Cesso v. Todd, AC 16-P-76

Background

Cesso retained Todd (Todd & Weld) and was introduced to associate John Quigley in June–July 2008; Todd and Quigley filed appearances for Cesso on July 9, 2008.
Quigley left Todd & Weld; Todd filed a notice of withdrawal dated July 25, 2008 and filed July 28, 2008; Cesso says he was not served and did not receive a July 25 letter until August 6, 2008 (which he signed).
After July 25–28, 2008, Todd had no in-person contact with Cesso; Quigley performed most work and tried the divorce case; Todd billed only through July 25 but had some out-of-record communications with Quigley.
Cesso copied Todd on several e-mails after July 28 and sought Todd’s continued participation; Todd did not respond to those e-mails and was absent for early trial days; Cesso never objected to Todd’s withdrawal or absence.
Cesso sued Quigley for malpractice and later added claims against Todd for malpractice and misrepresentation; the trial judge granted summary judgment for Todd; Cesso appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an attorney-client relationship continued between Todd and Cesso after Todd's July 25/28, 2008 withdrawal	Cesso: despite formal withdrawal, Todd told him he would "continue to work and consult," Cesso relied on that and copied Todd on emails, so the relationship continued through at least Sept. 12, 2008	Todd: notice of withdrawal ended the formal relationship; no meaningful work or billing after July 25; any behind-the-scenes contact was minimal and not a continuing representation	Court: factual dispute exists whether the relationship continued up to Sept. 12, 2008; summary judgment vacated on malpractice claims based on actions/inactions through Sept. 12, 2008 but affirmed that relationship ended no later than Sept. 12, 2008 and malpractice liability cannot be based on trial conduct or filings after July 28, 2008
Whether malpractice claims based on conduct on or before July 28, 2008 survive summary judgment (supervision of private detective)	Cesso: Todd supervised or continued surveillance and that supervision breached the standard of care	Todd: disputes about instructions and billing; contends Quigley performed the work and any surveillance originated earlier	Court: disputed facts about instructions and impact of surveillance preclude summary judgment; claim survives
Whether Todd committed actionable misrepresentations about continuing representation	Cesso: Todd misrepresented intent to continue consulting while secretly withdrawing	Todd: statements were promissory/future or truthful; no false present fact induced Cesso; Cesso knew of withdrawal by Aug. 4 and did not rely to his detriment	Court: no evidence Todd misrepresented his actual intention; misrepresentation claim dismissed
Whether procedural defects in withdrawal (notice vs motion) voided withdrawal and sustained liability	Cesso: withdrawal filed as notice not motion under Dom.Rel.Rules made withdrawal invalid so Todd remained counsel	Todd: trial court discretion can validate/formalize withdrawals; Cesso knew Todd had withdrawn and did not object	Court: procedural defect does not automatically extend representation; withdrawal effective when filed; court rejects automatic-invalidity argument

Key Cases Cited

DeVaux v. American Home Assur. Co., 387 Mass. 814 (attorney-client relationship may be express or implied; detrimental reliance can establish the relationship)
McEvoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704 (statements of present intention about future conduct can support fraud if they misrepresent actual intent and were relied on to the plaintiff's damage)
Yerid v. Mason, 341 Mass. 527 (promissory statements about future conduct are generally not actionable)
Mullins v. Pine Manor College, 389 Mass. 47 (standard for drawing inferences on summary judgment)
Global NAPs, Inc. v. Awiszus, 457 Mass. 489 (clarifies attorney-client relationship assumptions in malpractice context)