Johnson v. Board of Bar Overseers of Mass.

• Decision Date: 26 May 2004
• Docket Number: No. Civ.A.03-12314-WGY.,Civ.A.03-12314-WGY.
• Citation: 324 F.Supp.2d 276
• Parties: Barbara C. JOHNSON, Plaintiff, v. BOARD OF BAR OVERSEERS OF MASSACHUSETTS, M. Ellen Carpenter, in her individual and professional capacities, Herbert P. Phillips, in his individual and professional capacities, Office of Bar Counsel, Daniel Crane, in his individual and professional capacities, Commonwealth of Massachusetts, Defendants.
• Court: U.S. District Court — District of Massachusetts

324 F.Supp.2d 276

Barbara C. JOHNSON, Plaintiff, v. BOARD OF BAR OVERSEERS OF MASSACHUSETTS, M. Ellen Carpenter, in her individual and professional capacities, Herbert P. Phillips, in his individual and professional capacities, Office of Bar Counsel, Daniel Crane, in his individual and professional capacities, Commonwealth of Massachusetts, Defendants.

No. Civ.A.03-12314-WGY.

United States District Court, D. Massachusetts.

May 26, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Barbara C. Johnson, Andover, MA, pro se.

John R. Hitt, Attorney General's Office, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

YOUNG, Chief Judge.

I. INTRODUCTION

This case involves a Massachusetts attorney, Barbara C. Johnson, Esq. ("Johnson"), against whom the Massachusetts Office of Bar Counsel has brought disciplinary charges before the Massachusetts Board of Bar Overseers. Johnson filed suit in this Court against the Board of Bar Overseers, the Office of Bar Counsel, the Commonwealth of Massachusetts and various individuals, alleging that these administrative proceedings have been conducted unfairly and unlawfully. Am. Verified Compl. ("Am.Compl.") [Doc. No. 5]. In her suit, Johnson alleges various violations of her civil rights under 42 U.S.C. §§ 1983 and 1985, and she also alleges defamation under state law. Am. Compl. at 56. She seeks declaratory and injunctive relief as well as money damages. Id. On January 9, 2004, all of the defendants filed a motion to dismiss the Complaint [Doc. No. 61], which this Court granted in part and denied in part in an order from the bench at oral argument on February 24th. On February 25th, the Court clarified its order of the previous day, holding that Johnson's suit for money damages against the individual defendants in their personal capacities stated a cause of action, and inviting the parties to submit further briefing on the issues of quasi-judicial and quasi-prosecutorial immunity. 02/25/04 Order [Doc. No. 14]. In response, the defendants filed a "further motion to dismiss and supporting memorandum" [Doc. No. 15], claiming "absolute immunity," and Johnson filed her opposition to that motion [Doc. No. 18], asserting that neither quasi-judicial nor quasi-prosecutorial immunity is applicable [Doc. No. 17], and a motion for reconsideration of this Court's February 25th order dismissing her claims for declaratory relief ("Pl.'s Mot. for Reconsideration") [Doc. No. 20]. The Court has carefully considered the parties' arguments. This memorandum and order addresses the remaining claims in this action and sets forth the reasoning underlying the Court's previous orders.

II. BACKGROUND

On January 24, 2003, Massachusetts Bar Counsel Daniel Crane ("Bar Counsel") filed a Petition for Discipline, Ex. to Mot. to Impound [Doc. No. 10] ("Pet.") (copy of the Petition), before the Board of Bar Overseers of the Commonwealth of Massachusetts against Johnson. The Petition contains three counts detailing Johnson's alleged misconduct.

Count I of the Petition alleges that Johnson posted impounded "privileged, confidential and highly personal information" to her website in violation of Mass. Gen. Laws ch. 209C, § 13. Pet. ¶¶ 23-24. Bar Counsel alleges, inter alia, that "by disseminating impounded material ..., failing to return to the juvenile court impounded reports belonging to the court, and failing to remove impounded material from her web site, [Johnson] violated Mass. R. Prof. [C.] 8.4(d) and (h)...." Pet. ¶ 42.

Count II alleges that Johnson charged two clients an excessive fee in violation of Mass. R. Prof. C. 1.5(a), made false, deceptive or misleading representations to them about her fees, time, and charges, in violation of Mass. R. Prof. C. 8.4(c) and (h), commingled her own funds with theirs, and failed to account adequately for her application and disposition of their retainer in violation of Mass. R. Prof. C. 1.15(a)-(c), 1.16(d), and 8.4(c) and (h). Pet. ¶¶ 95-99.

Count III alleges that Johnson knowingly disobeyed Massachusetts district court orders after those orders were affirmed on appeal, engaged in contempt of court, and refused to pay a judgment of contempt until she had been incarcerated, in violation of Mass. R. Prof. C. 3.4(c) and 8.4(d) and (h). Pet, ¶ 126. Count III further alleges that Johnson filed motions in another action without any legal or factual basis and in bad faith, exposing her client to dismissal of her claims and personal liability for sanctions and damages through Johnson's own misconduct, failed to appeal from the contempt judgment against her client, and pursued a frivolous appeal from an order of the Massachusetts Superior Court, in violation of Canon One. DR 1-102(A)(5) and (6), Canon Six, DR 6-101(A)(1)-(3), and Canon Seven, DR 7-101(A)(3). Pet. ¶¶ 126-27.

Johnson denied all these charges and vigorously defended herself in the proceeding convened by the Board of Bar Overseers. A hearing was scheduled for December 2, 3, 4, 9, 10 and 11, 2003. Am. Compl. ¶ 176. On December 2, during Johnson's opening statement, Assistant Bar Counsel objected to Johnson's mentioning the names of the complainants and various witnesses. Id. ¶ 181, Johnson then attempted to avoid using real names, but when "[a] few times, she slipped," the defendant Phillips, the Special Hearing Officer presiding over the case, ordered the public out of the hearing room. Id. ¶ 183-86. To protest this decision, Johnson walked out of the hearing room with the last of the public to leave. Id. ¶ 187. Johnson subsequently filed various unsuccessful motions with the Board of Bar Overseers, including motions to dismiss the complaint, for rehearing, for conference with the twelve members of the Board of Bar Overseers, and for reconsideration of the orders denying her prior motions. Id. ¶¶ 189-95. The matter remains pending before the Board of Bar Overseers.

Johnson next brought suit in this Court, seeking declaratory and injunctive relief as well as money damages. Alleging a total of ten causes of action, Johnson brought six Counts seeking declaratory judgments that various rules and procedures of the Board of Bar Overseers are unconstitutional, id. at 35-49 (Counts 1-6), two Counts for violation of her civil rights under 42 U.S.C. § 1983, id. at 49-52 (Count 7) and id. at 53-55 (Count 9), one Count for conspiracy to violate her civil rights under 42 U.S.C.1985(3), id. at 52 (Count 8), and one count of defamation under state law, id. at 55 (Count 10).

Johnson asked this Court to declare (1) that a bar disciplinary proceeding is a quasi-criminal proceeding and that whether or not the proceeding is quasi-criminal, respondents are entitled to a jury trial, (2) that the Rules of the Board of Bar Overseers are unconstitutional both facially and as applied to civil or quasi-criminal proceedings, (3) that lawyers are entitled to the full sweep of due process and equal protection of all the laws, (4) that Sections 9(1), 9(2), and 9(3) of Supreme Judicial Court Rule 4:01 are unconstitutional both facially and as applied, (5) that Section 10 of Supreme Judicial Court Rule 4:01 is unconstitutional both facially and as applied, and (6) that Rule 1.5 of the Massachusetts Rules of Professional Conduct is unconstitutional on vagueness and overbreadth grounds. Am. Compl. at 1-2; id. ¶¶ 196-272. Additionally, Johnson seeks money damages from Bar Counsel for making allegedly defamatory statements about her to a reporter that were subsequently published in a local newspaper, as well as money damages from the Board of Bar Overseers for posting on its website that disciplinary proceedings are pending against her. Id. ¶¶ 292-98. Finally, Johnson alleges violation of her civil rights and conspiracy by the defendants in the prosecution of the disciplinary action against her and seeks fifteen million dollars in compensatory damages plus punitive damages. Id. ¶¶ 273-91.

III. DISCUSSION

Doctrines of abstention, Eleventh Amendment immunity, and judicial and prosecutorial immunity all play a role in the resolution of this case.

A. Younger Abstention Doctrine

The defendants initially moved to dismiss the entire complaint on the basis of the Younger abstention doctrine. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Younger requires that federal courts not intervene in ongoing state criminal proceedings. Bettencourt v. Bd. of Registration in Med., 904 F.2d 772, 777 (1st Cir.1990). Deference is also required to "ongoing, originally state-initiated civil or even administrative proceedings that satisfy three conditions: (1) the proceedings are judicial (as opposed to legislative) in nature; (2) they implicate important state interests; and (3) they provide an adequate opportunity to raise federal constitutional challenges," Id. (footnote omitted).

In Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), the plaintiff sought to have a federal court declare that certain of the Disciplinary Rules of the Code of Professional Responsibility of New Jersey were vague and overbroad and violated his First Amendment rights. Id. at 429, 102 S.Ct. 2515. The Supreme Court granted certiorari to determine whether a federal court should abstain from considering this challenge in light of the fact that state proceedings involving these rules and this party were ongoing. Id. at 425, 102 S.Ct. 2515. In ruling that the federal court ought abstain, the Supreme Court noted that "[t]he policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved." Middlesex, 457 U.S. at 432, 102 S.Ct. 2515 (citing Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979), and Huffman v. Pursue, Ltd., 420 U.S. 592, 604-05, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975)).

To determine whether abstention would apply, the Supreme Court applied the three-part Younger test to New Jersey's disciplinary...