NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1159
FUSS & O'NEILL, INC.
vs.
CANNABURG CULTIVATION COOPERATIVE LLC & others;1 SEAN MORRISON, third-party defendant.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The third-party defendant, Sean Morrison, and defendant
Cannaburg Cultivation Cooperative LLC (Cannaburg) (collectively,
the appellants) appeal from a Superior Court judge's order
disqualifying Attorney Katherine Bierwas (Attorney Bierwas) from
representing either Morrison or Cannaburg in a dispute with
Robert Bujold and 310 Broad Street II, LLC (310 Broad Street).
The appellants claim that the judge abused her discretion in
concluding that Attorney Bierwas had violated Massachusetts
Rules of Professional Conduct 1.7's prohibition against the
simultaneous representation of adverse parties. We affirm.
1 310 Broad Street II, LLC, and Robert J. Bujold. Background. We summarize the relevant facts arising from a
dispute between the two members of Cannaburg, Morrison and
Bujold. Bujold formed Cannaburg in 2018 as a Limited Liability
Company ("LLC") and served as the sole member-manager. In 2019,
Bujold agreed to give Morrison a fifty-percent interest in
Cannaburg in exchange for $100,000.
a. The Fuss & O'Neill, Inc., action. In September 2019,
Morrison, on behalf of Cannaburg, executed a contract with Fuss
& O'Neill, Inc., an architectural and engineering corporation to
convert 310 Broad Street2 into a cannabis cultivation facility
for Cannaburg. On May 11, 2020, Fuss & O'Neill, Inc., initiated
the underlying suit, alleging that it performed the requested
work, but Cannaburg committed a breach of its contractual
obligations by failing to pay for the work. The amended
complaint asserted claims against Cannaburg, Bujold, and 310
Broad Street. Bujold hired Attorney Christopher Ray to
represent Cannaburg, 310 Broad Street, and Bujold himself. In
addition to filing an answer to the amended complaint,
Cannaburg, 310 Broad Street, and Bujold asserted third-party
impleader claims against Morrison including breach of contract,
fraud in the inducement, right of contribution as defendants,
2 Bujold is the sole owner of 310 Broad Street, and 310 Broad Street owns real property located at 310 Broad Street in Fitchburg.
2 breach of fiduciary duties to Bujold, and breach of fiduciary
duties to Cannaburg.
Morrison, represented by Attorney Bierwas, filed an answer
to the third-party complaint, including counterclaims by
Morrison, in his individual capacity, against 310 Broad Street
and Bujold, and cross claims by Cannaburg against 310 Broad
Street and Bujold. These claims included a derivative claim
asserted by Morrison on behalf of Cannaburg, alleging that
Bujold breached his fiduciary duties to Cannaburg.
On December 3, 2020, Bujold and Morrison executed a
"Standstill Agreement" giving Morrison control of Cannaburg.
The standstill agreement provided, inter alia, that "Morrison is
the sole voting member of Cannaburg, with sole authority to act
on its behalf."3 On June 10, 2022, the claims by Fuss & O'Neill,
Inc., were dismissed by a "Stipulation of Voluntary Dismissal."
b. Ongoing dispute between Bujold and Morrison. The
remaining dispute -- including the impleader action by Bujold,
Cannaburg, and 310 Broad Street as third-party plaintiffs
against Morrison, Morrison's counterclaims individually against
Bujold and 310 Broad Street, and the crossclaims by Cannaburg
3 Following the standstill agreement, Attorney Bierwas filed "Morrison's Surreply in Opposition to Bujold's Reply to His Emergency Motion to Disqualify Katherine Bierwas as Counsel" and "Opposition of Morrison and Cannaburg to Bujold's Emergency Motion to Disqualify Katherine Bierwas as Morrison and Cannaburg's Counsel" on behalf of both Morrison and Cannaburg.
3 against 310 Broad Street and Bujold -- was scheduled to begin
trial on March 11, 2024. On February 9, 2024, attorneys from
Kenney & Sams filed appearances on behalf of Bujold and 310
Broad Street, and Attorney Ray withdrew his appearance for
Bujold, 310 Broad Street, and Cannaburg. The new attorneys
moved to continue the March trial date.
On May 23, 2024, the first day of trial, Bujold and 310
Broad Street filed and served an "emergency motion to disqualify
[Attorney] Bierwas as counsel to any defendant due to a non-
waivable conflict of interest." The motion alleged that
Morrison and Cannaburg were both clients of Attorney Bierwas and
that they had "directly adverse" interests in violation of
Mass. R. Prof. C. 1.7(a)(1), as amended, 490 Mass. 1303 (2022).
Bujold and 310 Broad Street claimed that they had just obtained
newly discovered evidence showing that Morrison breached his
fiduciary duty to Cannaburg by pursuing a competing opportunity
to grow and sell cannabis in Fitchburg.
c. Hearing on disqualification. On the same day that
Attorney Bierwas was served the motion seeking to disqualify
her, and after an opportunity to speak to her client, the judge
required initial arguments from the parties but scheduled
another date for further hearing. The parties submitted briefs
on the disqualification issue and on June 26, 2024, the judge
heard further oral arguments from the parties but took no formal
4 evidence. Neither party requested an evidentiary hearing. On
July 19, 2024, the judge allowed the motion to disqualify
Attorney Bierwas. The judge, in her comprehensive decision and
order on Bujold's and 310 Broad Street's emergency motion to
disqualify Attorney Bierwas, considered Morrison's position as a
member-manager of Cannaburg and determined that the allegations
of his breach of fiduciary duty were sufficient to render
Morrison's interests directly adverse to the interests of
Cannaburg.
On August 15, 2024, the appellants filed a notice of
appeal, and on the same day filed an "Emergency Motion to Stay
All Proceedings Pending the Outcome of the Appeal of the Order
Disqualifying Morrison and Cannaburg's Counsel of Record." On
August 28, 2024, the judge issued a revised order staying the
case pending appeal. The only issue on appeal before us is the
disqualification of Attorney Bierwas.
Discussion. The appellants allege that the judge abused
her discretion by failing to hold an evidentiary hearing before
ruling on the motion to disqualify, and by failing to make
evidence-based findings regarding "the nature of Cannaburg's
interests or how the proceedings would be tainted by [her]
continued participation." The appellants further contend that
there is no concurrent conflict of interest between Cannaburg
and Morrison where the existence of the LLC is a mere formality,
5 and thus the order allowing the motion to disqualify must be
vacated or reversed. The appellants lastly argue that the judge
abused her discretion by failing to consider that
disqualification was sought as an improper tactic. The
arguments are unavailing.
"We review an order disqualifying counsel for abuse of
discretion." Bryan Corp. v. Abrano, 474 Mass. 504, 509 (2016),
citing Smaland Beach Ass'n v. Genova, 461 Mass. 214, 220 (2012).
Our consideration of the motion is informed by the principle
that courts "should not lightly interrupt the relationship
between a lawyer and her client." Adoption of Erica, 426 Mass.
55, 58 (1997). Nonetheless, the right to representation of an
attorney of one's choosing "is not absolute, and must, in some
circumstances, yield to other considerations" (citation
omitted). Bryan Corp., 474 Mass. at 509. We must also "be
alert that the Canons of Ethics are not brandished for tactical
advantage." Steinert v. Steinert, 73 Mass. App. Ct. 287, 288
(2008), quoting Serody v. Serody, 19 Mass. App. Ct. 411, 414
(1985).
a. Evidentiary hearing. The appellants first allege that
the judge abused her discretion by disqualifying Attorney
Bierwas without holding an evidentiary hearing. We disagree.
"Before a judge concludes that the representation of a
[client] is 'adverse' to the interests of a former client . . .
6 the record must be clear that there is a substantial risk of
material and adverse effect on the interests of the present or a
former client." Adoption of Erica, 426 Mass. at 65. However,
Rule 9A(c)(1) of the Rules of the Superior Court (2023) provides
for a hearing on a motion only "[i]f the court believes that a
hearing is necessary or helpful to a disposition of the motion."
Rule 9A(c)(2) of the Rules of the Superior Court requires a
party requesting a hearing to "set forth any statute or rule of
court which, in the judgement of the submitting party, requires
a hearing on the motion, as well as any reason why the court
should hold a hearing."
Here, neither party requested an evidentiary hearing, nor
are the material facts disputed. Indeed, it is uncontroverted
that inter alia, Attorney Bierwas represented both Morrison and
Cannaburg, that Morrison submitted an application for a special
permit to operate a cannabis cultivation facility, and that
Morrison is a member-manager of Cannaburg and owes the company
fiduciary duties. Furthermore, the judge was familiar with the
parties and their claims due to the filing of myriad motions and
through pretrial proceedings. On this record, where the judge
had extensive knowledge of the parties, issues, and necessary
documentary evidence, there was no requirement to hold an
evidentiary hearing. See Rule 9A(c)(2) of the Rules of the
Superior Court. See also Adoption of Erica, 426 Mass. at 57-58
7 (no evidentiary hearing held, vacated on other grounds).
Moreover, even on appeal, the appellants cite to no
Massachusetts authority providing that an evidentiary hearing is
required to disqualify an attorney. See Rule 9A(c)(2) of the
Rules of the Superior Court. Thus, we discern no abuse of
discretion.
b. Evidence-based findings. Next, the appellants claim
that the judge was obligated to make formal evidence-based
findings regarding the nature of Cannaburg's interests and how
the proceedings would be tainted by Attorney Bierwas's
participation in the proceedings. This claim is likewise
unavailing.
"Charges of conflict of interest . . . warrant searching
review before a disqualification order can be sustained."
Adoption of Erica, 426 Mass. at 63. Although "the exact
parameters of what is required have not been spelled out," it is
clear that a judge must closely examine the interests of the
potentially adverse clients and determine if the matters are
substantially related. See Slade v. Ormsby, 69 Mass. App. Ct.
542, 546-547 & n.11 (2007).
Here, contrary to the appellants' assertions, the judge
made rulings with detailed and extensive reasoning based on
undisputed facts in her "Decision and Order on Defendants Robert
J. Bujold's and 310 Broad Street II, LLC's Emergency Motion to
8 Disqualify Katherine Bierwas as Counsel." The judge noted that
Cannaburg is a closely held LLC which imposes duties of loyalty
and good faith on the member-managers. She recognized that in
his capacity as manager of Cannaburg, Bujold asserted a claim
based on Morrison's alleged breach of the fiduciary duty that
Morrison owed to Cannaburg as a member and manager, and thus
Morrison's interests were directly adverse to Cannaburg with
respect to that claim. The judge further determined that the
conflict was not waivable and that in light of the newly
discovered evidence of Morrison's competing venture the claim
involves serious charges of wrongdoing by those in control of
the organization.
Finally, in her detailed decision and order, the judge
evaluated how Attorney Bierwas's dual representation could taint
the proceedings and considered the nature of Cannaburg's
interests based on undisputed facts. Indeed, the decision and
order shows that the judge made a "searching review" before
disqualification. Adoption of Erica, 426 Mass. at 63-64. In
short, the judge provided sufficiently detailed findings, which
revealed a close examination of the parties' interests and a
proper exercise of her discretion.
c. Concurrent conflict of interest. The appellants next
argue that there is no concurrent conflict of interest between
Cannaburg and Morrison where the existence of the LLC is a mere
9 formality, and thus the order allowing the motion to disqualify
must be vacated or reversed. We disagree.
The appellants claim that Cannaburg's interests are not
directly adverse to Morrison's because Cannaburg is simply a
nominal party with no independent interest in the outcome of the
litigation distinct from Bujold's and Morrison's respective
interests. More specifically, the appellants assert that both
Morrison and Bujold own a fifty-percent interest in Cannaburg,
both asserted claims against each other in connection with the
enterprise, and both have been in control of Cannaburg. Thus,
they contend, Cannaburg's interests are "in the realm of
'fictional' in the circumstances of this particular case." For
the reasons stated below, this argument is unpersuasive.
Without deciding whether Morrison did in fact breach his
fiduciary duty, the allegations brought against him would
constitute a breach of fiduciary duty owed to both Cannaburg and
Bujold.4 Rule 1.7 prohibits a lawyer from representing a client
if the representation is "directly adverse to another client."
Mass. R. Prof. C. 1.7 (a) (1), as amended, 490 Mass. 1303
4 The appellants initially argued that the manner in which each parties' claims were characterized, either direct or derivative, controlled the analysis, but they later acknowledged that the distinction is not controlling. See Schaeffer v. Cohen, Rosenthal, Price, Mirkin, Jennings & Berg, P.C., 405 Mass. 506, 511 (1989) (shareholder and corporation interests conflicting in derivative action).
10 (2022). Representation is "directly adverse" within the meaning
of rule 1.7 (a) (1) when a lawyer "act[s] as an advocate in one
matter against a person the lawyer represents in some other
matter, even when the matters are wholly unrelated." Mass. R.
Prof. C. 1.7 comment 6 as amended, 490 Mass. 1303 (2022). Where
a client is a corporation, "the rules are clear that where a
lawyer represents an organizational client his or her loyalty is
owed to the organization, and not the constituents through whom
the organization acts." Bryan Corp., 474 Mass. at 512, citing
Mass. R. Prof. C. 1.13 (f), as appearing in 450 Mass. 1301
(2008). Indeed, an LLC, even when closely held, possesses
interests distinct from those of its member-managers. See
Pointer v. Castellani, 455 Mass. 537, 557 (2009). Moreover,
directors owe fiduciary duties to the LLC and other managers.
Accordingly, when allegations involve self-dealing, our case law
is clear that the LLC has an interest distinct from the member-
managers. See Allison v. Eriksson, 479 Mass. 626, 636 (2018);
Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 529
(1997) ("corporate directors and officers are bound by their
duty of loyalty to subordinate their self-interests to the well
being of the corporation").
Here, Bujold alleges that Morrison participated in self-
dealing, failed to honor his financial obligations, and pursued
business ventures in direct competition to Cannaburg. In this
11 context, as the judge correctly noted, Cannaburg's interests are
distinct from Bujold and Morrison's interests and directly
adverse to Morrison's "with regard to the breach of fiduciary
duty claim." The judge further noted that Morrison's alleged
conduct of pursuing a competing opportunity placed his personal
interests in direct competition with Cannaburg's. Finally, the
judge noted that Rule 1.7 contemplates a lawyer's duty to the
organization and the member-managers of that organization. In
this light, Attorney Bierwas had a duty to Cannaburg the
organization, which was superior to any duty to Morrison. See,
e.g., Bryan Corp., 474 Mass. at 512, citing Mass. R. Prof. C.
1.13 (f), as appearing in 450 Mass. 1301 (2008) ("Indeed, the
rules are clear that where a lawyer represents an organizational
client his or her loyalty is owed to the organization, and not
the constituents through whom the organization acts"). The
judge then determined that the conflict is not waivable because
Cannaburg and Morrison are on opposite sides of the third-party
claim. Thus, by considering the relationships between the
parties and how Attorney Bierwas's dual representation would
taint the proceedings, the judge did not abuse her discretion.
Furthermore, there is a significant risk that Attorney
Bierwas would be materially limited by her competing
responsibilities to Morrison and Cannaburg. Rule 1.7 (a) (2)
prohibits dual representation when "there is a significant risk
12 that the representation of one or more clients will be
materially limited by the lawyer's responsibilities to another
client, a former client or a third person or by a personal
interest of the lawyer." Mass. R. Prof. C. 1.7 (a) (2), as
amended, 490 Mass. 1303 (2022). See Clair v. Clair, 464 Mass.
205, 215-216 (2013) (attorneys serving as counsel to corporation
must act according to the interests of corporation);
Mass. R. Prof. C. 1.13 comment 14, as amended, 490 Mass. 1306
(2022) ("if the [derivative] claim involves serious charges of
wrongdoing by those in control of the organization, a conflict
may arise between the lawyer's duty to the organization and the
lawyer's relationship with the board").
Here, Attorney Bierwas has a duty to act in the interests
of Cannaburg and ensure the directors are acting in the
interests of the company, while she also has a competing
interest in defending her client, Morrison, from claims that he
was breaching his duties to Cannaburg. Thus, as the judge below
points out, Attorney Bierwas's claim that Cannaburg has no
viable action against Morrison is the very reason Rule 1.7
exists. The judge, in the decision and order, concluded that
Attorney Bierwas, through her duty to Morrison, is (or would be)
ignoring significant charges of potential harm to Cannaburg.
Therefore, there is a "significant risk" that Attorney Bierwas's
representation of Cannaburg will be "materially limited" by her
13 representation of Morrison because she has an interest in not
pursuing a claim against her other client. See
Mass. R. Prof. C. 1.7 (a)(2), as amended, 490 Mass. 1303 (2022).
Accordingly, the judge did not abuse her discretion when
disqualifying Attorney Bierwas from representing both Cannaburg
and Morrison.
d. Tactical use of disqualification. Finally, the
appellants contend that the judge abused her discretion by
failing to consider or address the possibility that the motion
to disqualify was a tactical maneuver. Because the judge did
consider and dismissed this possibility, we disagree.
Where "it is opposing counsel who seeks disqualification,
we must be alert that the Canons of Ethics are not brandished
for tactical advantage" (quotation and citation omitted).
Steinert, 73 Mass. App. Ct. at 288. Judges have discretion to
discourage disqualification when a party had ample notice of the
conflict and delayed until the eve of trial to express their
objection. See Masiello v. Perini Corp., 394 Mass. 842, 850
In this case, the judge considered and weighed the concern
that Bujold's and 310 Broad Street's counsel filed their
appearance late in the matter and that they had recently
obtained new evidence suggesting that Morrison was directly
competing with Cannaburg. Furthermore, contrary to the
14 appellants' assertions, the judge did consider whether the move
to disqualify Attorney Bierwas was tactical and determined that
it was not. In this regard, the judge ultimately ruled that
"[g]iven the relatively recent appearance of counsel for Bujold
and [310] Broad Street in the case and the late revelation of
the extent of Morrison's allegedly competing business
activities, the court concludes that the motion to disqualify
[Attorney] Bierwas should not be denied because of its timing."
Therefore, we cannot say that the judge abused her discretion.
Order affirmed.
By the Court (Meade, Neyman & Walsh, JJ.5),
Clerk
Entered: January 8, 2026.
5 The panelists are listed in order of seniority.