Smaland Beach Ass'n v. Genova
461 Mass. 214
| Mass. | 2012Background
- Smaland Beach Association and several third-party defendants appeal a Superior Court order disqualifying their attorney, Alfieri, from representing them in a real property dispute with the Genovas.
- The judge grounded disqualification on two independent bases: Alfieri’s involvement in an advice-of-counsel defense and his role in drafting errata sheets that substantively altered deposition testimony.
- The errata sheets were unusual, often reversing or significantly altering witnesses’ deposition testimony, and Alfieri admitted assisting two witnesses who would be called at trial.
- The trial was bifurcated, with some issues proceeding in a jury-waived format and others to be tried later, and the court initially allowed Alfieri limited participation in pretrial matters.
- On appeal, the Massachusetts Appeals Court vacated the disqualification order and remanded for a fuller, fact-intensive hearing, while offering guidance on Rule 3.7(a) and the use of errata sheets under Rule 30(e).
- The court clarifies limits on using errata changes to alter testimony and adopts a broad reading of Rule 30(e), with safeguards to prevent abuse.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Alfieri’s testimony is required as a witness under advice-of-counsel | Genovas contend Alfieri must testify to support the defense. | Smaland/3rd parties argue the attorney’s testimony is not indispensable if information can be obtained otherwise. | Disqualification not sustained on that basis; record insufficient to show necessity. |
| Whether Alfieri is a necessary witness due to errata sheets | Errata sheets require Alfieri’s testimony to explain changes and defend clients. | Errata sheets’ explanations and impeachment could be provided without Alfieri’s testimony. | Disqualification vacated; need for further hearing to assess necessity and prejudice. |
| Scope of Rule 3.7(a) disqualification authority (trial vs pretrial) | Rule 3.7(a) permits disqualification due to witness role at trial and related pretrial effects. | Rule should limit disqualification to trial; pretrial work may continue. | Rule 3.7(a) governs trial participation; pretrial involvement may be permissible; remand for further findings. |
| Use and limits of errata under Rule 30(e) for substantive changes | Substantive errata changes should be permissible to obtain full knowledge before trial. | Errata should be tightly limited to corrections, not new substantive testimony. | Adopt majority view allowing substantive changes with safeguards; original answers may remain for impeachment; may reopen deposition if changes are material. |
Key Cases Cited
- Steinert v. Steinert, 73 Mass. App. Ct. 287 (Mass. App. Ct. 2008) (review standard for attorney-witness disqualification; avoid jury confusion)
- Borman v. Borman, 378 Mass. 775 (Mass. 1979) (limits and considerations for attorney-witness conflicts)
- Serody v. Serody, 19 Mass. App. Ct. 411 (Mass. App. Ct. 1985) (guidance on balancing attorney-witness roles and client interests)
- Kendall v. Atkins, 374 Mass. 320 (Mass. 1978) (requires a searching review of attorney-witness disqualification decisions)
- Culebras Enters. Corp. v. Rivera-Rios, 846 F.2d 94 (1st Cir. 1988) (ABA Model Rule 3.7 interpretation and limits; trial-focused disqualification)
- G.S. Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262 (Mass. 1991) (necessity of considering whether to call testifying attorney)