, 1995. Then, upon issuance of that order, he immediately found Plaintiff and Respondent in contempt of that order in the same hearing.
By way of further answer, Respondent states that:
By way of further answer, Respondent states the monetary sanctions were comprised of attorney's fees and a $50 daily fine imposed RETROACTIVELY from March 10 to March 22. The endorsement stating that Lily and Johnson were jointly and severally liable was "clarifie[d]" and/or amended by the court on several occasions over the next year.
- she informed the court on March 22 that she had received no notice,
- the court wrote that Johnson's complaint about the lack of notice was "without merit,"
- the court order Johnson or Lily to pay the $261.25 mentioned in the first paragraph of the Motion for Paralegal Fees (this was amended by the court in December 1995 and January 1996),
- the court ordered Johnson or Lily to pay the "$558 on paper #165," but $558 is NOT in Paper #165 (this was amended by the court in December 1995 and January 1996), and
- the court threatened dismissal of the case should they not pay.
107. Respondent admits that neither Lily nor Respondent made a payment based on the March 22d order. By way of further answer, as set forth in paragraph 103-105 above, Respondent states the March 22d order was based on the non-existent order of March 3d and was, therefore, unlawful.
108. The Respondent denies each and every allegation in Paragraph 108. Respondent admits that the Court awarded but states that no specific amount was stated or written. Respondent admits the Court assessed $650 in penalties, but the Court never stated clearly to whom and by what date the penalty was to be paid. Respondent admits that the Court ordered ". . . Lily's claims in the underlying action be dismissed unless and until the penalty and fees were paid in full." The court again, however, never stated clearly to whom and by what date the penalty was to be paid.
By way of further answer, Respondent states (1) that without proper or adequate notice Attorney O'Connor brought another motion to show cause (filed in open court), (2) that Attorney O'Connor misrepresented to the court that the so-called orders totaled $2439.25 after the March 22d hearing, and (3) that both Attorney O’Connor and the Court ignored the fact that there was no prior existing order set a date on or before which payment had to be made.
By way of further answer, Respondent states the Court once again treated Lily disparately. Specifically, the Court allowed, over objection, Defendants' fourth motion to show cause why the Complaint should not be dismissed. Respondent received no prior notice of that motion. Later Respondent disputed the Court's finding endorsed on Motion #172. Thereafter, the Court’s order was the subject of appellate review.
The court also again refused to act on Lily's motion to show cause why defendants should not be sanctioned for violating a Superior Court order not to contact Texaco, Lily's then-employer, about her action. Further, the Respondent states that although the court awarded more attorney's fees, assessed more fines, again held Lily and Johnson jointly and severally liable for some but not all orders, and dismissed Lily's Complaint unless and until the penalty, costs, and attorney's fees were paid [A1136, ADD-300 at entry for Paper 172], the court again gave no date by which payment was to be made or to whom.
And even more significant is that, ultimately, the Court, on the grounds that the order was in error, amended this order in December 1995 (12/13/95), January 1996, and February 1996 (2/8/96). See details of the hearings in those months below.
Moreover, on April 5, 1995, the District Court also (a) refused to act on Lily's motion to stay the proceedings until SJC acted on the Plaintiff’s Petition under M.G.L. c. 213, sec. 2, (b) refused to act on Lily's motion to show cause why the defendants in the underlying case should not be sanctioned for violating the Court’s order not to contact Lily's present employer, and (c) allowed Defendants' motion to show cause why the Complaint should not be dismissed.
The Court's finding and endorsement, docket entry #172, that Respondent had admitted to Contempt was not true. By way of further answer, Respondent states she admitted not having paid penalties as assessed by the Court and but did not admit that her failure was contemptuous.
109. The Respondent denies each and every allegation in Paragraph 109.
By way of further answer, Respondent states that it was not clear until April 5, 1995 that the Court had imposed fines retroactively. Further, each of the endorsements stating that Lily and Respondent were jointly and severally liable were "clarified" and/or amended by the court on several occasions over the next year.
By way of further answer, Respondent states that, despite the unlawful order, she did make payment on behalf of Lily in reliance on the Court’s conditional order of dismissal pending payment of penalties by either Respondent or Lily. Upon payment, the dismissal order should have been revoked sua sponte and the case restored to the active list. When the Court failed to honor its prior order, Lily appealed.110. The Respondent denies each and every allegation in Paragraph 110.
By way of further answer, Respondent states that on April 19, 1995:
(a) O'Connor moved to convert the judgment of contempt into a Final Judgment on the Merits.Respondent further states that the sum assessed by the Court in the Final Judgment is utterly inconsistent with any of the monetary penalties previously assessed by the Court. This figure was included by Attorney O'Connor in the motion to convert to a final judgment. As with other motions, Attorney O’Connor failed to serve Respondent according to Dist./Mun.Cts.R.Civ.P. Rule 6(c) and instead handed the motion to Respondent in open court. Again, Respondent was deprived of her opportunity to examine Attorney O'Connor on the factual basis for the motion.(b) the District Court allowed, over Plaintiff's objection, Defendants' motion to convert the conditional dismissal into a Final Judgment on the Merits with alleged damages of $3809.25;
(c) Final Judgment on the Merits entered into the District Court docket at the Defendants' request, and
(d) the case was retransferred pursuant to G.L. c. 231 §102C, to Superior Court for a trial "de novo" at the Plaintiff's request.
By way of further answer, Respondent states that the Court did not enter two separate judgments -- on the merits of the action and on the contempt complaint. As such, there was and still has never been a Final Judgment of Contempt against either Plaintiff or her counsel.
111. The Respondent denies each and every allegation in Paragraph 111.
By way of further answer, Respondent states that the Court modified its prior contempt rulings by holding Lily in contempt solely for nonpayment of the paralegal costs of $261.25, as ordered on March 3, 1995. The Court further modified its prior contempt rulings by holding the respondent in contempt solely for violating the orders of March 3, March 22, and April 5, 1999 for payment of legal fees and the civil penalty. Respondent states that on 3 March 1995, no order issued commanding Lily or Respondent to pay any monies to anyone for anything. (Parenthetically, Respondent notes that the Petition alleges incorrect dates in Paragraph 111 in that it is impossible for Respondent, in 1995,to have violated orders dated "March 3, March 22, and April 5, 1999").
Respondent further states that the Court orders dated 22 March 1995 and 5 April 1995 were amended by the Court several times, including an order dated 13 December 1995 and thereafter again in January and February 1996.
By way of further answer, Respondent states that during the hearing on 13 December 1995, the Court entered no order. Thereafter, on the same day, the Court entered a written order delivered to Respondent by facsimile on December 14, 1995. The Court stated it was ‘clarifying" the prior "contempt" orders by reducing the amount of the monies allegedly owed by Respondent to approximately $2,000.
By order dated 14 December 1995, the Court rescinded the order of the previous day and caused a subpoena to be served by the Andover Police Department on Respondent compelling her to attend an evidentiary hearing on the contempt issue on 22 December 1995. Respondent states that she was under no obligation to make payment before the hearing as alleged in the Petition.
112. The Respondent denies each and every allegation in Paragraph 112.
By way of further answer, Respondent states that the order dated December 13 did not remain in effect until December 20th, 1995.
By order dated 14 December 1995, the Court rescinded the order of the previous day and caused a subpoena to be served by the Andover Police Department on Respondent compelling her to attend an evidentiary hearing on the contempt issue on 22 December 1995. Respondent states that she was under no obligation to make payment before the hearing as alleged in the Petition.
By way of further answer, Respondent states that Bar Counsel has omitted from her petition the following proceedings:
(1) the hearing of 22 December 1995, at which Johnson was represented by counsel, Elaine Whitfield-Sharp,
113. Respondent admits that on ". . . February 8, 1996, the district court granted a request by the respondent for reconsideration of her contempt adjudication."(2) the in camera session on 17 January 1996 with Johnson's counsel,
(3) the hearing of 17 January 1996 with Johnson's counsel, and
(4) the hearing of 7 February 1996 with Johnson's counsel.
By way of further answer, Respondent states that the Court did not hold a hearing in either Lily's or Respondent’s case on 8 February 1996. Respondent further states that no evidentiary hearing was ever convened by the Court.
114. The Respondent denies each and every allegation in Paragraph 114.
By way of further answer, Respondent states that on 8 February 1996, "the district court entered an amended final Judgment for dismissal of Lily's claims and for Lily's payment of $261.25 to the defendants." Respondent denies that the court ordered Lily to pay interest on the $261.25.
Respondent admits that she "did not take an appeal to the Appeals Court from that judgment on Lily's behalf," but that she "filed a request for retransfer of the Lily action to the superior court, pursuant to G.L. c. 231, §102C, on or about February 20, 1996."
By way of further answer, Respondent states that, notwithstanding the Petitioner's allegation of law, ". . . The superior court was not the proper forum to handle the case . . . " Respondent contends that superior court was, indeed, the proper forum. AT the time in question, there were three avenues of further review from an adverse judgment which has been remanded after originally being filed in the superior court:
(1) If there was a question of fact, review would be to the Appellate Division of the District Court Department.
Without any evidence and no record to review, only the retransfer to Superior Court was appropriate.(2) If there is no record and only questions of law to review, the Superior Court may consider those questions. Tax Collector of Braintree v. J.G. Grant & Sons, 26 Mass.App.Ct. 731, 733 (1989).
(3) If there is a final judgment of contempt, he only appeal from that judgment is to the Appeals Court. Jones v. Manns, 33 Mass.App.Ct. 485, 489 (1992).
115. Respondent states that on 15 July 1996, the Court issued a Memorandum and Order stating that the "judgment on the civil contempt shall remain in effect," The Court did not state what sum of money was due from Johnson. According to the Court’s memorandum, "[t]he February 8, 1996 orders were clear." The words "final judgment" appears nowhere in the Memorandum and Orders dated 15 July 1996. Respondent submits that the 8 February 1996 order was not clear. In fact, the Court severed the contempt from Lily's underlying action, the Court refused to issue a separate judgment captioned "Final Judgment of Contempt" against Respondent.
Respondent admits that she made no payments pursuant to the order of 8 February 1996 or to the order of 15 July 1996.
Respondent admits that she "took and pursued an appeal from that judgment (contempt appeal)." In fact, appellate counsel filed a Notice of Appeal on 24 July 1996. Without a Final Judgment of Contempt from which to appeal, however, counsel treated the memorandum and order of 15 July 1996 as a final judgment of contempt in accordance with Jones v. Manns, 33 Mass.App.Ct. 485 (1992). [A1]. Ultimately, the appeal was unsuccessful.
116. Respondent admits that "[o]n or about November 19, 1996, the superior court entered an order striking the respondent's request for retransfer of the Lily action."
Respondent further states that, once in Superior Court, Respondent filed another jury demand, a request for a special assignment, (denied), motion to disqualify O'Connor as defense counsel and motion to compel document production. Lily's motions to disqualify and to compel were not acted upon.
Lily's motion for appointment of a discovery master, her opposition to Defendants' last so-called "emergency" motion for a protective order, and her statement under Superior Court Rule 9A(b)(2) were returned to Johnson because of the court action dated November 19th, 1996 allowing Defendants' Motion to Strike the Second Retransfer and Emergency Motion for Protective Order.
In striking the retransfer, the Superior Court relied erroneously on, Sandberg & Son v. Clerk of Dist. Court of Northern Norfolk, 12 Mass.App.Ct. 686 (1981). In Sandberg, the plaintiff not only tried to "unilaterally delay" the presentation of evidence until trial in Superior Court by not appearing for trial in District Court, but also made no effort in District Court to vacate the dismissal. Id. at 687-88.
In contrast, Lily tried to get discovery and a trial, at no time sat on her rights, sought interlocutory review in the SJC of the then-conditional dismissal and finally sought appellate review. Further, because there was insufficient evidence of willfulness or bad faith or fault, dismissal of the suit was unconstitutional. Gos v. Brownstein, 403 Mass. 252, 255 (1988), citing Societe Internationale, 357 U.S. at 212. "[D]enial of a party's day in court [is] not justified 'except upon a serious showing of willful default.'" Parkman Equipment Corp. v. S.A.S. Equipment, 14 Mass.App.Ct. 938, 939 (1982).
Thus, the Court committed reversible error when he allowed the defendant’s motion and again remanded the case to District Court on the characterization of the final judgment as one of contempt. This error deprived Lily of her right to a trial "de novo" pursuant to the remand statute. Where there was no Order out of which a finding of contempt could arise, sanctions were inappropriate, dismissal was inappropriate, retransfer to Superior Court could not be precluded, and the repeated remands were reversible error. Furthermore, dismissal as a sanction for contempt does not necessarily preclude retransfer to Superior Court. Dewing v. J.B. Driscoll Ins. Agency, 30 Mass.App.Ct. 467, 472 (1991). Thus, deeming the appeal of Lily's issues under these circumstances to be frivolous was an abuse of discretion.
Additionally, the Court failed to hold that the Defendants were estopped from asserting contradictory positions in the same action. At the District Court level, the Defendants argued and succeeded in converting conditional dismissal because of contempt should be converted to a Final Judgment on the Merits and obtained an award of money damages. Then, in Superior Court, the Defendants argued that the Final Judgment on the Merits was actually Judgment of Contempt and dismissal for sanctions.
Respondent admits that she pursued an appeal on Lily's behalf. Respondent admits that the Appeals Court found that the appeal was frivolous. Respondent admits that she then filed a Petition for Further Hearing pursuant to Mass.R.A.P. 27 (A.C. 97-P-53). Respondent also filed a Petition for Further Appellate Review (FAR-09862 ).
As set forth above, Respondent denies that the appeal was frivolous. Notwithstanding, finding by the Appeals Court, Respondent asserts that a finding of frivolous appeal by an appellate court is, as a matter of law, insufficient to support a disciplinary action and petitioner’s allegations of such is made with animus, bad faith and without precedent.
117. Respondent admits that she pursued an appeal on Lily's behalf. Respondent admits that the Appeals Court found that the appeal was frivolous. Respondent admits that she then filed a Petition for Further Hearing pursuant to Mass.R.A.P. 27 (A.C. 97-P-53). Respondent also filed a Petition for Further Appellate Review (FAR-09862).
As set forth above, Respondent denies that the appeal was frivolous. Notwithstanding, finding by the Appeals Court, Respondent asserts that a finding of frivolous appeal by an appellate court is, as a matter of law, insufficient to support a disciplinary action and petitioner’s allegations of such is made with animus, bad faith and without precedent.
118. Respondent admits that she pursued an appeal on Lily's behalf. Respondent admits that the Appeals Court found that the appeal was frivolous. Respondent admits that she then filed a Petition for Further Hearing pursuant to Mass.R.A.P. 27 (A.C. 97-P-53). Respondent also filed a Petition for Further Appellate Review (FAR-09862 ).
As set forth above, Respondent denies that the appeal was frivolous. Notwithstanding, finding by the Appeals Court, Respondent asserts that a finding of frivolous appeal by an appellate court is, as a matter of law, insufficient to support a disciplinary action and petitioner’s allegations of such is made with animus, bad faith and without precedent.
119. The Respondent admits that the Appeals Court found against the Appellant but has no present recollection of the specific amount of costs awarded by the Appeals Court.
By way of further answer, Respondent states during this period Lily retained successor to represent her in the matter. Respondent has no personal knowledge as to as to the ultimate resolution of the Appeals Court order assessing costs. Upon information and belief, Respondent understands that her former client reached a settlement with the opposing party and paid sum less than amount awarded by the Appeals Court.
Notwithstanding, finding by the Appeals Court, Respondent asserts that an award of costs on appeal by an appellate court is, as a matter of law, insufficient to support a disciplinary action and petitioner’s allegations of such is made with animus, bad faith and without precedent.
Further, this matter is in any remote way related to the allegations of misconduct as charged in by Bar Counsel and should be stricken from the petition.
120. The Respondent denies each and every allegation in Paragraph 120.
By order dated 14 December 1995, the Court rescinded the order of the previous day and caused a subpoena to be served by the Andover Police Department on Respondent compelling her to attend an evidentiary hearing on the contempt issue on 22 December 1995. Respondent states that she was under no obligation to make payment before the hearing as alleged in the Petition.
By way of further answer, Respondent states that she did not ". . . knowingly, willfully and intentionally violated that order" such that she may be subject to discipline. In fact, no order was issued or binding on her. Further, a civil contempt adjudication cannot stand if it is predicated on the violation of an underlying unlawful court order. Labor, 382 Mass. at 469, n. 5 (assuming a valid order was an indispensable underpinning of the order), and cases cited. "[A] coercive civil contempt order does not survive if the underlying injunction is invalid." Id., citing LaTrobe Steel Co. v. United Steelworkers Local 1537, 545 F.2d 1336, 1345-1348 (3d Cir. 1976).
121. The Respondent denies each and every allegation in Paragraph 121.
By way of further answer, Respondent states that she was never lawfully found in contempt.
122. Respondent does not have information sufficient to admit or deny the allegations in pargraph 122.
By way of further answer, Respondent states that her records do not indicate she received any communication from the Court on December 3, 1998.
By way of further answer, Respondent states that no proceeding or hearing took place on December 3, 1996.
In fact, in neither Lily's case or in Johnson's case was there ever a "hearing" where Lily or Johnson was allowed to argue or present evidence. Umina v. Malbica, 27 Mass.App.Ct. 351, 361 (1989) ("a proceeding where no one is allowed to argue or present evidence cannot constitute a 'hearing'"), quoting Milton Commons Associates v. Board of Appeals of Milton, 14 Mass.App.Ct. 111, 114-115 (1982).
By way of further answer, Respondent states that she has a present memory of events occurring on Thursday, 17 December 1998. Respondent admits the Court scheduled a hearing on December 17, 1998 but she denies that any "hearing" took place. Respondent avers that on December 17, 1998, the Court held a proceeding during which Respondent was denied due process.
123. The Respondent denies each and every allegation in Paragraph 123.
By way of further answer, Respondent states that she did not ". . . knowingly, willfully and intentionally fail to purge" herself of contempt such that she may be subject to discipline. In fact, no order was issued or binding on her. Further, a civil contempt adjudication cannot stand if it is predicated on the violation of an underlying unlawful court order. Labor, 382 Mass. at 469, n. 5 (assuming a valid order was an indispensable underpinning of the order), and cases cited. "[A] coercive civil contempt order does not survive if the underlying injunction is invalid." Id., citing LaTrobe Steel Co. v. United Steelworkers Local 1537, 545 F.2d 1336, 1345-1348 (3d Cir. 1976).
124. The Respondent denies each and every allegation in Paragraph 124.
By way of further answer, Respondent states that on 17 December 1998, Respondent was jailed PRIOR to being declared in continuing contempt of court, if, indeed, she was ever declared in continuing contempt. Respondent has no memory of the court "on that date order[ing her] jailed until she purged her contempt and complied with the subpoena duces tecum." If so ordered, the Court did so AFTER Johnson was placed in custody.
By way of further answer, Respondent states that, when she began a response to one of Judge McGill's questions with the word "No," Judge McGill ordered the court officer to "lock her up." Respondent never finished her sentence, which was explanatory and not a denial of any order. Respondent admits that she was " incarcerated until December 18, 1998."
125. The Respondent denies each and every allegation in Paragraph 125.
By way of further answer, Respondent states that:
By way of further answer, Respondent calls upon Petitioner to prove (a) that on 18 December 1998, she owed the Commonwealth $867.14 for civil penalty with interest, (b) that on 18 December 1998, she owed $1,712.28 to the former-HMM or Earth Tech or Tyco's attorney, and (c) that on 18 December 1998, Respondent was in lawful contempt capable of being purged, and (d) that on 18 December 1998, she purged a lawful or unlawful contempt.
(1) on 18 December 1998, she never produced any records under subpoena; and
(2) on 18 December 1998, she never paid any money to the Commonwealth or to HMM, which had gone out of existence many years prior to 18 December 1998,
Respondent admits that she was released from custody on 18 December 1998. Respondent’s son paid certain amounts to obtain his mother’s release on that date. Respondent has no personal knowledge (a) as to how much he paid, (b) as to whom he made the check(s) payable or (c) as to how the amount, whatever it was, was determined or calculated.
126. The Respondent denies each and every allegation in Paragraph 126.
By way of further answer, Respondent states (1) she never appealed any order of 13 December 1995, given that the order was amended within the period during which Respondent or Lily had to appeal, (2) that any contempt found was unlawful and could not stand and that she never engaged in contempt of that court, (4) that she never disobeyed any clear and unequivocal order, (5) that she never believed she was in contempt and therefore the elements "knowingly" and "refusing" cannot be proved, (6) that she never "knowingly disobeyed" a lawful order, (7) that an unlawful order cannot be purged, (8) that her incarceration had nothing to do with the amounts of money alleged to be owed or with the alleged contempts which are the subject of Count III of the Petition for Discipline, (9) that any payment made by her son was simply a sum he was told would be sufficient to get his mother out of MCI Framingham, and (10) that she did not violate the cited rules.
127.The Respondent denies each and every allegation in Paragraph 127.
By way of further answer, Respondent submits that she did absolutely everything possible on Lily's behalf. Respondent accomplished a minor miracle when she persuaded the Court to "clarify" and correct his prior order and reduce the imposed assessments from $3809.25 to $261.25. Further, Respondent paid that amount pursuant to several orders between April 5, 1995 and February 1996. Thereafter Respondent expected the Court to restore Lily's complaint to the list when the assessment was paid in full. Once the sanction had been reduced to $261.25, regardless of he validity of the original order, payment of the $261.25 was more practical than expending time and money on an appeal.
By way of further answer, Respondent submits it is ludicrous and malicious for Bar Counsel to assert that appeal of an order imposing a sanction of $261.25 was in the best interest of my client when, in the same petition, she seeks discipline against me for pursuing an appeal.
FIRST AFFIRMATIVE DEFENSE
The Respondent states that the Bar Counsel’s claims should be dismissed on the grounds that, on its face, it fails to allege facts sufficient to warrant discipline of any kind.
SECOND AFFIRMATIVE DEFENSE
The Office of the Bar Counsel and the Board of Bar Overseers facilitated the fraud committed against James Linnehan by not seeking discipline against Attorney Deborah Wolf, Attorney Mark O’Connor and Attorney Stephen Gordon.
THIRD AFFIRMATIVE DEFENSE
The Office of the Bar Counsel and the Board of Bar Overseers have acted frivolously, arbitrarily, maliciously, selectively and in bad faith by not seeking to discipline the attorneys that have been the subject of written complaints filed with the office of Bar Counsel by Linnehan, Coughlin, Cappello, Cholfin
FOURTH AFFIRMATIVE DEFENSE The petition for discipline as brought by the Office of the Bar Counsel must fail under the doctrine of unclean hands.
FIFTH AFFIRMATIVE DEFENSE
The Respondent was justified in all her actions and acted in good faith and is therefore not in violation of any Rule of Professional Conduct as alleged in the Petition for Discipline.
SIXTH AFFIRMATIVE DEFENSE
Count Two of the Petition arises from a dispute over fees and the Office of Bar Counsel, as a matter of uniformly applied policy, does not become involved, adjudicate or resolve fee disputes involving sums less $10,000.
SEVENTH AFFIRMATIVE DEFENSE
The Office of the Bar Counsel is barred from disciplining Johnson to the extent that any of her conduct is protected by the First Amendment of the United States Constitution.
EIGHTH AFFIRMATIVE DEFENSE
Because the Office of the Bar Counsel has interfered with Johnson’s state civil rights, thereby violating G.L. 12, §11I, Office of the Bar Counsel is barred from disciplining the Respondent.
NINTH AFFIRMATIVE DEFENSE
The Respondent hereby gives notice that she intends to rely upon such other and further defenses as may become available or apparent during discovery proceedings in this action, and hereby reserves the right to amend her Answer and to assert any such defense by appropriate motion.
TENTH AFFIRMATIVE DEFENSE
At all times the Respondent acted in good faith and with the belief that her actions were in compliance with and in furtherance of her obligations under any and all provisions of the Code of Professional Responsibility.
ELEVENTH AFFIRMATIVE DEFENSE
Bar Counsel allegations of misconduct against this Respondent are based stale allegations and occurrences. As such these allegations as to this Respondent, do not justify any present basis for discipline.
TWELFTH AFFIRMATIVE DEFENSE
The delay in filing the present petition effectively denies this Respondent procedural rights which were available to her at the time of the alleged misconduct.
THIRTEENTH AFFIRMATIVE DEFENSE
Bar Counsel’s unreasonable and unexplained delay in bringing this Petition for Discipline has caused irreparable prejudice to this Respondent’s ability to defend the allegations of misconduct. This Respondent is now subject to allegations of misconduct occurring, in some cases more seven years after the fact. As such, because Bar Counsel’s delay has caused real, irreparable prejudice and because there is no reasonable explanation for the delay, the Petition for Discipline must be dismissed.
FOURTEENTH AFFIRMATIVE DEFENSE
If the facts and affirmative defenses asserted herein do not constitute a total defense, such facts, in whole or in part, together with affirmative defenses constitute mitigation. Without admitting or conceding any predicate facts, in accordance with BBO Rule 3.15(F), and its predecessor rule, the Respondent herein requests a hearing on the issue of mitigation.
RESPONDENT CLAIMS HER RIGHT TO TRIAL
BY JURY ON ALL ISSUES SO TRIABLE
The Respondent,
Barbara C. Johnson,
By her Attorneys,____________________________
Thomas J. Lynch
BBO # 309230
Lynch Associates, P.C.
99 Derby Street
Suite 200
Hingham, MA 02043
Telephone: 617-395-1985
Facsimile: 617-720-7867
Email: tjllaw@earthlink.net
I gave Tom my draft of the answer, which you can see in three parts at Drano Series ##90A, 90B, and 90C. Tom cleaned it up, taking out my raving and ranting at the Assistant Bar Counsel.
For other things he might have done, compare them. (I haven't had the time!)
CERTIFICATE OF SERVICE
I, Thomas J. Lynch, hereby certify that on 14 April 2003, I caused to be served a true and accurate copy of the within pleading on Michael Fredrickson, Esq., Bar Counsel, Board of Bar Overseers, 75 Federal St., Boston, MA 02110 and on Assistant Bar Counsel Susan Strauss Weisberg, Office of Bar Counsel, 75 Federal St., Boston, MA 02110 by mailing the pleading first-class mail postage pre-paid.
______________________________
14 April 2003 Thomas J. Lynch
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Barbara C. Johnson, Attorney at Law
6 Appletree Lane, Andover, Massachusetts 01810-4102 Phone 978-474-0833