#90B, Part II -- Drano Series
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Count 2 of Bar Counsel's Petition for Discipline of Barb
and
Her Side of the Story Interwoven
in Blue
A 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.
Barb's Official Answer to the Bar may be found at drano90-barbs-answer-to-obc-petition-for-discipline.htmCOMMONWEALTH OF MASSACHUSETTS
BOARD OF BAR OVERSEERS______________________
BAR COUNSEL B.B.O. File No. C2-01-0091
Petitioner C2-01-0090
C2-00-0078
v. C2-98-0580BARBARA C. JOHNSON
Respondent
______________________PETITION FOR DISCIPLINE
AND
DRAFT ANSWER TO PETITION INTERWOVEN IN BLUE
WITH JURY DEMANDCount II
45. Paragraphs 2 through 5 are realleged and incorporated by reference.
45. No answer is required.46. Between about October and December 1999, respondent advertised a pricing schedule on her web site for her "consulting services" as follows:A. $1.00 per page or $50 per hour for document review;47. From about October through December 1999, the respondent did not advertiseB. $75-$125 per hour for editing of pleadings already written;
C. $125 per hour for drafting of pleadings not to be filed in the respondent's name;
D. $200 per hour for preparation of written strategy recommendations following document review, telephone calls with present or previous attorneys, legal research, and writing memoranda of law.
46. Respondent has no independent memory of her price structure during that time period and calls upon Petitioner to prove the same.
on her web site or otherwise notify clients or prospective clients of charges for telephone calls with them or for reading, answering or writing e-mail or other correspondence.47. 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." Respondent finds Bar Counsel's accusation as quite frivolous and demonstrative both of a failure to use due diligence in bringing this alleged fact forward and of an insidious ulterior motive in bringing this count in the petition.48. As of October 1999, Richard Parker (a pseudonym) was under indictment forIn fact, Respondent has considerable information on her website regarding fees for "non-clients: as well as "prospective clients." For instance,
(a) a pricing structure appears at the following links. On that page, Respondent describes fees for(i) Fee-based Information Without Legal Representation, including fees for answers to questions by emailhttp://www.falseallegations.com/pricing.htm#Simple Questions
(ii) Fee-based Consulting Services -- This is NOT legal representation, and
http://www.falseallegations.com/pricing.htm#Consulting services
(iii) Fee-based Legal Services
http://www.falseallegations.com/pricing.htm#Legal Representation
(b) five files containing attorney-client fee agreements are identified and linked in the box below. The fee agreements are modeled after the agreement recommended by a committee headed by Attorney Camille Sarouf and published in the Lawyers Weekly in the late '80s or early '90s. Prior to the publication, Respondent was using the form, which had been given to her by Anthony Tarricone or Sarouf when she studied under them in law school. The model presumed a multi-attorney firm. Respondent's form was revised to be practical for use use by a sole-practitioner. Two of the files are samples showing how to fill out hourly- and contingent-fee agreements, Three are forms to be downloaded if the visitor is becoming a client.
http://www.falseallegations.com/agr-hour.htm
Last updatedSunday, 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.htm
http://www.falseallegations.com/agr-cont.htm
Last updatedSunday, 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
NOTE The Office of Bar Counsel disguised in Count II the name of the party with the fee dispute, but failed to disguise in Count III the name of my client who was seriously victimized by the courts in an ongoing manner, for whom we sought the help of the Office of Bar Counsel, but for whom we did not receive any attention at all.I dislike the dual standard based on retaliation. Therefore to respond to the Petition, I shall use, for the sake of consistency, the pseudonyms in the "answer" to the petition, but in the supporting documentary evidence I shall NOT change the real names into the pseudonyms supplied by the OBC/BBO. In any case, the OBC's pseudonyms are foolish. One of the fake male names they chose is the same as the real name of his attorney. Richard Simons (real) and Richard Parker (fake), so when writing a sentence, it ends up being Richard and Richard. Too awkward for me and for any of the readers.
Given that Deb Sano gave me implicit, if not explicit, permission to use the Sanos' story on my "excellent educational website" (to quote her) , I shall have no perfunction in identifying Deb Sano as Deb Sano.
Since I had already changed the mentally challenged woman's real name into a pseudonym -- even though (a) she has no friends outside the community controlled by the Department of Mental Retardation, (b) the DMR folks have already spread the allegations around that community, and (c) her real name was bandied about in the criminal-law community two years ago.
I shall use, however, a pseudonym for my client in Count III. She is a businesswoman. In extremely bad taste, the OBC used her real name, even knowing its Petition and my Answer would be public.
This means that I am
Clearly the OBC was playing favorites. CONNECTIONS, CONNECTIONS, CONNECTIONS, that's what it is all about, Ladies and Gentlemen, CONNECTIONS. The Sanos were represented by a retired judge and his son and my other client had no political connections whatsoever.- identifying the Parkers (in Count II) as the Sanos (previously identified in Drano Series #84) and
- using a pseudonym for my client in Count III in both the OBC's Petition and my Answer. Interestingly this client sought help from the OBC years ago during her case but did NOT get any help whatsoever from the OBC. Her complaint was virtually ignored.
The people in Count I were, of course, first identified in the Drano Series a few years ago.
rape and indecent assault and battery on a mentally retarded person. The alleged victim was Richard's adult daughter, Sarah Parker (a pseudonym).48. Respondent denies as written. "Richard Parker," a retired school teacher of Japanese extraction, was facing four -- not two, as Bar Counsel avers -- 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."49. As of 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 (a pseudonym), 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 as written. 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, parental access to Sarah was restricted, and resolition did not occur until mid 1994. The events of 1999 and the history of events are far more complex than Bar Counsel has written.50. At all relevant times, Richard was represented by Attorney Richard Simons on the criminal chaiges against him.Respondent has been threatened by the Assistant Bar Counsel not to reveal the history on the grounds of confidentiality and privacy, but given that the Bar Counsel is taking action based on a revised and limited factual history in order to diminish the value of the Respondent's services, Respondent will be uploading to her website the entire history of the family as it appears in emails between the family and Respondent.
50. Respondent has insufficient knowledge and information to form a belief as to the truth of ¶50 and calls upon Petitioner to prove the same.51. At all relevant times, Richard and Mary were represented by Simons and Attorney Karen Schultz Breda in connection with the adult protective services action.51. Respondent has insufficient knowledge and information to form a belief as to the truth of ¶51 and calls upon Petitioner to prove the same. That which Mary wrote in many emails to Respondent about Breda's representation of them is in the box below. Breda appeared to be both a courier of messages between various persons and a supervisor for visitation purposes.52. The Parkers denied any misconduct toward Sarah. They suspected that Sarah might have been sexually abused by someone else at her residential placement.
Karen Schultz-Breda, Newton Ma (phone number deleted) Karen is our niece and is representing us, (sisters' names, towns, and phone numbers deleted) in the dealings with Attorney Timothy Carlson, temporary guardian. Karen assisted us in 1992 and in 1998, the other 2 investigations. Karn has schedulled a phone conference with me tomorrow night at 7:30 as she is due to have a conference with Attorney Carlso and Attorney Simons tomorrow.
Another day when nothing has happened with Karen, Rich and Tim. As it is now after 9 I can only assume Karen is not going to call and nothing has been done.
Still have had no word from Karen, Rich, or Tim Carlson.
Still no word from Tim or Karen and the girls have not been able to contact Sarah week.
Karen had been working with Tim on the restraining order and Tim told Karen of the intensification of the investigation and of DR cantanzaro's report. Not content but of existance.
I have asked for Pic of Sarah when Karen picks her up, photos of contents of luggage. We have stated that we will foot bill for a rental car for Karen as her AH of a husband will not permit her the use of the new car. We refuse to permit Karen to jeopardize her life, her son's life of Sarah's by driving a substandard vehicle. With what is it going to cost us what is another couple hundred at this point. ( My body is not dead yet)
No excuse but we have been in "lala land" How could this happen? We did nothing wrong. We are innocent. Karen did the research on Attorneys and we picked what we could afford, before we knew all the facts. I am not sure Karen knew the seriousness of the situation. We chose what we could afford. Our mistake. Could be a costly one. If it is in money only then a good lesson. If in other things then a very HARD LESSON.
Is Karen available this weekend? I do not know. She is in an extremely abusive situation. As of Dec 1 we will be hiding her and son Joseph from her husband. not at our house but at a place only we know of.
Have combined both messages to reply to. We are not sure just how much questioning they can do. Think it has to be spontaneous from Sarah. Then Karen and [other daughter] need to put all the expertise, tact what ever you call it in to action. "Do not want to lead witness" and be faced with witness tampering. Understand that is the reason they will not let Sarah have unsupervised visits with any family member.
Tim Carlson has enough confidence in Karen that she is to be supervisor.
Tough job.
[Sister] called Karen, Karen called Carson. Carlson's reaction was that this whole thing was orchestrated by Elaine" And he was angry.
Friday, Nov 19, 1999, Sarah was scheduled to meet with Carlson at 11 AM.
[Sister] called Sarah at workshop, and had no trouble getting through to Sarah. Sarahwas psyched to go to Sam's. Great conversation with Sarah.11 am , Sarah met with Carlson and she was psyched to go to Sam's. Next was call from [another sister] at 6PM all is set for Thanksgiving. Sarah is to go with Karen from Wed thru Sat and if "Sarah wants thru Sun. We will deal with Elaine after the fact." I am told these are Carlson's words.
Plan is for Karen to leave Newton at 10AM. Pick up Sarah by noon and then go to NJ. [Sister] has promised a call when they arrive and word from Karen is that if Sarah wants to talk to me she will let her. Can only hope. We are leaving at 6 to go to (town deleted) to [a sister's]. Will be home by 8 Thanksgiving night to rest for "Black Friday" in retail.
Did you get a hold of Karen. She didn't return ours. [Sister] just spoke to her and told her we needed to talk to her.
Sorry to bother you but I need to vent big time. That miserable bitch is still in control. [Sister] just called and Karen and Sarah are in NJ. One hell of a week. Last Friday Sarah was anxious to go and couldn't wait. EW had her for weekend and convinced her she didn't want to go. As of Monday it was off. Karen has spent time convincing Carlson it was the best thing for Sarah. It was agreed that it could be a wed - dark on Friday. With the understanding that if Sarah wanted to stay longer she could. Karen arrived at Carlson's office at 1. He kept her until 3 and then they
picked up Sarah Didn't leave Pittsfield till after 3:30. That bitch only sent enough meds thru noon on Friday. When the hell does she loose her control? I am not sure how much we can piss Carlson off if Sarah wants to stay. Am sure we could get her meds through Sunday. Is this nightmare ever going to end? To late tonight for them to do anything and they will have to leave by noon on Friday to get back in time. As far as I know Karen is planning to stay here Friday night but who knows.We are at wits end.
I try to tell [Richard] that this is one more thing in our favor but it is getting very hard to believe and I am becoming less and less convincing.
Sorry but I just had to vent to someone.
Karen and Sarah got back last night about 4. Karen tried to get hold of Carlson before they left NJ as Sarah wanted to stay but she could not reach him.
Karen spent night with us and we learned a few things.
1. It was Carlson who decided last Monday that he wasn't comfortable with Sarah going to [Sister's] for Holiday.
Reason: Sarah was going with an opposing attorney. (Karen has been representing Us and the girls.Understand DA didn't want it at all and Carlson went over their head.
As we understand it Karen was forced to withdraw as our attorney in order for Carson to permit Sarah to go with her.Karen did that. They had a great time. Carlson is still worried about "witness tampering" Sorry but give me a break. We have done everything they wanted from the git go why does he think we will change now. He cannot or will not see that EW is doing just what he is afraid we will do. The problem is that the state has no place for Sarah to go is she has to leave Elaine's and they haven't made an effort to try.
Where does that put us? Karen's opinion was that Hoose should do both civil and criminal. Karen is also afraid that the judge will not permit the civil to move forward before the criminal case. Her feelings are that the judges involved and Carlson have already convicted us. She was not happy when I stated that I would not pay Carson's bill. Claims Carlson truly cares for Sarah but he refuses to be alone with her. Probably fear that someone will file a complaint against him. Yet in the next breath she said Carlson was going to take Sarah to see [sister]and new baby in hospital on the 9th. My comment. Screw him, we are going to be there. They have taken away everything else, they will not deny us that. If he shows up then it is on his head that Sarah got to see both her parents. Plus the fact that [sister] is going to be less than cordial at the thought of Carson visiting her hours after giving birth. That means an unsupervised visit with [sister]. "a chance for witness tampering again" Christmas is up in the air as well. Karen has volunteered to have it at her house with everyone but [Richard]. I am adamant, that I will not leave him alone during the holiday. We will make other arrangements. Poor Sarah doesn't have a clue as to what is going on. She just likes the attention and she isn't getting it from EW.
She has spoken with him(last April) and is very comfortable with him.
She was impressed with his statement that [Richard] should have a poly ASAP(last April).She has been trying to convince Simon of that and it only recently that he agreed.
Reason: Simons didn't believe it would go this far. (I thought we were the only ones in denial)
Asked Karen outright about Simons inability to work with a "female" particularly a pushy one, No hesitation at all in her reply. Simons is very comfortable with [Richard] but he doesn't know how to handle me. I intimidate him. He just doesn't know how to deal with me. Pardon me, but I have very little respect for any male I intimidate. He cannot know who he is or what he is doing. I don't have the law degree, he does. All I am doing is looking for information. If he doesn't like my style then let him tell me to butt out or bug off or just plain shut up but DO NOT IGNORE ME. This is not the first time I have heard this. From the onset Karen has said that Simons will coach or prepare [Richard] but he wants no part of me. That was to be Karen's job.
Before giving Karen any of our correspondence I asked her if she knew you.
She told me exactly the same things you had written in last message, She will be contacting Hoose and you in the near future.
Also found out that her husband has agreed to counseling(finally) and they have been going. So we have no major hideout this week. I hope it works for everyone's sake.
As for Dec 9, 1999, we could meet later in the day. But we still have e hour drive after we leave you and we have to be at work Friday morning. The earliest we could leave on the 8th is 5:30. That would get us to Andover by 9. Not late for you and I but definitely for [Richard]. He turns to a pumpkin by 10:30. To say nothing about the hour we might reach (town deleted). I may be able to work something out where we could leave GB at 1 on the 8th. Options are there, we just need to know.
Enough already from me. 1 more day and then we can get something into action I hope.
She [Karen] hasn't submitted her withdrawal yet. She was to do that Monday.
...
So far only me and thee think he[Carlson] has a conflict of interest. I still think that the state has him in their back pocket. Other than my 3 hour visit with him and Karen the day before the incitements came down he has made no effort to talk with us or anyone else in Sarah'ss history "before the state" he sure as H cannot be the one to ask Karen to withdraw.
Karen may, on her own decide not to put in her withdrawal but at the time it was what she had to do to get Sarah to NJ for the holiday.
...
Not impression I got. Reason [Karen] want's Hoose to do both is because she is going to withdraw at Carson's request so that takes her out of the picture.
If Karen doesn't call you please keep trying her, She is a dear and a very competent attorney just that life has dealt her a bad hand at the moment.
Pumpkin time. I need to be fresh and alert in the AM
Told you that I had a brief conversation with Sarah a Thanksgiving night. Carlson had no problem with that as Sarah asked to speak with me. Got a call from [Sister] last Friday night. She had gotten a call from Karen. A complaint was made to DPPC that [Sister] had emotionally abused Sarah Thanksgiving night because she had forced Sarah to talk to me. [Another sister] was so furious that she called Carlson directly and spoke with him for 45+ minutes. She made quite a few good points.
. . .
Karen called today. She went into far more detail. Seems that the
investigator from DPPC spent 2 hours with Carlson. Carlson is very definitely on our side now. EW has been given the rope and she is hanging herself. Right now she is in Maine on a "family emergency"?
The actual complaint filed was that [Sister] had forced Sarah to get on the phone and both R and I spoke with Sarah and we told her "-uck you" along with other expletives. Karen is to meet with the investigator this week and it is the feeling that the complaint will be summarily dismissed.Karen has also been in contact with Simons, who is -ull -shit. According to Karen he feels that this whole case is a figment of EW, who is a very sick controlling -itch. Simons volunteered to go to court and present what everis necessary so Sarah can spend X-mas with family if Carlson does not.
Do we dare hope that given this additional information R's case may be thrown out?R has a meeting at 10 tomorrow with Simons, alone, but I have coached him well.
We will be forever grateful for your help and concern. You have given us great hope and re-instilled out courage to fight.
Guess you and I are just pushy broads and there are a lot of insure men out there who can't handle us.
52. Respondent has sufficient knowledge and information to form a belief as to the truth of ¶52.53. In or about October 1999, Mary was referred to the respondent's web site as a source of assistance in disputing false accusations of child rape or sexual abuse.53. Respondent has insufficient knowledge and information to form a belief as to the truth of ¶53 and calls upon Petitioner to prove the same.54. On or about October 31, 1999, Mary contacted the respondent for assistance in contesting the criminal charges against Richard, restoring contact with Sarah, and protecting Sarah from any further abuse.54. Respondent denies the facts as written in ¶54 and calls upon Petitioner to prove the same.55. Mary made her initial contact with the respondent by e-mail. Thereafter, virtually all her communications with the respondent were by e-mail correspondence. The respondent encouraged this exchange of e-mail communications.55. Respondent admits that "Mary made her initial contact with the respondent by e-mail." Respondent admits that most of "all her communications with the respondent were by e-mail correspondence." Mary and her husband phoned Respondent on occasion. 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, her four daughters, her niece Karen, other lawyers. The correspondence supplied to the Weisberg speaks for itself. It shall be uploaded to Respondent's website at56. On about October 31 and November 1, 1999, Mary informed the respondent about, among other things, Sarah's disabilities and placements, the allegations and criminal charges against Richard, the no-contact order against her and Richard, and their legal representation by Simons and Breda. Mary told the respondent that she and her family considered the allegations against Richard to be false and that they feared for Sarah's safety.http://www.falseallegations.com/drano84a-annotated-sano-bill.htm
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.
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 nurseing 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 shodow that is fading and I don't know what to do with out Her.
THANKS AGAIN FOR ALL YUR HELP
Sarah' s Sister S.56. Respondent admits that Mary did so inform her not only about the facts written in ¶56 but also about other facts not stated by Weisberg.57. On or about November 1, 1999, the respondent 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. The respondent told Mary that her fee would be $1.00 per page for this service.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."58. During about the first week of November 1999, Mary sent the respondent a check for $350 and about 360 pages of documents related to the case. The respondent received the check and documents by about November 8, 1999.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 phonecall from Mary on 1 November 1999, as noted in her accounting to Mary. Respondent has no independent memory of the phone conversation, it being over three years prior to this writing. It is likely, however, that Respondent told Mary to see her pricing.htm page on her website, but Respondent cannot state that definitively..
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. Between about November I and November 11, 1999, the respondent 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. The respondent did not tell Mary during this period that there were or would be any additional charge for those services.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." See the box below ¶65 for the strategy and conclusions of Respondent on the "Parker" case.60. On or about November 11, 1999, the respondent informed Mary that she had completed her review of the Barkers' documents. At that time the respondent provided Mary with additional recommendations. Among other things, the respondent recommended that depositions be taken in the protective services action and that she be retained to take the depositions.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 on the agreement as well as on Respondent's pricing.htm page. It is disingenuous of Bar Counsel and Weisberg to think that a client or potential client would not understand that a lawyer would indeed charge for providing legal or consulting services.
60. Respondent admits.61. In her communication to Mary on November 11, 1999, the respondent told Mary that her total charges for all her services to that point, including reading and reviewing the documents and providing strategy recommendations, amounted to $750 for 15 hours of work at a rate of $50 per hour. The respondent further informed Mary that the Parkers then owed her $400 for those services.61. Respondent admits.62. Mary agreed to those charges and sent the respondent a check for $400. The respondent received that check by about November 16, 1999.62. Respondent admits. The check Respondent received was numbered #5743, dated 11/12/99, and in the amount of $400.63. Between about November 11 and 13, 1999, Mary asked the respondent to clarify certain recommendations. Mary also asked the respondent what she required as a retaining fee for further services. The respondent advised Mary that her fees would depend on such factors as the degree of future participation of the Parkers' existing counsel and the time required for her to take the recommended depositions.63. Respondent admits.64. On or about November 13, 1999, the respondent informed Mary that she would accept an initial retainer of $10,000. That same day, the respondent sent Mary a written fee agreement providing, among other things, for her representation of the Parkers in the criminal and protective services cases at a rate of up to $200 per hour for her legal services.64. Respondent admits.65. At the time that the respondent agreed to the $10,000 retainer and forwarded her fee agreement, she represented to Mary that she would place the retainer in an escrow account, withdraw and apply the funds to pay fees for services actually rendered, and notify the Parkers of the charges through interim and final billings.65. Respondent admits.
11/11/99 RESPONDENT: MARY: Elaines "log" was computer generated after her statement to Thibodeau. Yes, it is Exhibit 1. Included Elaine's statement and the drawing of the left Breast and alleged "bite" marks but couldn't see sending as it was A duplicate in packet we received.
RESPONDENT: Her report makes her extremely vulnerable. There is no mention of Ken in it whatsoever. Given that as I read more Reports/statements, it becomes QUITE clear that Sarah is aggressive in seeking out attention from males. (That's what we are in our 20s; hormones they call it. They weren't destroyed by her shocks!) Her aggression toward David, the van man, her co-worker. Where is Ken in all this. The ". . . sex, Baby" bit . . . Ken?? What is Ken and Elaine's relationship? We don't know that.
A/S/K's statements were fantastic. Kevan made the astute observation that nthing was asked about her current surroundings. I may have noted that lack last night. As Cochran would have said, Rush to judgment. Also, EW fails to give any details about what else Sarah does during the day when not at work. She must be bored stiff. Ditto about Sonny.
MARY: They refused to video tape at least the 1st session with the state police. No mention of tapes for any of the rest of it. But there might be.
RESPONDENT: There are probably no tapes but they should be asked for. Let them say in writing, there are none. . . . Withholding evidence, such as exculpatory dr's report, is a NO NO. . . . In later report says, tear at least one week old. This was a month later than home/Sam visit. EW tries to speculate whether it could be 3 wks old. Trooper said gonorella ratrher than Gardinella. They didn't know what they were dealing with.
MARY: "naughty" is not a word Sarah would use. To many syllables. She has always spoken in mono-syllabic words.
RESPONDENT: Good point. Good to hear that.
RESPONDENT: (That's what we are in our 20s; hormones they call it. They weren't destroyed by her shocks!)
11/11/99 MARY: No they were not and she WAS a nice looking young lady. She was always affectionate. We always felt that she used the hugs and kisses because she did not have the language Her aggression toward David, the van man, her co-worker. RESPONDENT: Where is Ken in all this.
MARY: Who knows! Supposedly he was there. He wanted Sarah to live with them. When Dave and Cathy decided to give up the positions as SHC caregivers, somehow E&KW found out. They had met Sarah at some function to which we were not privy. They knew Sarah needed a home and they approached SHC to have her placed with them. They went shopping for a young lady to have in their house. The first time we visited their home Ken was very adament that they wanted Sarah with them.(Sorry but it sure makes me wonder now.)
The ". . . sex, Baby" bit . . . Ken??RESPONDENT: What is Ken and Elaine's relationship?
MARY: We don't know that. I do not know about their relationship but it is very differnt from ours. They do not vacation together. Elaine goes off to Maine for Holidays. Ken goes hunting with his buddies. We also know of Ken's hunting buddies who have been in the house with Sarah. They all have acess to guns and hunting knives.
RESPONDENT: A/S/K's statements were fantastic. Kevan made the astute observation that nthing was asked about her current surroundings.
MARY: Amber also asked officier Thib. why her father was the only suspect and that she felt that everyone should be suspect. OT response was that she couldn't do anything with the information but pass it on to DA as her job was to investigate "SANO"
RESPONDENT: Also, EW fails to give any details about what else Sarah does during the day when not at work. She must be bored stiff.
MARY: Sarah is. She cannot do any of the things she could do. When Sam and Kev met with her in Oct. they were floored with the fact that Sarah couldn't set the table, dry dishes, put them away. She needed help with everything. When asked what she did "nothing" Did you go to movie "Yes" what did you see "donno"
RESPONDENT: Ditto about Sonny. There are comments in EW "log" about Sonny and haircut. There are probably no tapes but they should be asked for. Let them say in writing, there are none.
MARY: Great point. Never thought of it.
RESPONDENT: Elaine mentions you having wanted to remove Sarah from EW's home. Later they put in all details why.
MARY: That is not accurate. DMR did not like Sarah so far out in the boonies. They wanted her moved closer to work etc. Sarah was happy at EW. It was left and stated in IEP's that when Sarah was ready to move on she would let us know. At thanksgiving 1998, Sarah was not "herself" nor at Xmas. In Feb she expressed to us that she was ready for a move. She also expressed that to Sam while in NJ. We talked to her at great lenghts as did Sam. It was our opinion that she was sincere so we put the wheels in progress. And the "shit hit the fan" You have a copy of our concerns about Sarah and that it was her desire to move on. That is what we discussed with Greg Anderson and Jennifer Kline on March 2nd. JK talked with EW on March 4th. Supossedly aon March 8th Sarah began her tales of horror and on March 8th Elaine called Peg Gallegher at SHC. And here we are.
Good stuffRESPONDENT: (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.
It has been our feeling right along that something happened in EW's house and Sarah was told that it had to be their "secret" If she told she would have to leave and no one wanted her. (supported later by her fears that her sisters didn't want her and we haven't seen her in 268 days and we have not even talked to her in 250 days.) Sarah could NEVER keep a secret and I think she was trying to tell me something had happened on when I talked to her on March 7th.
RESPONDENT: Trooper said gonorella ratrher than Gardinella. They didn't know what they were dealing with.
MARY: This is referred to by EW. Sarah "must" have a sexually transmitted desease.
MARY: What do you require as a retaining fee? RESPONDENT: Depends on how much I have to do. If Simons will be around to argue in court, my price will be less because I won't have to drive out there often. If I only have to go out for depos, I can figure that more closely. I would, of course, attempt to schedule the depos one after another. One good feature is that those we want to interview most are NOT people with busy schedules -- like doctors or accountants or psychs or "therapists," who always give a rough time cuz they postpone billable hours. Is Karen going to be available to argue in probate on the discovery issues, if necessary? I'm thinking that $25,000 would be very reasonable in a case like this. It could run less or more. Unpredictable. If you read what I say below, maybe we can get them to crack early. That, of course, would be wonderful, but it's too early for me to say. I haven't met the other players. Read below. More
explanation. More strategy.MARY: to clarify a couple of things. You speak of civil and criminal. Are you referring to a case filed by Amber and Jeff or something we file?
RESPONDENT: A&B and rape = criminal case (4 counts)
Care and Protection ["C&P"] of Sarah = one civil case out of which the restraining order grew to "protect" Sarah from her parents
Amber/Jeff case = a proposed civil case (You say "filed" Have they filed a case already? If so, what, when. and where?)
Because there is already a civil case in which you are involved, you can conduct discovery. In the C&P case, court "leave" [permission] must be sought and you must have "good cause." Mass. Rule of Civil Procedure 81(a) applies. I've attached three cases for you to read. They explain the court's position on discovery in C&P cases. If you have any questions, feel free to ask.
If Amber & Jeff bring a "regular" tort case, the M.R.Civ.P. discovery rules apply and depositions are a matter of course.
In the criminal case against Harry, depositions are ruled by M.R.Crim.P. The rule is called "Depositions to Perpetuate Testimony" and is only allowed under exceptional circumstances "after a showing of materiality and relevance." Used, for instance, when someone is about to die (sickness or infirmity) or when a potential witness is from a state other than Mass.... In crim cases, depos are not for the discovery of information, they are intended only for preserving evidence.
So . . . because it is so difficult to get permission to take a depo in a criminal case, I use a civil case for an excuse to take a depo and then can use the depo to impeach in a criminal case.
We are lucky here -- ironically -- that there is a civil case in which we can take a depo, to wit, the _C&P_of_Sarah_ case. Otherwise, we'd have to hurry and bring another civil case to depose the Dunns and the Wormwoods and Sonny. McCarthy's statement on how to examine was very instructive. Have to get a copy of the SAIDD books. They might even be on Amazon. (The Spiderman sexual abuse book was.)
MARY: When should this be done?
RESPONDENT: Have to think about it. Because I was lucky to find an existing C&P case, the push is less pressing. Although next week, I may decide to push it soon for other reasons. Just didn't have to think about it the last few days because of the existing C&P case.
MARY: Sonny is a severely retarded male. I try not to be prejudiced but he gives me the creeps and Sam also (she is the only other one in family who has met him) RESPONDENT: Yes, his age I discovered ONLY when I began reading YOUR notes. I haven't read all of them yet. (See, I said the holes are more dramatic reading their case first.) As soon as I get off this machine, I will finish them. Also absolutely nothing was said ANYWHERE about Sarah and Sonny living in the basement with a shared bathroom. GADZOOKS!!!!! Net etiquette is constraining my true feeling!
HE'S OLD ENOUGH TO BE HER DADDY. SHE MIGHT MAKE THE DISTINCTION BETWEEN DAD FOR HARRY AND DADDY FOR SONNY. REMEMBER THE GJ TESTIMONY.
GROSS GROSS NEGLIGENCE by SHC/DMR. Equivalent of INTENTIONAL. They knew or should have known what they were doing. Significant for purposes of overcoming immunity. WHAT THE HELL WERE THEY THINKING???????? THIS WAS NOT THE CONTEXT IN WHICH THE UNISEX BATHROOM WAS APPROPRIATE!!!! JUST THINK OF HOW RIGHTEOUS I CAN SOUND. A MADE IN HEAVEN CLARENCE DARROW MOMENT. UNFORTUNATELY AT Sarah's EXPENSE!!!!! AND EVERYONE ELSE'S!
WHAT I HAVE DESCRIBED IS THE ROOT OF AN AMBER/JEFF CASE. Know a few reporters who'd jump on this in a minute. It's a damn potential front-page story. BUT WE NEED THE DEPO of SONNY. Might be worth it to take his first so they won't know where we are heading and what we are going to ask _AND_ they will not have had a chance to prepare him.
But is Peg the one who made the placements? Is she the one who determines who has the winning bid????
It's not Sarah's "credibility and/or abilities" in question here, it's SHC's and DMR's credibility which is in question and the failure of them to use their ability to make a proper placement. It was not only gross but grotesque to put her in a room in the basement separated from Sonny's only by a shared bathroom. Wonder if there is a "naughty chair" in it. No wonder Deb and Harry were never allowed to see Sarah's room. In my other email, I discuss, among other factual a legal issues, (1) how inappropriate a unisex bathroom is in this context and (2) the failure of SHC and DMR and law enforcement to check out the possibility of alternative perpetrators. I see several. With a little sleuthing via discovery, we'll highlight the obvious opportunity by those others. 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 Deb and Harry 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.
11/13/99 RESPONDENT: I'lve 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. To give you time to get financing, of course. Yes, $10,000 for now will be fine. Some kind of payment schedule should also be considered.
Ralph Calderaro, Esq., General Counsel for DPPC filed the Guardianship Petition and it was entered into the docket as Case No. 99-P-0237 in the Berkshire County Probate and Family Court. The title of the case would be In the Matter of the Guardianship of ASarah Sano.
ASarah's case appears also to have been entered in DPPC internal files as Case No. 191-01-93-BRK/10371. . . . They petitioned for a guardian and
Carlson was appointed as Sarah's GAL and attorney. . . . Copies of Karen's file would be helpful. In that way, we can all be on the same wavelength.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 Harry against false charges and that had DPPC/DMR properly investigated the situation, Harry would not be in the defendant's position, Sarah would not be isolated from her family, and you and Harry would not have the need to fight for both Harry 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.
Be sure to tell [Simons] him 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 Sam 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.
11/14/99 RESPONDENT: Researched: attached and sent Feinberg v. Diamant case Nope, not a done deal. I've attached for you the case to which he 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.
But don't anger [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 Harry'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.
11/16/99 RESPONDENT: You should be. I agree that a polygraph should be taken, but it [is of] considerable importance that Harry 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.
Actually, Harry 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. But Seghorn is worth the trip here.
. . .
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 fdoing what is in her best interests. That is what a GAL is for: to do things which are in her best interests.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.
11/19/99 RESPONDENT: See report of Respondent's report of phone conversation with Simon.
11/20/99 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." I use that word in its legal sense, not layman's sense. Her susceptibility to suggestion is, I suspect and as you suggest, spectacularly high: "Sarah says the last thing she is told." If that is the case, she would be "incompetent" in a LEGAL sense, there would be no reliability or credibility for the purposes of testimony. If she were to be adjudicated incompetent, anything she said to Elaine would be inadmissible. Elaine's own opinion SHould be excluded from any jury trial. Because of the access David and Sonny AND Ken had to Sarah, whose aggressiveness is already in writing (by Cathy and David), there is a great possibility of third-party culpability. We spoke about this last week. If I had to guess, I would guess David or Sonny. The naughty chair is intriguing. Would like to use that against them. (I remembr you saying that "naughty" is not Sarah's word. The problem there is we don't know yet whether someone taught it to her.)
Rather than fight for discovery, I'd throw a subpoena on the DA for a number of items. Let her/him produce the items we want because those materials contain exculpatory evidence.
[Note: the subpoenas would be from the CIVIL case.]
I might do the depos first before I throw the subpoenas into the ring.
What I'd like to see is the DA's case whittled down before it gets off the ground.
I'd like an independent psych exam of Sarah, not their psych. Will reread McCarthy's (name?) report.
Massachusetts law has developed a little differently than California's, so I want to check out a few miscellaneous issues. I don't think it matters. Polygrapher called me the other day re another case. He had just been out in Springfield, where Charles Honts had been called in as an expert to convince the court (in a Daubert hearing) to accept the polygrpah results. Go to my site. My polygraph material is from Honts. It's his amicus brief to the U.S. Supreme Court. He had sent me that with loads of other wonderful materials. I'll give him a ring (or email him) this week and ask how he made out in Springfield. I think the local counsel on that murder case was O'Neill. Maybe he knows someone local to Pittsfield. He might even "do" Pittsfield himself, who knows.
be back late tonight.
11/xx/99 RESPONDENT: Pleased about Sarah's planned visit to Sam this week. Have them ask Sonny and David and the naughty chair.
Did Sarah's bathroom in Cathy and David's house have a chair?
Does Sarah's bathroom in Elaine and Ken's house have a chair?Did Sarah's bathroom in Cathy and David's house have a NAUGHTY chair?
Does Sarah's bathroom in Elaine and Ken's house have a NAUGHTY chair?Did David help her with the shower? (We have David's admission, but
nothing like getting Sarah to confirm.)Did Ken help her with the shower?
Did Sonny help her with the shower?
Tell Sam to make sure she differentiates between bathrooms in the same house and bathrooms in different houses.
Have Sam get confirmation that there was ONLY ONE shower incident WHEN HER FOOT WENT THROUGH THE DOOR. It happened in 1984 not 1993. Unlikely another identical or even siumilar event occurred in 1993.
Have a second camera and lots of extra film available. Do NOT, do NOT, do NOT take a chance that one camera will break.
11/22/99 RESPONDENT: Be sure to have lots of extra rolls of film. This may be a good opportunity to learn what Sarah told Elaine this past March. IF IF IF Sarah has the ability to remember. If Sarah does not remember, then you want to be able to show this tape/film (whatever you call those things these days, you know what I mean) on which she CANNOT remember. Then if Sarah comes to trial all prepared to testify, we can prove the words were PUT into ther mouth!!! There is too much to instruct about here. Call me or have Sam call. Give me time to go out and get some cigs. I've been nicotine-fits-ing all day and really have to give in tonight. Will try to stop later this week or next. I need just a few days where no one calls and I don't have reason to swear like a trooper!
11/xx/99 RESPONDENT: You won't get past their secretaries until you pass over $25K, maybe more. These cases can11 run into tens of thousands of dollars easily. I'm trying to look at ways to decrease that possibility.
11/23//99 RESPONDENT: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.
11/24/99 Wednesday Phone from Amber. Wrote email to Samantha. Reviewed three emails from Deb Sano and answered.
11/24/99 SAMANTHA: Hi Just Read the E-Mail Between you And MY mother , I don't Plan on asking Any Questions until friday. And then only if Sarah mentions it first. I find it very odd that Sarah only mentioned this to elaine if it happened before she came to vist me she would have said something to me Instead of telling me she wanted to move home beceause she missed her parents. I will not Presure her into talking she has to feel safe first before she'll say anything and if I'm Right Elaine Has been " Brow Beating" Sarah to say she dose not want to see Her Mom. Elaine Belives That I'm on Sarah's side as far as wanting to be able to see her so I'll be more apt to do things for Sarah Aabout the viedo Cammara We never use one at family events so won't that look a litle odd that we start now? Whats to Prevent them from saying that we stagged the whole thing and that we just didn't tape that part. ( about the Naughty Chair ) a do belive that on one vist to dave and cathy's Sarah should me a chair she sat in when she was bad or having a fit it was in the living room cathy explained that Sarah sits in it when she is upset and acting out until she can calm down. we( [sister] am and I ) also used to make her sit in a chair when she was little. some times she was Straped in with a belt around the waist ( until she learned to undo ) but we never called it a naughty chair .as young kids Sarah was allways getting into things curiosity killed the cat It almost got her a few times. My biggest concern is that anything we do will be constreuded as leading or badgering ... so we wil let Sarah do the Questioning ( we may watch forest gump) got to go for lunch will be home toniight if you want too call
11/24/99 RESPONDENT: See if I can explain: Depending on what appears on the tape, permission will be requested to offer the tape into evidence. There will be considerable discussions as always between lawyers and judge. Which segment of the tape is hearsay, which is covered by an exception to the hearsay rule, etc. -- those will be the kind of issues to be discussed. You guys just leave that to me and to Hoose. You guys just concentrate on getting stuff favorable to our side. Remember, whether or not jury gets to see the tape, the judge does . . . in order to decide various issues about the tape and about whatever MOTIONS we bring. So you guys gather the facts. Let me and Hoose worry about the law. [ about the Naughty Chair]: This is what she must have been trying to tell someone about!
Questions become: Why was Sarah upset????? Why was she acting out????? I still want to know the full story of Cathy and David. His helping her with shower is provocative. I want to know more. How did he help? Was he clothed? Is there chair in their bathroom?
. . . Just be your usual self. Just be your usual INQUIRING self. Don't worry so much about DIRECT or LEADING. First of all, We might be able to get what Sarah said to Elaine and everyone else knocked out because of "legal competency". Lots of tapes showing how difficult it is to get an answer, to show her limitations of concepts of time and of space will be very helpful to that end. If we can get her statements knocked out, Elaine's testimony regarding Sarah's statements will be precluded (kept out).
If Sarah's statements are knocked out because of lack of reliability, truthfulness (not because she's a liar but BECAUSE she doesn't know. You might show that be asking, for example, What did you do on November 1st? What did you do last Saturday night? What did you do two weeks ago? Show what she can answer and what she can't. We're trying to show the limits of envelope. If you ask her the same set of questions on Thursday and the the same set on Saturday, see if you get the same answers. We want to show how suggestible she is, how Elaine is manipulating her.
Don't be afraid of tampering. She's been living with Elaine. It is absolutely clear thet Elaine is subject to possible tampering. Will she be charged? NONONONONONO Will the subject even come up??? NONONONONONo Will you guys be charged? NONONONONONO Will the subject even come up??? NONONONONONo Frankly, my dear, as Rhett Butler said to Scarlett, the courts don't give a damn.
Just try to get me something about Sonny and the bathroom between their rooms. Does Sonny come into her room? Does he enter while she in the bathroom? Are there locks on the doors? These are legitimate questions. Threre are or there are not. A fact is a fact is a fact.
The type of question you want to avoid is: DID SONNY TOUCH YOU YOUR PEE PEE? That is a badddd question. It assumes that Sonny did touch her and we do not know that he did. Did someone touch you . . . . Where ? ? ?
q: Did anyone touch you?
Q. Who touched you>
Q. When>>>
q. WHERE did so-and-so touch you??? [[Cathy's house? elaine's house?
On the arm? breast, peepee?By the way, in Massachusetts, the courts ALLOW ALLOW ALLOW leading questions with children UNfortunately almost all the time . . . although there are only a few cases which sanction it: one eas a case in which the child saw daddy murder mommy; child was traumatized; assistant DA allowed to LEAD child because of the trauma. The other was where a 13-year-old child was brain-injured !!!!!!!! The court allowed leading. Trust me when I say the DA will only lead Sarah.
So just try to find out about Sonny and David. Where has Ken been during all this?
11/24/99 RESPONDENT: Get her prescriptions filled and overnight them to NJ. Or have Sam contact a dr there in NJ and have him give a two or three day prescription. The hell with Elaine.
11/24/99 RESPONDENT: You, too, have a peaceful day. But get her the meds so she can prolong her stay. When Karen gets back, I shall speak to her about ways to get Elaine out of the picture pronto.
11/28/99 MARY: As we understand it Karen was forced to withdraw as our attorney in order for Carson to permit Sarah to go with her. Karen did that.
11/28/99 RESPONDENT: Tell her to reenter her appearance. Anyone can have whichever atty they want. Given that Carlson has a conflict of interest, he sure as H cannot be the one to ask Karen to withdraw.
11/29/99 RESPONDENT (about civil and criminal case psroceeding in parallel): Well, if there is such a statute, I don't know of it. ALSO, I have done them in tandem before. In fact, the very case in my novel was a two-fer. I fed the asst DA the fantastic depos we had AND the jusge's findings from the divorce case. In fact, the divorce-trial judge was so upset that the Commonwealth didn't dismiss the case (it began in DistCt) and that he was indicted (moving the case to Superior Ct), the judge wanted to testify in the crim case on behalf of my client. The other judge got furious -- NOT IN MY COURT, he yelled -- but there was no such statute raised. Get the statute citation from her . . . if she can find it. Well it will be up to Hoose. Tell Hoose that Bill ONeill just had Charles Hunts in for a Daubert hearing in Springfield on the admissibility of the polygraph . . . under Com. v. Stewart (1996).
11/xx/99 RESPONDENT: Well, Hoose thought my depo idea was good. He wanted me to feed him the transcripts. See what he says.
11/29/99 Samantha:
Mrs. Johnson,
Sure wish I'd gotten your message before I left work on Wednesday . we got out at 3:30, I would have been a lot more Inquisitive then I was . as it went we had a nice time I have had better times with her. we talked some on Wednesday night She Had a headache from stress when I asked her she exploded and said that dad had bit her (squeezing her left tit very hard. I would not be surprised if she left a bruise ) I said nothing and she went on to say that she was stressed because she was moving I asked where she did not know I asked when she said soon I asked who said she said Elaine. she also said that Elaine tells her that her nose is ugly and that she is ugly she was upset when I told her Elaine was wrong that she and I had the same nose and that our nose was not ugly and that she was pretty and that Elaine was full of crap. which my wonderful sister promptly repeated Twice .with much glee and enthusiasm. We also talked about doing things we didn't like tried to get Sarah to understand that Elaine was not the boss and she did not have to do everything Elaine said if she did not want to . but we mostly talked about Sarah moving she wants to be close to us (girls) but is afraid (my interpretation) of leaving Elaine's . when asked if her bed set would go to she say's no along with Mentioning working hard for her money as if we would not let her spend her money or she would not be working . yet she loves Elaine (not as much enthusiasm as when she expresses emotion about other people). and is upset because she is moving ... Makes no sense I asked her about our conversation last time she was down to NJ she remembers yet clams up at the mention of what she said gets that look of I really don't want too talk about it she spends all her time with sonny and Elaine Kenny is not mentioned much. as to your other questions Sarah said she and sonny do not share a bathroom ( last Christmas when I went to visit her house on the way down stairs to Sarah's room I noticed shampoo and conditioner o a shelf with out asking Elaine said that they were Sarah's and that because she had to dole out the amount of shampoo Sarah used they left it there were she could get it on her way up stairs to the shower. Elaine also complained that my parents gave Sarah conditioner that she could not use .. along with other comments about things they gave her that were not correct for Sarah as far as Elaine was concerned. we looked at Sarah's room Elaine explained all kinds of things like a hole that Sarah had put in the wall which she made Sarah help paint once it was fixed then she moved a trash can and said that Sarah hid that hole and she found it after they painted the other wall she went on to describe how Sarah dumped a whole bottle of shampoo down the drain and tore Kevan's picture I was shown all the things other people than family had given Sarah but very little of what family had given Sarah . on one occasion when I went to pick Sarah up sonny was down stairs on the last visit Sarah was looking for her games that am had given her Elaine said she thought sonny had them because Sarah left them out Sarah got upset and said no she had put them in her room . she retrieved her gifts and put them away. we went out and when we came back I saw one on the living room coffee table. on conversations with Elaine (she goes on for ever on the phone) she told me that Sarah was down stairs watching t.v. with a male friend that Elaine was afraid to leave them alone because Sarah was a flirt and she didn't want to find them kissing ... I informed her that Sarah would hesitate to tell her and that last time a boy tried to kiss her we heard about it for a week. she was not upset but found , swapping spit as we refer to a deep kiss, strange and distasteful to her. I believe she was very descriptive and forceful in how she felt about being kissed. which is why this whole thing makes no sense if it had happened before she came to see me why would she say she misses mom and dad and there was no time after for it to have taken place and had it taken
11/29/99 RESPONDENT TO SISTER S: Thanks for the info. I'm not sure what L'SRleg.bmp is. Sarah's drawing. If I look at it with my head tilted to the right, I see a picture of labia and opening. If I look at it with my head tilted to the left, I see a picture of opened facial lips. So the questions are, What am I looking at? Did Sarah describe what she was drawing? What do YOU understand the picture to symbolize? I suppose if I opened it an hour from now, I'd see something else. :):) Intriguing is the upcoming move!
Where is Sonny's bedroom in relation to Sarah's? Are there locks on the bathroom door? Does the bathroom open also to Sonny's bedroom? Who was the male with Sarah in her bedroom? Name? Do you know? When did he arrive on the scene?
. . . I'm curious about the entire move. At whose suggestion? The reason? To where?
.. . .Sam must hve told you what it was. She said nothing about the drawing, just attached it. I wrote asking her what it was. If I tilted my head right, it looked like labia and an opening. If I tilted my head left, it looked like open facial lips. Rorshach test. I thought it was something Sarah drew to explain something to Sam. Now I must ask, Who drew it? Sarah or Sam?
Anyway, so you're saying the dark center looks like where the burn was. Is the rest scar tissue?
11/30/99 MARY: I knew with out asking. Friday night Sam called to find out if Karen had gotten back. She then told me of the 2 days and also about the burn on Sarah's leg. This is what EW claims is a was a 2nd & 3rd degree coffee burn occurring Thanksgiving night 1998 See Elaine's Statement.
Sam described in great detail what the size of are was and what it looked like. Sam has had many a coffee burn from working in restaurant business and she has spilled a 1/2 pot coffee down her front with severe burns and none of them ever looked like that.
I had asked Sam is she took a picture, "No because I don't want to be accused of anything" So she drew the picture. Believe that is actual size. ""On the way home in a terrible rainstorm, Sarah spilled some hot coffee in her lap. Within a matter of seconds Harry managed to get from the passing lane to the right side of the road where he stopped and I got out to see if there was a serious burn. I kept asking Sarah and she said NO it didn't hurt.
We took her back to Elaine's. Elaine was not there; she had gone to Maine. Elaine's husband Ken, and their daughter were there. I explained to Elaine's daughter what had happened and that I could not see anything and Sarah said that it did not hurt.
On the next Monday, Sarah left for Disneyworld, in Florida for 10 days. A trip she had been planning and saving for a year. Wed of that week Harry took a call from Elaine that Sarah had been taken to the emergency room in Florida and that she had 2nd and 3rd degree burns on her leg. I was given the number of the Group Supervisor in Florida. I called and spoke with the Agency. Was told by them that Sarah's burn did not look like a coffee burn and it had not been treated correctly in the first place."
RESPONDENT: Anyway, so you're saying the dark center looks like where the burn was. Is the rest scar tissue?
MARY: Yes to all.
12/1/99 SISTER S: the pitcure is of the "burn" mark on Sarah's leg . i drew it there is a sitting area downstairs with a couch and t.v. don't know who boy was but this was about two years ago. there is no lock on Sarah's door that i know of and Sarah would never lock the bathroom door as we do not lock what doors we do have at home. there was never the need . sonny's room would be upstairs next to the upstairs bathroom there is a bathroom down stairs but i do't think Sarah showers in it as that would require elaine too go downstairs. the boy downstairs happened about a year after Sarah moved in with elaine. what about carlson?
12/1/99 RESPONDENT: Wow, the facts you re-iterated are quite different than those I have heard. I thought Sonny's room was down in the basement with Sarah's and that only the bathroom divided Sarah's and Sonny's bedrooms. Can you draw the layout of each floor of Elaine's house? of Cathy and David's house? I'm assuming you were inside both of those houses and that you were able to "wander" around a bit. If so, do you know if any of the bathrooms in those two houses has a chair in it when you were there?
12/12/99 RESPONDENT: Accounting finished.
12/20/99
Dear Deb:I am sorry that you "are very angry , upset and hurt by [my] bill for legal services." I'm sorry that you believe that I was taking "advantage" of you at "such a vulnerable time in [your] life."
Lawyers ALWAYS work with people at a time during which they believe they are vulnerable and lawyers ALWAYS hope, if not expect, to get paid for their work. And although we are lawyers, we, too, must pay our bills.
Yes I did state: "But I warn you, all of this costs money." I tried to spell it out quite clearly. I've put my explanation of costs quite openly on my website at http://falseallegations.com/pricing.htm. There I explain the difference between consulting and representation. The essence of the difference is whether I must file a "Notice of Appearanace" in court and must appear physically in court. If I do, I need a signed contract, because then I am "representing" you.
With consultation, I do not intend to appear in court; I intend only to advise and consult with other attorneys who are representing you and who would control the progress of the case and write briefs and argue them in court.
Because of the distance between Andover and Pittsfield, in this case, I anticipated only being a consultant. For instance, from the beginning, you wanted me to advise (a) Harry's counsel, Richard Simons, on the criminal case and (b) your niece Karen Schultz Breda on Sarah's existing case, and (c) possibly Karen and some other attorney who had been contacted by your family on a potential civil case.
Then you were going to terminate Simon's services and replace him with David Hoose, with whom I also spoke. For a while, it was not clear whether Karen would continue representing your family because of personal reasons.
All time and tasks are outlined in the bill.
(1) Are there any tasks which you believe I did not do?
(2) Are there any tasks with which you were displeased?
(3) Are there any tasks which you believe should not have been done?
(4) Are there any tasks which you believe took too much time for me to do them?
(5) Are there any emails of yours or the girls which I should not have read?
(6) Are there any emails of yours or the girls which I should not have answered?
(7) Are there any phone calls I should have not made in searching for a replacement criminal attorney for Harry?
(8) Is there anything I told you having to do with Harry's and Sarah's cases (not the bill - that is discussed beloe -- just the cases) which you have since learned was incorrect or wrong?
> We began asking you to be on the case November 13, 1999. On November
> 20, 1999 you received a check for $10000 from my sister June Edwards. Your
> were to hold that until you received the signed agreement.That is not accurate. In your email with the heading:
Subject: RE: Visit
Date: Mon, 29 Nov 1999 00:13:57 -0500
From: "dsano" <dsano@bcn.net>
To: "Barbara C. Johnson" <barbaracjohnson@worldnet.att.net>You wrote: "We have been neglect full in that I just found the client agreement under a stack of papers from Falesallegations printouts. Karen read it and her only comment was to have an statement that `in event client elects to terminate this agreement, the unused portion of the retainer be returned within 10 days to client.' We don't see this happening, but if you are in agreement we will add and send signed copies tomorrow."
I responded, "No problem" meaning that I had no problem returning the unused portion of the retainer. . . ." And I did just that: I gave an accounting and returned the unused portion.
There was also nothing in any email that I received any instruction to "hold that until you received the signed agreement."
As you know I never signed returned to you a copy of the attorney-client fee agreement, because it never became clear what the extent of my involvement was to be, that is, whether I was being retained solely for consultation -- which I believed the case to be -- or for representation.
> The only time you can charge us for is from November 30, 1999 through
> December 3, 1999. Or for 1 hour and 36 minutes. And not 29 hours 52 minutes.The proposed cntract does not define the time period for which I can charge. I am entitled to be paid for the services I performed under a theory of quantum meruit. Those services included but were not limited to the following: I
(1) strategized the case for you, told you about a McCarthy motion (to challenge the two indictments for the alleged 1993 action),> Everything we did and said was in good faith and we really believed that you(2) told you who had to be deposed,
(3) told you that there was a civil case (which you did not even realize) under which you could depose the various private and agency workers as well as Elaine,
(4) explained evidentiary matters to you,
(5) brought to your attention legal issues about which no other attorney had informed you,
(6) described how deposition transcripts are priced (so you'd understand the costs involved),
(7) etc. There were so many things that it is inefficient to include a list of them here. Just review the emails and make a list of them. In sum, I educated you and Harry about what had to be done to defend him -- and possibly you -- properly.
> had the same intentions.I did have the intention of working in good and DID work in good faith.
> Looks like we were wrong.
You weren't wrong. You are only upset because the cost of advise cost you evidently more than you had anticipated.
> 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.If you will go to the items numbered (1) through (8) at the top of this email and answer them individually, maybe we can work out a further reduction. As my accounting shows, there are a considerable number of emails and/or tasks which I did NOT charge for.
> We would really like to settle this amicably.
I would too.
> Sincerely.
> Deborah and Harry SanoSincerely,
Barbara
--
Barbara C. Johnson
NOTE: The following email is very confusing. There are three levels of conversation going on at the same time. I think Deb wrote, then I wrote, and next she wrote. But I truly am not sure. I left her new words in the large type and put my old words and her old words in smaller type. If I've done it wrong, I apologize. In any case, I think you can get the gist of the conversation.
12/28/99 RESPONDENT:
Dear Deb and Harry:I'm quite disappointed that you've chosen not to settle this fee dispute amicably but to defame me instead by sending your letter to three and possibly four (your niece Karen) attorneys who do not represent you in this matter. None of them had a need to hear any disparaging or character-assassinating remarks you made about me. That is defamation.
After receiving your emailed letter of the 16th, I answered almost immediately (excluding only the weekend) on the 20th. Yet you chose to still send, on the 21st, your original letter to my colleagues without either my emailed response or the accounting itself.
Without letting them consider either my response or the accounting, you deprived them of the ability to see both sides of the dispute. The only conclusion is that you intended to defame me. If you wanted to gain sympathy, that was not the way to do it.
With that said, I would like to make sweet lemonade from the sour lemon of your act. Perhaps those four attorneys -- Simons, Schultz-Breda, Hoose, and Reddington -- will agree to act as a voluntary informal or unofficial fee arbitration board.
To do that, I would expect that you send them a full and complete copy of the 11-page detailed accounting I sent you and an unaltered copy of my December 20th emailed response to you.
Those documents speak for themselves. Only one comment you made and I answered would I add to: You wrote, "And now you have charged us for double your time. Or for 32 hours. $1601.50." I answered, "All time and tasks are outlined in the bill."
I would add that if you look closely at the bill you will see that I was trying to separate the tasks into those for which I was charging only $50 per hour -- an unheard-of low legal fee -- and those for which I was charging $200 an hour. In so doing, I grouped tasks other than just reading or reviewing your papers into the $50 category. I thought I was doing you a fantastic favor. You thought I was pulling a fast one.
In sum, I believe I gave you excellent advice at an extremely fair price . . . which makes me suggest that you send the four attorneys all the emailed correspondence between us. In that way, they can reach a fair determination of whether my assessment of my work product is valid and the charges reasonable. If you are missing any of the emails, let me know and I'll FAX them to the attorneys.
In ending, I must add that I understand the extreme stress you are under at this time and appreciate that that may have fed into your professed upsetness with me and my accounting.
Hoping that you saw Sarah on Christmas and that New Year's Eve proves to be further relaxing, I remain,
Barbara C. Johnson
cc: In alphabetical order:
Attorney Hoose by FAX
Attorney Reddington by FAX
Attorney Schultz-Breda by FAX
Attorney Simons by FAX
1/9/00 MARY:
Barbara,
Thanks for your 12/29/99 mesage.
Unfortunately this does not apply to us.
Thought you might like to read following.
http://search.newschoice.com/storydisplay.asp?story=/newsarchives/nebe/loc/
20000103/93088_tlocal.txt&storypath=d:\inetpub\wwwroot\newsarchives\nebe
\loc\20000103\93088_tlocal.txt&PUID=2269A rather nice honor.
We are attaching 3 files in response to you accounting etc.
D&H
1/11/00 RESPONDENT:
Dear Deb:I have now taken three-quarters of an hour to download your letters, save them to your directory, take out all the control symbols and try to differentiate what you wrote and what I wrote. I do not have 8 hours now to decipher what it is you wrote and to respond with particularity.
Sorry.
I disagree with many of your comments. Particularly what is and what is not possible to do. I think the wildest and the most dangerous to Harry's liberty is the comment that a probate case is not a civil case, that depos are not possible in a probate case.
BTW, a probate case IS a civil case; it is just not a tort or a contract or an X case. It certainly does involve civil rights and rights to due process and equal protection. For instance, due process is as necessary in Probate and Family Court as it is in Superior Court. Equal protection is necessary in Probate and Family Court as it is in Superior Court. Included in that process and protection are your rights to discovery. If your lawyers do not think so, you ARE in trouble.
I truly do hope that Simon's position and relationship to a retired judge is sufficient to help Harry retain his freedom. If nothing else, all your doubting of him and my comments to him and to you have put him on the ALERT. Has alerted him to your being in the-Big-Brother-is-watching-you mode. That is good. It should work to your advantage. It appears -- if I am reading properly inbetween your very general, vague, unspecific lines -- to have lit a fire under him. If I remember correctly, that was one of your concerns: that he just had a few smoldering and few cold coals under him.
What he has done specifically, you do not say. I think he is making a major error not to bring a McCarthy motion. Of course, to do that CHEAPLY, you should have gotten the papers I told you to get. If you don't, it's on YOUR shoulders.
I will respond further as soon as I get a breather. This is a particularly bad week.
Best wishes,
1/11/00 RESPONDENT: Simons had been appointed by Judge Carhart to the case. It was not the 10 top lawyers of the year, it was 10 lawyers who were involved in 10 significant controversial cases of the year.
2/2/00 MARY: Dear Barb, It has been almost 2 weeks and still no response. We can only assume that you have no intention of replying. For this we are truly sorry. We really expected more of you as a professional.
2/2/00 RESPONDENT: I have been helping people in crisis as well as meeting court deadlines. Sorry if the world seems so dim to you that you believe you are the only ones in it and the only ones I should have on my mind. My mother has also been in the hospital with flu and pneumonia, in rehab, and is finally back home. She is 87+ and I'm the only one left to do all that has to be done. So you're just going to have to wait a few weeks. I would appreciate in the meantime if you were to rewrite your last letter. You were not careful when you wrote the last and your words and mine blended in. You must watch for the ">" signs so that, when your sentences come out, they don't appear in two sizes. It's very confusing to read. I simply do not have the time to pamper you. As I said, it would take my hours to try to figure out what you were saying.
Sorry for the lack of patience on my part. I'm very busy. As you can see, I'm writing this at 4:20 a.m. and have to get to bed.
Barbara
66. The respondent and the Parkers never reached an agreement regarding the nature, scope or cost of any further services by the respondent after November 11, 1999. The respondent never 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 respondent never disclosed to the Parkers that she was or would be charging them for any further services between that date and the execution of the fee agreement. The respondent never informed the Parkers that she was or would be charging them for all their e-mail and other communications.
66. Respondent admits that she "and the Parkers never reached an agreement regarding the nature [and] scope" of further services. Respondent states that it was not 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," for 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. The respondent did not make or maintain complete or accurate
contemporaneous records other time spent or tasks performed in the Parker matter.67. Respondent denies the facts as written in ¶67. Respondent did, indeed, for keep timeslips. If she had no time slips for a task, she did not charge for the task.68. From about November 13 through November 30, 1999, the respondent and Mary continued to exchange e-mail communications. In those communications, the respondent replied to questions and discussed her possible role in the cases in relation to the Parkers' existing attorneys. During 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. The respondent spoke to Simons once by telephone and made calls to other defense attorneys regarding Richard's case. The respondent provided Mary with additional explications of her recommendations and copies of cases in purported justification of her recommendations. The respondent did not tell Mary that she was or would be charging for those services. Mary did not understand that the respondent would be charging for those services prior to execution of the written fee agreement.68. Respondent admits that "[f]rom about November 13 through November 30, 1999, the respondent and Mary continued to exchange e-mail communications."69. During November 1999, the Parkers scheduled a meeting with the respondent for December 9, 1999. The respondent never informed Mary that that she was or would be charging the Parkers for clearing or arranging her schedule to accommodate this meeting.Respondent 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 has sufficient knowledge and information to form the belief that "Mary did, indeed, understand that 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."70. On or about November 22, 1999, the respondent received a $10,000 check representing the Parkers' retainer payment. The respondent then knew that those funds represented, at least in part, an advance payment for services yet to be rendered to the Parkers. The respondent did not place or maintain those funds in a trust account.Respondent has no independent 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 meetingm" but it is unlikely that she did, given that Respondent knew that the tasks she would charge for were already outlined in the fee agreement on her pricing.htm page on her website. It is disingenuous of the Bar Counsel and Weisberg to expect that an attorney before performing each task would remind the client she or he would be charging for that performance. The Parkers clearly knew 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."71. On or about November 24, 1999, the respondent deposited the $ 10,000 retainer check to a non-trust, personal account in her name. The respondent used that personal account for the deposit and disbursement of her own business or personal funds. The respondent commingled at least a portion of the Parkers' funds with her own funds in her personal account.Respondent admits that "[she]then knew that those funds represented, at least in part, an advance payment for services yet to be rendered to the Parkers."
Respondent admits that "[she]did not place or maintain those funds in a trust account but that by the time she placed it into her personal account, she believed she had earned the money, and was therefore justified in putting it into her personal account.
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.72. The respondent never sought the Parkers' permission to hold any portion of their retainer in a non-trust account. The respondent never disclosed to the Parkers that she had deposited or retained their retainer funds in a non-trust account.Respondent admits that "[t]he respondent used that personal account for the deposit and disbursement of her own business or personal funds.
Respondent denied that "[she] commingled at least a portion of the Parkers' funds with her own funds in her personal account," for the value which she estimated for her services up until that point in time exceeded $10,000, but when she deeply discounted the fees to the Parkers, because she knew the they were facing considerable fees for Richard's criminal defense, the total fees she was charging them was less than $10,000. Respondent then sent them a check for the difference. That check was in the amount of was $3,174.50. See the bill on Respondent's website:
72. Respondent admits that she "never sought the Parkers' permission to hold any portion of their retainer in a non-trust account," because at that point it was unnecessary, given that the estimated value of the services already rendered exceeded $10,000.73. On or about November 29, 1999, Mary and Richard signed the respondent's written fee agreement and sent the agreement to the respondent. The respondent received the agreement on or about November 30, 1999. The respondent never signed that agreement or executed any other written fee agreement with the Parkers.Respondent states that a retained is designed to cover the fees of a lawyer as services are rendered. A daily or weekly accounting is not required, nor was it ever promised.
Example one, the so-called trust account -- IOLTA -- which contains interest from the retainers of all attorneys is managed by a trustee who has never informed Respondent when he/she uses that interest for any purpose.
Example two, Attorney E. Chouteau Merrill was named as a trustee of an escrow account containing $43,000 of marital property and was not to remove it without permission of the court, but she did -- over $13,000 of it . Two courts -- Probate & Family Court and the Appeals Court -- refused to do anything. Chouteau -- then about to become a judge -- said she was busy and made a forgiveable mistake for misrepresenting -- lying -- to the court that she had permission of the parties to remove the money. Note that the parties are not the court and that removal without the permission of the court was not only a contempt of the court but a criminal contempt.
Example three, Attorney Gerald L. Nissenbaum, replacing Chouteau as trustee after she became a judge, has also removed funds from that escrow account without permission of the court.
Respondent will not tolerate selective enforcement of laws The hypocrisy and corruption are unacceptable. Respondent deposited into her personal account only money that was hers. It was only her later decision to give a refund to the "Parkers" which make it seem as if she had not earned that money by the time she deposited it.
So Respondent contends that the final sentence of ¶72 is a smokescreen and calls upon Petitioner to prove that such an act is required by any law or decision on any case other than one derived from the Petitioner's own bogus petitions.
73. Respondent admits that she received a signed fee agreeement from the Parkers, but never signed it herself or executed any other fee agreement with the Parkers. As Respondent wrote the Parkers, she did not do so because it never became clear on which cases the Parkers wanted her to represent them or what types of tasks they wanted her to do beyond the consulting she was doing at the time.74. Thereafter the Parkers decided to continue with Simons's representation of Richard. Simons informed the Parkers that he would not work with the respondent in any capacity.74. Respondent has insufficient knowledge and information to form a belief as to the truth of ¶74 and calls upon Petitioner to prove the same. See box of email excerpts above. The Parkers vacillated. One day Simons was IN, the next day "OUT." For those reading this on the web, click here. Whether Simons was on the criminal case until the end is unknown to Respondent, although Respondent would guess Yes. Simons' father is a retired Superior Court judge and likely has considerable influence in the Pittsfield legal and/or judicial community. It was for this reason that Respondent told the Parkers to keep Simons as [Richard's] criminal defense counsel. It appeared to Respondent that it was a situation in which it would not be a matter of what Simons knew but of whom he knew!75. On or about December 3, 1999, Mary notified the respondent that she and Richard were canceling the fee agreement and discharging the respondent effective immediately. Mary asked the respondent to provide an itemized bill, deduct any additional charges from the $10,000 retainer, and return the unused balance.As to Simons' opinion of Respondent: the only information Respondent had about this subject is also in the box of email excerpts above. For those reading this on the web, click here.
"Mary" had sought Respondent's advice regarding her and her husband's interaction with Simons. See the box below for some of the email exchanges between Mary and Respondent about Simons.
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: 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 Simon 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 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.
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.
Then, of course there are the letters between the so-called Mary Parker and myself over the disagreement about my bill. 75. Respondent admits.76. By December 3, 1999, the Parkers had paid the respondent a total of $10,750. That sum consisted of $750 for the respondent's initial review and recommendations through November 11, 1999 and $10,000 as an advance payment for anticipated services pursuant to the written fee agreement.76. Respondent admits that "[b]y December 3, 1999, the Parkers had paid the respondent a total of $10,750."77. The respondent thereafter prepared a bill showing total fees of $7,575.50 for services to the Parkers from November I through December 1, 1999, including $1,601.50 for 32.03 hours at $50 per hour and $5,974.00 for 29.87 hours at $200 per hour. After credits for the Parkers' payments, the bill showed a refund due the Parkers in the amount of $3,174.50.Respondent deniesthat 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 do that. The emails were incessant. Respondent tried to determine from the logorrheic Mary Parker and her daughters what services they wanted Respondent to perform. Respond 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. See Respondent's emails, a sister's Thank You letter, and Mary's Thank You letter after the attorney-client relationship had ended. For consulting, Respondent was entitled to be paid on a quantum meruit basis, i.e., payment for services rendered, not as a payment pursuant to a written fee agreement.
77. Respondent admits.78. On or about December 12, 1991, the respondent sent Mary her bill and a check for $3,174.50 drawn on her personal account. The respondent retained the balance
of the Parker payments.78. Respondent admits.79. The respondent's bill to the Parkers set forth time and tasks aggregated by date and listed the e-mail communications between the respondent and the Parkers. The bill did not itemize the claimed time spent by the respondent on specific tasks included in the daily aggregates. The bill included duplicate charges for the same services.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."Respondent denies that the "bill did not itemize the claimed time spent by the respondent on specific tasks included in the daily aggregates," and as the basis of her denial incorporates as if set forth herein this paragraph the commentary she has added in the rightmost column to the tabular format of the bill, which she has inserted into this Answer. In that commentary, Respondent notes in each instance whether a further breakdown of time is possible or even appropriate. Only the tasks noted in one entry might have been further broken down. The total funds sought by that entry of 20.53 hours are $1349, a charge made up of 18.38 hours at $50 an hour, equaling $919.00, and of 2.15 hours at $200 an hour, equaling $430.00. The total of $1349 resulted after a deduction for 10 minutes, an typographical error Respondent noted while writing the rightmost column when preparing this answer.
Respondent denies "duplicat[ing]charges for the same services.". That which 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. The time spent was the time spent, despite the inadvertent mistake of listing the heading of an email twice.
Because the email which reads 11:11 was put first in the list, before the later entries, Respondent believes she must have in haste mistaken the email as having been completed at 11 in the morning rather than 11 at night -- since all computer-supplied the times are in military format, which makes 11:00 p.m. into 23:11:17 hours.
Clearly such a mistake simply does not rise to the level of misdoing to be incorporated into a complaint by the Bar in a disciplinary proceeding.
80. The respondent's bill to the Parkers was inaccurate and intentionally false, deceptive, or misleading. Among other things,
80. Respondent denies that her "bill to the Parkers was inaccurate and intentionally false, deceptive, or misleading".and calls upon Petitioner to identify those facts which Petitioner alleges are inaccurate or intentionally false or deceptive or misleading and then to prove that those facts are sufficient to be deemed inaccurate or intentionally false or deceptive or misleading, and next to prove that inaccuracy, falsity, or misleading are the legal equivalents, respectively, of dishonesty, fraud, and misrepresentation, which are the terms used in M.R.Prof.C. 8.4, which Respondent is charged with violating.Respondent further states that charges of dishonesty, fraud, deception, misrepresentation are legal issues which are within the province of a jury and that a hearing before a hearing officer or a panel selected by the Board usurps the duties of a jury. For this reason, the Respondent demands a trial before a jury of her peers.
A. the fees of $1,601.50 listed in the Parkers' bill were claimed by the respondent for services between about November I and November 12, 1999 for her initial document review and recommendations. The respondent charged and collected those fees in , violation other prior agreement to charge the Parkers $750 for the same services.81. Because the respondent did not make or maintain a complete or accurate itemized breakdown of her time and charges in the Parker matters after November 11, 1999, the reasonable value of her services cannot now be determined.80A. Respondent denies and calls upon Petitioner to prove the same. Respondent incorporates as if set forth herein by reference her emails (see the excerpts from Respondent's emails), the pricing.htm page (<http://www.falseallegations.com/pricing.htm>) on her website and attached hereto as Exhibit A, and, of course, the bill itself.B. The fees of $5,974.00 listed in the Parkers' bill were claimed by the respondent for services after November 11, 1999, including "strategy" or other "consulting" services purportedly rendered in accordance with the pricing structure on her web site. The Parkers never authorized the respondent to charge or collect those fees pursuant to the pricing structure.80B. Respondent denies and calls upon Petitioner to prove the same. Respondent incorporates as if set forth herein by reference her emails (see the excerpts from Respondent's emails), the pricing.htm page (<http://www.falseallegations.com/pricing.htm>) on her website and attached hereto as Exhibit A, and, of course, the bill itself.C. To the extent that the respondent was entitled to compensation for services after November 11, 1999, her listed fees included substantial charges not covered by the pricing structure and did not differentiate between covered and uncovered charges. The listed fees included charges for services that were unsolicited or unnecessary. The respondent based those fees on intentionally inflated, undocumented or inaccurate claims of time spent on listed tasks, including, among others, the following charges at $200 per hour.80C. Respondent denies and calls upon Petitioner to prove the same. Respondent incorporates as if set forth herein by reference her emails (see the excerpts from Respondent's emails), the pricing.htm page (<http://www.falseallegations.com/pricing.htm>) on her website and attached hereto as Exhibit A, and, of course, the bill itself. The Parkers sent Respondent $10,000 because they knew that further consultation with her would be charged at $200 per hour. Their emails to Respondent set out their pleasure with the services which Respondent rendered to them: one of Mary's Thank You letters, a sister's Thank You letter and Mary's Thank You letter after the attorney-client relationship ended.(1) $464 (2 hours, 19 minutes), purportedly for reading and answering two e-mail messages on November 12, 1999 and for transmitting copies of three cases of little or no relevance to the Paricer matters;(2) $ 1,006 (5 hours, 2 minutes), purportedly for reading and answering two e-mail messages on November 13 and November 14, 1999 and for transmitting a copy of one case cited to the Paricers by Simons;
(3) $276 (I hours, 23 minutes), purportedly for reading and answering three e-mail messages on November 14 and November 16, 1999;
(4) $434 (2 hours, 10 minutes), purportedly for writing and reading answers to two e-mail messages on November 19 and November 20,1999;
(5) $916(4 hours, 35 minutes), purportedly for calls to other defense attorneys lasting a total of about nine minutes and for reading and answering three e-mail messages on November 22, 1999;
(6) $760 (3 hours, 48 minutes), purportedly for a 14-minute telephone conversation with Maiy, telephone conversations of undisclosed length with other defense attorneys, and reading and answering one e-mail message on November 23, 1999;
(7) $590 (2 hours, 57 minutes), purportedly for reading and answering three e-mail messages on November 24, 1999;
(8) $880 (4 hours, 24 minutes), purportedly for reading and answering four e-mail messages on November 29, 1999 and for continuing a hearing in another case to accommodate her planned meeting with the Parkers.
80C(1)-(8). 80C. Respondent calls upon Petitioner to prove that these charges were "unsolicited or unnecessary [or that Respondent] based those fees on intentionally inflated, undocumented or inaccurate claims of time spent on listed tasks," and incorporates as if set forth herein by reference her emails (see the excerpts from Respondent's emails), the pricing.htm page (<http://www.falseallegations.com/pricing.htm>) on her website and attached hereto as Exhibit A, and, of course, the bill itself.81. Respondent denies and calls upon Petitioner to prove the same. See the bill itself.82. The fees charged and collected by the respondent in the Parker matter were clearly excessive.82. Respondent denies and calls upon Petitioner to prove the same. See x, y, and z. Discovery. Fees in the community.83. In December 1999, Mary notified the respondent that she and Richard disputed all the respondent's charges in excess of about $1,100 Mary asked the respondent for a further refund of about $6,400 from their retainer. The respondent did not thereafter place or retain the disputed amount in a trust account83. 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. Mary wrote to Respondent the following: "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."84. During December 1999 and January 2000, Mary made repeated demands on the respondent for an additional refund. The respondent refused any further refund.Given 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. Respondent believes that June Edwards, Mary's sister who wrote the check for $10,000 and given to Respondent, is Karen's mother and if not Karen's mother, another aunt. Where Mary and her husband were short of money to pay legal fees -- see proof and more proof and more proof -- and June Edwards was at risk for not getting the money back from Mary, Karen had an ulterior motive, it is believed, to get the $10,000 returned to her mother/aunt Edwards. One way to accomplish that was to force Respondent to return the money to Mary, who then would have it to return to June Edwards.
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.
Amongst other facts, Mary and her husband were vascillating 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."Simons did not like Mary. She was troubled about this, and wrote the following to Respondent:"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."
"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.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.""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 admits that she "did not thereafter place or retain the disputed amount in a trust account."
84. Respondent denies the facts as written in ¶84. In the first two boxes below, Respondent has put the emailed letters of December 20th from Respondent to Mary and from Mary to Respondent. In the third, fourth, and fifth boxes below, Respondent has put other letters written in January and February.Respondent mailed another $343 dollars to Weisberg to send to Mary when an arithmetic error was discovered. Prior to that as the first two boxes below show, Respondent suggested voluntary arbitration conducted by the four attorneys to whom Mary wrote in lieu of responding to Respondent.
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. In April 2000, the Parkers filed a request with the Office of Bar Counsel to investigate the respondent The respondent received a copy of the request for investigation in due course and submitted responses. 86. In about October 2000, all the criminal charges against Richard were discontinued.85. Respondent admits that she received from the Office of Bar Counsel a document purporting to be a complaint submitted by the "Parkers;" however, the complaint is dated 13 March 2000 and date-stamped received by the Office of Bar Counsel on 16 March 2000. 86. Respondent denies the fact as written, given that there is in the criminal arena no such disposition known as "discontinued." With that said, Respondent is with insufficient knowledge and information to form a belief as to the truth of the alleged disposition of the four criminal charges against Richard.87. In about May 2002, bar counsel informed the respondent of an arithmetic error in her bill in the amount of $343 in the Parkers' favor. The respondent then remitted another $343 to the Parkers. The respondent has not made any further repayment to the Paikers to date.87. Respondent denies that "[i]In about May 2002, bar counsel informed the respondent of an arithmetic error in her bill in the amount of $343 in the Parkers' favor." Respondent has never, in fact, been able to communicate with Bar Counsel, although she did on several occasions leave a voice message for him, but he never gave her the courtesy of a return phone call. Respondent admits that she did "remit another $343 to the Parkers"indirectly through Wesiberg and that she "has not made any further repayment to the Parkers to date."88. On or about December 13, 2002, bar counsel notified the respondent that formal disciplinary proceedings would shortly be instituted against her and that the disciplinary charges would involve, among others, the Parker matter. At that time bar counsel cautioned the respondent against posting on her web site or otherwise disseminating any confidential information without prior authorization.88. Respondent denies that she ever spoke to Bar Counsel. In fact, Respondent has never had any direct communication, either telephonically or in writing, with Bar Counsel Daniel Crane. Respondent, therefore, further denies that Bar Counsel has notified her of anything.89. On or about December 19, 2002, the respondent posted on her web site the Parker bill, correspondence between her and Mary, and copies of her responses to the Parkers' request for investigation. The posted materials disclosed confidential information gained in the course of her professional relationship with the Parkers, including, among other things, the identities of Richard, Mary, Sarah, their attorneys, and other members of their family, Sarah's history and disabilities; the history and particulars of the sexual abuse allegations; and communications by or between the respondent, the Parkers and other counsel.Respondent does admit, though, that she spoke with Assistant Bar Counsel Weisberg on numerous occasions over the past several years and on at least two occasions had oral communication regarding the "Parker" matter with Weisberg, but Respondent has no independent memory of the dates on which she and Weisberg spoke.
Respondent therefore calls upon Petitioner to prove that "[o]n or about December 13,2002, bar counsel [or Weisberg] notified the respondent that formal disciplinary proceedings would shortly be instituted against her and that the disciplinary charges would involve, among others, the Parker matter."
Weisberg often told Respondent that she would finish her investigation soon, and when asked by Respondent -- checking on the new status of the charges -- whether charges were going to issue, Weisberg on several occasions said, in words for all intents and purposes, "I did NOT say that charges would issue."
So 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 Parker matter."
Respondent further denies that Bar Counsel himself or Weisberg ever at any time "cautioned the respondent against posting on her web site or otherwise disseminating any confidential information without prior authorization."
First, Daniel Crane never cautioned Respondent about a thing. And although evasive and noncommital and consistently maintaining that the decision to bring charges would not be hers, Weisberg sounded friendly, and to Respondent's complaints that the Bar's actions were excessively time-consuming and were interfering with her obligations to other people, Weisberg was sympathetic. Respondent at all times, therefore, held out hope that charges would not be brought.
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. In fact, after the campaign, Weisberg's friendliness came to an end and she sounded, instead, hellbent on bringing charges.
As to the posting to which the Petition refers: Respondent shall move for a more definite statement regarding the statements in ¶88, which is too broad and vague for Respondent to respond to intelligently. Therefore Respondent neither admits not denies, for she does not know to which word(s), phrase(s), sentence(s), or section(s) of the posting Bar Counsel is referring.
89. Respondent admits that "[o]n or about December 19, 2002, the respondent posted on her web site the Parker bill, correspondence between her and Mary," but denies that she uploaded "copies of her responses to the Parkers' request for investigation." Amongst the documents which Respondent uploaded were copies of her responses to Weisberg regarding the Parkers' alleged request for investigation.90. The respondent never obtained or sought the Parkers' permission to disclose or disseminate confidential information about them on her web site. The respondent did not notify the Parkers before posting that information of her intention to do so.Specifically the documents Respondent uploaded to her website regarding the Parker situation were (1) the original bill, dated 12 December 1999, (2) an email dated 20 December 1999 to Deb in response to one of her emailed letters, (3) a letter dated 28 December 1999 to Deb Sano in response to one of her emailed letters, (4) a letter dated 19 April 2000 to the Bar in response to the Complaint, (5) a link to the annotated bill (dated 19 April 2000) replete with all the emails (in entirety) cited in the original bill, about which Weisberg threatened Respondent not to upload and which, now that a public complaint has been lodged against Respondent concerning the matters in that "annotated" bill, Respondent shall be uploading, and (6) a letter dated 8 May 2000 to the Bar, and (7) a letter dated 11 September 2001 to the Bar.
Respondent states that given that the Bar's cover letter informed Respondent that the proceedings were public, it made logical sense that the documents concerning the factual circumstances out of which the Bar's Petition arose could also be made public. Either a subject is public or it is not.
Respondent denies that "[t]he posted materials disclosed confidential information," although Respondent does admit that the information contained in the postings was "gained in the course of her professional relationship with the Parkers," curiously a professional relationship which the Parkers claimed was non-existent because the attorney-client fee agreement was not executed, having been signed only by the Parkers.
So Bar Counsel and Weisberg must make up their minds: either Respondent had an attorney-client relationship with the Parkers or she did not. If there was no such relationship, then the confidentiality issue is moot. If there was no such relationship, then the Bar's complaint against Respondent is frivolous and misplaced and is interfering with Respondent's advantageous business relationships. Thus, assuming there was no attorney-client relationship, as the Parkers contend, Respondent denies that she published any confidential information. Of course, Bar Counsel and Weinberg cannot make up their mind, and if they have, they have not adequately communicated what is in their minds to Respondent.
Further, 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 systems as well as by the State agencies. At all times, Respondent published only facts favorable to the Parkers or facts reflecting their position on all matters.
Sarah, of course, because of her mental challenge, has no knowledge whatsoever of the website and even if she did learn of it, would not be able to understand it. Her vocabulary is limited to words of one syllable and has no knowledge of the concepts of time or space. The members of Richard and Mary's family are like the family members of other defendants. Their names and visages are known and often disseminated on television and in newspapers and magazines.
Nothing published by Respondent about the Parkers, their family members, or their attorney, Richard Simon, was untrue, which is why no one has sued Respondent for defamation.
90. Respondent admits that she "never ... sought the Parkers' permission to disclose or disseminate ... information about them on her website,"but denies both that she never obtained permission from the Parkers to disclose or disseminate their story on her website: writing Respondent on 12 December 1999, after their relationship was ended, Mary Parker wrote to Respondent:91. The respondent never obtained or sought the permission of anyone authorized to consent for Sarah before posting confidential or personal information about Sarah on her web site. The respondent did not, before posting that information, inform anyone authorized to consent for Sarah other intention to do so.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. . . .Respondent also denies that the information was"confidential.". Respondent admits that she "did not notify the Parkers before posting that information of her intention to do so."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,"but denies both that she never obtained permission from the Parkers to disclose or disseminate their story on her website (see ¶90 immediately above).92. By letter dated December 23, 2002, the Parkers, through their counsel, William Simons, made demand on the respondent for the immediate removal of their confidential and personal information from the web site. The respondent received that letter by about December 26, 2002.Respondent also denies that the information was"confidential or personal." Respondent admits that she "did not, before posting that information, inform anyone authorized to consent for Sarah other intention to do so."
92. Respondent admits receiving a letter from Retired Judge "William Simons,"who represented 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," but literally "ordered" her to remove the material. Given that the retired judge, once again simply a practicing attorney, no longer had the authority to order Respondent to do anything, Respondent took offense at what she perceived as a blatant, impolitic attempt to intimidate Respondent.93. On or about December 26, 2002, the respondent informed William Simons that she would or might remove the Parker posting from her web site, but only if the Parkers withdrew and effected the dismissal of their bar discipline grievance against her.Respondent has no independent memory as to when she received the letter from William Simons, and calls upon Petitioner to prove when Respondent received the letter.
93. Respondent denies the statement as written, for it does not sound correct. Respondent does not deny leaving a reactive message on William Simons' answering machine, but does not remember her exact words. About the only thing she definitely remembers, however, is that she stated she was pleased that he, Simons and his clients, agreed that there was no defamation, because everything posted was true.94. To date, the respondent has refused or failed to remove any confidential or personal information about the Parkers or their family from her web site.Respondent assumes that Simons kept the tape and gave the Bar a copy of it. Given, however, that the Assistant Bar Counsel has skewed other facts in this Petition, Respndent is both unwilling and unable to accept as definitive Weisberg's alleged re-iteration of what was said in the message and might be on a tape.
So, Respondent calls upon Petitioner to prove that "[o]n or about December 26,2002, the respondent informed William Simons that she would or might remove the Parker posting from her web site, but only if the Parkers withdrew and effected the dismissal of their bar discipline grievance against her."
94. Respondent admits that she "has refused or failed to remove any . . . information about the Parkers or their family from her web site."She denies, however, that the information was or is "confidential or personal."95. By charging and collecting a clearly excessive fee in the Parker matter, the respondent violated Mass. R. Prof. C. 1.5(a), as set forth in ¶128 below.95. Respondent denies in its entirety the statement, " By charging and collecting a clearly excessive fee in the Parker matter, the respondent violated Mass. R. Prof. C. 1.5(a), as set forth in ¶128 below."Taking each of the eight facts in Rule 1.5(a) one at a time, Respondent states the following:
(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, Repondent'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 $7232.50. Respondent's was providing consulting services rather than representation, and more than one case was involved: one was the criminal case, one was to be brought on behalf of Sarah, one was an existing guardian case. 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 (see box below) -- was great, time was considered of the essence (Factor #5):
From:Deborah T Sano
To: Barbara C. Johnson
Date: Sun, 31 Oct 1999 22:16:48
Date: Sun, 31 Oct 1999 23:40:17
Date: Mon, 1 Nov 1999 09:35:30
Date: Tue, 2 Nov 1999 21:19:36
Date: Wed, 3 Nov 1999 18:41:30
Date: Wed, 3 Nov 1999 23:28:42
Date: Thu, 4 Nov 1999 21:07:28
--
Date: Mon, 8 Nov 1999 23:53:10
Date: Wed, 10 Nov 1999 21:49:25
Date: Thu, 11 Nov 1999 09:26:08
Date: Thu, 11 Nov 1999 19:17:35
Date: Thu, 11 Nov 1999 23:51:12
Date: Sat, 13 Nov 1999 20:48:33
Date: Sun, 14 Nov 1999 00:00:46
Date: Sun, 14 Nov 1999 09:24:00
Date: Tue, 16 Nov 1999 00:48:30
Date: Tue, 16 Nov 1999 09:47:22
Date: Tue, 16 Nov 1999 10:17:06
Date: Thu, 18 Nov 1999 00:38:11
Date: Fri, 19 Nov 1999 08:44:56
--
Date: Sat, 20 Nov 1999 00:01:07
Date: Sat, 20 Nov 1999 01:24:06
Date: Mon, 22 Nov 1999 11:35:35
--
Date: Mon, 22 Nov 1999 21:38:30
Date: Mon, 22 Nov 1999 23:36:52
Date: Tue, 23 Nov 1999 21:27:17
Date: Wed, 24 Nov 1999 22:24:29
Date: Wed, 24 Nov 1999 23:31:48
Date: Thu, 25 Nov 1999 23:34:22
Date: Sun, 28 Nov 1999 00:05:23
Date: Mon, 29 Nov 1999 00:13:57
Date: Mon, 29 Nov 1999 01:16:38
Date: Mon, 29 Nov 1999 20:30:47
Date: Tue, 30 Nov 1999 08:46:26
Date: Fri, 3 Dec 1999 10:20:59
Date: Sat, 4 Dec 1999 19:46:08
CC: Jeff & Amber Tufts, Samantha
Sano-Gross, Kevan and Geof
O'Brien
Date: Sat, 4 Dec 1999 22:41:27
CC: Samantha Sano-Gross, Samantha
Sano, Jeff & Amber Tufts, Kevan
and Geof O'Brien
Date: Sun, 5 Dec 1999 09:02:34
Date: Mon, 6 Dec 1999 00:33:35
Date: Sun, 12 Dec 1999 19:03:58
Date: Mon, 20 Dec 1999 18:41:01
--
--
Date: Sun, 9 Jan 2000 23:02:28
--
Date: Wed, 2 Feb 2000 00:21:42
Date: Wed, 2 Feb 2000 18:34:50
From:Kevan Sano-O'Brien
To: falseallegations.com's Guestbook
Date: Wed, 29 Sep 1999 22:15:37
From:Geof & Kevan O'Brien
To: feedback@falseallegations.com
Date: Thu, 04 Nov 1999 20:31:07
From:Samantha Sano-Gross
To: Barbara C. Johnson
Date: Sat, 6 Nov 1999 11:10:11
Date: Wed, 24 Nov 1999 13:39:20
Date: Mon, 29 Nov 1999 16:03:41
CC: Amber, Kevan, Deb, shop
Date: Mon, 29 Nov 1999 16:15:20
Date: Wed, 1 Dec 1999 08:54:02
Date: Wed, 1 Dec 1999 13:04:21
CC: Deb, shop
From:Jeff & Amber Tufts
To: Barbara C. Johnson and Deb Sano
Date: Fri, 12 Nov 1999 00:48:30From:Barbara C. Johnson