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Norton v. Donovan

Superior Court of Massachusetts, Suffolk, Business Litigation Session

April 23, 2018

Michael O. NORTON
v.
Gregg A. DONOVAN et al.

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISQUALIFY JAMES E. O’CONNELL AND POSTERNAK BLANKSTEIN & LUND, LLP AS COUNSEL FOR THE PLAINTIFF

          Mitchell H. Kaplan, Justice Superior Court

          The plaintiff, Michael O. Norton, and the defendant, Gregg A. Donovan, both own interests in, and are managers of, the nominal defendant, MGJ 621 East First Street, LLC (First St., LLC). Defendant G.A. Donovan Consulting Corporation provides services to First St., LLC. First St., LLC was formed in 2011 to acquire and develop the property located at that address (the Property). Norton has brought this action to resolve a dispute between Donovan and him regarding distribution of profits, access to records, and other matters relating to the operation of First St., LLC. The case is before the court on Donovan’s motion to disqualify Norton’s attorney, James O’Connell, and his firm, Posternak Blankstein, & Lund on the grounds that O’Connell’s representation of Norton in this action violates Rules 1:07 and 1:09 of the Massachusetts Rules of Professional Conduct See Rule 3:07 of the Massachusetts Supreme Judicial Court.

         For the reasons that follow, the motion is DENIED.

         BACKGROUND

         O’Connell represented Norton for many years prior to 2011 on a variety of matters. A few days prior to the closing of the purchase of the Property, Norton called O’Connell and asked to meet with him regarding an issue relating to the closing. The nature of that issue is not disclosed in the moving papers, but apparently had something to do with the sellers. Norton and Donovan both attended that meeting which took place at O’Connell’s office at the firm of Pasternak, Blankstein, & Lund. O’Connell has no memory of what was discussed.

         On May 11, 2001, O’Connell sent Norton a bill for work relating to 621 East First Street. It includes a charge for preparing for and attending a meeting with Norton and Donovan on April 5, 2011 (2.1 hours) and some follow-up work undertaken over the next week (3 hours). This latter work is described as attention to correspondence and conference with client. The invoice does not suggest that Donovan was involved in either the correspondence or the conference; Donovan does not aver that he was. The invoice was for $1, 007.25 and was addressed to Norton, who paid it. There is no evidence that O’Connell ever performed any other legal services in relation to this property, until Norton asked for his assistance in the Fall of 2017 in connection with the dispute that gives rise to this action.

         First St., LLC was formed on April 7, 2011. O’Connell played no role in its formation. In July Donovan agreed that First St., LLC would reimburse Norton for O’Connell’s May bill for legal services. According to Donovan, this was because O’Connell’s services benefitted both of them. There is some evidence that Donovan received emails in subsequent years in which O’Connell was also a recipient. There is, however, no evidence that the emails related to legal advice sought from or offered by O’Connell. Donovan remembers another meeting with Norton at which O’Connell was present in November 2012. The location was another property owned by Norton. There is no evidence concerning what was discussed; O’Connell does not remember it.

         DISCUSSION

          Rule 1.7, among other things, precludes a lawyer from representing one client in a matter directly adverse to another client. Clearly, if Donovan were presently a client of O’Connell, O’Connell could not represent Norton in this action. Moreover, even though only a nominal defendant, the court would have some concern if O’Connell presently represented First St., LLC. However, there is no evidence that O’Connell presently represents either. The last meeting with O’Connell that Donovan remembers was six years ago, and he does not report what was said. The most recent email involving O’Connell that Donovan has submitted to the court is dated in 2011, authored by Donovan, sent to Norton and two other individuals, and Donovan has redacted the content. There are no invoices from O’Connell for legal services relating to the Property, other than the May 2011 invoice described above.

         Under Rule 1.9(a) an attorney "who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter" if the person’s interests are materially adverse to the former client’s interests. Mass.R.Prof.C. 1.9(a), 426 Mass. 1342 (1998). A conflict under Rule 1.9(a) exists where two elements are established. See Bays v. Theran, 418 Mass. 685, 691 (1994), and Adoption of Erica, 426 Mass. 55, 61 (1997). First, Rule 1.9(a) requires that there must have been a previous attorney-client relationship. See Erica, 426 Mass. at 61; Bays, 418 Mass. at 691. Second, the current representation must also be substantially related to the former representation and adverse to the interests of the former client. Bays, 418 Mass. at 691; see Erica, 426 Mass. at 61; Twin Caliber (MA), LLC v. Furey, 2012 WL 982999 at *2-*3 (Mass.Land.Ct. 2012). Donovan can establish neither element.

         "Under Massachusetts law, an attorney-client relationship may be shown by an express contract, ... or may be implied ‘when (1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney’s professional competence, and (3) the attorney expressly or impliedly agrees to give or octually gives the advice or assistance, ’ DeVaux v. Am. Home Assurance Co., 387 Mass. 814, 444 N.E.2d 355, 357 (1983) (quoting Kurtenbach v. TeKippe, 260 N.W.2d 53, 56 (Iowa 1977)). The third prong of the DeVaux test may be established ‘by proof of detrimental reliance, when thie person seeking legal services reasonably relies on the attorney to provide them, and the attorney, aware of such reliance, does nothing to negate it.’ Id."

         In this case, there is clearly no express contract between Donovan and O’Connell.

         Donovan has also failed to demonstrate that he either asked O’Connell to provide him with advice or assistance or that O’Connell gave it to him. Rather, it appears that Donovan accompanied Norton to a single meeting in which Norton asked his long-time counsel for assistance. Donovan was apparently not present or copied on the brief follow-up telephone calls and correspondence that O’Connell provided to Norton in the few days following the meeting. At oral argument, Donovan’s lawyer placed great weight on the contention that O’Connell’s services were of benefit to Norton and Donovan. That may be, but the fact that O’Connell’s service to a pre-existing client may have had the effect of also being valuable to Donovan simply does not establish an attorney-client relationship with O’Connell. See Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 536 (1989) (where the court found no implied attorney-client relationship between a corporate officer and a law firm representing the corporation where the officer never explicitly requested that the firm represent him).

         Additionally, the fact that O’Connell may have been briefly consulted concerning some unspecified problem associated with the purchase of the Property does not make that representation substantially related to the dispute that arose between Donovan and Norton six years later concerning the operation of First St., LLC. "For matters to be ‘substantially related’ courts have consistently found that counsel must possess confidential information that could be used against the former client in the current representation." Wessell v. Mink Brook Associates, Inc., 87 Mass.App.Ct. 747, 752 (2015). Donovan has not even suggested that O’Connell learned some confidential information ...


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