Petition for Writ of Certiorari — Mark R. Joubert, Petitioner v. Todd Miley

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ORIGINAL

i

No.

FILED

NOV 0 1 2021

IN THE

SUPREME COURT OF THE UNITED STATES

MARK JOUBERT

Petitioner

v.

TODD MILEY

Respondent

On the Petition for Writ of Certiorari

To the United States Court of Appeals

From Supreme Judicial Court of Massachusetts

PETITION FOR WRIT OF CERTIORARI

Mark Joubert

P.O. Box 122

Spencer, Massachusetts 01562

(508) 797-0606

Pro Se Petitioner

Dated- March 8, 2022

OFFICE OF THE CLERK

SUPREME COURT. U.S.

QUESTIONS PRESENTED

I.

May a state court establish an attorney-client

relationship that will restrict an individual's

liberty under the Fourteenth Amendment to

pursue a long non-legal business?

1

\

LIST OF PARTIES

1. MARK JOUBERT. Plaintiff and Petitioner.

2. TODD MILEY, Defendant and Respondent.

n

TABLE OF CONTENTS

QUESTIONS PRESENTED

1

LIST OF PARTIES

11

INDEX OF APPENDICES

v

TABLE OF AUTHORITIES

vi

PETITION FOR WRIT OF CERTIORARI

1

OPINIONS BELOW

1

STATE COURT:

1

JURISDICTION

1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED...........

2

STATEMENT OF THE CASE

2

STATEMENT OF THE FACTS

3

REASONS FOR GRANTING THE WRIT

8

INTRODUCTION

8

m

I.

II.

III.

IV.

CERTIORARI IS APPROPRIATE TO

REVIEW A STATE COURT DECISION

WHEN IT CLEARLY VIOLATES THE

DOCTRINE OF COLLATERAL

ESTOPPEL THEREBY VIOLATING A

PERSON’S DUE PROCESS

PROTECTION UNDER THE LAW.......

10

CERTIORARI IS APPROPRIATE TO

REVIEW A STATE COURT DECISION

WHEN THAT DECISION VIOLATES

A PERSON’S DUE PROCESS

PROTECTION PREVENTING THEM

THE FUNDAMENTAL RIGHT TO

PURSUE AN OCCUPATION.................

13

CERTIORARI IS APPROPRIATE TO

REVIEW A STATE APPELLATE

COURT DECISION WHEN THAT

DECISION VIOLATES DUE PROSS

BY FAILING TO APPLY THE

CORRECT STANDARD OF REVIEW.

14

ATTORNEY-CLIENT RELATIONSHIP...... 15

CONCLUSION

18

IV

INDEX OF APPENDICES

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Recommendation of the

Office of Bar of Counsel,

Massachusetts Board of

Bar Overseers.................

la

Superior Court Findings of

Fact and Rulings of Law....

3a

r"

Superior Court Post-Trial

Motions and Appeals.......

40a

Order of Appeals Court;

Motion to Reconsider, and

Denial................................

54a

FAR Application Denial,

and Denial......................

69a

v

TABLE OF AUTHORITIES

Cases:

Cesso v. Todd,

92 Mass. App. Ct. 131 (2017)

16

DaRoza v. Arter,

416 Mass. 377 (1993)

17

DeVaux v. American Home Assur. Co.,

387 Mass. 814 (1983)...................

passim

Fanaras Enters., Inc. v. Doane,

423 Mass. 121 (1996)......

17

Fidler v. Eastman Kodak Co.,

714 F.2d 192 (1st Cir. 1983)

11

Home Owners Fed. Sav, Loan Ass’n v.

Northwestern Fire Marine Ins. Co,

supra 455.............................................

12

Int'lStrategies Group v. Greenberg Traurig, LLP,

482 F.3d 1 (1st Cir. 2007)................................ 17

Kurtenbach v. Tekippe,

260 N.W.2d 53 (Iowa 1977)

15

Marlow v. New Bedford,

369 Mass. 501 (1976)

15

Montana v. United States,

440 U.S. 147 (1979)

11

Sheinkopfv. Stone,

927 F.2d 1259 (1st Cir. 1991)

vi

7, 16

Sims v. Apfel, U. S. Supreme Court,

530 U.S. 103, 69 Soc. Sec. Rep. Serv. 415

(2000) ............................................................ 12-13

United States v. Dieter\

429 U.S.'6 (1976)

9

United States v. United States Gypsum Co.,

333 U.S. 364 (1948)................................

15

Washington v. Glucksberg,;

521 U.S. 702 (1997).

13

Constitutional Provisions:

U.S. Const, amend. XIV, sec 1

2

Statutes:

2,8

28U.S.C. § 1257(a)

Vll

PETITION FOR WRIT OF CERTIORARI

The Petitioner, Mark Joubert, Petitioner,

proceeding pro*se, -respectfully prays that a writ of

certiorari issue to review the judgment and opinion

of the Massachusetts Court of Appeals, rendered in

these proceedings on June 17, 2021.

The federal and state courts have issued

conflicting decisions on an issue of federal law and

constitutional interpretation.

OPINIONS BELOW

State CourtThe Massachusetts Court of Appeals reversed

in part and affirmed in part the opinion of Judge

Frison’s Superior District Court of Massachusetts.

The order denied all counterclaims of action for

failure to prove damages presented by Defendant

and upheld the finding of an attorney client

relationship between the parties. The opinion of the

Appeals court was the highest court to review the

merits of the case and is reprinted and appears at

Appendix D, 54a to the petition and is unpublished.

The opinion of the Justice Frison affirmed all

counterclaims by the Defendant and established an

attorney client relationship after trial. The opinion of

the Superior Court of Massachusetts appears at

Appendix B, 3a to the petition and is unpublished.

JURISDICTION

The original order of the Appeals Court of

Massachusetts was entered on June 17, 2021. A

timely Motion for Reconsideration was timely filed

and denied on June 20, 2021. The Supreme Judicial

1

Court of Massachusetts denied a FAR application on

August 2, 2021. A. 116a.

The jurisdiction of this Court is invoked under

28 U.S.C. sec 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Title III of the Rules of Procedure

Commonwealth of Massachusetts;

of the

U.S. Const. Amend. XIV, sec V

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

state wherein they reside. No state shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States? nor shall any state deprive any

person of law* or deny to any person within its

jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

Respondent filed a complaint against

petitioner with the Massachusetts Board of Bar

Overseers in 2012. In 2013 the Office of Bar Counsel

issued its Recommendation stating that petitioner

and respondent were engaged in a business

relationship and not engaged in an attorney-client

relationship.

Petitioner filed his Complaint against

defendant Miley in 2014. A trial was held in the

Worcester Superior Court on December 18, 19, 20,

and 21st of 2017 before the Honorable Shannon

Frison. The Superior Court endorsed its Findings of

Fact and Rulings of Law on February 12, 2018.

2

Plaintiff filed his Notice to Appeal the

Judgment on February 27, 2018. Defendant’s Post

trial Motion for Attorney’s Fees and Costs was held

on August 24, 2018.

Plaintiff filed his Notice of Appeal on August

24, 2018.

Plaintiff filed his Motion to Vacate

December 19, 2018.

on

Plaintiff filed his Motion to Appeal.

Appellant’s Brief was filed with the Appeals court on

July 19, 2020. Oral arguments were heard by the

Appeals Court on March 4, 2020. The Appeals Court

issued its Decision on June 8, 2021. The Appeals

Court reversed all of respondent’s counterclaims in

favor of petitioner but found that petitioner was at

all relevant times an attorney—client relationship

existed between the parties. Appellant filed a Motion

to Reconsider, specific to the existence of an attorney

■client relationship and collateral estoppel with the

Appeals Court on June 2021. The Appeals Court

denied the Motion after consideration on June 20,

2021.

STATEMENT OF THE FACTS

Mark Joubert respectfully approaches the

Supreme Judicial Court and requests a further

appellate review of the lower court’s findings an

attorney client relationship existed between the

parties. The Court’s rational is flawed in

establishing an attorney* client relationship at the

time the parties engaged in a joint venture. First,

the. court’s assertion that a single act of

representation that comprised of writing a letter to

an auction house approximately one year prior to a

3

joint venture was enough to establish a perpetual

attorney -client relationship that would continue for

as long as the Respondent wished it to. The concept

of legal representation in perpetuity violates the

canons of the rules of professional responsibility,

case law, or any statutes. Miley was unable to ‘

articulate a single instance where Petitioner

performed any legal service after the auction letter

from a year before but testified that he gave

petitioner many assignments to read and evaluate

scholarly science-based newspaper clippings and

various articles in solar related magazine. Both the

Superior Court and the Appeals Court disregarded

the testimony of both Joubert and Miley regarding

Petitioner’s denials of performed a single legal

service after the auction letter and Respondent’s

assertions that petitioner’s research was solely

science based not legally related.

Respondent

testified he invited Petitioner to become an officer in

a corporation he wished to create. Almost a year

later the respondent dissolved the corporation. After

several months of conversations between the

petitioner and the respondent concerning the

compensation to the petitioner for the work

petitioner performed, respondent filed a complaint

against petitioner with the Massachusetts Board of

Bar Overseers.

The Board of Bar Overseers, Office of Bar

Counsel, investigated the respondent’s claims, which

included witness statements, interviews, and the

same exhibits presented and accepted at trial. After

completing their investigation of respondent’s

claims, the Office of Bar Counsel issued its

Recommendation and stated that the parties were

not engaged in an attorney-client relationship and

4

characterized the parties as in a “business

relationship. (App. A, la) Pursuant to Bar Counsel

Rule 2.10, the respondent had 14 days to appeal its

Recommendation. The Respondent testified that he

did not appeal the Bar counsel’s Recommendation at

any time, therefore concluding the matter. In 2014,

the petitioner filed a lawsuit against respondent

alleging breach of contract inter alia. The respondent

filed his answer and counterclaims alleging the

existence of an attorney-client relationship during

the time of the corporation and other various causes

of action. Petitioner filed his Answer to the

Respondent’s counterclaims including petitioner’s

affirmative

defenses,

which

included,

that

respondent’s Counterclaim the Petitioner was his

attorney during the period of the corporation is

barred by collateral estoppel, is barred by the

Recommendation issued by Bar Counsel, a quasi­

judicial tribunal, and is therefore, barred by lack of

an attorney-client relationship. The Superior Court

negated the testimony and evidence that supported

collateral estoppel. The Massachusetts Appeals

Court also, negated Bar Counsel’s Recommendation

as well as the doctrine of collateral estoppel and

asserted that an attorney-client relationship existed.

Neither the Superior Court nor the Appeals Court

provided any legal standard to support its finding of

an attorney-client relationship between the parties

though the standard distilled by DeVaux has been

the legal standard used in Massachusetts and many

other courts throughout the United States. DeVaux

v. American Home Assur. Co., 387 Mass. 814, 817818 (1983). An attorney-client relationship existed

despite petitioners reasoned application of the

accepted elements set forth in Devaux. Both Courts

5

simply focused on the fact the petitioner acting in his

own self-interest and in his capacity as respondent’s

attorney in contrast to the respondent’s specific

invitation to include the petitioner as an officer and

director of a corporation respondent decided to form

based on the advice and insistence of the solar

company.

At trial, Miley based his belief that Joubert

was his attorney: (l) Joubert received mail at Miley

apartment house where Joubert was residing; (2)

Joubert was his attorney because “he was going

somewhere. When asked where was Joubert going?

Miley had no coherent or articulable answer. (3)

“Maybe I can’t justify it”. DeVaux requires more

than a plaintiffs personal belief to establish an

implied attorney-client relationship. An attorneyclient relationship may be. implied "when (l) a

person seeks advice or assistance from an attorney,

(2) the advice or assistance sought pertains to

the

attorney's

professional

within

matters

competence, and (3) the attorney expressly or

impliedly agrees to give or actually gives the desired

advice or assistance.... In appropriate cases the third

element may be established by proof of detrimental

reliance, when the person seeking legal services

reasonably relies on the attorney to provide them

and the attorney, aware of such reliance, does

nothing to negate it." DeVaux v. American Home

Assur. Co., 387 Mass. 814, 444 N.E.2d 355, 357

(1983). There is no reasonable basis to find an

attorney client relationship existed at that time.

Even if a fact finder wished to manipulate and

stretch what Joubert’s assistance entailed to include

something legal-based, this was an area that Joubert

had not held himself out to be a practitioner.

6

Therefore, there is even less in the record that can

be assuaged to create the third element the DeVaux

standard require and that is that Miley relied upon

Joubert advice or assistance to his detriment. Miley

failed to establish any conduct by Joubert that Miley

relied on to Miley’s detriment.

Therefore, the

attorney-client relationship cannot be established

using the DeVaux standard and absent from the

record is any other standard the court considered to

locate any semblance of an attorney-client

relationship. These facts — whatever else they may

prove — do not fit within the DeVaux integument.

There is simply no plausible basis for implying an

agreement to give legal advice or assistance. Phrased

in the alternative idiom of DeVaux, the tendered

proof is inadequate to support a finding that

Sheinkopf "reasonably relie[d] on the attorney

[Saltiel] to provide" legal services or that "the

attorney, aware of such reliance, d[id] nothing to

negate it." Sheinkopf v. Stone, 927 F.2d 1259, 1266

(1st Cir. 1991). Borrowing from the prose of

Sheinkopf, on this “chiaroscuro record", no

reasonable factfinder could conclude either that

Miley’s purported reliance on Joubert for "legal" as

opposed to "voltaic cells and third phase wiring"

information gathering was of any specie reasonably

considered to be legal advice nor was it remotely

reasonable that Joubert should have been aware

that Miley would so rely. A reasonable businessman

in Miley's shoes might have assumed that Joubert

had become his solar farm guru, his business

partner, his science adviser, or even his fugleman —

but no reasonable businessman would have

assumed, on these facts, that Joubert had become

his attorney. {Id) Here, the uncontroverted

7

testimony shows that Miley never explicitly

requested Joubert to represent him, never sought

any legal advice from Joubert, and was never billed

for services. To paraphrase Robertson, Miley’s claim

is, essentially, that he thought Joubert represented

him but that he failed to communicate his thought to

anyone, Joubert included, until well after the Miley

dissolved the corporation.

The Appeals Court dismissed each of Miley’s

counterclaims because inter alia, Miley suffered no

damages throughout the party’s dealings. (App. C,

41a) Likewise, the Trial Court and Appeals Court

establishment of an attorney-client relationship

must be overturned because the record failed to

provide any reasonable facts to support any other

finding applying the DeVaux standard or a

substitute standard.

REASONS FOR GRANTING THE WRIT

The Massachusetts Court of Appeals, the

Court of last resort, has decided an important

federal question in a way that conflicts with the

decisions of the United States Supreme Court.

INTRODUCTION

This case involves a 28 U.S.C. sec 1257(a)

petitioner who’s being unfairly denied the merits of

his FAR-Application reviewed by the Supreme

Judicial Court of Massachusetts.

In 2013, the Massachusetts Board of Bar

Overseers (“Board”) denied the Respondent Miley’s

request for disciplinary action against Joubert and

found no evidence to suggest that an attorney-client

relationship existed between Joubert, Petitioner, and

Miley, Respondent. The Respondent allowed the

8

Board of Bar Overseers decision to stand without

invoking the appeals available to Respondent thus,

failing to exhaust the remaining administrative

remedies to challenge through appeal the Board’s

Recommendation. The Respondent accepted that the

Board’s opinion which was that the attorney-client

relationship between the parties at the time of their

brief joint venture did not exist. Further, the Board

informed Respondent Miley that if he wished to

appeal the Board’s finding he may do so and

provided the procedures for appeal. The Respondent

failed to appeal the Board’s Recommendation thus,

collaterally estopping him from seeking re-litigation

of the same set of facts and evidence in another court

action for failure to exhaust all available

administrative remedies.

Joubert filed his "only post judgment motion

pursuant to Mass. Civ. P. Rule 60 in December 2018.

The Rule 60(b)(2) Motion to vacate did not raise any

new claims but instead pointed out perceived errors

in the district court’s reasons for finding in favor of

the Defendant Miley. The perceived errors raised

could not have been raised prior to the court’s order

and were raised to provide the court an opportunity

to reconsider and correct flaws in its reasoning

before Joubert proceeded to the Appeals Court in

Massachusetts. This approach has been previously

recognized by this Court. See United States v.

Dieter\ 429 U.S. 6, stating the purpose of Rule 60

allows the court to correct its own errors, sparing the

parties and appellate courts the burden of

unnecessary appellate proceedings. The Superior

Court denied this motion without hearing.

Joubert timely filed his Motion to Appeal the

Judgment to the Massachusetts Court of Appeals on

9

August 24, 2018. The Appeals Court heard Oral

Arguments on March 4, 2021. Joubert met his

burden that the lower Court’s decision was clearly

erroneous and that Judge Frison abused her

discretion and made errors of law. The decision and

opinion of the court of Appeals Court entered on

June 8, 2021. The decision overturned all the lower

court’s decisions with one exception. (App. C, 41a).

The Appeals Court affirmed the existence of an

attorney-client relationship but failed to provide any

reasoned basis for establishing the existence of an

attorney-client relationship. Joubert filed a Motion

to Reconsider its findings with the Appeals Court

regarding the attorney-client relationship. The

Appeals Court denied the Motion to Reconsider on

June 20, 2021. (App. D, 71a).

Joubert timely filed a FAR Application with

the Supreme Judicial Court of Massachusetts on

June 28, 2021. The application for review was denied

on August 2, 2021. (App. E, 123a).

Joubert timely filed this Writ for Certiorari.

I.

CERTIORARI IS APPROPRIATE TO REVIEW

A STATE COURT DECISION WHEN IT

CLEARLY VIOLATES THE DOCTRINE OF

COLLATERAL

ESTOPPEL

THEREBY

VIOLATING A PERSON’S DUE PROCESS

PROTECTION UNDER THE LAW.

It is well settled in both the state and federal

constitutions that individuals have the right to due

process protections under the law. In the courts

denial of Petitioners affirmative defense, collateral

estoppel, the court has violated Joubert, Petitioner’s

due process. “A fundamental precept of common law

adjudication embodied the related doctrines of

10

collateral estoppel and res judicata is a right,

question of fact distinctly put in issue and directly

determined by a court of competent jurisdiction ...

cannot be disputed in a subsequent suit between the

same parties.” Montana v. United States, 440 U.S.

147, 153 (1979).

The underlying issue was raised by Miley,

Respondent to the Massachusetts Board of Bar

Overseers, the enforcement arm of the Supreme

Judicial Court in Massachusetts responsible for

reviewing the conduct of attorney. The Board of Bar

Overseers investigates, and disciplines attorneys

licensed in Massachusetts when appropriate. The

agency follows specific investigative procedures to

determine the allegations against an attorney. Upon

request of the complainant there is an appeal

process to unsatisfactory decisions made by the

Board. Respondent did not oppose or appeal the

decision by the Board; therefore, the opinion must

stand. The Board’s investigation determined that no

attorney-client relationship existed it was in fact a

business partnership that was formed. (App. A, la).

When determining whether collateral estoppel

is applicable the court must apply a two*step

analysis. First, the court must determine whether

the agency, court, or tribunal employs court-like

investigation, inquiry and standards similar to the

judicial court. The Board of Bar Overseers meets the

criteria necessary to invoke collateral estoppel. The

courts instance that an attorney-client relationship

existed between the parties is identical to the fact

decided by the Board of Bar Overseers. Therefore,

the court should be precluded litigating is fact any

further. (Fidler v. Eastman Kodak Co., 714 F.2d 192

(1st Cir. 1983).

11

The Court must determine whether the

findings relied upon are “the product of full litigation

and careful decision.” Home Owners Fed. Sav, Loan

Ass’n v. Northwestern Fire Marine Ins. Co., supra

455. The findings of the Board of Bar Overseers

relied upon a thorough investigation and its careful

decision to ensure that Joubert, Petitioner and

Miley, Respondent were not engaged in an attorneyclient relationship. Miley, Respondent allowed the

opinion of the Board of Bar Overseers to stand

although he had additional remedies available to

him through the internal and external appeal

process of the Board of Bar Overseers.

There are no circumstances that warrant relitigation of the issue. The strong and oft- stated

public policy of limiting each litigant to one

opportunity to try his case on the merits. Home

Owners

Further, courts have also imposed issue

exhaustion requirements in the adjudication context

in the absence of an underlying statute or regulation

requiring it and this is applicable to judicial arms,

such as the various Boards of bar Overseers. The

Supreme Court early on characterized the “general

rule that courts should not topple over

administrative decisions unless the administrative

body not only has erred but has erred against

objection made at the time appropriate under its

practice” as one of “simple fairness,” emphasizing

that issue exhaustion promotes orderly procedure

and good administration by offering the agency an

opportunity to act on objections to its proceedings. [9]

But questions about the common law application of

the doctrine were later raised in Sims v. Apfel,’ U. S.

Supreme Court, 530 U.S. 103, 69 Soc. Sec. Rep. Serv.

12

415 (2000) where the Court held that a judicial issue

exhaustion requirement was inappropriate on review

of the Social Security Administration’s informal,

non-adversarial adjudicatory benefit determinations,

reasoning that “the desirability of a court imposing a

requirement of issue exhaustion depends on the

degree to which the analogy to normal adversarial

litigation applies in a particular administrative

proceeding.” The Massachusetts Board of Bar

Overseers provides several Board levels for

aggrieved plaintiffs. When the Board renders its

‘Recommendatiod the plaintiff may elect to timely

request an appeal to the BBO panel and if the

plaintiff wishes to appeal an unfavorable review, the

plaintiff may appeal to the single justice of the

Supreme Judicial Court.

II.

CERTIORARI

IS

APPROPRIATE

TO

REVIEW A STATE COURT DECISION

WHEN THAT DECISION VIOLATES A

PERSON’S DUE PROCESS PROTECTION

PREVENTING THEM THE FUNDAMENTAL

RIGHT TO PURSUE AN OCCUPATION.

The Massachusetts Superior Court’s decision

prohibits Joubert, Petitioner the right to pursue an

occupation based on his formal training and previous

employment as an attorney. Petitioner alleges that

he has an un-enumerated right to pursue an

occupation outside the legal field as a fundamental

right. The court has held under Washington v.

Glucksberg,; 521 U.S. 702 (1997) that an unenumerated right is fundamental when that right is,

“deeply rooted in [the] Nation’s history and

tradition.”

The right to pursue employment is

governed by both state and federal laws and deeply

rooted in the history and traditions of US history.

13

Any infringement on the right to pursue an

occupation that is legal in all other aspects is a

violation of an un*enumerated right. The right to

pursue an occupation free governmental agencies

and judicial interference is deeply rooted in history.

The court’s decision infringes on Joubert, Petitioner’s

freedom to contract and enter into a nonTegal joint

venture with another solely based on his professional

licensure. This infringement violates petitioner’s due

process, this violation requires review in this court.

Joubert maintains that he had and has a right

to seek any lawful means of employment. Simply by

virtue of being a licensed attorney does not prevent a

person from seeking employment other than in the

legal profession. To forbid an attorney from pursuing

employment outside the practice of law constitutes

as effective a restraint on freedom of association as

the forms of governmental action in the cases above

were thought likely to produce upon the particular

constitutional rights there involved.

III.

CERTIORARI

IS

APPROPRIATE

TO

REVIEW A STATE APPELLATE

COURT

DECISION

WHEN

THAT

DECISION

VIOLATES DUE PROSS BY FAILING TO

APPLY THE CORRECT STANDARD OF

REVIEW.

The courts failed to apply the appropriate

standard of review required in evaluating the nature

of error and the significance of error, constituting a

clearly

erroneous

finding

regarding

the

establishment of an attorney-client relationship,

opting to not even address trial testimony or

exhibits, instead it failed to acknowledge glaring

facts in favor of adopting the trial judge's conclusion

14

and expressing its baseless conclusions shrouded an

inaccurate depictions of the actual evidentiary

record. Joubert, Petitioner asks the Court to address

the following issue: (I) whether, as a matter of law,

the judge erred in finding that Joubert, because he

was a licensed attorney was in fact Miley's Attorney

during the time the two parties were engaged in a

joint business venture, judgment of the trial judge,

entered in this nonjury case on November 14, 1984,

is governed by Mass. R. Civ. P. 52 (a), 365 Mass. 816

(1974), which provides that "[flindings of fact shall

not be set aside unless clearly erroneous." "A finding

is 'clearly erroneous' when although there is

evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm

conviction that a mistake has been committed."

United States v. United States Gypsum Co., 333 U.S.

364, 395 (1948). This court must also examine the

findings and rulings to make sure that the

conclusions are not inconsistent with legal

standards. Marlow v. New Bedford, 369 Mass. 501,

508 (1976).

IV.

ATTORNEY-CLIENT RELATIONSHIP

The courts violated the Petitioners due

process in failing to evaluate the facts of the case

and apply them to the standards developed in case

law necessary to create an attorney client

relationship. Case law both state and federal

require courts fine clearly articulate three elements

when establishing an attorney client relationship.

Devaux v. Am. Home Assurance Co., 387 Mass. 814,

817-18 (1983) (quoting Kurtenbach v. Tekippe, 260

N.W.2d 53, 56 (Iowa 1977). In creating an attorney

client relationship in this case, the court's rational

creates a perpetual attorney client relationship

15

between parties. Petitioner wrote a letter for

Respondent for return of an auction deposit. The

auction house returned the deposit, thereby

terminating the attorney client relationship. A year

later the parties discussed and entered a joint

venture for solar panels. The first element in

establishing the attorney client relationship requires

the attorney perform legal work.

Respondent

conducted all negotiations regarding the contract

between the solar panel company and the joint

venture. Petitioner was responsible for scientific

research regarding creating and maintaining a solar

farm. The parties jointly filed Articles of

Incorporation and its documents, left with and under

the control of the Respondent until he mailed them

to the Secretary of State.

The second element of the DeVaux standard

requires the legal assistance sought be within the

attorney's professional competence. Although the

court alleges legal assistance was conducted none of

the Petitioners actions were within his legal

background education or practice but instead

concentrated on his undergraduate work as a science

major. The advice or assistance must pertain to the

professional's discipline for a professional-client

relationship to arise in a business relationship with

an attorney, for example, will not suffice to create an

attorney-client relationship. Sheinkopf v. Stone, 927

F.2d 1259, 1266 (1st Cir. 1991).

The third element of the DeVaux standard is

that the attorney expressly or impliedly agrees to

give or actually gives the desired advice or

assistance. Cesso v. Todd, 92 Mass. App. Ct. 131,

135 (2017) and the attorney-client relationship "can

be implied from the conduct of the parties" "this

16

element may be established by proof of detriment

reliance, when the person seeking by proof of

detrimental reliance..." Respondent’s testimony

established he did not seek nor receive legal advice

or opinion for Petitioner. Additionally, he did not

rely on any advice of Petitioner with the exception of

scientific advice. Respondent’s unstated "reliance" on

a professional's services will not lead to the creation

of an implied professional-client relationship where

there is no request from the plaintiff seeking

professional advice or assistance. Int'l Strategies

Group v. Greenberg Traurig, LLP, 482 F.3d 1, 9-10

(1st Cir. 2007); Fanaras Enters., Inc. v. Doane, 423

Mass. 121, 125 (1996); DaRoza v. Arter, 416 Mass.

377, 382 (1993).

Under Massachusetts law, the doctrine of

foreseeable reliance is limited to instances "where

the defendant knew that the plaintiff would rely on

his services." Page, 445 N.E.2d at 154 (quoting Rae

v. Air-Speed, Inc., 386 Mass. 187, 435 N.E.2d 628*

631 (1982)). As we have already indicated, there is

no probative evidence showing that Joubert knew or

should have known that Miley was relying on him

for legal counsel. Indeed, fully conscious that Miley

was regularly represented in business transactions

by another law firm, Bowditch and Dewey, a

reasonably prudent attorney in Joubert's position

would logically have assumed, given the lack of any

contrary indication, that appellant was receiving

legal advice about the joint venture from that firm.

The court violated due process by failing to

recognize that a licensed attorney can engage in

legal activities including creating a business because

he not required or forced to only engage in the

practice of law after receiving his license.

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CONCLUSION

This Writ for Certiorari should be granted

because this case raises issues that affect not only

members of the legal profession that wish to pursue

alternate professions but this issue has a much

farther ramifications that cannot avoid interference

with other professional who wish to pursue careers

beyond a single interest. In addition, this case raises

serious concerns relating to the access to due process

for all litigants who may wish to rely on established

doctrines such as collateral estoppel and other

doctrines deeply rooted in American jurisprudence.

Respectfully submitted,

Mark Joubert

P.O. Box 122

Spencer, Massachusetts 01562

(508) 797-0606

Pro Se Petitioner

Dated- March 8, 2022

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