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
25-P-489
JEREMY PARADISE
vs.
JOHN POMERANCE & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Jeremy Paradise, appeals from a Superior
Court judgment dismissing his six-count complaint against the
defendant attorneys and their law firm, based on their role in
establishing a trust for which he was the grantor. Jeremy
alleged that although he intended to have ultimate control of
the trust, the defendants caused the trust instrument to be
changed to give control to his brother, Andrew Paradise, and
that Jeremy signed the final draft of that document without
knowing of the change.2
1Kurt Steinkrauss, Alison Glover, Michael Gardener, and Mintz, Levin, Cohn, Ferris, Glovsky, & Popeo, P.C.
2To avoid confusion, we refer to the brothers by their first names. No disrespect is intended. On cross-motions for summary judgment, a judge ruled that,
even accepting arguendo Jeremy's position that the defendants
represented him, Jeremy's claims failed. She concluded that
Jeremy could not establish the reasonable reliance on an alleged
misrepresentation by the defendants that was necessary to
Jeremy's first three claims (fraudulent inducement, and
intentional and negligent misrepresentation). She further
concluded that he could not establish the causation element
necessary to all six of his claims (the above three plus
violations of G. L. c. 93A, malpractice, and breach of fiduciary
duty). We affirm the dismissal of the first three claims but,
concluding that genuine issues of material fact remain as to the
latter three, we vacate their dismissal and remand for further
proceedings.
Background. We recite the undisputed facts necessary to an
understanding of the issues before us; where matters are
disputed, we refer to them as a party's assertions rather than
as facts. In December 2018, the brothers reached an
understanding to move some of Jeremy's shares of stock in
Andrew's business (Skillz, Inc.) into a trust to benefit
Jeremy's unborn son. The "key terms" included making Jeremy the
"lead trustee," with authority to manage some parts of the
trust, and making Andrew "the other trustee in charge of
2 managing it." Andrew forwarded the e-mail message stating these
terms to the defendant John Pomerance, an attorney at the
defendant law firm Mintz, Levin, Cohn, Ferris, Glovsky, & Popeo,
P.C. (Mintz). Jeremy asserts that Pomerance and Mintz had
performed legal work for him over the preceding five years.
Pomerance in turn forwarded the message to another Mintz
attorney, the defendant Kurt Steinkrauss. Jeremy was copied on
these messages.
Jeremy asserts that he understood he was setting up a trust
that he would control, and that Mintz would represent him and
act in his interests in doing so. Andrew had privately told
Pomerance, however, that he (Andrew) intended to control the
trust. Mintz and the other defendants assert that they
represented only Andrew, and never Jeremy, in connection with
establishing Jeremy's trust, as well as another trust for
Andrew.3
Jeremy asserts that, in a February 2019 telephone call
between himself, Steinkrauss, and Andrew, Steinkrauss advised
that Jeremy could control his trust by appointing a colleague or
3 Andrew asserted that he and Jeremy had a "deal," as a part of which Andrew would be in charge of Jeremy's trust, and would facilitate Jeremy obtaining $1 million from the sale of Skillz stock, if Jeremy agreed to put his Skillz stock in a trust controlled by Andrew.
3 friend to be the "trust protector," whom Jeremy could remove if
that person was not acting as Jeremy wanted. Jeremy asserts
that Steinkrauss advised that both Jeremy's and Andrew's trusts
should be formed in Delaware and that the brothers should retain
Delaware counsel for that purpose, but that Steinkrauss would
"supervise everything." The brothers approached a Delaware law
firm, Gordon, Fournaris & Mammarella, P.A. (GFM), and engaged
GFM to draft both trusts. A GFM attorney sent Jeremy an outline
stating, in part, that he typically drafted his trusts to give
the grantor (here, Jeremy) the power to remove the trust
protector.4 Jeremy asserts that he read the outline. The GFM
attorney also told Steinkrauss that Steinkrauss would be copied
on all correspondence so that he could review it.
In March 2019, GFM sent the brothers and Steinkrauss the
drafts of the trusts. The draft of Jeremy's trust gave Jeremy
the authority to remove and replace the trust protector, with
Andrew to have that authority if Jeremy were no longer living or
competent. Hereafter we refer to this arrangement as putting
Jeremy in "first position" and Andrew in "second position."
Jeremy asserts that he read the draft but could not understand
4 The outline explained that the trust protector typically was given the power, among others, to remove and replace the trustee, as well as any advisers on investment direction or on distribution.
4 it. A few days later, Andrew spoke to Steinkrauss by telephone
and asked that Mintz convey to GFM Andrew's instruction to put
him, rather than Jeremy, in first position in Jeremy's trust.
The defendant attorney Alison Glover at Mintz conveyed a request
for that change to GFM.
GFM made this and other changes and sent redlined and clean
versions of the draft (as well as a new draft of Andrew's trust)
back to Glover, who in turn sent them to the brothers and
Steinkrauss. A GFM attorney later testified that, at the time
Glover requested the change and the changed drafts were sent, he
did not believe anyone at GFM had discussed the change with
Jeremy, but his understanding was that Mintz represented Jeremy
and that Jeremy had approved the change. The GFM attorney
further testified that if he had known at the time of Mintz's
position that it did not represent Jeremy, but that Mintz was
communicating to Jeremy without GFM's knowledge, "very likely, I
would have followed up directly with Jeremy regarding the
changes."
The redlined change that put Andrew (identified as "[t]he
Grantor's Brother") in first position and Jeremy (identified as
"[t]he Grantor") in second position appeared on page thirty-five
of the fifty-six-page draft. We think it fair to say the change
itself was clearly visible to a reasonable person looking at
5 that page, although understanding the significance of the change
would require familiarity with other provisions of the trust.
Glover's cover e-mail message to the brothers contained "[a] few
questions" but did not ask about, mention, or otherwise call
attention to the change putting Andrew in first position and
Jeremy in second position. Jeremy asserts that he understood
the message as summarizing all of the changes to his trust.
Jeremy did not read the redlined or clean drafts.5
In April 2019, GFM sent the trust documents to Jeremy and
Andrew for execution, copying Steinkrauss, Glover, and others on
the cover message. Steinkrauss replied to GFM, copying Andrew
and all other recipients except Jeremy, asking GFM to confirm
that Andrew would have sole control of his trust and that Andrew
and Jeremy would have "joint control" of Jeremy's trust. The
parties dispute the reason for Steinkrauss's omitting Jeremy
from this message; the defendants assert that he did so "because
Mintz represented Andrew and not Jeremy."
GFM replied to Steinkrauss that in both trusts, Andrew
alone had the authority to remove and replace the trust
5 We do not overlook that Andrew sent Jeremy a text message asking if he had looked at the documents, to which Jeremy replied that he would "sign whenever you tell me they are ready" and that "I'm just going to trust your edits." This exchange, if relevant at all to Jeremy's claims against the defendants, is not fatal to them.
6 protector, and GFM asked to be notified if this should be
changed. Steinkrauss replied: "Andrew is fine the way it is.
They will sign today." Although Andrew was copied on those
messages, Jeremy was not.
Steinkrauss and Pomerance arranged for Jeremy to sign the
trust document at Mintz's offices, and Jeremy signed it without
having read the final draft. Jeremy asserts that, at the time
he signed it, he was unaware of the change putting Andrew in
first position to remove the trust protector. He further
asserts that he would neither have signed, nor have subsequently
transferred over three million shares of stock into the trust,
had he known "Mintz was not representing him or his interests."6
On the parties' cross motions for summary judgment, the
judge accepted for purposes of the motion Jeremy's position that
the defendants represented him during the establishment of his
trust and that they violated their professional obligations to
him. Even so, she ruled, Jeremy could not prove, for purposes
of his misrepresentation-based claims (fraudulent inducement,
and intentional and negligent misrepresentation), that his
The trust is irrevocable. As of June 2021, it had a net 6
asset value of over $35.9 million. Jeremy petitioned the Delaware Chancery Court for reformation of the trust, but, following a two-day trial, judgment entered for the respondents. In the present action, Jeremy's damages claim includes more than $5.3 million in legal fees he assertedly incurred in connection with the Delaware case.
7 reliance on any misrepresentations by the defendants was
reasonable. Rather, she concluded, Jeremy alone was responsible
for the consequences of his failure to read the drafts putting
Andrew in first position. The judge further ruled that, for
purposes of those three claims and his additional claims for
violations of G. L. c. 93A, malpractice, and breach of fiduciary
duty, Jeremy could not prove that the defendants' conduct was
what caused him to sign the trust document without being aware
that Andrew had been put in first position. From the resulting
judgment of dismissal, Jeremy appealed.
Discussion. "The standard of review of a grant of summary
judgment is whether, viewing the evidence in the light most
favorable to the nonmoving party, all material facts have been
established and the moving party is entitled to a judgment as a
matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass.
117, 120 (1991). We draw all reasonable inferences in favor of
the nonmoving party. See Sullivan v. Liberty Mut. Ins. Co., 444
Mass. 34, 38 (2005). The defendants may also obtain summary
judgment by demonstrating that Jeremy, who would have the burden
of proof at trial, has no reasonable expectation of proving an
essential element of his case. See Kourouvacilis v. General
Motors Corp., 410 Mass. 706, 716 (1991).
8 Importantly, for the purposes of this appeal only, the
defendants assume (as did the judge) that they acted as Jeremy's
attorneys, and they argue that Jeremy nevertheless cannot
prevail. We proceed on the same assumption, and we therefore
need not discuss Jeremy's arguments that such an attorney-client
relationship existed. We turn directly to the grounds for the
judge's ruling.
1. Reasonable reliance. Jeremy's first three claims have
in common the element that a plaintiff's reliance on a
defendant's allegedly false statement must have been reasonable.
This is true of Jeremy's claims for fraud in the inducement, see
Commerce Bank & Trust Co. v. Hayeck, 46 Mass. App. Ct. 687, 692
(1999); intentional misrepresentation, see Masingill v. EMC
Corp., 449 Mass. 532, 540 (2007); and negligent
misrepresentation, see Marram v. Kobrick Offshore Fund, Ltd.,
442 Mass. 43, 59 (2004).7 Yet it is unreasonable to rely on
alleged misrepresentations about the contents of a document if
one had an opportunity to read the document and a cursory
reading would have revealed its true content. See Collins v.
Huculak, 57 Mass. App. Ct. 387, 391-393 & n.7 (2003). "One who
7 The judge did not conclude, and the defendants do not assert on appeal, that such reasonable reliance is an element of Jeremy's other three claims (violation of chapter 93A, malpractice, and breach of fiduciary duty).
9 signs a writing that is designed to serve as a legal document
. . . is presumed to know its contents." Hull v. Attleboro Sav.
Bank, 33 Mass. App. Ct. 18, 24 (1992).
Based on these principles, the judge ruled that Jeremy's
three misrepresentation-based claims failed because it was
unreasonable for him to have relied on any alleged
misrepresentations by the defendants that he was in first
position. This was because the defendants had sent him a
redlined draft and later a clean execution copy that showed he
was not in first position, and that he had every opportunity to
read. On appeal, Jeremy does not seriously dispute that,
putting aside whatever heightened duties the defendants may have
had to him as his (assumed) attorneys, his misrepresentation-
based claims are not viable. Jeremy thus acknowledges that
"[t]he existence of an attorney-client relationship is . . .
critical" to his claims.
To be sure, Jeremy points out that, although a party's
failure to read or understand a document before signing it does
not free him from its obligations, this rule is subject to an
exception for fraud. See Miller v. Cotter, 448 Mass. 671, 680
(2007); Sharon v. Newton, 437 Mass. 99, 103 (2002); Lee v.
Allied Sports Assocs., Inc., 349 Mass. 544, 550–551 (1965). But
those decisions do not expand the concept of fraud to impose a
10 heightened duty to disclose the contents of a document to a
party who is perfectly capable of reading it. The decisions
thus do not strengthen Jeremy's misrepresentation-based claims.8
Any such heightened duty of disclosure must, at least on this
record, be based on the defendants' having been Jeremy's
attorneys or having led him to believe that they were.9
While Jeremy focuses on the defendants' asserted failure to
sufficiently inform him of the trust terms, his brief also
includes scattered assertions that the defendants failed to
inform him that they did not represent him or misled him into
thinking that they did. Jeremy makes these assertions, however,
primarily in support of his claims that an express or implied
8 Nor do those decisions, or cases such as Commerce Bank & Trust Co., 46 Mass. App. Ct. at 463 (party bound by document he voluntarily signed without reading), assist the defendants. What Jeremy seeks here is not to be relieved of his obligations under the document he signed, but an award of damages against those he asserts caused him to sign the document in violation of their duties to him.
9 Jeremy also cites decisions recognizing that, in special circumstances of reasonable reliance by insureds, heightened duties may be imposed on insurance brokers or agents. See Campione v. Wilson, 422 Mass. 185, 195-196 (1996); Martinonis v. Utica Nat'l Ins. Group, 65 Mass. App. Ct. 418, 421 (2006). But Jeremy cites no authority applying those cases outside of the insurance context, nor does he explain how any special circumstances here would create a heightened duty different from that created by an attorney-client relationship. Because we conclude infra that Jeremy may pursue his malpractice claim, we need not discuss the special circumstances argument further. Moreover, it appears not to have been made to the judge.
11 attorney-client relationship existed and that the defendants
breached their professional duties to him. They might also be
asserted under the rubric of his chapter 93A claim. Because we
conclude infra that Jeremy may pursue those claims, and because
he does not explain what, if anything, the assertions add to his
misrepresentation-based claims, we affirm the judge's ruling
dismissing those latter claims (counts 1-3).
2. Causation; duty. The judge concluded that Jeremy's
remaining claims failed because, as a matter of law, it was
Jeremy's own failure to read the document before signing that
caused his alleged injuries -- not the defendants' failure to do
more to ensure that he knew the content of the document. The
judge relied primarily on a Federal court decision recognizing
that, under New York law,
"when the only allegation of legal malpractice is a failure to advise a plaintiff-client of the consequences of a contractual provision, without more, there is no malpractice liability where the agreement reveal[s] on its face what the client claim[s] he was not told because in such cases, the malpractice claim is flatly contradicted by documentary evidence" (quotations and citations omitted; emphasis added).
Preferred Fragrance, Inc. vs. Buchanan Ingersoll & Rooney PC,
U.S. Dist. Ct., No. 15 CIV. 1293 BMC (E.D.N.Y. Oct. 18, 2015)
(Preferred Fragrance). In other words, where the clients
claimed to have been "harmed by [their attorney's] failure to
adequately explain a provision" of a document they were to sign,
12 yet "the provision spoke for itself," the attorney had no
"cognizable duty to do more." Id. Although the judge here
framed her conclusion as going to causation, Preferred Fragrance
frames the issue as involving an attorney's duty, and that
rubric is more helpful here.10
We need not decide whether Preferred Fragrance's statement
of New York law is also the law of Massachusetts, because the
court's description of the limits on an attorney's duty to
ensure the client's understanding of a legal document contains a
key qualifying phrase: "without more." Preferred Fragrance,
supra. Indeed, the court recognized that the result might be
different if, for example, there was evidence the attorney
"knew, or had reason to know, that [the client] would balk" at
the particular provision at issue.11 Id. There is such evidence
here.
10The judge based her causation analysis on Hager vs. Vertrue, Inc., U.S. Dist. Ct., No. CIV.A. 09-11245-GAO (D. Mass. Sept. 28, 2011). That decision, however, did not involve any claim against an attorney, nor did it discuss whether an attorney has a heightened duty to ensure a client's knowledge of a document despite the client's failure to read it.
11For the same reason, the defendants can draw no support from EVIP Canada, Inc. vs. Schnader Harrison Segal & Lewis LLP, U.S. Dist. Ct., No. 18-CV-11456 (LJL) (S.D.N.Y. Mar. 15, 2021). In that case, the plaintiff clients "did not advise [the defendant attorneys] at the outset of their need for" the particular provision at issue. Id.
13 That evidence, some of it subject to genuine dispute,
includes the following:12 (1) Steinkrauss knew from the initial
e-mail messages that Jeremy wanted to have at least some control
of his trust; (2) Andrew privately told Steinkrauss's colleague
Pomerance that Andrew intended to control Jeremy's trust;
(3) Steinkrauss told Jeremy he could control his trust by
retaining the authority to remove and replace the trust
protector; (4) Steinkrauss told Jeremy that Delaware counsel
should draft the trust but that he (Steinkrauss) would supervise
everything; (5) Jeremy could reasonably expect that GFM would
draft the trust to give him authority over the trust protector,
and GFM initially did so; (6) Andrew then asked Steinkrauss to
convey to GFM that the trust should be changed to put Andrew
rather than Jeremy in first position, and Steinkrauss through
his colleague Glover conveyed this message to GFM, which made
the change; (8) Glover sent Jeremy a fifty-six-page redlined
draft, showing this particular change on page thirty-five, but
did not otherwise call it to his attention, and Jeremy did not
read the draft; (9) Steinkrauss intentionally removed Jeremy
(but not Andrew) from an e-mail message chain seeking GFM's
confirmation of who would control Jeremy's trust; (10) GFM
12We pass over the evidence Jeremy cites as supporting his belief that the defendants had represented him in the past and represented him in connection with the formation of his trust.
14 replied that Andrew would do so and asked if that should be
changed, to which Steinkrauss replied that Andrew was "fine"
with having such control but said nothing about his (assumed)
client Jeremy's position; (11) Steinkrauss and Pomerance
arranged for Jeremy to sign the trust document at Mintz's
office, which Jeremy did without reading the final draft; and
(12) Jeremy would not have signed it or transferred over three
million shares of stock into the trust had he known Mintz was
not representing him.
Viewing this evidence in the light most favorable to Jeremy
as the nonmoving party, and drawing all reasonable inferences in
his favor, a jury could find that the defendants knew it was
important to Jeremy to have control of his trust and that he was
relying on them to assist him; they told him that he could have
control and that they would supervise everything; but then they
assisted in having the control shifted to Andrew, without
affirmatively ensuring that Jeremy knew of and agreed to the
change; and they took the affirmative step of cutting Jeremy out
of the e-mail conversation in which they sought and received
confirmation of their client Andrew's final role.
"The relation of attorney and client is highly fiduciary in
its nature. . . . The attorney owes his client a duty of full
and fair disclosure of facts material to the client's
15 interests." Hendrickson v. Sears, 365 Mass. 83, 90 (1974). See
Blake v. Hendrickson, 40 Mass. App. Ct. 579, 582 (1996)
(attorney is client's agent); Gagnon v. Coombs, 39 Mass. App.
Ct. 144, 156 (1995) (agent has fiduciary duty to use reasonable
efforts to give principal information which agent has notice
principal would desire to have).
Again assuming arguendo that the defendants were Jeremy's
attorneys, then, where they had reason to know that Jeremy
wanted his trust drafted to give him control, and that he was
relying on their skill as attorneys to help him achieve his
objective, it is a question of fact whether they made reasonable
efforts to do so, or to ensure he knew that the final draft did
not achieve that objective before he signed it. An attorney's
duty to a client may often include presenting the client with a
document for signature that the attorney has participated in
drafting, or reviewing, to ensure it serves the client's
interests. When the attorney is on notice that a particular
provision of the document is or may be contrary to the client's
wishes or interests, we are unwilling to conclude as a matter of
law that the attorney's duty is discharged by merely presenting
the client with a lengthy redlined draft and leaving it to the
client to read the document and ask about the redlined changes.
That level of disclosure may suffice in an arm's-length
16 relationship between parties of comparable sophistication, but
"[t]he attorney and client do not deal with each other at arm's
length." Berman v. Coakley, 243 Mass. 348, 354 (1923).
"Unflinching fidelity to their genuine interests is the duty of
every attorney to [that attorney's] clients." Id.
We decline to hold it unforeseeable as a matter of law that
a client, rather than reading and understanding every page of
every document the attorney presents for signature, might
instead rely on the attorney to call attention to its important
features.13 This element of foreseeability is why we do not
adopt the judge's causation-based approach, or the defendants'
causation argument on appeal. "[P]roximate cause of an injury
depends not on factual causation, but rather on whether the
injury to the plaintiff was a foreseeable result of the
defendant's negligent conduct." Kent v. Commonwealth, 437 Mass.
312, 320 (2002). "The definition or scope of proximate cause
13The defendants cite a decision assertedly holding that such reliance on an attorney is unreasonable as a matter of law for purposes of claims against the attorney. See Smith v. Jenkins, 718 F. Supp. 2d 155, 163, 167 (D. Mass. 2010). Smith holds no such thing. Although certain defendants in that case successfully argued that the plaintiff could not avoid responsibility for knowing the contents of a document by arguing that she "trusted the lawyer," id. at 163, the defendants making that argument did not include the lawyer in question, and the claims dismissed on that ground were claims of fraud against others, not malpractice or breach of fiduciary duty claims against the lawyer. See id. at 158 n.1, 160 & n.5, 166-167.
17 (or foreseeable result) is in turn based on considerations of
policy and pragmatic judgment" (quotation and citation omitted).
Id. We do not accept as the policy of this Commonwealth, or as
a sound, pragmatic judgment, that attorneys can never foresee
that their clients will not read documents carefully and,
therefore, that an attorney's failure to expressly draw a
client's attention to particular provisions affecting the
client's expressed interests can never be a proximate cause of
an injury that follows from the client's signing the document
without reading it.14
To the extent that Jeremy also bore some responsibility for
reading the documents, a finder of fact would ordinarily have to
sort out the relative fault of the parties. "Comparative fault
appropriately applies to a client's claim of malpractice by a
lawyer." Clark v. Rowe, 428 Mass. 339, 345 (1998). The
The defendants advance a separate causation argument: 14
that even if Jeremy had known that Andrew was in first position, Jeremy would have signed the trust document. But this is a disputed fact, notwithstanding the defendants' argument that Jeremy "did not have any intent" regarding control of the trust and "would have signed anything put in front of him to receive $1,000,000 from Andrew," as Andrew asserted was their "deal" at the time. We acknowledge that the Delaware court (1) viewed as "counterfactual" Jeremy's assertion that controlling his trust was important to him, and (2) found "[t]he strongest inference [to be] that Jeremy had no clear intent" as to the trust protector issue at the time he signed the document. But the defendants conceded at oral argument before us that the Delaware court's determinations on those points are not entitled to issue preclusive effect in this litigation.
18 responsibility for the client's knowledge and understanding may
be shared between the attorney and the client, to an extent that
in some cases will present questions of fact.15 If the
defendants here were indeed Jeremy's attorneys, then this may be
one of those cases.
Ruling as we do, we need not address the judge's
alternative reasoning and the defendants' argument based on the
asserted issue preclusive effect of three conclusions reached by
the Delaware court. In brief, those conclusions, even if fatal
to Jeremy's fraud theory, have no bearing on whether the
defendants had, and violated, heightened duties to ensure
Jeremy's knowledge of what he was signing.
We therefore vacate so much of the judgment as dismissed
Jeremy's malpractice claim (count 5). As for the breach of
fiduciary duty claim (count 6), the judge viewed it as
duplicative of the malpractice claim, and dismissed it on the
15The defendants miss the point in arguing, on the comparative negligence issue, that "a client who doesn't read a document he signs is necessarily more negligent than a lawyer who doesn't remind the client of each provision in it before the client signs it." This case is not about the defendants' failure to remind Jeremy of "each provision" in the trust document. It is about (1) their failure to do more to ensure he knew of a particular provision that was important to him, and (2) their act of affirmatively removing him from an e-mail message chain that would have clarified to him -- as the defendants saw fit to do with their client Andrew -- exactly who would be in control of his trust.
19 same ground, lack of causation, that we have now concluded was
error. We therefore vacate the dismissal of the fiduciary duty
claim, and we note that "[i]ntentional breaches of fiduciary
duties" may stand "apart from a claim of malpractice."16 Clark,
428 Mass. at 345. See G. Jacobs & K. Laurence, Professional
Malpractice § 17.1 (2007) (explaining that legal malpractice and
breach of fiduciary duty claims are not necessarily
duplicative). Whether comparative negligence is relevant in a
fiduciary duty case, as it is in a legal malpractice case, was
left unresolved in Clark, 428 Mass. at 345-346. It has not been
briefed here, and we express no view on it.
Finally, because the chapter 93A claim (count 4) was
dismissed on the same causation ground as the malpractice and
fiduciary duty claims, we vacate the dismissal of the chapter
93A claim as well. Legal malpractice and breach of fiduciary
duty may fall "within at least the penumbra of some common-law,
statutory, or other established concept of unfairness," one that
16In Van Brode Group, Inc. v. Bowditch & Dewey, 36 Mass. App. Ct. 509 (1994), the court held that on the particular facts of that case, and where "instructions to the jury on the legal malpractice count in effect covered the subject matter of the fiduciary duty count, albeit in a slightly different analytical framework," the plaintiff "was not prejudiced by the striking of the fiduciary duty count." Id. at 516, 517. The two counts could be viewed as essentially duplicative "on the evidence presented." Id. at 517 n.10. The decision nowhere suggests that they are always duplicative.
20 "is immoral, unethical, oppressive, or unscrupulous," and would
"cause[] substantial injury to consumers" (citation omitted).17
PMP Assocs., Inc. v. Globe Newspaper Co., 366 Mass. 593, 596
(1975).
Conclusion. So much of the judgment as dismissed counts 4
(violation of G. L. c. 93A), 5 (malpractice), and 6 (breach of
fiduciary duty) is vacated, and the case is remanded for further
17 As for the malpractice claim, we note that "[a] negligent act standing by itself does not give rise to a claim under c. 93A. There must in addition be evidence that the negligence was or resulted in an unfair and deceptive act or practice." Squeri v. McCarrick, 32 Mass. App. Ct. 203, 207 (1992). See Meyer v. Wagner, 429 Mass. 410, 423-424 (1999) (judge properly rejected client's chapter 93A claim against attorney where client failed to prove conduct going beyond professional negligence and amounting to unfair or deceptive acts); Poly v. Moylan, 423 Mass. 141, 151 (1996), cert. denied sub nom. Poly v. Cargill, 519 U.S. 1114 (1997) (same). Here Jeremy asserts that the defendants lulled or misled him into thinking that they represented him, and took an affirmative step that made him less likely to discover that Andrew would be in control of his trust. There appear on this record to be genuine disputes of fact on these issues. The judge here agreed that "Mintz could and should have done a much better job clearly delineating the scope of its representation and whom it represented in connection with the formation of the trusts." That said, we do not attempt to delineate the precise scope of the chapter 93A claim that Jeremy may pursue on remand, as the issue has not been briefed on appeal.
21 proceedings on those claims. The judgment is otherwise
affirmed.
So ordered.
By the Court (Sacks, Hodgens & Toone, JJ.18),
Clerk
Entered: April 10, 2026.
18 The panelists are listed in order of seniority.