Superior Court of Massachusetts, Suffolk, Business Litigation Session
Lynn Hlatky, Ph.D.
David Horowitz et al. No. 136592
MEMORANDUM AND ORDER DENYING PLAINTIFF'S MOTION
TO DISQUALIFY GRI'S COUNSEL
Kenneth W. Salinger, Justice of the Superior Court.
Lynn Hlatky, Ph.D., has moved to disqualify the law firm
Lynch Brewer Hoffman & Fink, LLP, from continuing to
represent GeneSys Research Institute, Inc., ("
GRI") in this matter. Dr. Hlatky's claims in this
lawsuit arise from her work at GRI as a principal
investigator and director of a cancer research laboratory;
Hlatky left GRI in September 2014. Attorney John Dennis, who
is a Lynch Brewer partner, served as GRI's lawyer while
Dr. Hlatky worked there. Hlatky says Lynch Brewer should be
disqualified because Dennis represented her at the same time
he was representing GRI, and did so on a matter that is
substantially related to the matters in dispute in this
lawsuit. The Court is not convinced that Dr. Hlatky and Mr.
Dennis had an actual or implied attorney-client relationship.
In any case, Dr. Hlatky has not shown that Mr. Dennis learned
any confidences from Dr. Hlatky that would be relevant to
this litigation. The Court will therefore DENY the motion to
Motions to disqualify" the lawyers and law firm
representing a party to litigation " must be considered
in light of the principle that courts 'should not lightly
interrupt the relationship between a lawyer and her
client.'" G.D. Mathews & Sons Corp. v. MSN
Corp., 54 Mass.App.Ct. 18, 20, 763 N.E.2d 93 (2002),
quoting Adoption of Erica, 426 Mass. 55, 58, 686
N.E.2d 967 (1997). " Disqualification has very serious
consequences for both client and lawyer." Adoption
of Erica, supra, at 65 n.11, quoting 1 G.C. Hazard &
W.W. Hodes, The Law of Lawyering § 1.9:112, at 304 (2d
ed. 1990). Thus, " disqualification, as a prophylactic
device protecting the attorney-client relationship, is a
drastic measure [that] courts should hesitate to impose
except when absolutely necessary." Id. at 58,
quoting Masiello v. Perini Corp., 394 Mass. 842,
848, 477 N.E.2d 1020 (1985). It is not needed here.
Hlatky has not shown that she had any attorney-client
relationship with Attorney Dennis. It is undisputed that
during the relevant period Dr. Hlatky knew that Attorney
Dennis was counsel for GRI, and Hlatky had retained her own
lawyer at the firm Todd & Weld to represent her personal
interests vis-a-vis GRI. Hlatky has not produced any
contemporaneous documentation suggesting that Dennis ever
agreed to serve as her personal attorney, that Hlatky
believed he had done so, or that Hlatky was ever billed for
any services provided by Dennis. To the contrary, throughout
their email exchanges in late 2013 and early 2014 both Hlatky
and Dennis repeatedly refer to Dennis as GRI's attorney,
and never say anything to suggest that Dennis was also
representing Hlatky. In November 2014, when Hlatky filed her
first affidavit in this case, she described these emails to
and from Dennis as correspondence that she " had with
Dr. Hlatky may have reasonably believed that Attorney Dennis
was looking out for her interests, because for a period of
time he believed that her interests and GRI's interests
were the same, that is not sufficient to establish an
attorney-client relationship. See Robertson v. Gaston
Snow & Ely Bartlett, 404 Mass. 515, 522-23, &
525-26, 536 N.E.2d 344 (1989) (no attorney-client
relationship formed merely because corporate officer
understood that corporation's lawyer was looking out for
his personal interests).
Hlatky correctly notes that an attorney-client relationship
may be implied where someone seeks and obtains " advice
or assistance from an attorney" regarding " matters
within the attorney's professional competence, "
even where the person receiving the advice never formally
retained the lawyer to represent them. See DeVaux v.
American Home Assurance Co., 387 Mass. 814, 817-18, 444
N.E.2d 355 (1983), quoting Kurtenbach v. TeKippe,
260 N.W.2d 53, 56 (Iowa 1977).
Hlatky has not shown that she sought or received any legal
advice from Attorney Dennis. The mere fact that Hlatky and
Dennis communicated directly about Hlatky's
dissatisfaction with GRI board members, and her desire that
the GRI members transfer control of the organization to
Hlatky, is not enough to show that any implied
attorney-client relationship was established. See Daroza
v. Arter, 416 Mass. 377, 381-82, 622 N.E.2d 604 (1993)
(communications between employee and counsel did not
establish implied attorney-client relationship where counsel
never provided employee with personal legal advice or
assistance). Plaintiff notes that Attorney Dennis previously
filed an affidavit in this case stating that in an October
2013 email he " advised" Dr. Hlatky of certain
things. That was not an admission that Mr. Dennis provided
any personal legal advice to Dr. Hlatky. It is apparent from
context that Dennis was merely noting that he had informed
Hlatky of certain facts. Lawyers often use the verb "
advise" to mean that they informed or notified someone
of something. See The American Heritage Dictionary, 2d
College Ed., 82 (1985) (meaning of transitive verb advise
includes " to inform; notify, " as in " advise
a person of a decision").
case, Dr. Hlatky has not proved that she ever shared with
Attorney Dennis any confidential information that she
withheld from others at GRI. Thus, there would be no grounds
for disqualifying Lynch Brewer even if Attorney Dennis had
once represented Hlatky, which he did not. " [W]here
there exist no confidences from the first representation
[that] would be relevant to the second, disqualification is
unnecessary and the parties' choice of counsel should
prevail." Masiello , 394 Mass. at 848; accord
Mailer v. Mailer, 390 Mass. 371, 374, 455 N.E.2d
1211 (1983); Wessell v. Mink Brook Assocs., Inc., 87
Mass.App.Ct. 747, 753, 35 N.E.3d 377 (2015). By rule, "
[a] lawyer who has formerly represented a client in a matter
shall not thereafter represent another person in the same or
a substantially related matter in which that person's
interests are materially adverse to the interests of the
former client unless the former client consents after
consultation." S.J.C. Rule 3:07, Rules of Prof. Conduct,
Rule 1.9(a). This " [p]rohibition of successive
representation arises from 'the attorney's duty . . .
to preserve his client's confidences and
secrets.'" G.D. Mathews & Sons, 54
Mass.App.Ct. at 21, quoting Bays v. Theran, 418
Mass. 685, 691, 639 N.E.2d 720 (1994). Two matters are "
substantially related" within the meaning of Rule 1.9(a)
only " if the previous representation exposed counsel to
confidential information that could be used against the
client in the present litigation[.]" R& D
Muller, Ltd. v. Fontaine's Auction Gallery, LLC, 74
Mass.App.Ct. 906, 907, 906 N.E.2d 356 (2009) (rescript). Dr.
Hlatky has not shown that Lynch Brewer has access to any
confidential information that could be used against her in
as Dr. Hlatky correctly points out in a footnote to her
memorandum, the possibility that she may call Attorney Dennis
as a witness at trial does not require that Lynch Brewer be
disqualified from representing GRI. "
'[D]isqualification is not required in every case in
which counsel could give testimony on behalf of his client on
other than formal or uncontested matters, ' nor is it
automatically granted where a party attempts to call opposing
counsel." Smaland Beach Ass'n, Inc. v.
Genova, 461 Mass. 214, 221, 959 N.E.2d 955 (2012)
(citations omitted), quoting Byrnes v. Jamitkowski,
29 Mass.App.Ct. 107, 109, 557 N.E.2d 79 (1990). The rules of
professional conduct " prohibit[ ] a lawyer from acting
'as an advocate at trial in which the lawyer is
likely to be a necessary witness.'" Id.,
461 Mass. at 225 (emphasis in original), quoting Mass. R.
Prof. Conduct 3.7(a). If Dennis proved to be a necessary
witness at trial, Rule 3.7(a) would probably bar him from
also serving as trial counsel for GRI. But that future
possibility provides no basis for disqualifying Dennis's
colleagues at Lynch Brewer from continuing to represent GRI
in this case, either now or at trial. See Smaland at
226-27; Steinert v. Steinert, 73 Mass.App.Ct. 287,
290-91, 897 N.E.2d 603 (2008).
motion to disqualify the counsel representing GeneSys