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Doe v. American Guaranty and Liability Co.

Appeals Court of Massachusetts, Essex

March 1, 2017

JOHN DOE
v.
AMERICAN GUARANTY AND LIABILITY CO. & others.[1]

          Heard: November 8, 2016.

         Civil action commenced in the Superior Court Department on March 17, 2015.

         Motions 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.

          MILKEY, J.

         Attorney 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.[2] 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.

         Background.

         As 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][6] 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'").[3] 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][6], court may take judicial notice of court records in related proceedings).

         1. Criminal proceeding.

         Doe 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 ...


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