Doe v. Nutter, McClennen & Fish

668 N.E.2d 1329, 41 Mass. App. Ct. 137
CourtMassachusetts Appeals Court
DecidedAugust 16, 1996
DocketNo. 95-P-1341
StatusPublished
Cited by60 cases

This text of 668 N.E.2d 1329 (Doe v. Nutter, McClennen & Fish) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doe v. Nutter, McClennen & Fish, 668 N.E.2d 1329, 41 Mass. App. Ct. 137 (Mass. Ct. App. 1996).

Opinion

Porada, J.

After a separate and final judgment was entered in the Superior Court dismissing plaintiffs’ claims against the defendant law firm, Nutter, McClennen & Fish (NMF), and one of its partners, Attorney Alan Rose, for violation of G. L. c. 93 A, violation of the Massachusetts Civil Rights Act, invasion of privacy, and intentional infliction of emotional distress, the plaintiffs filed this appeal. The plaintiffs’ claims arose out of a response by the defendant Rose on behalf of a client, South Shore Neurology Associates, Inc. (South Shore), to a thirty-day G. L. c. 93A demand letter that the plaintiffs’ counsel had sent to South Shore. The plaintiffs argue that the motion judge erred in (1) dismissing their claims on the ground that they were barred by the absolute privilege which attaches to communications by an attorney prehminaryTo the initiation of legal proceedings; and (2) in imposing sanctions under Mass.R.Civ.P. 11, 365 Mass. 753 (1974), upon plaintiffs’ counsel for filing this action against NMF and Rose. The plaintiffs also argue that a single justice of this court erred in imposing sanctions upon their counsel. We affirm and award double costs against plaintiffs’ counsel based on the frivolous nature of this appeal.

We summarize the pertinent undisputed facts from the record. On February 1, 1992, the plaintiffs’ attorney sent a thirty-day demand letter pursuant to G. L. c. 93A to South Shore. In that letter, plaintiffs’ counsel alleged that his client had been sexually assaulted during a physical examination performed at South Shore’s offices and that if South Shore did not respond with a reasonable offer of settlement, an action would commence. On March 27, 1992, Rose responded to the demand letter on behalf of South Shore. In his written response to plaintiffs’ counsel, he denied that an assault had taken place and stated at the end of the letter that “[y]our February 1, 1992 letter is defamatory. [The doctor] and South Shore have excellent reputations, and both fully believe that your client’s conduct in accusing [the doctor] of sexual and professional misconduct is actionable.” Rose also sent a copy of this letter to the plaintiff, Jane Doe.

[139]*139In November, 1992, the plaintiffs filed a complaint in the Superior Court against the defendants named in this proceeding. At about the same time, the plaintiffs served the defendant Rose with a thirty-day demand letter under G. L. c. 93A claiming that the mailing of a copy of South Shore’s response directly to the plaintiff was a violation of the canons of ethics and subjected the defendants to civil liability. In this letter, plaintiffs’ counsel referred to South Shore and the doctor as “NMF and Rose’s (former?) clients.” In response to the filing of the complaint, a copy of which had been mailed to the defendants but not served upon them, NMF and Rose replied that any action against them was barred on several grounds, including an absolute privilege relating to statements made by an attorney relative to proposed litigation, and cited applicable case law on the subject. This action was subsequently dismissed for failure of the plaintiffs to serve the defendants.

In December, 1993, the plaintiffs filed their complaint in this action in the Superior Court. This complaint contained the very same claims as the first complaint which had been dismissed for lack of prosecution. Rose and NMF filed a motion to dismiss based on several grounds, including the ground that the claims asserted were barred by the absolute privilege which attaches to communications by an attorney preliminary to the initiation of a legal proceeding. They also filed a motion requesting counsel fees under G. L. c. 231, § 6F, Mass. R.Civ.P. 11, and the inherent power of the court. The judge dismissed the plaintiffs’ complaint on the grounds that the contents of the letter or the mailing of the letter to Jane Doe did not give rise to civil liability against the defendants. The judge stated that she would allow the motion for attorneys’ fees against plaintiffs’ counsel under rule 11 but not under G. L. c. 231, § 6F.3 After hearing the parties and reviewing the affidavit submitted for attorneys’ fees and costs by counsel for NMF and Rose, the judge awarded NMF and Rose $4,000 in attorneys’ fees. The award was based on her findings that plaintiffs’ counsel was aware before filing suit that he did -not have a viable cause of action against the defendants and that his actions were prompted by a desire to deprive South Shore of its chosen counsel.

Pursuant to G. L. c. 231, § 118, par. 1, the plaintiffs ap[140]*140pealed the dismissal of their claims and the award of counsel fees to the single justice of the Appeals Court. Finding that the Superior Court judge did not abuse her discretion or commit an error of law, the single justice dismissed the petition but imposed sanctions4 under Mass.R.A.P. 25, as amended, 378 Mass. 925 (1979), against plaintiffs’ counsel for his scandalous and impertinent remarks in which he accused the Superior Court judge of bias, unethical conduct, and inappropriate susceptibility to influence by NMF and Rose. A Superior Court judge allowed entry of a separate and final judgment in favor of NMF and Rose. The plaintiffs then filed this appeal. We now address the merits.

1. Dismissal of plaintiffs’ claims. The plaintiffs argue that Rose’s response to their thirty-day demand letter to South Shore was actionable because his threat to bring a law suit against plaintiff Jane Doe did not relate to a legal proceeding which was contemplated in good faith and which was under serious consideration. Sriberg v. Raymond, 370 Mass. 105, 108-109 (1976). The plaintiffs base their argument on the grounds that their accusation of misconduct against South Shore and the doctor was contained in the privileged thirty-day demand letter, see Theran v. R okoff, 413 Mass. 590 (1992), and consequently any threat by the defendants to sue based on that letter could not have been made, in good faith or been the subject of serious consideration.

The plaintiffs, however, misconstrue the privilege which attaches to statements made by an attorney “in .the.jnstitution or conduct of litigation or in conferences _and^other communications preliminary to litigation.” Sriberg v. Raymond, 370 Mass, at 109. The privilege is absolute. Theran v. Rokoff, 413 Mass. at 591-592. Robert L. Sullivan, D.D.S., P.C. v. Birmingham, 11 Mass. App. Ct. 359, 361 (1981). An absolute privilege provides a complete defense even"ifftire~offensive statements are uttered maliciously or in bád faith:: Correllas v. Viveiros, 410 Mass. 314, 319 (1991). Mulgrew v. Taunton, 410 Mass. 631, 634 (1991). In addition, the absolute .privilege which attaches to those statements protects the maker from any civil liability based thereon. Correlas v. Viveiros, 410 Mass, at 324. Robert L. Sullivan, D.D.S., P. C. v. Birmingham, 11 Mass. App. Ct. at 367-368. See Frazier v. Bailey, 957 [141]*141F.2d 920, 932 (1st Cir. 1992)(claims for negligence, defamation, intentional infliction of emotional distress, and violation of Massachusetts Civil Rights Act based on communications preliminary to litigation and during pendency of litigation were entitled to absolute immunity from civil liability under Massachusetts law). To rule otherwise would make the privilege valueless if an individual would then be subject to liability under a different theory. Correlas v. Viveiros, 410 Mass, at 324.

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Cite This Page — Counsel Stack

Bluebook (online)
668 N.E.2d 1329, 41 Mass. App. Ct. 137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doe-v-nutter-mcclennen-fish-massappct-1996.