Doe v. American Guaranty and Liability Co.
AC 16-P-183
| Mass. App. Ct. | Mar 1, 2017Background
- John Doe was criminally represented by attorney H. Ernest Stone; Doe confided to Stone that he had sexually abused a second foster child (Foster 2). That communication was indisputably attorney‑client privileged.
- Foster 1 sued Doe in tort; Stone represented Doe in that tort action. The tort case ended in a default judgment against Doe after discovery failures (including failure to answer interrogatories).
- Doe sued Stone for legal malpractice; Stone (insured by American) was defended by attorney George Rockas, who learned from Stone about Foster 2 and located Foster 2 using Stone’s files and an investigator.
- In defending the malpractice claim, Rockas and Stone sought to use Doe’s statement about Foster 2 (including an affidavit and deposition testimony); Doe objected that the material was privileged and could not be used to defend the malpractice claim.
- The malpractice suit settled by mediation (resolving malpractice and postjudgment collection matters). Two years later Doe filed the present suit alleging intentional misuse of privileged information by Stone, Rockas, and American.
- The Superior Court granted defendants’ motions to dismiss; the Appeals Court affirmed, holding that by bringing the malpractice action Doe waived the attorney‑client privilege as to information relevant to the malpractice defense (including the Foster 2 material).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Doe waived attorney‑client privilege by suing for malpractice | Doe: privilege remains because Foster 2 was unavailable in the underlying tort, so the privileged confession could not have been relevant to the tort and thus was not waived | Defendants: privilege was waived because the confidential statement was relevant and material to defending the malpractice claim | Waived — Court held the statement was relevant to the malpractice "trial within a trial," so bringing malpractice waived the privilege |
| Whether Foster 2 was "unavailable" such that the statement was not relevant to the malpractice case | Doe: Foster 2’s whereabouts were unknown during the tort, so evidence about Foster 2 could not have affected the underlying tort outcome | Defendants: even if Foster 2 was initially unknown, a reasonably competent plaintiff’s attorney could have located or used evidence about Foster 2; defendants located Foster 2 using Stone’s files | Rejected — allegations that Foster 2 would not have been located were conclusory and implausible given record; relevance stands as a matter of law |
| Pleading sufficiency to avoid dismissal | Doe: pleaded misuse and damages from misuse; reserved claim after settlement; factual assertions sufficient | Defendants: complaint rests on naked assertions lacking factual enhancement; legal defenses bar claim | Dismissed — complaint failed to plausibly allege that privileged material was irrelevant or that misuse caused cognizable harm beyond what was at issue in the malpractice case |
Key Cases Cited
- Commonwealth v. Woodberry, 26 Mass. App. Ct. 636 (1988) (waiver inquiry turns on whether disclosure is relevant, material, or necessary to defend the malpractice charge)
- Glenn v. Aiken, 409 Mass. 699 (1991) (in malpractice suits, the underlying case is presented as a "trial within a trial" and is assessed objectively)
- Hanlon v. Commonwealth, 44 Mass. App. Ct. 810 (1998) (prior uncharged sexual‑abuse evidence may be admissible to show inclination and relevance)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleading; complaint must contain factual content plausibly suggesting entitlement to relief)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must do more than recite elements or make conclusory statements)