#97, Drano Series
John Smith's Opposition to Discovery Master's
Motion of 4 May 2003
(a) to Approve Expenditures from Escrow Accounts and
(b) for Instructions on What to Do with the Remaining FundsJohn Smith was ordered to place $43,000 in an escrow account. The wife's lawyer, now Judge E. Chouteau Merrill (formerly with Brown Rudnick Freed & Gesmer), and then a so-called Discovery Master, Gerald L. Nissenbaum, were appointed escrow agents by the court (Judge Gould appointed Merrill and Judge Roberts appointed Nissenbaum).
They were not to remove funds from that account without court permission.
Both Merrill and Nissenbaum took funds out of the escrow account without court permission.
Given that Merrill has since become a Probate & Family Court judge, she has remained silent, thinking the judicial proclivity to cover each other's bottoms will protect her . . . despite the fact that she was not a judge when all of this went down.
Nissenbaum, on the other hand, has finally awakened to the fact that he breached his fiduciary duty, can be found in contempt, and is possibly on the hook for criminal responsibility.
So he has filed a motion to get the judge to approve the removal of the funds without court permission.
John Smith opposes Nissenbaum's motion.
Nissenbaum has sought $70,000 for his efforts at being a Discovery Master, but as a result of his work, or incompetence, only complete chaos occurred.
Smith and Johnson want to nail him.
P.S There is more to this story, but you'll have to wait until I html that file.
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. PROBATE & FAMILY COURT
NO. XXXXXXXXX
FOR INSTRUCTIONS ON WHAT TO DO WITH THE REMAINING FUNDS\1/ Pocahontas Smith
Plaintiff/Defendant-in-Counterclaimv.
John Smith
Defendant/Plaintiff-in-Counterclaim
__________________________________________________
JOHN SMITH'S OPPOSITION TO
DISCOVERY MASTER'S MOTION OF 4 MAY 2003
TO APPROVE EXPENDITURES FROM ESCROW ACCOUNTS AND
FN1 Nissenbaum is actually moving to amend the order of 27 December 1999 by deleting the mandatory requirement of obtaining court permission before withdrawing funds from the escrow account . . . so as to cover up his wrongdoing.
Now comes John Smith ["Smith"] and submits his opposition to the motion of 4 May 2003 by Gerald L. Nissenbaum, "Discovery Master," (a) to approve expenditures from escrow accounts and (b) for instructions on what to do with the remaining funds.As grounds for his opposition, Smith states that the motion is an attempt to cover up Nissenbaum’s contempt of court\2/ and fraud upon Smith, to wit, (a) contempt of the court order dated 27 December 1999, which orders that no money was to be withdrawn from the escrow account without "further order of the court," an order that Nissenbaum repeatedly, arrogantly defied and disobeyed and (b) fraud by misrepresentation with the intent to unlawfully and permanently deprive Smith of marital assets . . . and/or (c) conversion.
FN2The facts are sufficient to find Nissenbaum also in contempt of the court order of 17 December 2001. Details, infra. He has not referred to these facts in his motion. In support of his opposition, Smith states the following undisputed facts:
- On 27 December 1999, Probate & Family Court Judge Nancy Gould (a) ordered Smith to deliver to Merrill, counsel and agent of Pocahontas, $43,500 to deposit in an escrow account (b) ordered that no money was to be removed from that account without further court order.
- Between 27 December 1999 and 16 November 2001, Pocahontas, her agent Merrill, and André Jasse removed an unascertainable amount from the escrow or trust account without a further court order. The unascertainability of that amount is due to the discrepancy between which BRFG/BRBI accounting is used (three different ones were ultimately provided John Smith; all were taken as evidence at trial). [Trial Exhibits 210 (7/9/01 accounting), 211 (8/14/01 accounting), and 212 (8/30/01 accounting).]
- The accountings\3/ show that the following checks were requisitioned and drawn on the escrow account by diverse individuals at Brown Rudnick Freed Gesmer:
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FN3 The accountings do not always identify the checks by check number. Where no check number was entered, no check was produced to Gouin. In those cases, the entry in the accounting stood on its own, but for three such entries, the draft was acknowledged as received by MGH.
Payee
Check #102150 4/11/00 [Tr. Exh. 219, chk req.] 3500.00 Children & the Law
Check #29 5/15/00 [Tr. Exh. 209, chk req.] 3000.00 BRFG for Psych testing
Check # 5/25/00 3000.00 In Merrill accounting
Check #137 7/13/00 105.29 BRFG
Check #248 9/08/00 2570.75 Barbara Beardslee
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Check #715 3/08/01 1089.95 BRFG for Pocahontas’ fees
Credit entered 3/08/01 replaced>> -1089.95 From BRFG
Check #??? 4/10/01 <<received on date/ack’d 1815.65 Law & Psychiatry Service
Check #245210 4/10/01 <<made out on date 1815.62 Law & Psychiatry Service
Check #892 5/25/01 1815.62 BRFG
Check #??? 7/14/01 2967.72 Law & Psychiatry Service
Check #1012 7/19/01 2967.72 Law & Psychiatry Service
Check #??? ??? 2391.66 Payee unidentified
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Check #29 5/14/02 3000.00 BRFG
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- Of the thirteen checks identified in paragraph 3, Mass. General Hospital, according to the bills Smith’s counsel has seen, has acknowledged receiving only six of them. They are:
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Check #102150 4/11/00 3500.00 Children & the Law
Check #29 5/15/00 [Tr. ID "UU"] 3000.00 BRFG for Psych testing
Check #248 9/08/00 2570.75 Barbara Beardslee
Check #??? 4/10/01 <<received on this date 1815.65 Law & Psychiatry Service
Check #??? 7/14/01 2967.72 Law & Psychiatry Service
Check #??? ??? 2391.66 Payee unidentified
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- The checks not acknowledged by Mary Corbett, the person in charge at Mass. General Hospital of the Smith account, as having been received are the following:
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Check # 5/25/00 3000.00 In Merrill accounting
Check #245210 4/10/01 <<made out on date 1815.62 Law & Psychiatry Service
Check #1012 7/19/01 2967.72 Law & Psychiatry Service
$7783.34
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- If hanky-panky is not going on, everyone at BRFG and MGH in charge of bills and receipts should be made to explain in detail their accounting, which is either negligent or purposeful.
- At no time did E. Chouteau Merrill or Brown Rudnick Freed and Gesmer obtain court permission to withdraw any of the above funds from the escrow account to pay for Guardian ad Litem ["GAL"] Beardslee’s alleged services.
- At no time did Nissenbaum obtain court permission to withdraw from the escrow account any funds to pay for GAL Beardslee’s alleged services after her appointment expired.
- Without court permission, Nissenbaum withdrew from the escrow account $11,112.51 to pay for Barbara Beardslee’s alleged services as guardian ad litem.
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Check #1002 4/4/02 4/12/02 904.18 Dupl.USA
Check #1001 4/18/02 109.38 REF #452
Check #1003 5/1/01 109.37 REF #452
Check #1001 10/24/02 4987.50 REF #452
Check #xxx ??? 5002.08
$11,112.51
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- According to the BRFG accountings, the total paid by one or more individuals at BRFG to either Beardslee, Children and the Law, or MGH for her alleged services is $24,029.12.
- Given that photocopies of the fronts and backs of all but one of the checks (that is, 8 of the 9 checks) was supplied, but seven of the checks were not acknowledged as having been received by MGH, it might be that some of that money made its way eventually into unidentified pockets.
- The following checks were withdrawn from the escrow account and appear to have been credited to Pocahontas’s legal fees at Brown Rudnick Freed and Gesmer:
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Check #137 7/13/00 105.29 Payee: BRFG
Check #892 5/25/01 1815.62 Payee: BRFG
Check #29 5/14/02 3000.00 Payee: BRFG
$4920.91
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- When Nissenbaum took over as fiduciary or trustee of the escrow account, he failed to note – as his motion demonstrates – the extraordinary activity that took place while Merrill and BRFG were in control of the funds in the account.
- As noted by Nissenbaum in ¶2.2 of his motion, BRFG delivered to him $33,278.58, which means that BRFG circumstantially acknowledged that one or more individuals from the lawfirm gave only $10,221.42 to Beardslee, Children & the Law, Law & Psychiatry Service, or MGH, and not the $24,029.12, to which the nine checks made out to them total. That leaves it unsettled as to where the remaining $13,807.70 came from to pay any or all of those entities. That sum was over and above that which had been earned by any of those entities prior to Nissenbaum inheriting the control of the escrow account.
- Once Nissenbaum took over control of the account, he paid to Law & Psychiatry Service for Beardslee’s alleged services and to a duplicating company the following checks (see ¶9 above):
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Check #1001 109.38 Law & Psychiatry Service
Check #1002 904.18 Duplicating USA
Check #1003 109.37 Law & Psychiatry Service
Check #1001 4987.50 Law & Psychiatry Service
Check #??? 5002.08 Payee unidentified
$11,112.51
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- Although payment from the escrow account to James McCusker was approved by the court, Smith objected to the appointment of a second so-called "Special Master." The transcript of 12/17/01 will show that McCusker was NEVER identified as a guardian ad litem. Smith and his counsel always believed that McCusker was appointed only to determine the issue of whether the children were competent to consent to being audiotaped by their father. Nothing more, nothing less. Given that Nissenbaum had on 26 April 2001, an entire year earlier had already recommended to the former court (Gould, J.) that the children should be brought to court so that counsel could question them, Smith through his counsel objected firmly to the appointment. To duplicate what had already been decided seemed foolish and a waste of marital assets. By that time, Nissenbaum had already been corrupted and recommended McCusker to retaliate against Smith’s counsel’s criticism of Nissenbaum’s (non)performance.
- Had Smith’s counsel been aware that McCusker was to be appointed as a guardian ad litem pursuant to G.L. c. 215, §56A, she would have insisted that the Commonwealth pay the fees of McCusker. After all, she had both sued in Federal district court on that very issue and appealed the order that Smith had to pay Beardslee fees as an "expert" were his counsel to depose her.
- The fees charged by McCusker for his services have totaled $12,777.21. While writing this opposition, Smith’s counsel does not know whether Nissenbaum paid to McCusker the $2512.60 that McCusker billed this past week, ostensibly for the time he spent testifying in court. Nevertheless, when Nissenbaum wrote his motion, he had paid McCusker $10,264.61.
- Nissenbaum did not have court permission to substitute nor Smith’s consent to the substitution for McCusker the person of Martha Rush O’Mara ["O’Mara"].
- Although McCusker was appointed by the court, neither Nissenbaum nor McCusker had either Smith’s consent or court permission to put another female on the job as a so-called GAL.
- While Nissenbaum did have court permission to pay McCusker from the escrow account, Nissenbaum did not have permission to pay O’Mara, who was neither appointed by the court nor employed by McCusker’s office.
- Nissenbaum did not have court permission to pay O’Mara from the escrow account, but he did pay her through McCusker, who then took for himself 57 percent of O’Mara’s alleged fees.
- While the initials "MROM" appeared on McCusker’s bills, it was not known by Smith in advance that anyone other than McCusker would perform his duties under the appointment.
- While the initials "MROM" appeared on McCusker’s bills, it was not known by Smith prior ro McCusker’s testimony that O’Mara was not employed in McCusker’s office.
- McCusker did not have court permission to take a 57 percent referral fee from O’Mara for doing nothing, but he did. At trial, he testified that the split was 60-40.
- There is also a discrepancy between McCusker’s trial testimony and his bill prior to trial.
- McCusker billed the Smiths for 29.75 hours of O’Mara’s time at $250 per hour, totaling $7,437.50.
- McCusker billed the Smiths for 21 hours of his time at $250 per hour, totaling $5,250.00.
- Smith has had confirmation that Nissenbaum paid – prior to the date of this opposition – McCusker for all of O’Mara’s hours but only for 11 of his 21 hours. The last 10 hours were on a bill received by Nissenbaum during this writing. It is not known whether Nissenbaum paid McCusker yet for those last 10 hours.
- Of the $10,264.61 that Nissenbaum paid McCusker, O’Mara allegedly earned $7,437.50.
- Of the $7,437.50 O’Mara allegedly earned as a pseudo-GAL, McCusker kept $4,250.00 for himself as a referral fee and paid the remaining $3187.50 to O’Mara. [Tr. Exh. 252.]
- Nissenbaum violated ¶19 of the court order of 17 December 2002, by paying McCusker for more than 20 hours. That time should not have been exceeded without court permission. Court permission was not obtained.
- Guardian ad litems are not to be appointed secretly or retained by secret
informal referrals by pretenders to that function.In support of his opposition, Smith disputes each of Nissenbaum’s paragraphs from ¶3.12 (a, b, and c) through ¶3.18 as follows: * * * * *
3.12 Beardslee was paid because of Nissenbaum's understanding that Attorneys Merrill and Connelly (original counsel for plaintiff and defendant, respectively) agreed that:
a. GAL Beardslee would be appointed by the court;
b. each party would pay one-half (½) of her fees; and
c. per the attorneys' oral agreement,\2/ the funds to pay the GAL
would come from money which Attorney Merrill was then holding
in escrow.
- Nissenbaum’s understanding of the facts in his ¶3.12 (a, b, and c) was and is specious. He had absolutely no evidence whatsoever to sustain that multi-pronged understanding.
- While it is clear that Smith’s former counsel, Kevin Connelly ["Connelly"] and Smith knew that the court appointed Beardslee, there is nothing in the record that proves that they agreed; in fact, there is proof in Pocahontas/Merrill’s motion that there was disagreement between Merrill and Connelly. Smith’s counsel asks the court to take judicial notice of the contents of that UNassented-to pleading, Paper 11 (Motion for Appointment of Guardian ad Litem):
- Nissenbaum’s intellectual candlepower is put severely into question by asserting that each party would pay one-half of Beardslee’s fees. By his assertion, Nissenbaum admits that he does not know the law he is obligated to know, i.e., that §56A of G.L. c. 215 commands the Commonwealth to pay the fees of guardians ad litem appointed pursuant to that section.
- Nissenbaum’s argument in ¶3.12 (a, b, and c) must fail for the following reasons:
1.The failure of counsel to object and/or inform and/or inquire of the client as to whether he agreed to waive his rights under the statute does not constitute an oral stipulation.The motion judge (Gould, J.) erred by impliedly ruling that she had no need to consider whether "fairness and a proper sense of justice" applied to this issue in the underlying case. "Both appellate and trial courts have the power to ‘vacate a stipulation made by the parties if it is deemed improvident or not conducive to justice.’" Atlantic Pipe Corp. v. R.J. Longo Const. Co., 35 Mass.App.Ct. 459, 465-466 (1993) (emphasis supplied), quoting Crittenton Hastings House of the Florence Crittenton League v. Board of Appeal of Boston, 25 Mass.App.Ct. 704, 712 (1988), quoting Loring v. Mercier, 318 Mass. 599, 601 (1945).
Where at the motion hearing on 29 March 2000, Smith's prior counsel, Connelly, failed to object, failed to inform Smith of the statute, and failed to ask Smith whether he consented to the motion and the waiving of the statute, the multiple failures by prior counsel make his legal representation equivalent to having no counsel at all. Cf. Crittenton, 25 Mass.App.Ct. at 712, citing Houghton v. Rizzo, 361 Mass. 635, 637 n. 1 (1972), for the proposition that "where counsel for the defendants made an admission during a pretrial conference which was dispositive of the case against them and which was inconsistent with the stipulation entered into by all the parties, the admission was discharged as it was ‘obviously not intended.’"
If a party was not represented by counsel and entered into an "improvident" stipulation, "the stipulation could be discharged as ‘not conducive to justice.’" Crittenton, 25 Mass.App.Ct. at 712, quoting Woods v. State Bd. of Parole, 351 Mass. 556, 560 (1967).
The absence of any evidence that Smith intended to pay or share in the costs of the guardian ad litem is a material fact making the discharge or vacation of the so-called stipulation appropriate. Cf. Dominick v. Dominick, 18 Mass.App.Ct. 85, 89 (1984), cert. denied 392 Mass. 1103 (1984), and cases gathered, where the appellate court held that where a detailed oral marital separation agreement was read into the record, with the express intention of the parties that the agreement be reduced to writing and signed, the agreement, absent a formal signed agreement, was binding upon resumption of divorce trial following suspension for negotiations.
2. Where the parties stipulate to facts that are contrary to a statute or that lead to a result contrary to that which would be reached if the statute were followed, the stipulation must be vacated.
A stipulation to a fact that is untrue must be vacated on the grounds that it is "not conducive to the interest of justice." Vittands v. Sudduth, 41 Mass.App.Ct. 515, 516 n. 4 (1996), cert. denied 424 Mass. 1103 (1996), where the parties stipulated to a statute being effective upon the date the act was passed, the stipulation, even "[g]iving the parties’ arguments [ ] their maximum effect," was discharged as not being conducive to justice." Id., citing to Shearer v. Jewett, 31 Mass. (14 Pick.) 232, 236 (1833), Symmes Arlington Hosp., Inc. v. Arlington, 292 Mass. 162, 165 (1935), Lincoln Elec. Co. v. Sovrensky, 305 Mass. 476, 479 (1940).
In Symmes, the hospital had agreed to assume the entire cost of the hospitalization of three boys if judgment were to enter for the defendant. Where the stipulation would have yielded a result contrary to the provisions of a statute, the Supreme Judicial Court had its "undoubted power to vacate" on the grounds that the stipulation led to a result contrary to that which would have been achieved had the statute been followed. Symmes, supra at 165 (other cites omitted), quoting Shearer v. Jewett, 14 Pick. 232, 236.
In City of Waltham v. City of Newton, 306 Mass. 59, 63-64 (1940), the Court held that the obligation of a municipality to provide for relief of indigent persons residing therein was mandatory under G.L. c. 115, §17. Where the provisions of the subject statute were mandatory -- as is the provision in §56A of G.L. c. 215 which requires the Commonwealth to bear the costs of a court-appointed guardian ad litem -- the defendant could not waive the provisions (G.L. c. 115, §14) of the statutory scheme, and the stipulations were vacated. City of Waltham, supra at 64, citing Shearer, supra, Delano v. Smith, 206 Mass. 365, 372, Lincoln Electric, supra and cases cited.
In conclusion, the so-called stipulation never existed. Even giving Merrill's argument maximum effect, Smith's prior counsel's failure to object may not be transformed into a stipulation, for Smith's intent to waive his right under §56A of chapter 215 is not on the record. Neither has his prior counsel's position been reduced to a writing on the record . . . even after Nissenbaum communicated with Connelly over Smith’s objection (see emails in boxes below).\4/
FN4 At trial, Nissenbaum testified that he did contact Connelly. Given that the communication was unknown to Gouin, it may be inferred that the substance of the communication was about whether there was an oral agreement between Merrill and Connelly to pay the GAL from the escrow account. Given that Pocahontas did not call Connelly as a trial witness and Nissenbaum did NOT assert that Connelly confirmed that there was an oral agreement, the inference can be drawn that Connelly denied such an agreement, oral or written.
Further, Merrill's position is one contrary to the statute. There are no Ifs, Ands, or Buts in the statute: it expressly provides for the Commonwealth to bear the costs of the guardian ad litem's fees.
3.13 Nissenbaum is aware that defendant and his present counsel attempted to void or withdraw the prior oral agreement, to prove that the agreed-upon GAL must only be paid by the commonwealth and at the so-called statutory rate, including suing various court personnel, Merrill and others in an attempt to achieve their goal, all without success on the merits.- Nissenbaum’s argument in ¶3.13 must fail for the following reasons: (1) there never was a "prior oral agreement" of which Smith was cognizant, (2) even if there were, it would be deemed "improvident" and "void ab initio" under existing. well-settled law, which is set out immediately above this paragraph, and (3) any suits that were brought on behalf of Smith have no bearing on the merits of this case.
3.14 Shortly after being appointed and then becoming aware of this issue, in an effort to get resolve this issue, Nissenbaum sought a limited waiver of defendant's attorney - client privilege so that Nissenbaum could talk with Attorney Connelly.
FN2 Nissenbaum also understands that Merrill thought she and Connelly had also signed a stipulation to the effect that Beardslee would be paid from the escrow funds. But, that written stipulation was never prepared or signed. Nonetheless, the oral agreement remains binding on the parties.
- Nissenbaum’s argument in ¶3.14 must fail for the following reasons:
(1) Nissenbaum had exhibited his bias and his surprisingly quite-limited knowledge of the law, (2) Smith’s counsel was convinced, by her new knowledge regarding Nissenbaum’s lack of competence, that to allow Nissenbaum to invade Smith’s attorney/client privilege would be harmful to Smith’s interests, (3) where Smith terminated his relationship with his former counsel because of the perception that Connelly’s performance fell short of the performance of the ordinary lawyer practicing in family law in his community, the likelihood of Connelly being truthful or accurate was compromised. Smith’s counsel had considerable email correspondence with Nissenbaum. That correspondence is incorporated herein by reference and can be found in the text boxes below. See also Smith’s answer to Nissenbaum’s ¶3.17 at Smith’s ¶42 infra, on page 14, which is incorporated herein.3.15 Curiously, while causing all his fuss, defendant refused to grant permission for Nissenbaum to talk to Attorney Connelly about what he and Merrill agreed upon.
Subject: Re: Some research on counsel's arguments not evidence
Date: Tue, 15 Jan 2002 00:12:22 -0500
From: "Barbara C. Johnson" <barbaracjohnson@worldnet.att.net>
To: Jerry Nissenbaum <nissenbaum@mediaone.net>
CC: jdipiano@mauserlaw.com, jerry@nissenbaumlaw.com,
rsayeg@dennersayeg.com
Jerry Nissenbaum wrote:<> EACH SIDE WILL GET A FULL SET OF MY BILLS, AS NOTED IN AN E-MAIL SENT JUST A FEW MINUTES AGO.THE PAYMENT OF THE GAL IS AN ISSUE, INASMUCH AS BARBARA SAYS THE COMMONWEALTH SHOULD PAY - NOT THE PARTIES. FOR THE MOMENT WE ARE DEALING WITH GETTING THE GAL'S FILE. THEN YOU AND BARBARA HAVE TO DECIDE IF EITHER OF YOU WANT TO DEPOSE THE GAL. IF SO, JUDGE ROBERTS' ORDER WOULD THEN REQUIRE AN UP FRONT PAYMENT OF MONEY.<>
I shall be filing a 211:3 on the issue of the up-front money. I shall also request that the issue be given to the full court.
<Note that text in FULL CAPS was written by Nissenbaum.>
<> ALSO, THE COURT APPOINTMENT ME TO BE THE ON-GOING ESCROW HOLDER. AND, I NEED TO KNOW WHAT WAS PAID FOR BEFORE AND WHAT I WILL PAY FOR NOW.
THAT IS WHY I ASKED FOR A COPY OF ANY RELATED ORDERS; AND THE WRITTEN ORDERS I'VE SEEN ON POINT ARE THE ORIGINAL ORDER ESTABLISHING THE ESCROW AND APPOINTING THE GAL.
AT THIS POINT, THERE SEEMS AGREEMENT THAT THERE WAS NO WRITTEN STIPULATION OR COURT ORDER TO PAY THE GAL FROM ESCROW. ECM CLAIMS THERE WAS AN ORAL AGREEMENT. NO ONE HAS BOTHERED TO ASK KEVIN CONNELLY ABOUT IT. BUT, I WILL.<>
This would be arguably beyond the scope of your appointment. I know you want to know about whether you should pay further bills from Beardslee from the account. I and my client oppose any such payment. The GAL has wrongfully billed for alleged activities after her appointment ran out. A GAL's appointment expires with the filing of her report. What you will be doing is adding a cost which Smith will vigorously oppose. I served a 93A demand letter on MGH and the GAL et al on 29 February 2001, eleven months ago. I never received a response to it. Suit will be brought. I do not want that GAL anywhere near this case ever again. I will oppose any motion -- oral or written -- for her further appointment. She has not complied with any subpoenas, orders, etc. She is biased, incompetent, and quite dangerous.
<> WITHIN THE NEXT SEVERAL DAYS I WILL BE WRITING HIM A LETTER TO ASK
HIM TO PROVIDE ME WITH HIS MEMORY OR WHAT HAPPENED THAT DAY IN TERMS OF: WHAT DID HE AND ECM TALK ABOUT?<>You will be opening up a can of worms unless you want to become involved in a civil and potentially a criminal case. You have been appointed as a discovery master, not as a private investigator. I would be unwilling to have Smith pay you any money for this type of activity. I would be willing, however, to hire my own very experienced private investigator. What do you think about this idea?
<> WAS THERE A BENCH OR SIDEBAR CONFERENCE WITH REGARD TO PAYMENT OF THE GAL?<>
According to the transcript, there was no bench or sidebar conference. From the tape, for which we have a transcript, it appears to have been a normal hearing -- and quite short -- from the tables. Smith had three motions which were not heard. If you want, I can email you the transcript, but again, your reading it would have to be on your own cuff or Pocahontas's, and NOT Smith's. I'm somewhat disconcerted that you are willing to believe ECM 100 percent but not me. This is problematical.
<> AND - IF BARBARA DOES NOT OBJECT - WHAT, IF ANYTHING, DID HE AND Smith TALK ABOUT WITH REGARD TO PAYING THE GAL.<>
You would really be opening up a can of worms. Attorney-client privilege. I plan on suing him and his firm for malpractice. He knows this. (There was considerable correspondence between WIA managing partner and myself last year.) There is nothing which would indicate that that man's conversation with you would be reliable.
<> ON THIS POINT, BARBARA, I BELIEVE IT FAIR TO CONCLUDE THAT Smith HAS WAIVED HIS ATTORNEY / CLIENT PRIVILEGE IN THAT HE HAS CLAIMED THAT HE AND CONNELLY DID NOT TALK ABOUT Smith AGREEING TO PAY THE GAL FROM ESCROW MONEY<>
Smith has absolutely not waived his attorney-client privilege. When at a trial in a REAL court, like Superior Court, we often run into this type of issue. We are allowed to ask whether a conversation took place. We are never allowed to ask about the substance of the conversation. That substance is privileged, and the client owns it.
So when I wrote that there was no conversation between Smith and Connelly on the subject of the GAL's fees, it ended there. There was no waiver.
Of course, there is the possibility that Pocahontas would want Kevin as a defense witness. You don't want to do anything which a DA might consider witness tampering. Neither Pocahontas nor Beardslee nor Kevin is worth you ruining your own excellent reputation. Good heavens. That man, Kevin, should be examined only on a witness stand, by an ADA (assistant DA) in the (potential) criminal case, Pocahontas's criminal atty (should the criminal case against her materialize), or by me in a civil case . . . and, of course, Kevin's own atty, if it ever comes to that point where he needs one.
Since you, Jerry, and I have such different styles and are on such different wavelengths as to what constitutes evidence and what does not, I would be quite frightened by you interviewing Kevin and alerting him to questions which I could trap him with on cross-examination. I would also have no choice but to consider your inquiry into the substance of Smith's conversation with his then-attorney an invasion of Smith's privacy.
Do yourself a favor and don't open a can of worms, which might in reality be an entrance to a snake pit.
<> AND EITHER YOU OR HE HAVE DENIED HE WOULD HAVE EVER AGREED TO SUCH A POINT.<>
That is true. Smith would never have agreed to paying a GAL. He was into preserving marital assets, not wasting them. I also doubt that he knew even what a GAL was when that hearing took place on March 9, 2000.
<> BUT, IF [AND I DO NOT KNOW THIS TO BE SO] CONNELLY HAS A DIFFERENT MEMORY, THAT IS SOMETHING WE SHOULD FIND OUT NOW WITHOUT PLAYING ANY MORE LITIGATION GAMES. <>
Smith has a right under the constitutions to sue. If your unhappy about it, so be it. For you to interfere with his ability to seek a remedy through legal means would be well beyond your appointment. And they are not games!!!
They are serious actions brought for serious purposes. (Your bias is showing.)
And to recommend to a sitting justice that she should look negatively upon his right to petition a court would be a horrendous breach of ethics.
I do appreciate that power is heady. I guess that I thought you, with so many years of wonderful experience in P&F ct, would have had sufficient encounters with those frocked who have become affected by the headiness of power. You should speak to Larry Shubow and get the real lowdown on what happens when you wear that black robe too long. Don't let your appointment on this case affect your effectiveness as an inspiring family-law litigator.
My fear for you stems from my disappointment, yesterday, with your emails. It appeared that you have decided the issues regarding what happened BEFORE the evidence is even in. This is why I want an evidentiary hearing on Smith's Complaint for Contempt. I could then ask the questions. But then again, by what you wrote yesterday, the prognosis might be in question, given that what seems to pass as evidence in P&F court (or in Juvenile) is not the type of evidence that would pass as evidence in other courts. That's scary. Elsewhere, that is, in courts other than P&F, Kevin and Pocahontas would have to comply with and be subjected to those rules which are used in those other courts.
<> BARBARA - TAKE WITH Smith. DOES HE FEEL THAT WHATEVER CONVERSATION HE HAD WITH CONNELLY, IF ANY, IS STILL WITHIN THE ATTORNEY / CLIENT PRIVILEGE, IN LIGHT OF HIS OR YOUR CLAIMS? IF SO, LET ME KNOW AND THEN RAY CAN MAKE A MOTION TO BE HEARD BY ME AND I CAN THEN MAKE A RECOMMENDATION TO THE COURT.<>
See, you are already siding with Ray. Yes, of course, Smith is absoutely not waiving his attorney-client privilege at this time. There might be, down the road, when a civil case is initiated against Connelly and WIA, a time that his a-c privilege will have to be reconsidered: for instance, were that relationship be put into issue by Smith. Right now, in this divorce case, that a-c relationship has NOT been put into issue by Smith. If you were the one to put it into issue, Smith still could not be required to waive his a-c privilege to keep his discussions with Kevin private and confidential.
<> I, FOR ONE, AM VERY INTERESTED TO KNOW IF KEVIN AND Smith TALKED AND, IF SO WHAT WAS SAID.<>
Many of us are interested in lots of things. It doesn't mean that interest becomes satisfied.
Please don't take me wrong. I firmly believe your heart is in the right place, but your approach -- as described in your email to which I am answering - is misdirected. I know you want to save the Smiths money. I truly do understand that. But what you want to do is going to cost them money in the long run. It might also cause damage in ways that you cannot envision. I'm really trying to, at this point, save you from yourself.
<> IN ANY EVENT, I WANT TO KNOW IF THERE WAS A BENCH CONFERENCE [WHICH WOULD NOT TYPICALLY BE ON A PROBATE COURT TAPE]; AND IF SO, WHAT WAS SAID AT THE BENCH CONFERENCE.<>
The tape clearly shows there was not. You don't have to ask or speak to Kevin to learn that fact. As to bench conferences not being taped. Wow, that is one helluvan admission. They should be. I must admit it is difficult to hear Gould on some of the tapes. She used to put her hand over the microphone!! Not kosher, not kosher at all!!!
<> JOHN- AS TO YOUR LARGER POINT, I AM M ALSO TRYING TO SEE IF THERE ARE WAYS TO NARROW THE ISSUES.<>
Jerry, I wrote you about a number of issues with which you could get involved constructively. You have not responded to my suggestions. The issues all were essentially factors of section 34. Your exceptional expertise in the family-law area could be put to excellent use if you would take on those issues.
<> LAST, I, TOO, AM CONCERNED ABOUT HAVING POCAHONTAS BEAR WHAT MAY BE FAIRLY SAID TO BE COSTS THAT SHOULD BE "OWNED" ONLY BY Smith. THAT IS WHY, IN AN EARLIER E-MAIL, I PUT BARBARA ON NOTICE THAT IF SHE RAISES ISSUES WHICH I BELIEVE ARE IRRELEVANT, I WILL CONSIDER ASSESSING MY FEES OTHER THAN AT THE 50/50 RATE.<>
Another snake pit would be opened. If you were to see Beardslee's bills, you would see that Pocahontas "and hers" were the ones who consumed the large majority of Beardslee's time. Perhaps those bills should be divided as to "ownership." Smith would then "own" only a couple hundred dollars, not $11 or $13 thousand.
If I'm going to be blind-sided as to what you think is relevant after the fact, I guess I'll just have to stop responding to your emails in a timely and cooperative manner. I don't want to be sucked in. Given my propensity to reply in detail, I am vulnerable to your threat. This is why, fearing that after you made your first comment regarding so-called extraneous comments, I took to commenting only interlinearly, so that you could see I was only responding tosubjects which you raised or provoked. I am continuing in that vein for the same fear.
<> FOR EXAMPLE, I HAVE NOT READ THE MAINE STATUTES SHE E-MAILED TO ME. INSTEAD, I HAVE ASKED HER WHY SHE THINKS I SHOULD HAVE TO DEAL WITH THAT INFORMATION.
Good, don't read the Maine statutes. Then don't further speculate to me regarding what Maine might do, and I will not tell you what I learned by reading the Maine cases.
<> WE'LL WAIT FOR HER ANSWER<>
If it's my answer to this email you were waiting for, you have it.
I'm now herein this email giving all of you advance notice that I shall not be available for answering any emails whatsoever to you guys for the next week or so. I must begin writing that appellate brief and take care of motions due by Thursday for an entirely different client. That appellate brief will likely take my time also during next weekend. Finalizing of it and assembly of the Appendix will have to be the following week.
Given all the threats to me and my client as to imposing costs and disparaging thoughts about the other litigation, it may very well be a relief to put you all on hold. Whatever you do this week, put on Pocahontas's tab. I would still like to be cc'd, however.
What has been further confirmed in this correspondence is that the P&F system really does leaves much to be desired (a euphemism, of course). It makes my efforts to fix it all that more important!!!
Sadly,
Barbara
<> JERRY.<>
Subject: Clarification re Connelly/Smith
Date: Thu, 17 Jan 2002 16:31:40 -0500
From: "Barbara C. Johnson" <barbaracjohnson@worldnet.att.net>
To: Jerry Nissenbaum <nissenbaum@mediaone.net>
CC: jerry@nissenbaumlaw.com, rsayeg@dennersayeg.com,
jdipiano@mauserlaw.comI believe it is necessary to clarify:
If Smith gets his trial on his Complaint for Contempt, Pocahontas will have to subpoena Connelly to trial. At that point, I shall be able to cross-examine him. If Smith gets his trial on his Complaint for Contempt, Pocahontas will have to subpoena Merrill to trial. At that point, I shall be able to cross-examine her. The truth I would hope would come out.
If you were to examine Connelly, with your evident bias and conclusions with no reasonable basis for them, the truth is more than likely NOT to come out and you would have ruined Smith's opportunity for legitimate cross-examination.
You see, I am not against Connelly from being examined, I just absolutely do NOT want you to be the one who does it.
I also absolutely want any questioning of him to be done under controlled conditions, such as those which are provided in REAL courts. I have come to distrust anything that happens in P&F CT., now more so after receiving this last week's worth of emails from you regarding what is the "usual" and/or "customary practice" by matrimonial lawyers in P&F Ct.
Barbara
- Nissenbaum’s argument in ¶3.15 must fail for the reasons set forth in the emails of the 15th and 17th of January 2002. And again, Connelly and Merrill had no agreement of which Smith is cognizant. We know Merrill lied to Gould about there being a written stipulation signed by both parties and their respective counsel, notwithstanding that she told Judge McHugh that she made a mistake due to her busy schedule. See also Smith’s answer to Nissenbaum’s ¶3.17 at Smith’s ¶42 infra, at page 14, where the issue is explained more fully and which is incorporated by reference as if set forth herein this paragraph.
3.16 One suspects at some point, a court will conclude that, by raising the issue, defendant will be deemed to have made a limited waiver of his attorney / client privilege so that Attorney Connelly will be required to provide his testimony - whatever it may be then, years after the events in question.
- Nissenbaum’s argument in ¶3.16 also must fail for the reasons set forth in the emails of the 15th and 17th of January 2002. Nissenbaum’s suspicions are irrelevant to his motion and Smith’s opposition. Smith refused to waive his attorney-client privilege to allow Nissenbaum to go beyond the scope of his duties under the reference of appointment and then charge Smith staggering fees for so doing. At any rate, the information Nissenbaum was seeking was irrelevant to the issue at hand. See also Smith’s answer to Nissenbaum’s ¶3.17 at Smith’s ¶42 infra, where that issue is explained more fully and which is incorporated by reference as if set forth herein this paragraph.
3.17 While it is true defendant does not have to waive even this limited part of his attorney / client privilege, it is also true that, therefore, a negative inference may, in this civil matter, properly be drawn against him for failing to permit his own prior counsel to provide his memory and, if any, notes of what was said and done with regard to his conversation with Attorney Merrill.
- Nissenbaum’s argument in ¶3.17 must fail for the following reasons: (1) Because of the well-settled law about stipulations or agreements which would yield a result contrary to the result that would be yielded when a statute was complied with -- whether there was or was not an oral or written agreement to pay the GAL fees out of the escrow account -- was irrelevant and not within the scope of the DM’s obligations under his appointment. The statute (215:56A) is mandatory. Therefore, it did or does not make any difference whether there was an agreement between the parties or their counsel. To Nissenbaum, the only fact which should have been relevant him regarding the payment of the GAL’s fees was what the 12/27/99 court order stated. That fact was that court permission had to be obtained before money could be withdrawn from that account.
(2) The other issue about which Connelly might have known and which was within Nissenbaum’s obligation as a Discovery Master was (a) whether the FSI appraisal was likely to lead to admissible evidence, (b) whether the FSI appraisal existed, and (c) whether the FSI appraisal had been produced as requested.Further, Smith’s counsel had also informed Nissenbaum that she wanted the FSI appraisal document (a) for comparison with any new appraisal that would be done, (b) for impeachment purposes (of Pocahontas and of the new appraiser – whoever that might be), and (c) to use to show that Pocahontas’s opinion of fair market value ["FMV"] of $500,000 on her Financial Statements was unreasonable and that she knew it, and (d) to show that Merrill knew that Pocahontas’s statement on FMV was not reasonable in light of the known assessed value, which was at that time $192,000, and that by signing the Financial Statement, Merrill vouched for something she knew to be unreasonable. It was, of course, Nissenbaum’s desire to win personal, economic benefit by protecting Merrill on the issue that inspired him to seriously escalate the issue surrounding Smith’s request for the FSI appraisal.
Clearly, the FSI was relevant and contained material facts.
Smith’s communications with his former attorney had nothing to do with the issue at hand. Smith had proof in the form of a letter from Merrill to Connelly suggesting they use a joint appraiser. Although the record is bare as to Connelly’s response, one can assume he agreed, inasmuch as Mr. Smith, Senior, allowed Shirley Morse from FSI Appraisal to enter onto, enter into, and inspect the property.
3.18 Based on the above and on Nissenbaum's experience as a divorce lawyer - in which stipulations such as that described by Attorney Merrill are commonly typically entered into - Nissenbaum was left with a good faith belief that the original stipulation is as Merrill claimed and that it remains binding. Therefore, Nissenbaum believed in good faith that it was proper for him to pay out the funds represented by check #1001.
- Nissenbaum’s argument in ¶3.18 must fail for the following reasons: Nissenbaum knew that Merrill had made multiple misrepresentations to court and that she had admitted doing so. Nissenbaum knew or should have known that the 27 December 1999 order was explicit about "further permission" of the court being required before any money was withdrawn. Merrill was, of course, at that time not sitting on the bench. Further, Nissenbaum clearly did not know the law on the subject of stipulations or agreements. That law is plentiful and appears in this brief on pages 6-8.
Hence, Nissenbaum did not have (1) a basis upon which to form a good-faith basis either to believe Merrill or to conclude that a stipulation, if any at all, was binding. In conclusion, Nissenbaum did not act in the manner of an ordinary attorney in the practice of family law. His performance fell below that required by the ordinary attorney in the practice of family law in this community.The bottom line is that in writing the multiple checks from the escrow account, Nissenbaum not only used extraordinarily bad judgment and showed his ignorance of an important area of law, he also intentionally and knowingly defied a court order by not complying with it.
CONCLUSION"Disbarment or indefinite suspension is the presumptive sanction for intentional use of fiduciary funds with either the intent to deprive or with actual deprivation resulting." Matter of Bailey, 437 Mass. 134, 149 (2003), citing Matter of Watt, 430 Mass. 232, 234-235 (1999); Matter of Schoepfer, 426 Mass. 183, 187 (1997); Matter of Elias, 418 Mass. 723, 725 (1994); Matter of the Discipline of an Attorney, 392 Mass. 827, 836 (1984). Matter of Carrigan, 414 Mass. 368, 373 n.6 (1993) (deprivation occurs "whenever an attorney uses client funds for unauthorized purposes after the time these funds are due and payable").
The presumption of disbarment or indefinite suspension that flows from Bailey's misappropriation of client funds is bolstered by the seriousness of Bailey's additional misconduct. An attorney's giving false testimony under oath, by itself, can justify disbarment.
Matter of Bailey, 437 Mass. at 151.Like Bailey’s, Nissenbaum’s prior awareness of the 27 December 1999 order (or lack thereof) is highly material. Id. And again like Bailey’s, Nissenbaum’s failure to comply with two court orders was contemptuous (the 12/27/99 order, which forbade withdrawing money from the escrow account without court permission, and the 12/17/01 order, which forbade paying McCusker for more than 20 hours without court permission). Id. And still again like Bailey, Nissenbaum’s prior awareness of the orders (or lack thereof) was highly material. Id.
And for Nissenbaum to allow McCusker to have O’Mara provide substitute performance without the knowledge of Smith and his counsel is reprehensible. Given that Nissenbaum knew or should have known that none of the provisions of G.L. 215, §56A were followed, Nissenbaum knowingly aided and abetted the perpetration of a fraud on Smith by allowing that substitution. O’Mara did and does not work for McCusker [McCusker’s trial testimony], was not appointed by this court, and was not approved by either party. Smith suggests that the casual, unilateral, secret assignment of the project to O’Mara raises a red flag about Nissenbaum’s relationship to McCusker and O’Mara . . . particularly where McCusker, in his trial testiony, admitted taking 60 percent of the money allegedly earned by O’Mara. That, too, is highly unusual. Did McCusker split his 60 percent in half with Nissenbaum, so that each of them – McCusker, O’Mara, and Nissenbaum – got a piece that was a third of the pie?
In Bailey, the court wrote that the "Bar counsel appropriately cite[d] as aggravating factors Bailey's failure to recognize or appreciate the wrongful nature of his serious misconduct." Id. at 152, citing Matter of Eisenhauer, 426 Mass. 448, 455, cert. denied, 524 U.S. 919 (1998); his lack of candor before the referee (to whom he repeated his false testimony), Matter of Friedman, 7 Mass. Att'y Discipline Rep. 100, 103 (1991); the self-interest that permeates the various violations, see Matter of Pike, 408 Mass. 740, 745 (1990); the cumulative effect of the multiple violations, see Matter of Saab, 406 Mass. 315, 326-327 (1989). And ostensibly, Nissenbaum, too, did amd still does not "recognize or appreciate the wrongful nature of his serious misconduct."
We see nothing in mitigation. That Bailey has had a long and highly successful career -- as attested by those who submitted letters to the Board of Bar Overseers urging it not to seek Bailey's disbarment -- does not mitigate these multiple violations. Our standards of ethical practice apply to all attorneys, whether they are well known for their victories in high-profile cases or whether they practice law in quiet obscurity. If anything, the fact that Bailey committed such grave misconduct despite his vast experience as a seasoned litigator only serves to heighten the seriousness of his offenses.
Matter of Bailey, 437 Mass. at 152.Were this court to allow Nissenbaum’s motion, this court would be approving his intentional contempt of two court orders, and in so doing would be depriving Smith of equal protection of the laws. One does not let a mugger mug and then declare mugging legal nunc pro tunc to the day the mugging occurred.
As the Bar counsel interfered Bailey’s life, so should the Bar counsel become involved in Nissenbaum’s life. Only this court has the power to make that happen.
As for Smith, he seeks sanctions against Nissenbaum, first, for bringing a frivolous motion, and second, for removing money from the account which contained Smith’s money. The money in that account was Smith’s, pursuant to an agreement he had with his wife, who at the time was about to become his "estranged wife."
WHEREFORE, Smith prays that his opposition be ALLOWED, that he be awarded attorney's fees for the opposition, and that Nissenbaum be commanded to return to the account of the money wrongfully converted .
John Smith,
By his attorney,
20/21 May 2003 Barbara C. Johnson
Barbara C. Johnson, Esq.
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
B.B.O. #549972CERTIFICATE OF SERVICE
I hereby certify that on 20/.21 May 2003 I caused to be served in hand/by first-class mail a copy of the within pleading on John DiPiano, 180 Canal Street, Suite 400, Boston, MA 02114, and Gerald L. Nissenbaum, 160 Federal Street, 24th floor, Boston, MA 02110.
20/21 May 2003 Barbara C. Johnson
Barbara C. Johnson, Esq.