Coke v. Equity Residential Properties Trust

440 Mass. 511
CourtMassachusetts Supreme Judicial Court
DecidedDecember 11, 2003
StatusPublished
Cited by6 cases

This text of 440 Mass. 511 (Coke v. Equity Residential Properties Trust) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coke v. Equity Residential Properties Trust, 440 Mass. 511 (Mass. 2003).

Opinions

Marshall, C.J.

The defendant, Equity Residential Properties Trust (Equity), seeks interlocutory review of an order entered [512]*512by a judge in the Superior Court to the effect that Mass. R. Prof. C. 1.7, 426 Mass. 1330 (1998),2 governing conflicts of interest does not mandate the disqualification of counsel for the plaintiffs, where the plaintiffs’ counsel of record, Mark A. Berthiaume, became a member of the law firm Seyfarth Shaw (Seyfarth), which at the time acted as counsel for Equity in other matters. Pursuant to G. L. c. 231, § 118, Equity petitioned a single justice of the Appeals Court for interlocutory review of the judge’s order, who reported the matter to a full panel.3 We transferred the cases to this court on our own motion. We now dismiss the petition as moot.

1. Background. The facts, which are not disputed, giving rise to Equity’s motion to disqualify Seyfarth are as follows. In September, 1999, the plaintiffs, former partners of Charles River Park “D” Company (Charles River), filed an action in the Superior Court against Equity, followed by a second action in March, 2000. The two actions, later consolidated, apparently alleged breaches of contracts and breaches of the covenants of good faith and fair dealing arising from the transfer of certain interests in Charles River to a limited partnership.4 In January, 2000, Berthiaume, at the time a partner in the law firm of Schnader Harrison Goldstein & Manello (Schnader Goldstein), entered his appearance on behalf of the plaintiffs in both actions. [513]*513On July 10, 2001, a judge in the Superior Court allowed the plaintiffs’ motion for summary judgment and denied Equity’s cross motion for summary judgment in the first action. A final judgment amended in the first action entered on September 3, 2002, and in the second action on September 23, 2002. Both Equity and the plaintiffs appealed from the final judgments: Equity appealed from the allowance of summary judgment for the plaintiffs, while the plaintiffs, still represented by Berthiaume, appealed from so much of the order as concerned prejudgment interest.

Shortly after the notices of appeal were filed in the Superior Court, Berthiaume’s law firm, Schnader Goldstein, dissolved. On January 1, 2003, Berthiaume became a member of Seyfarth, working in its Boston office. Before Berthiaume joined the firm, Seyfarth conducted an internal “due diligence” review to identify any possible conflicts of interest between Seyfarth’s existing clients and clients of Berthiaume whom he would continue to represent if (and when) he became a member of Seyfarth. The conflict check revealed that Equity was a current client of Seyfarth with matters unrelated to the Massachusetts contract action pending in offices other than Boston. Sometime before January, 2003, the firm informed Berthiaume of that fact, but also informed him, incorrectly as it turned out, that Equity had consented to Berthiaume’s continued representation of the plaintiffs in the Massachusetts action. Equity, in fact, neither had been informed of, nor had consented to, Berthiaume’s or Seyfarth’s continued representation of the plaintiffs.

When Equity discovered for itself that Berthiaume, now a Seyfarth partner, represented the plaintiffs, by letter dated January 24, 2003, it demanded that Seyfarth withdraw its representation of the plaintiffs. On February 5, 2003, presumably in response to that letter, Seyfarth filed in the Superior Court an “emergency motion for instructions” regarding the “competing demands” of its clients Equity and Charles River. On February 12, 2003, Equity filed a cross motion to disqualify both Berthiaume and Seyfarth from continuing to represent Charles River. The motions were considered by the same judge who had earlier [514]*514entered summary judgment.5 On February 27, 2003, after “balancing” the interests of Seyfarth’s two clients and counsel’s duty of loyalty to each, the judge denied Equity’s disqualification motion.6 The judge noted that his ruling also provided “instructions” to the parties, as requested by Seyfarth.

2. Discussion. We consider first whether the issue of Berthiaume’s disqualification is now moot. After the Superior Court judge issued his decision concerning disqualification, and after Equity had filed its initial brief here, Equity terminated its entire relationship with Seyfarth, a circumstance noted briefly in Equity’s reply brief.7 Equity argues that the issue of disqualification is not moot because to rule otherwise would provide a client in these circumstances with a “Hobson’s choice”: to enforce a lawyer’s duty of loyalty as expressed in rule 1.7, the client would be required to continue to retain the lawyer whom it believed had violated that very duty. We conclude otherwise.

Rule 1.7, by its terms, prohibits a lawyer from representing “a client” whose interests are directly adverse to those of “another client,” unless the lawyer “reasonably believes the representation will not adversely affect the relationship with the other client” and “each client consents after consultation.” Several courts have concluded that if, as here, the lawyer no longer represents a client because the client has, in essence, fired the lawyer, disqualification of the lawyer from continuing [515]*515to serve another existing client serves no purpose, even assuming that a violation of rule 1.7 may have existed at some point in time. See, e.g., Hartford Acc. & Indem. Co. v. RJR Nabisco, Inc., 121 F. Supp. 534, 540-542 (S.D.N.Y. 1989) (disqualification not warranted where client left firm after complaint was filed because “the relationships between the firms and clients” were “not continuing”); Wong v. Fong, 60 Haw. 601, 605-606 (1979) (where attorney-client relationship terminated when separate litigation resolved, and where no record that confidential or prejudicial information obtained during litigation, disqualification “would be an empty ritual, for the evils which that remedy was intended to cure would have been dissipated”). See also In re Dayco Corp. Derivative Sec. Litig., 102 F.R.D. 624, 627, 632 (S.D. Ohio 1984) (no disqualification required where firm voluntarily withdrew from representing client in unrelated action after motion to disqualify was filed and no confidential information exchanged); Crystal, Disqualification of Counsel for Unrelated Matter Conflicts of Interest, 4 Geo. J. Legal Ethics 273, 310 (1990) (judges should deny motions for disqualification where there is no longer conflict of interest because disqualification is “needlessly expensive way” to respond to wrongful conduct; firm can be “punished for any misconduct by damage award or disciplinary action”). But see Unified Sewerage Agency of Wash. County v. Jelco, Inc., 646 F.2d 1339, 1345 n.4 (9th Cir. 1981) (present-client standard continues to apply even though representation ceases prior to filing of motion to disqualify to preclude attorneys from converting “present” client into “former” client by choosing when to cease to represent disfavored client).

It is important that, in this case, Equity has made no claim that any duty of confidentiality has been violated by Seyfarth, or that it is actually harmed by Berthiaume’s continued representation of the plaintiffs. See Tipton v. Canadian Imperial Bank of Commerce,

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440 Mass. 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coke-v-equity-residential-properties-trust-mass-2003.