#90C, Part III -- Drano Series
Count 3 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.htm
COMMONWEALTH 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 DEMAND100. Between about 1992 and 1998, the respondent represented Rose Coughlin in a wrongful termination action against HMM Associates, Inc., its parent company, and two of its employees (Coughlin action)Count III 100. Respondent admits that she brought suit on behalf of Lily in 1992 "in a wrongful termination action against HMM Associates, Inc., its parent company, and two of its employees (Coughlin action)." At an undisclosed date, HMM and its parent company, Summit Environmental Group, Inc. ["Summit"], were acquired and/or merged with Earth Technologies Corp (USA) ["ETCUSA"]. On 11 December 1995, Tyco International, acquired HMM, Summit, and ETCUSA. ETCUSA and Tyco were, respectively, the first and second successor corporations. In 2003, the U.S. Attorney's office caused the 38 or 39 indictments against Dennis Kozlowski, CEO of Tyco, for "taking" $600 million dollars from Tyco. Kozlowski is out on $100 million bail. At the time of Respondent's wrongful incarceration on 17 December 1998 by Concord District Court Judge Paul McGill, the opposing counsel, Mark C. O'Connor, a partner of Rich, May, Bilodeau, and Flaherty, was in the pay of the alleged felon Kozlowski. Respondent suggests the possibility that Judge McGill was also.101. The respondent commenced the Coughlin action in the Middlesex Superior Court (superior court) in December 1992. The action was transferred by the superior court to the Concord District Court (district court) in August 1994.101. Respondent admits.102. On or about January 4, 1995, the district court entered a discovery compliance order for the respondent to inspect documents and pay for supervision of the inspection at $55 per hour. The defendants incurred costs in setting up the document inspection. Without justification or adequate prior notice to counsel for the defendants, the respondent failed to appear for the scheduled inspection.
TABLE C. MONEY ALLEGED TO BE OWED 1995 Orders (in dollars) 1996 Orders in dollars
3/3 3/22 4/5 4/19 10/4 or 10/5 12/13 1/6 1/17 2/8
fees 0 $261.25 (to be paid that same day). $558 (to be paid that same day)
written in endorse- ment but not on Paper #165$720 J&S
Judge wrote he erred in assessing $720 J&S.
It should not have been jointly
costs 0 No amount stated No amount stated No amount stated No amount stated No amount stated No amount stated No
amount statedNo amount stated fines 0 $50 day J&S for
3/10-3/22
(retroac-
tively
applied).
No date by which to pay$650 J&S
(50 per day for 13 days)
No amount stated.
Pay by 12/20
Final Judgment on the Merits
$3809.25 in Final Judgment
on the Merits
-- Paper #179.None of the known monetary assess-
ments
add to $3809.25
$3809.25
On 2/8 , Amended final judgment reduces payment from $3809.25 to $261.25 error
Contempt of orders on Papers #157 and #162 Johnson did NOT as Judge wrote admit to contempt
error
$558 on Paper #165, but not in #165
noteworthy
On 3/3
Judge McGill allowed O'Connor's
opposi-
tions (served that day on Johnson in court at the posium)
to Johnson's Motions
#151 and #152, but never wrote the reasons in any order.The $261.25 was in O'Connor's Motion #157..
Complaint subject to dismissal. Judge did not mention or write about
Motions
#151 and #152 on 3./22.He wrote about O'Connor's
Motions #157 and #165,.Judge did also NOT write about OConnor's oppositions #159 and #162 to Johnson's Motions .#151 and #152.
Complaint subject to dismissal
unless and until the penalty, costs,
and fees are paid
in full.Entry of Final Judgment on the Merits. Retrans-
ferred to Superior CourtJudge Neel sent back to CDC for Further
Civil Contempt Proceed-
ingsBack in District Court. O'Connor moves to amend final judgment into a judgment of contempt.
No further accruals except as to atty's fees.
Complaint remains dismissed unless and until $3809.25
is paid.Case may be reopened
on merits upon motion and after further hearing.Contempt hearing stayed until 12/13
No contempt hearing. Contempt hearing stayed until
12/22.No eviden-
tiary
hearing held on 12/.22.Once the contempt is purged, Lily's case may be reopened on
motion.Unspeci-
fied motions of Johnson's were deemed "meritless and frivolous" and found her in contempt.Johnson guesses
he meant Papers
#151 and #152, but they had been filed on 2/24/95,
11 months prior to this date.
Johnson
contempt
severed from
Coughlin
case on 2/8.Assigned new docket number
on 2/13.This was civil contempt
as per 9/4/96 memo.Paid $261.25
but Coughlin
case not restored.O'Connor's
affidavit$504 and $216, totaling $720, for writing two opposi-
tions #159 and #162.
The amounts do not appear in the oppositions, but in O'Connor's affidavit
3/03/95 Order: Non-existent.
No cross-examination allowed.
Motion taken under advisement.
_______________________________________________________________________________________
3/22/95 Order: $1208 in sanctions and threatened dismissal of the case should they not pay. [A216 (handwritten endorsement) and A300 (typed on docket sheet for 3/22/95)]. The monetary sanctions were comprised of attorney's fees and a $50 daily fine imposed RETROACTIVELY from March 10 to March 22. Id. March 10 appears to have been an arbitrarily chosen date.An additional $558 on Paper 165, but Paper 165 contains no such amount in it.
Johnson had been ordered to pay some sum of money, found in contempt, and fined $2178.00, all in one fell swoop, even though she had already said she couldn't afford to pay even the $261.25 [A197, A200]. Then it was her saying that she was unable to pay that provoked Judge McGill into ordering that either Johnson or Lily were to pay the $261.25 [A199]. Johnson objected and argued that punishing her client for something which the court believed Johnson did was improper [A200-201, A204-205].
_______________________________________________________________________________________
4/05/95 Order: A penalty of $650 was assessed, but it was unclear to whom and by when it was to be paid. According to an appellate panel at [4-5], the $650 was imposed for two reasons: (a) for an admission and (b) a civil penalty of $50 for the 13 days since the March 22d hearing.
_______________________________________________________________________________________
4/19/95 Order: Final Judgment on the Merits with alleged damages of $3809.25 (#176, #179) [A1149-51, 65]. None of the known monetary assessments add to $3809.25, the amount in the Final Judgment. The amount appears only in O'Connor's Motion #176.
_______________________________________________________________________________________
10/04/95 Order: "No further accrual." The order does not say accrual of what. Orders that complaint is to remain dismissed "unless and until $3809.25 is paid," but does not say by whom or to whom, or by when.
_______________________________________________________________________________________
12/13/95 Order: On 13 December 1995, O'Connor sought not only payment of fines which he computed amounted to $12,000 as of 4 October 1995, he sought the court to increase the daily fines to $100 per day. [A98]. If Johnson failed to pay, she should "be ordered to bring her toothbrush with her" to the next court hearing. [A98].
_______________________________________________________________________________________
1/17/96 Order: In Johnson's case.
_______________________________________________________________________________________
2/08/96 Order: In Johnson's case.
TABLE 2. ABBREVIATIONS FOR APPENDICES OPINION refers to Addendum pages 1-9 on which the Appeals Court panel's Memorandum and Order appears. ADD refers to those documents from the Record-Appendix which were cited by the Appeals Court in the panel's opinion and included in the Addendum to this application.
ADD-S.A. refers to the Defendants' Supplemental Appendix, also cited and included in the Addendum.
JRA refers to Johnson's Record-Appendix (prepared by Elaine Whitfield-Sharp, appellate counsel, who also authored Defendant/Appellant Johnson's appellate brief).
CRA refers to documents in Lily's Record-Appendix (prepared by Johnson) which are relevant to this application but overlooked by the Appeals Court.
The symbol "@" stands for "at paragraph(s)" or "at the docket entry for the paper number indicated."
ADD/CRA refers to those documents which were in Lily's Record-Appendix, not in Johnson's Record-Appendix, and are the subject of Johnson's motion for leave to include them in her Addendum to this application.
LILY is the pseudonym for Rose Coughlin. Her name is use in the Petition for Discipline. For public purposes, I began calling her "Lily" since Asst. Bar Counsel Weisberg gave pseudonyms to people who were the subject of Counts 1 and 2 of the petition.
TABLE 3. REMAND: AUGUST 1994 Remand: August 1994. After the decision on Defendants' first summary judgment in Superior Court, (1) the action was reduced to retaliation by constructive discharge against public policy (Count III) [A47], and (2) while Plaintiff's motions were pending, Defendants were granted remand to Concord, where Defendants moved for but were denied further summary judgment [A20 @ 11/23/94].\FN10/ 10 O'Connor in bad faith attached to Defendants' second summary-judgment motion excerpts from Lily's deposition transcript: Lily had been sent only volume 1, and 30 days for reading had not passed. She had not yet received the remaining two volumes [A845-46].In Concord, the court allowed in part Lily's motion to compel production of documents [A813-835, 884-931]. When Defendants failed to comply with the order, Plaintiff moved to show cause why they should not be held in contempt for noncompliance [A1025]. The court took no action.
TABLE 4. SMOKESCREEN BEGINS: 1995 Smokescreen Begins: 1995.O'Connor continued his abandonment of compliance with the rules of court throughout 1995: O'Connor did not comply with Dist./Mun.Cts.R.Civ.P. Rule 6(c): on March 3 and 22, April 5, September 26, and December 13, when serving Papers 156-159, 161-162, 170-172, 192-193, 198, 215 [A21-22, 1102, 1105, 1108-09, 1111, 1113, 1127, 1139]. He handed each of those motions and oppositions to Johnson as the case was called for hearing. Each and every one of Defendants' oppositions included affirmative requests for money sanctions. (A year later, the court called these pleadings "combination oppositions" [A1364]. At NONE of the hearings was Johnson allowed to examine O'Connor on the alleged costs and fees sought in the motions and combination oppositions signed by him. At no time was Lily allowed to compose or present a meaningful opposition.
102. Respondent incorporates herein Tables A-C and 1-4 above and Table 5 below by reference as if set forth in this response to ¶102. Respondent admits that "[o]n or about January 4, 1995, the district court entered a discovery compliance order for the respondent to inspect documents and pay for supervision of the inspection at $55 per hour." The order, however, violated fundamental fairness. The defendants had not complied with one discovery request and had been allowed EIGHT protective orders. The plaintiff was thereby denied any and all discovery for no lawful reason.103. On or about February 24, 1995, the respondent filed emergency motions in the district court to reconsider the court's January 4, 1995 order and to depose nonparty witnesses outside the presence of the defendants' counsel. The respondent brought those motions without legal or factual basis and in bad faith. The defendants incurred costs in opposing those motions.Respondent has sufficient information to form a belief that the following statement by the Petition is false: "The defendants incurred costs in setting up the document inspection." First, no costs had been occurred on January 4th, 1995. Second, the notion of inspection was suggested by Johnson on that day. Third, the date of inspection had not yet been determined. Fourth, there were no costs to incur. The HMM Associates, Inc., documents, according to O'Connor, had been stored in 26 boxes stored on site. (The company had been bought out and had undergone, amongst other things, a name change.) Fifth, the person for whose services they charged was the secretary of the defense counsel, Mark O'Connor; she worked on salary and not on an hourly or per diem basis. Sixth, O'Connor had advanced notice that Respondent would not be at the Concord facility that day, for fear of being set up. Seventh, in his itemization, O'Connor alleged that a "supervisor" went to the facility on Baker Avenue in Concord, Mass., but never was made to prove it. Eighth, Johnson subpoenaed his secretary but the subpoena was quashed and no hearing was allowed.
TABLE 5. HEARING ON JANUARY 4TH Hearing on January 4th. By the time three years had passed since Lily's case was filed, Johnson had single-mindedly sought discovery, but to no avail: Defendants had not complied with any discovery requests and their eight boilerplate motions for orders protecting them from complying with discovery were allowed. Of the eight protective orders, the seven brought in Superior Court were allowed in entirety and the one brought in District Court was allowed in part--but when ordered to comply with part of Lily's request for documents, the Defendants failed to do so and the court failed to enforce its own order.
On January 4th, O'Connor misrepresented to the Court that it would be burdensome to produce the documents requested. The court then relying upon that misrepresentation, failed to act on Plaintiff's Motion to Show Cause, and instead chipped away at its own order [A1025-31]. Then disparately and prejudicially treating Lily, the court allowed Defendants' Motion for Leave to Take a Deposition (of personnel at Lily's current employer) [A1021].
In an effort to break the impasse, Johnson suggested that she be allowed to inspect the documents at Defendants' facility and requested that someone be allowed to accompany her. The Court unreasonably limited the "someone" to Lily, who was residing and working in California, and imposed a $55 hourly fee for a "paralegal" to "supervise" Johnson during the inspection [A1100, ADD-279].
Johnson objected to the imposed cost. Her objection was noted and ignored.
Respondent absolutely denies the statement that "[w]ithout justification or adequate prior notice to counsel for the defendants, the respondent failed to appear for the scheduled inspection." Respondent incorporates herein Table 7 below by reference as if set forth in this response to ¶102.
TABLE 6. DISCOVERY MOTIONS FILED: 15 FEBRUARY 1995
This table is significant because of Judge McGill's memorandum of 13 December 1995.On 15 February 1995, Johnson filed three documents: (1) a supplemental memo [ADD/CRA-1057-1061], which included one- or two-line summaries of the areas to which each proposed witness would testify; these summaries had been requested by the lower-court judge. The list was long, Johnson contended, because given that she had not been allowed to discover documents, she would have to call, for instance, those who authored or had seen the documents. Ordinarily, authentication is stipulated to when a party produces the document, relieving the parties from producing a parade of witnesses at time of trial. This was not going to be the case were the Lily action reach trial;(2) an opposition to Defendants' proposed pretrial order [ADD/CRA-1062-1063]; and
(3) a proposed pretrial order [ADD/CRA-1064-1067].
TABLE 7. INTENDED VISIT TO CONCORD FACILITY ON 22 FEBRUARY 1995
The Intended Visit to the Concord Facility on February 22, 1995: During the two days prior to the agreed-upon inspection at the facility, O'Connor sent Johnson letters which she perceived as being intimidating, provocative, and foretelling that she was about to be "set up" [A1087-89, 1093-95; ADD-284-288]. To avoid potential problems, Johnson attempted to hire a private detail from the Concord Police both to protect her at that visit and to be a percipient court witness [A1085-86, 1357-58, ADD-282-283, JRA-235-236]. When the Department refused the service, Johnson contracted with a private security guard company. Id. [A1092, ADD-287-288, JRA-236, 289]. O'Connor's knowledge of this led to the aborted visit to the facility [A1093, JRA-290].O'Connor's statements on March 3d that Johnson did not give him notice until 8 o'clock on the evening prior to the scheduled visit and that Johnson would not be at the facility and that he did not receive it until 9:30 on the morning of the scheduled inspection were untrue [OPINION at 3; ADD-253-255].
In actual fact, Johnson had given O'Connor notice at exactly 3:32 in the afternoon as shown by the ACTIVITY REPORT from her fax machine [ADD-289]. In that letter, she told him she had to know before 4:45 whether he agreed [ADD-287-288]. But O'Connor did not respond within that hour. Id.
The ACTIVITY REPORT, or log -- along with all of Johnson's financial records -- was presented by Attorney Sharp (whose handwriting is on the log) to Judge McGill for an in camera inspection. Because the log was not that part of the record which was put on the docket sheet below, Attorney Sharp did not include it in the Record-Appendix. In hindsight, it can be seen that a motion should perhaps have been brought for permission to include it in the Record-Appendix.
TABLE 8. THE TWO ALLEGEDLY FRIVOLOUS MOTIONS After O'Connor beset the intended visit with traps and Johnson's efforts to effect a constructive visit failed, Johnson, on or around 22-24 February 1995, Johnson filed Lily's Emergency Motion to Reconsider the Order of 1/4/95 regarding the inspection of documents [Paper 151, ADD-282-283;A1085-99]. (This was one of the motions considered by Judge McGill to be "meritless and frivolous"-- so Johnson learned eleven months later.) On 22-24 February 1995, Johnson also filed Lily's Emergency Motion & Memorandum to Depose Nonparty Witnesses and Former Employees of Defendant Corporations Outside the Presence of Defense Counsel [Paper 152, ADD-269-272]. (This was the other motion considered by Judge McGill to be "meritless and frivolous" -- so Johnson learned eleven months later.)
Johnson marked the latter two motions for hearing immediately, but O'Connor pushed forward the hearing date to March 1st. See Table 9 below.
NOTE
Attorney Elaine Whitfield-Sharp, who became Johnson's appellate counsel at the end of 1995, did not include this significant and subject motion -- Paper 152 -- in the Record-Appendix she filed with the 1996 appeal. Johnson does not know the cause of Whitfield-Sharp's serious failure to include it, but Whitfield-Sharp DID include O'Connor's opposition [A273-274] to the motion, and the appellate panel did cite to the opposition in its opinion at 3.Therefore, when Johnson brought, pro se, her petition for Further Appellate Review (FAR) she requested that the Court take judicial notice of Motion #152. Johnson has no knowledge of whether the SJC did take judicial notice of it. If it did, it certainly never referred to it.
Respondent admits that between 22 February and "February 24, 1995, the respondent filed emergency motions in the district court to reconsider the court's January 4, 1995 order and to depose nonparty witnesses outside the presence of the defendants' counsel. Respondent incorporates herein by reference Table 8 above.104. On or about March 3, 1995, the district court denied the respondent's emergency motions. That same day, the court entered orders requiring the respondent or Lily to pay the defendants $261.25, for paralegal fees incurred in setting up the document inspection, and $720 for legal fees incurred in opposing the motions.Respondent absolutely denies the statement that "[t]he respondent brought those motions without legal or factual basis and in bad faith. The defendants incurred costs in opposing those motions," and calls upon Petitioner to prove the same. The motions were brought as a result of the circumstances accounted in Tables 4 through 11.
The motion "to depose nonparty witnesses outside the presence of the defendants' counsel" was modeled after two motions which Magistrate-Judge Robert Collings had allowed. Plaintiff's motion had SOLID legal or factual basis and was brought in the best of good faith. The motions appear in the boxes below:
TABLE 9. EMERGENCY MOTION TO RECONSIDER TO ORDER OF
JANUARY 4, 1995 REGARDING INSPECTION OF DOCUMENTS
Now comes Plaintiff and moves this Court to reconsider its Order of 4 January 1995 on the grounds that events have recently occurred that make it impossible to implement that Order.In support of this motion. Plaintiff relies on the three letters and one authorization attached hereto this motion: one dated 20 February 1995 from Mark O'Connor ("O'Connor") to me, one dated 21 February 1995 from Plaintiff's counsel to O'Connor, authorization by Barbara C. Johnson for services to Burns International Security Services, and another dated 21 February 1995 from O'Connor to Plaintiff's counsel.
As the correspondence suggests, O'Connor was attempting to usurp the power of this Court, and was purposely offensively dictatorial in a manner quite menacing to Plaintiff's counsel. Although this is the modus operandi of O'Connor, and Plaintiff's counsel has grown accustomed to it, she has nevertheless remained unaccepting of it, finding such incivility intolerable in a profession that is supposed to be an honorable one.
It is demeaning for Plaintiff's counsel -- and Plaintiff, if she were here to be present at such an inspection — to inspect documents as if she were a prisoner of a Fascist Bund under threat of doom . . . which in this case, under the threat of being accused of some wrongdoing by a person who would, without hesitation, do what he had to, to make his warning become a self-fulfilling prophecy.
In a nutshell. Plaintiff's counsel refuses to be so demeaned and diminished. It is the ultimate in gender bias against Plaintiff's counsel and the ultimate denial of due process for the Plaintiff Lily, who is entitled to the production of, documents in not only a reasonable but also a respectful manner. Mr. O'Connor's incivility is intolerable and must not be tolerated by this Court.
WHEREFORE this Court must simply order the Defendants to produce the requested documents.
A hearing is requested.
2l February 1995
TABLE 10. EMERGENCY MOTION & MEMORANDUM TO DEPOSE NONPARTY WITNESSES AND FORMER EMPLOYEES OF DEFENDANT CORPORATIONS
OUTSIDE THE PRESENCE OF DEFENSE COUNSEL
Now comes Plaintiff and moves this Court to allow Plaintiff to depose nonparty Witnesses and former employees of the Defendant corporations outside the presence of defense counsel. Morrison v. Brandeis University, 125 F.R.D. 14 (D.Mass. 1989) (permitting ex parte interviews of defendant's tenure-committee employee-members whose conduct was central to plaintiff's case against the organizational defendant). Mompoint v. Lotus Development Corp., 110 F.R.D. 414, 418-419 (D.Mass. 1986), citing to International Business Machines v. Edelstein, 526 F.2d 37, 41 (2d Cir. 1975) (there was no "good cause" shown to prohibit plaintiff's counsel from attempting to interview female employees of corporate defendant without presence of opposing counsel where presence of opposing counsel would only tend to inhibit the free and open discussion which the plaintiff's counsel sought to achieve through such an interview. Fed. Rules Civ.Proc. Rule 26(c), 28 U.S.C.A.; Fed.Rules Evid.Rule 801(d)(2)(D), 28 U.S.C.A. \1/ There is a "tendency which the presence of opposing counsel has to inhibit the free and open discussion which an attorney seeks to achieve at such interviews." Morrison, at 19, citing to IBM v. Edelstein, at 41. Employees of corporate defendant could consent or refuse to be interviewed by plaintiff's counsel about matters which are the subject of the suit, or could consent to interview with plaintiff's counsel only if their own attorney was present and/or only if corporate defendant's attorney was present. Mompoint, at 419-420.FN1. In both Morrison and Mompoint, the court faced a situation [where] the parties requested leave of court to interview the employees.As grounds for this motion, Plaintiff states that defense counsel has exhibited offensive behavior at time of deposition — for instance, at the deposition of Lily, during the "rehabilitation" examination of Plaintiff by her own counsel.\2/ [Lily
Aff. I:164; III:63, Mark O'Connor admitting he intended te be "snide."]\3/ Such egregious incivility by defense counsel continues — as evidenced by O'Connor's recent letters to Plaintiff's counsel (as well as by many of his earlier letters to both Plaintiff's counsel and Clerks as well as by his pleadings filed on behalf of his clients).FN2. At that time, Mr. O'Connor’s egregious incivility was a means to gain advantage in this lawsuit, to wit, to "finesse" Lily on the second summary-judgment motion.Such unseemly behavior has been but a part of the continuing tactics of O’Connor — examples of them were memorialized in March 1993 in Plaintiff's Motion for Sanctions against O' Connor. Sacrificed by Judge Bohn's Solomonic decision, that motion came to Naught for Plaintiff but came up Roses for O'Connor, who learned only that he could blithely ignore not only the rules of civil procedure but also the rules of civility — that they evidently were not made for him.FN3. There are actually too many other pages to attach to illustrate defense counsel's offensive behavior; it may be "observed" simply as one reads the text attached to Plaintiff's Opposition to Defendants' Second Motion for Summary Judgment.
Plaintiff would catalogue defense counsel's behavior since March of 1993, but the effort not only would be burdensome -- for the occasions have been so frequent — but, so Plaintiff's counsel has learned, might also again be futile.\4/
FN4. For example, when the circumstances surroundinq the taking of Dr. Gross’s deposition by defense counsel were revealed to the Court, Judge Lenk graciously acknowledged Plaintiff’s plaint and the Judge’s own displeasure "with the use of Dr. Gross’s deposition testimony in light of the manner by which and the circumstances in which it was obtained" [footnote 2 of page 7 of the June-17th Decision and Order], but then proceeded and refused to strike the doctor’s deposition and considered it in her decision. See footnote 3 on page 3 of Plaintiff’s Reply to Defendants' Opposition to Plaintiff’s Motion for Order Compelling Production of Documents; the footnote describes in detail the status and circumstances surrounding Dr. Gross’s deposition. Plaintiff incorporates herein by reference the recitation of facts contained in Lily's Memorandum in Opposition to [the first) Motion for Summary Judgment.Because Mr. O' Connor has continued to use egregious incivility as a means of gaining advantage in this lawsuit, his presence at any deposition is likely to jeopardize the productiveness of said depositions, in particular, by intimidating the deponents who would be unfamiliar with Mr. O’Connor's unorthodox manners and would likely be intimidated thereby those manners.Lastly, allowing Plaintiff's request would likely shorten the amount of time needed for trial.
WHEREFORE, this motion must be allowed.
A hearing is requested.
21 February 1995
TABLE 11. HEARING OF 1 MARCH 1995 Counsel were in court on March 1st for a hearing sought by Johnson regarding O'Connor's conduct. On that day, although O'Connor had advanced motions to that date [A21 @ 156], he announced he could not wait, and the court, without considering Johnson, who was also waiting in court, moved the hearing to March 3d [A21 @ 3/1]. O'Connor later sought attorney's fees from Lily and/or Johnson for his reluctant appearance. Johnson believes that fees for that appearance may have been part of the $558 award to the defendants or to O'Connor, but the court orders were so unclear and equivocal and so often amended that certainty cannot be claimed, but Johnson contends the lower-court judge backed off of that award -- given that his memoranda of 8 February 1996 and 15 July 1996 are silent about the $558.
104. Respondent admits that "[o]n or about March 3, 1995, the district court denied the respondent's emergency motions."105. Neither the respondent nor Lily made the payments required by the district court's orders of March 3, 1995.Respondent absolutely denies the statement that "[t]hat same day, the court entered orders requiring the respondent or Lily to pay the defendants $261.25, for paralegal fees incurred in setting up the document inspection, and $720 for legal fees incurred in opposing the motions." That is untrue: No order was entered on March 3d, 1995. Johnson disputed that either Johnson or Lily owed $261.25. [A3-6,132]. The judge had erred because of O'Connor's material misrepresentation to him that an order issued. The amount $261.25 was not written into an order until almost a year later, in an order dated February 1996. [CHECK: it might also have been in 13 December 1995 memorandum and order]
An order did not issue until a hearing on March 22d, 1995. At that same March 22d hearing, Lily and Respondent were found in contempt in the same breath as the order issued. Respondent further incorporates herein by reference Table C .
It was and shall continue to be absolutely possible for a legitimate, i.e., unfabricated, March 3d order to surface. The only way such an order surfaced at Lily's deposition was because Judge McGill and O'Connor created and backdated it for this case. Oce. See Figures 1-8 below, which are incorporated herein by reference.
FIGURE 1. MOTION #157 AND COMMENTS Note the words "filed open court 3-03-95" at the top of the paper. Note the two date-stamps, particularly the topmost one. Are the numerals 22 or 03???
Then in Figure 2 look at the notice dated March 7th, 1995, and sent to both counsel. Note that no order on Motion 157 is cited in the notice.
Look also at Figures 3-1 and Figure 3-2 for the events of March
3d and March 22d. The alleged topmost endorsement does NOT appear in the list of events for EITHER date on the excrutiatingly detailed docket sheet, where each handwritten endorsement was painstakingly typed onto the docket sheets. Respondent believes that at some later date -- AFTER she argued on March 22d that no such order issued on March 3d and AFTER a diligent clerk had typed the March 22 endorsement into the docket sheet, McGill changed the little rubber wheel on his date-stamper and added the top endorsement.
If the lower endorsement had not already been on the page, he would not have had to squinch up his signature to avoid overwriting the words "After further."
If the upper endorsement had been on the page on March 3d, it would have appeared in the March 7th Disposition Notice. It was not included in that notice.
If the upper endorsement had been on the page on March 3d, it would have appeared in the docket sheet entries for March 3d. It is NOT in the docket sheet entries for March 3d.
If the upper endorsement had been on the page on March 22d, it would have appeared in the docket sheet entries for March 22d. It is NOT in the docket sheet entries for March 22d. In fact, it appears nowhere in the docket sheets.
Bar Counsel should report McGill to the Commission on Judicial Conduct. He should be impeached.
Next look at another version of the endorsement on Motion 157 in Figure 4. It was altered by opposing counsel, Mark O'Connor. Proof exists in Figures 5, 6, 7, and 8. Compare the scanned in images of the fabricated document with the original endorsed page. Criminal charges should be brought against O'Connor.
FIGURE 2. NOTICE OF DISPOSITION MADE ON MARCH 3D, 1995 Note that Motion #157, O'Connor's Motion for Payment of Paralegal Fees is not referred to on the notice. Note also its absence from the entries for March 3d in the docket sheets.
FIGURE 3-1. DOCKET SHEET FOR CONCORD DISTRICT COURT ACTION
FIGURE 3-2. DOCKET SHEET FOR CONCORD DISTRICT COURT ACTION
FIGURE 3-3. DOCKET SHEET FOR CONCORD DISTRICT COURT ACTION
FIGURE 3-4. DOCKET SHEET FOR CONCORD DISTRICT COURT ACTION
FIGURE 3-5. DOCKET SHEET FOR CONCORD DISTRICT COURT ACTION
FIGURE 3-6. DOCKET SHEET FOR CONCORD DISTRICT COURT ACTION
FIGURE 3-7. DOCKET SHEET FOR CONCORD DISTRICT COURT ACTION
FIGURE 4. O'CONNOR'S FABRICATION OF NEW FIRST PAGE OF MOTION #157 Note the new elements:
- the Paper number: 62.6, which does not appear on the CDC docket sheet, was assigned to the motion upon retrans- fer to Superior Court several months later in the Spring of 1995;
- the Superior Court docket number: 92-7907;
- the words "First 157," believed to be O'Connor's handwrit- ing on a Post-It;
- the missing half of the top border of the caption (probably caused by the Post-It being on top of it);
- a missing second endorsement, imply- ing that this is what the first page of the motion looked like on March 3d, 1995;
- the sticker identify- ing it as O'Connor's exhibit in Lily's deposition.
Is this a fabricated page? Yes, indeed. See Figures 5 and 6.
O'Connor had to fabricate it because Motion #157 never had only one endorsement on it.
FIGURE 5. ENLARGED ENDORSEMENT SECTION FROM O'CONNOR'S FABRICATED FIRST PAGE OF MOTION #157 Note the new elements mentioned above.
AND notice« the missing
bottom loop in the "g" in the word "hearing"« the missing
bottom of the judge's signa- ture,« dots, spots,
and smudges at the top and bottom of the missing and whited out bottom endorsement of March 22d,
AND see how he forgot to white out the tail of the M in McGill ... See the tail between the words "counsel" and "or." To be sure, COMPARE it with Figure 1 above.
FIGURE 6. LARGER ENLARGEMENT FROM FAKED FIRST PAGE OF MOTION #157
FIGURE 7. ZOOMED IN PICTURE OF DATE
ON TOPMOST ENDORSEMENT OF FAKED VERSION OF MOTION #157Here the R in MAR has a loop in the top half, the 03 seems clear, and the tails of the two 9s are not broken.
FIGURE 8. ZOOMED IN PICTURE OF DATE
ON TOPMOST ENDORSEMENT OF ORIGINAL MOTION #157Here the R in MAR has NO loop in the top half, might be 22 rather than 03, and the tails of the two 9s ARE broken. Why the difference? Was the date-stamp altered after it was added? The location of the paper on the surface where it was stamped slightly different? Paper not sitting on exactly the same bumps in the surface?
TABLE 12. HEARING OF 3 MARCH 1995 Hearing on March 3d. Johnson had brought a motion for the court to enforce its order compelling defendants in the underlying case to produce documents. [A233-234, 236-241, 247, 252, hearing of 3/3/95]. During argument, Johnson suggested: "[Just say,] Mr. O'Connor produce the documents the woman has requested. The court says she is entitled to them. Just give them to her." [A1358]. The court harkened not and denied Plaintiff's motions to reconsider the January 4th order and to depose nonparty witnesses outside the presence of opposing counsel [A1085-1099, 1115].
In contrast, the court allowed Defendants' combination oppositions which contained affirmative requests for attorneys fees [A1106, 1109]. That pleading and its supporting affidavit, prepared for service on March 1st, were served only on March 3d as the parties walked to the podium to address the court [A1102, 1105, 1108, 1111, 1113]. Plaintiff was denied the opportunity to meaningfully respond or examine O'Connor either on his allegations or on the alleged expenses set out in these pleadings.
When the court failed to enforce its order, Johnson notified the court of her intent to appeal. [A233-234]. She brought a petition in the nature of a writ of mandamus to a single justice at the SJC.
Also heard on March 3d was Motion #157,\FN/ O'Connor's Motion for Paralegal Fees, which was also on that day improperly served on Johnson in court, and in which Defendants sought Plaintiff or her counsel to pay $261.25 for a paralegal purported to have been at the Concord facility on February 22d [A1100].
FN Throughout these hearings the District Court judge most often referred to the motions by their docket number. So for the convenience of the readers, those numbers shall be used interchangeably where it seems appropriate.On 3 March 1995, opposing counsel, O'Connor, simultaneously served on Johnson and filed in open court his clients' oppositions [Paper 162 at ADD-267-268 and Paper 159 at ADD-273-274] to Lily's two motions, Papers 151 and 152, respectively.In the transcripts, Johnson is "heard" to say that she did not know which motions he was talking about because she did not know the Paper numbers assigned to them. Logically, Johnson must be believed, inasmuch as O'Connor did not file his motions until the parties were actually at their podiums. That fact is noted ON the motions by the clerk.
Neither Opposition Paper 162 nor Opposition Paper 159 stated the amount of money which opposing counsel was requesting for attorney's fees.
Without giving Johnson an opportunity even to read the two oppositions, the judge "allowed" them, leaving Johnson with no idea why her motions were denied. [Sharp's brief at 8.]
NOTE referring) frivolous.
Ten months later, in a memorandum issued on 13 December 1995,
the lower-court judge said for the first time that he found Paper 152
(at least it appears that might have been the motion to which he wasO'Connor never argued orally against them substantively before they were denied. And Johnson was given no opportunity to cross-examine O'Connor [Sharp's brief at 8].\FN/
FN Johnson's claim that she had no notice was deemed by the lower court and by the appellate panel as having no merit [A216 (March 22, 1995) and OPINION at 4 and OPINION at 4 n.6]. It is well-settled that notice is central to due process.Neither Paper 162 nor Paper 159 stated the amount of money which opposing counsel was requesting for attorney's fees.Eventually, when O'Connor's affidavit surfaced, it became clear that the affidavit, which appears at A276-277, was the source of the sums $504 and $216, which O'Connor sought for the two oppositions, respectively, and which totaled $720 [OPINION at 4].
But affidavits of counsel are NOT orders of a court!
At the very end of the hearing, the judge said that he was taking a "motion under advisement" [JRA-259, lines 18 and 19]. Johnson believes that was Paper 157 (the paralegal-fees motion).
Thus, on March 3d, there was no Order commanding Lily to pay any money to anyone by any date [JRA-226 (Clerk's Notice dated 3/7/95); ADD-300 (docket sheet, entries for 3/3/95 and 3/22/95].
The court failed also to act on Johnson's concerns about O'Connor's conduct.
What Johnson did on 3 March 1995 [A299 at entry 160; Cou-R/A A1114, A1148] was to file a request for re-transfer to the Middlesex Superior Court.
TABLE 13. END OF HEARING OF 3 MARCH 1995 At the very end of the March 3d session, O'Connor sought costs for appearing in court on March 1 (the day he left and aborted the hearing) and that day, March 3. [A258-259]. It could not have been clearer to the court that Johnson had received no notice to oppose O'Connor's requests for costs. (O'Connor's oppositions and affidavits were given to Johnson as she approached the podium for the hearing. [A269, 272, 275, 278, 281].) The court misspoke -- called O'Connor's oppositions "motions" [id.] and said it was taking those "motions" under advisement.
105. Respondent denies that payments were required by orders of 3 March 1995, for the Petitioner's statement assumes that a non-existent order existed. On 3 March 1995, there issued absolutely no order requiring compliance by Respondent or her client. Note also that at no time throughout the March 3d hearing did the judge state that he was imposing fines. Respondent incorporates herein by reference Tables 12 and 13.106. On or about March 22, 1995, the district court held the respondent and Lily in contempt for nonpayment under the March 3, 1995 orders. The court ordered the respondent or Lily to discharge the contempt by paying, that same day, the previously-ordered costs plus $558 for additional legal fees incuired by the defendants. The court further ordered, in the event of nonpayment, that a civil penalty would accrue at $50 per day and that Lily's complaint would be subject to dismissal.
TABLE 14. BETWEEN MARCH 3d AND MARCH 22d, 1995 Between March 3 and March 22, the next session in court, no order issued compelling Johnson to pay any monies to anyone. The only paper from the court which Johnson received appears on A226 and in this Answer as Figure 2. See also docket entry on A300 at #164 and Figures 3-1 and 3-2 in this Answer. 106. Respondent denies the first sentence of ¶106, that "[o]n or about March 22, 1995, the district court held the respondent and Lily in contempt for nonpayment under the March 3, 1995 orders," for the Petitioner's statement assumes that an order dated 3 March 1995 and requiring compliance by Respondent or her client existed. Notwithstanding Respondent's denial of the first sentence of ¶106, Respondent states that on March 22, 1995, District Court Judge Paul McGill issued an order and found Plaintiff and Respondent in contempt in the same hearing immediately after issuing the order.Respondent further states
- that she informed the court on March 22 that she had received no notice,
- that the court wrote that Johnson's complaint about the lack of notice was "without merit,"
- that the court order Johnson or Lily to pay the $261.25 mentioned in the first paragraph of the Motion for Paralegal Fees (this was amended by the court in December 1995 and January 1996),
- that the court ordered Johnson or Lily to pay the "$558 on paper #165," but $558 is NOT in Paper #165 (this was amended by the court in December 1995 and January 1996), and
See Table 17 and Figure 3-2 [A216 (handwritten endorsement) and A300 (typed on docket sheet for 3/22/95), respectively]. The monetary sanctions were comprised of attorney's fees and a $50 daily fine imposed RETROACTIVELY from March 10 to March 22. Id. March 10 appears to have been an arbitrarily chosen date, for nothing known to Respondent occurred or was to occur on that date.
- that the court threatened dismissal of the case should they not pay.
Note also that the endorsement in which it was written that Lily and Johnson were jointly and severally liable was "clarifie[d]" and/or amended by the court on several occasions over the next year.
Respondent incorporates herein by reference Tables 15, 16, 17, and 18 .
TABLE 15. HEARING OF 22 MARCH 1995 Hearing on March 22d. O'Connor opened the session by addressing Defendants' Motion for Paralegal Fees (#157): First, O'Connor said, "From the bench, the Court ordered plaintiff's counsel to pay the sum of $261.25" [A1359]. This was untrue. O'Connor cannot point to one page in the transcript of the hearing where the judge ordered Johnson to pay $261.25.
O'Connor's next sentence was, "Subsequently, the clerk's office did notice that the motion for payment of legal fees was allowed." Id. Another lie. The written records points to the absence of any mention of Defendants' motion #157 either on the clerk's notice [A63] or on the docket [A22 @ #164].
O'Connor's double volley was memorialized in Motion #165, which he handed to Johnson in court without notice: Motion to Show Cause Why Plaintiff and Her Counsel Should Not Be Held in Civil Contempt, for Sanctions, and for Costs (#165) [A1116]. Thus, O'Connor's planted the seeds for the findings of contempt against Johnson and/or Lily.
The dispute became joined both with O'Connor, when Johnson argued that the court had never issued an order on that date, and with the court, when Johnson called the court's attention to the lack of proper notice of Motion #165.
Relying on O'Connor's misrepresentations, the court allowed #165, stating both orally and in writing: "By way of mitigation, justification, or excuse, Plaintiff's counsel states that she did not have proper notice[;] that I find is without merit" [A1116, ADD-216].
The court then supposedly "clarified" its alleged order arising out of #157, and within minutes of "clarifying" the alleged order, found Johnson in contempt and commanded Lily or Johnson to pay the amount "indicated in the first paragraph" of Motion 157. The amount indicated was $261.25.
In the same proceeding of March 22d, the court also commanded either Lily or Johnson to pay an unstated amount of money for attorney's fees and apparently a fine accruing for some UNknown reason from March 10th at $50 per day, and "threatened" dismissal of the case should Lily not pay [A1116, ADD-216]. (No hearing had been held on March 10th and nothing had happened in the case on that day.)
Johnson told the court quite promptly what the state of her finances were and invited O'Connor to put her on the stand [A197 and Sharp's Brief at 13]. Common sense should make it apparent that, of course, Johnson would not have been able to present anything more than verbal substantiation that day. What lawyer carries around with them substantiation of their personal finances in their briefcases?!
Johnson also asked the court whether it was allowing Paper 157 retroactively that day to March 3d [A208, lines 16, 19-20].
Johnson further objected and argued that punishing her client for something which the court believed Johnson did was improper [A200-201, A204-205].
No Order specified a date by which the fines were to be paid nor to whom payment was to be made.
After this day, the merits of Lily's case were derailed and were never again considered before a Final Judgment on the Merits issued twice, after an involuntary dismissal.
TABLE 16. LATER REFLECTIONS ON THE HEARING OF 22 MARCH 1995 First, I certainly did not expect, on March 22d, both to be ordered to pay an amount allegedly stated in an order that hadn't existed and to be found in contempt within minutes of that order issuing. It was nothing less than a bizarre happenstance that day.
NOTE
There is no page in the record to substantiate that Johnson admitted to contempt. Johnson said that did not have the ability to pay [Sharp's brief at 13-14, A195 and A197]. In the Opinion at 4 n. 6, the panel claimed that Johnson offered nothing by way of substantiation. That is not accurate. See JRA-182 (bottom half) and 183, lines 19-20.Nevertheless, Johnson told the court quite promptly what the state of her finances were and invited O'Connor to put her on the stand [A197 and Sharp's Brief at 13]. The panel overlooked that fact -- at least it did not cite to the page on which Johnson made that invitation.It was not until sometime in January 1996, after Lily's case returned to Concord from Middlesex Superior Court, that Johnson produced materials a foot high for the judge's inspection in camera [ADD-303 (see entry @ 221)]. Although the court never memorialized in writing of its inspection of those documents nor made any written finding after his inspection of Johnson's documents. it is reasonable to conclude, given that Johnson's motion to stay the production of the documents was denied on 24 January 1996, that O'Connor would have moved to show cause why there was no production had there been none. In fact, Johnson DID provide O'Connor with some documents.
In sum, as Attorney Sharp pointed out in her brief at 15-16, by the time March 22d hearing ended, Johnson had been ordered to pay some sum of money, found in contempt, and fined $2178.00, all in one fell swoop, even though she had already said she couldn't afford to pay even the $261.25 [A197, A200]. Then it was her saying that she was unable to pay that provoked Judge McGill into ordering that either Johnson or Lily were to pay the $261.25 [A199]. Johnson objected and argued that punishing her client for something which the court believed Johnson did was improper [A200-201, A204-205].
Where Johnson did not have the ability to pay the contempt fines, regardless of whether the fines were properly or improperly imposed, the imposition of $580 in terrorem or daily fines plus an additional $650 in civil penalty on Johnson for allegedly admitting to contempt or for not complying with an order that lacked a critical term such as time by which payment had to be made, was reversible error . . . as was the retaliatory imposition of dismissal of Lily's case.
TABLE 17. THE ORDER OF 22 MARCH 1995 ABSENT DUE PROCESS On March 22d, an order issued but it did not state a time by which payment had to be made or to whom the money was to be paid. Given that no order specified a time by which payment had to be made, contempt could not be found. "Where a court's order lacks a critical term or contains an error, a finding of civil contempt is inappropriate." Demoulas v. Demoulas Super Mkts., 424 Mass. 501, 566 (1977). [Sharp's Brief at 19-23]. Johnson did not even receive notice of the several motions to show cause why she should not be found in contempt, for O'Connor did not comply with Dist./Mun.Cts.R.Civ.P. Rule 6(c) on March 3 and 22, April 5, September 26, and December 13, when serving Papers 156, 157 [ADD-281], 158 [ADD-278], 159 [ADD-275], 161 [ADD-266], 162 [ADD-269], 170-171, 172 [ADD-189].
O'Connor improperly handed each of those motions and oppositions to Johnson as the case was called for hearing. the Appeals Court panel appears to have overlooked these facts for it chose only to include ADD 299-303 in its opinion, and did not refer to the Certificates of Service on A188-189, A264, A266, A269, A272, A275, A278, A281 of the Record-Appendix in the severed case, O'Connor v. Johnson.
Thus Johnson was robbed of an opportunity to meaningfully oppose each of those motions. The Concord District Court in that session was clearly trampling on due process: Lily was not getting the discovery to which she had long since been entitled and Johnson was being punished for zealously advocating on her behalf. And Johnson told the court so [A205].
It was wrong for the court to punish Lily for its anger at Johnson. And it was wrong for the court to be angry with Johnson because she was seeking justice for Lily. And Johnson's frustration throughout those hearings was evident because Johnson knew that the judge knew it -- and what distressed and disturbed Johnson most was, he didn't seem to care.
Johnson -- and her client, for that matter -- was also at no time granted an evidentiary hearing with or without any indices of due process on the issue of contempt. Due process with an evidentiary trial is required for contempt to attach. Milano v. Hingham Sportswear Co., Inc., 366 Mass. 376, 378-79 (1974).
So, without a clear and unequivocal command, there can be no "clear and undoubted disobedience." Cf.Judge Rotenberg Educ. Center, Inc. v. Comm'r of Department. of Mental Retardation (No.1), 424 Mass. 430, 448 (1997), the case which the panel cited.
Neither can caprice be substituted for law. Clabburn v. Phillips, 245 Mass. 47, 52 (1923). Here caprice invited danger, and that danger came to fruition. For instance, didn't the panel find it curious that Judge McGill promised a hearing [OPINION at 3-5], but then did not allow one to take place? And then didn't allow Johnson to defend herself or her client against O'Connor's serious accusations?
TABLE 18. PAPER 1
