Heard: November 8, 2016.
action commenced in the Superior Court Department on March
to dismiss were heard by Robert A. Cornetta, J.
Michael A. Tucker for the plaintiff.
William T. Bogaert for George Rockas.
Marissa I. Delinks for H. Ernest Stone.
Jonathan Small for American Guaranty and Liability Co.
Present: Wolohojian, Milkey, & Shin, JJ.
H. Ernest Stone represented John Doe in a criminal case and a
related tort action. In the course of that representation,
Doe relayed certain information to Stone that all parties
indisputably agree was subject to attorney- client privilege.
After the tort action ended in a default judgment against
Doe, Doe brought a legal malpractice action against Stone
based on his handling of the tort case. The malpractice
action concluded via a settlement agreement. Doe next filed a
complaint in the Superior Court alleging that in defending
the malpractice action, Stone misused the privileged
information he received during his earlier representation of
Doe. Doe named as defendants Stone; George Rockas, the
attorney who represented Stone in the malpractice action; and
American Guaranty and Liability Co. (American), Stone's
legal malpractice insurer. The defendants filed motions to
dismiss, raising a wide variety of defenses. See
Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974). The judge allowed
the motions and judgment entered dismissing the complaint.
Doe appeals. Because we agree with the motion judge that in
bringing the malpractice action, Doe waived the privilege
that otherwise applied to the information at issue, we
affirm. Resolving the case on that ground, we have no
occasion to reach the defendants' other defenses.
noted, this appeal involves four related actions. We begin by
summarizing those actions in the order they were brought,
reserving certain details for later discussion. Our factual
recitation is drawn from the allegations set forth in the
amended complaint in the action before us, supplemented by
background facts drawn from the attachments to that complaint
and documents that recount the course of the earlier
proceedings. See Shaer v. Brandeis
Univ., 432 Mass. 474, 477 (2000), quoting from 5A Wright
& Miller, Federal Practice and Procedure § 1357, at
299 (1990) ("In evaluating a rule 12[b] motion, we
take into consideration 'the allegations in the
complaint, although matters of public record, orders, items
appearing in the record of the case, and exhibits attached to
the complaint, also may be taken into
account'"). See also Mass.R.Civ.P. 10(c), as
amended, 456 Mass. 1401 (2010) ("A copy of any written
instrument which is an exhibit to a pleading is a part
thereof for all purposes"); Johnston
v. Box, 453 Mass. 569, 581 n.19 (2009)
(judges may consider exhibits attached to complaint without
converting motion to dismiss to one for summary judgment);
Reliance Ins. Co. v. Boston, 71
Mass.App.Ct. 550, 555 (2008) (in evaluating motion brought
pursuant to Mass.R.Civ.P.12[b], court may take judicial
notice of court records in related proceedings).
served as the foster father of two children. Based on
allegations of abuse raised by one of those children (Foster
1), the Commonwealth charged the defendant with assault and
battery. During the course of Stone's representation of
Doe in the criminal matter, Doe confided that he had sexually
abused the second foster child (Foster 2) who was living in
Doe's home at the ...