MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS'
MOTION TO DISMISS
MICHAEL D. RICCIUTI, Justice
Carl Marchetti contends that defendant, attorney Jack M.
Atwood and his professional corporation, Jack M. Atwood, P.C.
(collectively, " Atwood" ), committed legal
malpractice in connection with Atwood's representation of
Marchetti in a criminal case. As a result of the alleged
malpractice, Marchetti claims that he served jail time for
several offenses after he was found guilty at trial rather
than receiving a sentence of home detention following a
guilty plea. Marchetti thus brings claims for legal
malpractice (Counts One and Two) and breach of contract
(Counts Three and Four) against Atwood and his firm. In
addition, Marchetti seeks relief pursuant to Chapter 93A
against both defendants (Counts Five and Six).
the Court is Atwood's motion to dismiss under
Mass.R.Civ.P. Rule 12(b)(6). In consideration of the
parties' helpful memoranda of law and illuminating oral
arguments, and for the reasons that follow,
Atwood's motion to dismiss is ALLOWED.
it is evaluating the legal sufficiency of a complaint
pursuant to Mass.R.Civ.P. 12(b)(6), the Court will accept as
true all factual allegations in the complaint and draw all
reasonable inferences in the plaintiff's favor. See,
e.g., Berish v. Bornstein, 437 Mass. 252, 267,
770 N.E.2d 961 (2002); Nader v. Citron, 372 Mass.
96, 98, 360 N.E.2d 870 (1977).
submits public records to support his motion. The Court may
properly consider these materials without converting the
motion into one for summary judgment. See, e.g.,
Reliance Ins. Co. v. City of Boston, 71 Mass.App.Ct.
550, 555, 884 N.E.2d 524 (2008) (" while the allegations
of the complaint generally control in evaluating a motion
under rule 12(b)(6), 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. Properly
considered public records include the records of other courts
in related proceedings, of which the judge may take judicial
notice in any event" ) (citations, internal punctuation
was a pawn shop owner. On July 16, 2010, he was indicted in
Commonwealth v. Marchetti, Barnstable Superior Court
C.A. No. 1072-CR-00112 (the " Criminal Action" ),
on six counts of knowingly receiving stolen property in
excess of two hundred and fifty dollars. Sometime in July
2010, Marchetti engaged Atwood to defend him in the Criminal
Action. Marchetti agreed to pay Atwood a flat fee of $20,000
for his legal services. Atwood did not provide Marchetti a
written engagement letter or other contract, and thereafter
did not provide Marchetti with itemized billing statements
for the services Atwood performed.
23, 2012, Marchetti sought to change his not guilty plea to
guilty, with the hope that he would receive no more than one
year of home confinement as punishment. A judge of the
Barnstable Superior Court held a plea colloquy on that date.
During it, the parties offered their anticipated sentencing
recommendations--the Commonwealth told the Court it would
recommend one year of home confinement and ten years of
probation, during which Marchetti would be prohibited from
engaging in the sale of any precious metals, gems, stones,
and the like, whereas Atwood, on Marchetti's behalf,
indicated he would recommend five years of probation. The
Court advised Marchetti that, " [b]ased on everything I
know up to this point, . . . I will most likely give you a
ten-year probationary period that includes the first year
under home confinement; and for the entire ten-year period,
conditions that include no dealing in precious metals, no
dealing in precious stones, no smelting, no refining, no
change of plea went forward, and the Court engaged in a plea
colloquy with Marchetti. After it, the Court accepted the
guilty plea. The Clerk then asked Marchetti, " on
Indictment 2010-112-01, charging you with . . . six counts of
receiving stolen property over $250, how do you plead to each
and every count? Guilty or not guilty?" Marchetti
responded, " guilty," and confirmed that he had
pled guilty willingly, freely and voluntarily, without being
forced to plead guilty and without being promised or
threatened in any manner. Accordingly, the Court found that
the guilty plea was " voluntarily tendered with full
knowledge of its consequences. In all respects, the plea is
the Court accepted the plea, it heard defense counsel's
sentencing argument, and the following occurred:
MR. ATWOOD: I would suggest that the Defendant was facing a
very difficult trial situation: Six very pathetic . . . women
would be taking the stand who are victims of a house break;
and that's obviously a sympathy invoking type situation .
. . [I]t would be a difficult trial because these women are
absolutely flawless. And they would be saying, these are my
items. And, of course, they value these items greatly, as to
the retail value or even more. So, we were faced with that.
We were also faced with an immunized individual who would be
testifying that he took his aunt's property and went to
Defendant's shop. And that's also a difficult
situation . . . with regard to this case, if it was tried, it
would have resulted in guilty at least on one of the charges.
And I warned the Defendant that if he was convicted on one,
he might well be treated and convicted on all six
indictments. So, I'm suggesting . . . that it would be a
very difficult trial . . .
THE COURT: Stop. Stop right there. The matter stands for
trial . . . You are not going to stand in this courtroom and
offer such heart-felt, sincere remorse. And I say that
sarcastically. This matter stands for trial . . . It is a
continuation of everything I observed by his demeanor during
his change of plea. Every bit of his demeanor was "
Judge, I didn't do this." And now his lawyer is
basically telling me, Judge, he ain't that bad a soul.
You know, he just had the deck stacked against him. Sorry,
I'm not buying it . . .
MR. ATWOOD: . . . I apologize to the Court. I have failed my
client. It's--obviously something I have said is truly
ineffective assistance of counsel here. I don't know what
else to say.
subsequent hearing, the trial judge explained his reasons for