Articles Posted in Legal Ethics

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Petitioner filed a petition in the county court seeking an investigation into alleged misconduct of an assistant clerk of the court and a determination that he violated his obligation under the Code of Professional Responsibility for Clerks of the Courts. A single justice ordered that the petition be dismissed on the ground that there is no right to bring a private action in court to obtain discipline of a clerk. The Supreme Court affirmed, holding that although a private individual may file a complaint with the Board of Bar Overseers or the Committee on Professional Responsibility for Clerks of the Courts, there is no private right to operate the disciplinary process. View "Gorbatova v. First Assistant Clerk of the Supreme Judicial Court" on Justia Law

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Petitioner filed suit in superior court claiming that she and her son entered into an oral that granted her a life estate in certain property. Petitioner sought to enforce the oral agreement or, in the alternative, recover of a theory of quantum meruit. The superior court granted summary judgment for Defendants. The appeals court remanded for proceedings as to whether Petitioner should recover under a theory of quantum meruit. While the case was pending on remand, Petitioner filed a petition in the county court against the judge assigned to the matter, in both his individual and official capacities, and against the Commonwealth. Petitioner raised a number of claims concerning the judge's rulings and conduct, including an assertion that he had acted in an unlawful and biased manner. The single justice denied the petition without a hearing. The Supreme Court affirmed, holding (1) Petitioner's claims of judicial bias and declaratory judgment claims should have been addressed through the ordinary trial and appellate process; (2) the judge was absolutely immune from Petitioner's request for monetary damages; and (3) Petitioner's allegations of conspiracy were insufficient to overcome the judge's absolute immunity. View "Johnson v. Commonwealth" on Justia Law

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In 1990 McCarthy bought land at a mortgage foreclosure sale conducted by defendant, Seamen's, the mortgage holder. The advertisement described the parcel as "at the end of the paved portion of Higgins Hollow Road, Truro." McCarthy obtained a mortgage from Seamen's and retained defendant, Snow, an attorney. Before closing, Snow and issued to Seamen's a certificate of title. McCarthy received a copy. The foreclosure deed and mortgage were recorded. McCarthy purchased the property under the belief that it was in a specific location; it is actually another parcel. Following a land court action concerning a boundary dispute with a neighbor, McCarthy sued those involved in her purchase. During discovery, defendants sought, from the land court action, time sheets, correspondence between or among McCarthy and her attorneys, land surveyors, title abstractors, and title examiners; and all documents concerning the parcels. The Massachusetts Supreme Court held that the defendants did not establish entitlement to discovery of communications protected by attorney-client privilege under a theory of at issue waiver, but may discover the other information that qualifies as "fact" work product under Mass. R. Civ. P. 26(b)(3), because they have shown substantial need for the material and cannot without undue hardship obtain it from another source. View "McCarthy v. Slade Assocs., Inc." on Justia Law

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A district attorney filed a complaint with the Commission on Judicial Conduct alleging that a judge had exhibited "disregard for the law, lack of impartiality, and bias against the Commonwealth," S.J.C. Rule 3:09. The complaint enumerated 24 categories of decisions in which the judge allegedly exercised bias. For each category, the complaint provided one or more examples. The commission appointed special counsel to investigate. Months later, the Boston Globe published an article and an editorial reporting on the complaint and criticizing the judge's conduct in 10 cases. Four of these cases were not included in the complaint. The special counsel stated his intention to inquire about the additional cases and requested a broad set of documents. These requests were incorporated into a subpoena. The judge sought a protective order to quash or modify, arguing that the requests were overbroad and encroached on confidential, deliberative communications. Special counsel reduced the number of new cases to 23, identified into which area of inquiry each case fell, and removed one category of requested documents. The judge objected to the revised subpoena. The Massachusetts Supreme Court directed issuance of a revised subpoena, recognizing a judicial deliberative privilege as necessary to the finality, integrity, and quality of judicial decisions. View "In the Matter of Enforcement of a Subpoena" on Justia Law

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In 2000 Go-Best wired $5 million to an account entitled "Morris M. Goldings client account" at Citizens Bank, based on representations made by Morris M. Goldings, who was then a Massachusetts attorney. Goldings later admitted that the representations were false and that he had used the money to pay other debts. Go-Best filed suit against Citizens Bank, bringing claims of misrepresentation, conversion, aiding and abetting a fraud, aiding and abetting a breach of fiduciary duty, aiding and abetting a conversion, and negligence. Citizens Bank had no knowledge of Goldings's scheme to defraud Go-Best but failed to notify the Board of Bar Overseers of dishonored checks issued on the client account more than six months before Go-Best wired funds into that account. The trial court dismissed, but a divided Appeals Court reversed in part, vacating dismissal of claims of negligence and of aiding and abetting. The Massachusetts Supreme Court reinstated dismissal. Without actual knowledge, the bank's duty to notify the board of dishonored checks from trust accounts arose only from its contractual duty, not from any duty in tort, so the bank could not be liable to Go-Best for any negligence in fulfilling that duty. View "Go-Best Assets Ltd. v. Citizens Bank of MA" on Justia Law

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Petitioner, an attorney, submitted an affidavit of resignation pursuant to S.J.C. Rule 4:01, section 15, and his resignation was thereafter accepted as a disciplinary sanction. At issue was whether an attorney, whose resignation from the practice of law was accepted as a disciplinary sanction, could now work, either for pay or on a volunteer basis, as a mediator. The court concluded that, although mediation did not in all circumstances constitute the practice of law, an attorney who had resigned from the practice of law while the subject of disciplinary investigation, or who had been disbarred or suspended from the practice of law, could be prohibited from serving as a mediator when to do so would be perceived by the public as an extension of the attorney's practice of law, or when the conduct of the mediation was so closely related to the practice of law as to constitute legal work. View "In the Matter of Bott" on Justia Law

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Smaland, together with third-party defendants, appealed from a Superior Court judge's order disqualifying their attorney from representing them in a real property dispute against the Genovas. The judge disqualified the attorney based on his conclusion that the attorney was a necessary witness because his clients had raised an advice of counsel defense and he had assisted various witnesses in submitting errata sheets that substantively changed their deposition testimony. The court concluded that the judge failed to engage a sufficiently searching review of this fact-intensive issue. Consequently, the court vacated the order and remanded the case for a further hearing. The court also considered the scope of disqualification orders under Mass. R. Prof. C. 3.7(a), and to clarify the proper use of errata sheets in altering deposition testimony under Mass. R. Civ. P. 30(e). View "Smaland Beach Assoc., Inc. v. Genova & another" on Justia Law

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This case arose when plaintiffs commenced an action in the Superior Court, alleging fraud, violation of G.L.c. 93A, and other claims arising from their purchase of a house which, they alleged, contained numerous undisclosed latent defects that rendered the house uninhabitable. Plaintiffs subsequently filed a "Notice of Violations of the Code of Judicial Conduct," alleging that the judge was in violation of the Code in several respects. Plaintiffs requested that the single justice remove the judge from the case and the single justice denied relief on the ground that plaintiffs had adequate alternative remedies. The court held that the single justice did not err or abuse her discretion by denying extraordinary general superintendence relief and affirmed the judgment. View "Culley, et al. v. Cato, et al." on Justia Law

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This case arose when plaintiff filed a complaint against her former employer, claiming that his failure to pay her a referral fee was a breach of contract and violated the Wage Act, G.L.c. 149, sections 148, 150. At issue was whether a 2008 amendment to the enforcement section of the Wage Act, providing for a mandatory award of treble damages to a prevailing employee, should be applied in an action brought by an employee against her employer for violation of the Wage Act before the amendment's effective date. The court held that the amendment should be read to apply only prospectively, to claims arising on or after the amendment's effective date of July 12, 2008. Therefore, because the Superior Court judge applied the amendment retrospectively, the court remanded for further proceedings. View "Rosnov v. Molloy" on Justia Law

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PCG Trading filed a complaint for legal malpractice and related claims against Seyfarth Shaw and four individual attorneys associated or formerly associated with the firm. At issue was whether a motion filed by PCG Trading for admission of an attorney pro hac vice was properly denied by a judge in the Superior Court. The court held that the order denying the motion to admit Robert L. Garner pro hac vice was reversed, and the case was remanded to the Superior Court for further proceedings. View "PCG Trading, LLC v. Seyfarth Shaw, LLP, et al." on Justia Law