61 Mass. App. Ct. 55 | Mass. App. Ct. | 2004
This is an appeal by Coastal Orthopaedic Institute, PC. (Coastal), from a grant of summary judgment dismissing the counts in Coastal’s complaint alleging legal malpractice against attorney Anthony Bongiorno and his law firm, Mc-Dermott, Will & Emery, P.C. (MWE). (In this appeal the
1. Procedural and factual background. The underlying case in which Coastal retained the lawyer defendants, and on which the legal malpractice action was predicated, involved employment termination claims by Bruce Derbyshire, M.D. Derbyshire had been hired to serve — and did so serve for one year — on the medical staff of Coastal. However, after that year, notwithstanding renewal provisions in the contract exercisable by Derbyshire, the principals of Coastal unanimously voted not to extend his contract. Derbyshire’s complaint against Coastal was pleaded in three counts and alleged that Coastal’s decision to end his employment violated the law prohibiting age discrimination, G. L. c. 151B; was in breach of his contract; and infringed the implied covenant of good faith and fair dealing. After a lengthy arbitration, Coastal prevailed on the latter two counts. However, Derbyshire prevailed on the discrimination count, as the arbitrator ruled that Coastal had terminated Derbyshire for age-related reasons in violation of G. L. c. 151B. The arbitrator awarded Derbyshire $446,491.11 in damages.
2. The “defendable opinion” theory of malpractice. Coastal commenced this action against the lawyer defendants and against its accountants.
Consistent with this defendability-opinion-based theory of malpractice, the countervailing, central theme of the lawyer defendants’ summary judgment moving papers was directed to establishing that Bongiomo’s opinion was within the realm of generally competent advice by an attorney. They argued that Coastal had no reasonable expectation of proving one or more of the essential elements of its claim. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711-712 (1991). In support of this position, the lawyer defendants’ summary judgment papers relied on the achieved results in the arbitration, wherein Coastal prevailed on two out of three of Derbyshire’s claims, and argued, further, that, had the testimony of Coastal’s principals been credited, the third claim was also quite defend-able. On this latter point, the lawyer defendants emphasized that the award against Coastal on the age discrimination count did not enter on the basis of any unjustified or unsupported legal advices by the lawyer defendants. To the contrary, the award was based on the arbitrator’s rejection of the veracity of the testimony of Coastal’s principals that they had terminated the contract out of concerns about the quality of Derbyshire’s work, a finding that these purported reasons were a pretext, and an ultimate determination that discriminatory animus underlay Coastal’s actions in terminating the contract.
In framing the state of the record with respect to the
“Reduced to its essence, the claim of the Coastal principals is that attorney Bongiorno should have protected them against their own lack of credibility. An attorney cannot, and does not, insure a client against that shortcoming at the risk of malpractice. The arbitrator did not conclude that Coastal had advanced a bad faith, frivolous, or groundless explanation for Derbyshire’s nonrenewal. No basis exists in the summary judgment record for the determination that Coastal’s position was utterly specious or baseless. The defense was respectably triable as a contest of credibility.”
We adopt this well stated synopsis of the case record as it stood at the- summary judgment stage, and next turn to our independent review of whether, as matter of law, Coastal failed to present evidence to show it could prove all of the essential elements of legal malpractice and, hence, whether judgment for the lawyer defendants was warranted. “To prevail on a claim of negligence by an attorney, a client must demonstrate that the attorney failed to exercise reasonable care and skill in handling the matter for which the attorney was retained; that the client has incurred a loss; and that the attorney’s negligence is the proximate cause of the loss . . . .” Colcci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, P.C., 25 Mass. App. Ct. 107, 111 (1987) (citations omitted). None of these fundamentals are present in this case. Indeed, Coastal’s malpractice claim fails to meet the initial element that the lawyer defendants did not exercise reasonable care and skill in their factual and legal analysis, which yielded the challenged litigation opinion on defendability.
It is a common and generally accepted part of the practice of law for lawyers to render litigation opinions to clients concerning the likelihood of success for a plaintiff or the potential liability for the defense. After all, as a most distinguished member of our courts observed, “[t]he prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” Holmes, Path of the Law, 10 Harv. L. Rev. 457, 461 (1897). As a predicate to rendering such litigation opinions,
In this case, Coastal’s malpractice claim falters on this fundamental element of proof, in that Coastal has not produced evidence to show that the lawyer defendants failed to exercise reasonable care and skill in opining that the arbitration was defendable. At the outset, the actual result, wherein Coastal prevailed on two out of three claims posed by Derbyshire, cuts off two comers of the triangle. As to the third comer, the award
“Expert testimony is generally necessary to establish that the attorney failed to meet the standard of care owed by an attorney in a particular case, Pongonis v. Saab, 396 Mass. 1005, 1005 (1985), and cases cited, unless the alleged malpractice ‘is so gross or obvious that laymen can rely on their common knowledge to recognize or infer negligence ....’” Colucci, 25 Mass. App. Ct. at 111, quoting from Pongonis v. Saab, supra. For these reasons, we conclude that summary judgment properly entered for the lawyer defendants on the defendability opinion theory of malpractice.
3. The changed course and Coastal’s newly advanced theory of malpractice. In this appeal, Coastal strongly presses a different theory of malpractice, which is that the lawyer defendants failed to communicate a settlement offer. This settlement-based claim of legal malpractice is not discernible in the allegations of the complaint (see note 4, supra), nor was the claim disclosed in any other pleadings filed by Coastal before the summary
Reference to a noncommunicated settlement offer appears for the first time in the affidavit of Kevin Mabie, M.D., a principal of Coastal and its former president, which affidavit was filed in Coastal’s opposition papers. In his affidavit, Mabie avers that he learned, subsequent to the arbitrator’s decision, that Derby-shire’s attorney had made an offer of settlement to attorney Bongiomo, which the latter failed, it is averred, to communicate to Coastal. No other details about the settlement offer are set forth in the Mabie affidavit. Significantly absent is the date and the point during the course of the arbitration proceedings when this settlement offer was purportedly communicated to Bongiomo.
In reviewing the summary judgment record in the Superior Court, the motion judge expressed reservations concerning whether this new, noncommunicated settlement malpractice theory was properly before that court.
Given Coastal’s late effort to tack on a new theory of malpractice, and because the affidavit was not based on personal knowledge, the lawyer defendants moved to strike Mabie’s affidavit. However, to preserve their rights and to rebut what had now been newly added to the record by Coastal, the lawyer defendants also filed an affidavit by Derbyshire’s attorney, who, while confirming that a $450,000 offer of settlement had in fact been communicated to a colleague of Bongiomo’s, stated that the settlement offer had been communicated near the end of arbitration, that is, only just prior to the issuance of the arbitrator’s decision — and that the offer had been rejected by Coastal. At this point, the vast majority of legal work had been done and attendant legal fees incurred by Coastal. Notwithstanding his reservations about excluding the Mabie affidavit, in light of the lawyer defendants’ counter filing, the motion judge
The motion judge rejected the noncommunicated settlement theory of liability on the basis that Coastal could not show that it suffered any damages, since the settlement offer of $450,000 exceeded the arbitration award by $3,508.89.
4. Claimed losses from incurring legal fees. Coastal further argues on appeal that, even if it may have paid less money as a result of the award than the settlement offer, it still incurred legal fees in defending the arbitration, which legal fees, Coastal asserts, were substantial. The payment of unnecessary legal fees and costs may “constitute competent proof of damages purportedly resulting from [the lawyer’s] alleged negligence,” Shimer v. Foley, Hoag & Eliot, LLP, 59 Mass. App. Ct. at 315, but such legal fees must be proximately caused by the alleged act of malpractice. “When asserting a claim for legal malpractice, a plaintiff bears the burden of proving that its attorney committed a breach of the duty to use reasonable care, that the plaintiff
Judgment affirmed.
The complaint also contained counts against Coastal’s accountants. See note 5, infra. Those counts are not before us.
See note 2, supra.
Count V alleged negligence against Bongiomo in “advising and counseling [Coastal].” Count VI alleged breach of contract by “failing] to perform adequately under the agreement in that advice and/or counseling given to defend the claim of age-employment discrimination by Bruce Derbyshire was a breach of the defendant’s fiduciary duty to [p]laintiff Coastal.” In count VC, Coastal alleged that MWE was vicariously liable for Bongiomo’s negligence and breach of contract.
In the proceedings before the Superior Court, Coastal also argued that the defendability opinion was incompetently rendered because the employment contract with Derbyshire contained a mandatory retirement clause in violation of G. L. c. 149, § 24B. Therefore, it is argued, the lawyer defendants should have known there was a fatal contractual flaw rendering the age discrimination count nondefendable. (The clause had been drafted into the contract by the accountants, whom Coastal also named as defendants in its complaint.) In this appeal, Coastal references, but does not press, this theory of malpractice. In any event, the claim is untenable because the arbitrator’s decision adverse to Coastal was not principally based on that clause, but rather, as noted, rested on credibility findings of discriminatory reasons for the employment action.
These principles on the civil side of the law that govern litigation tactical choices and opinions regarding both the strength of the affirmative case and the defendability of the claims also resonate on the criminal side of the law. “[W]hat our own decisions have sought to afford, is a discerning examination and appraisal of the specific circumstances of the given case to see whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer — and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Thus, to establish ineffective and incompetent representation on the criminal side, “there ought to be some showing that better work might have accomplished something material for the defense.” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
Coastal also surfaced an alternative formulation of the lawyer defendants’ litigation opinion in the Mabie affidavit. The affidavit states that attorney Bongiomo negligently counseled “not to settle because . . . [Coastal] would prevail,” and that Coastal thereby “lost an opportunity to settle” (emphases supplied). Coastal highlights the “would-prevail” formulation in this appeal and argues that this opinion constituted legal malpractice even more egregious than the defendability opinion. In our view, the “would prevaiF’-malpracticeopinion theory is a variation of, and is subsumed within, the defendability theory — which, for the reasons set forth above, is unavailing. However, were we to assume — without reaching or accepting the premise — that there is an actual difference in the highly formulaic distinction between a lawyer’s opinion to a client that a case is dependable, versus a statement that the defense will prevail, our determination that there was no legal malpractice, as matter of law, equally applies to both opinion formulations in this case. The plaintiff’s omission of an expert affidavit that would support the malpractice claims would be a failure under either formulation.
Coastal says that it requested more time to conduct additional discovery. However, if such an informal request was made •— a point unclear in the record — it matters not, because Coastal did not file an affidavit as required by
Coastal’s appellate brief describes these new assertions concerning the nature of the alleged legal malpractice set forth in the Mabie affidavit as having “clarified implicitly that its malpractice claims were not premised entirely” on the defendability theory. How one clarifies implicitly all the proceedings prior to the lawyer defendants’ motion for summary judgment is not further explained.
The affidavit of Derbyshire’s attorney, Brian R. Corey, states that “[a]t no time prior to the final award did I make any offer to Mr. Bongiomo. Prior to the award I made an offer to [his partner] to settle the case in the amount of $450,000, an offer that was rejected.” Although Coastal’s Mabie affidavit omitted a date for the purported noncommunicated settlement offer, see discussion, supra, Coastal’s appellate brief acknowledges that “the offer was made after the arbitration (but before the arbitrator’s decision)” — a point where the legal fees in arbitration would already have been expended. (There are two versions of who received the settlement offer: the Mabie affidavit says it was Bongiomo, the Corey affidavit says it was a partner of Bongiomo. The point is not material to the issues we determine.)
The obligation of a lawyer to convey a settlement offer to a client is clear. “[A] lawyer who receives from opposing counsel an offer of settlement in a civil controversy . . . should promptly inform the client of its substance . . . .” Mass.R.Prof.C. 1.4 comment [1], 426 Mass. 1314 (1998). “A violation of a canon of ethics or a disciplinary rule ... is not itself an actionable breach of duty to a client. ... As with statutes and regulations, however, if a plaintiff can demonstrate that a disciplinary rule was intended to protect one in his position, a violation of that rule may be some evidence of the attorney’s negligence.” Fishman v. Brooks, 396 Mass. 643, 649 (1986).