Ruef v. Quinn

2 Mass. L. Rptr. 419
CourtMassachusetts Superior Court
DecidedJune 3, 1994
DocketNos. 91-0640, 90-0153 and 91-0522
StatusPublished

This text of 2 Mass. L. Rptr. 419 (Ruef v. Quinn) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ruef v. Quinn, 2 Mass. L. Rptr. 419 (Mass. Ct. App. 1994).

Opinion

Ford, J.

Each of the above captioned cases is a medical malpractice case. In each of the three cases, Donald W. Goodrich, Esq., of Donovan & O’Connor, represents the plaintiffs, and Ronald E. Oliveira, Esq. (hereafter “Oliveira”) represents one of the defendants.1 The plaintiffs have now moved to disqualify Oliveira from further representation of the defendants, on the ground that Dawn M. Rich, Esq. (hereafter “Rich”), who was an associate at Donovan & O’Connor and who personally worked on each of these three cases, is now an associate of Oliveira. The motions were argued before me on May 19, 1994.

I have had occasion to read the motions to disqualify and the oppositions thereto, together with the affidavits and other materials submitted both in support of and in opposition to the motions. In addition, I have read all the cases cited by counsel in their memoranda of law and oral arguments. Having done so, I find that the issue raised by these motions appears to have been discussed extensively by the federal courts and by state courts from certain foreign jurisdictions, but never by the Massachusetts Supreme Judicial Court or Appeals Court. I do have the benefit of a scholarly opinion written by one of my colleagues on the Superior Court, but as far as 1 can tell the issue has never been squarely addressed by the appellate courts of this Commonwealth. Therefore, it is necessary to look to the courts of other jurisdictions for guidance.

I begin with the observation that this Court undoubtedly has the inherent authority to disqualify counsel from a case if the Court feels that the ends of justice require it. “The courts of general jurisdiction... have the inherent power to do whatever may be done under the general principles of jurisprudence to insure to the citizen a fair trial, whenever his life, liberty, property or character is at stake. The possession of such power involves its exercise as a duty whenever public or private interests require.” Crocker v. Justices of the Superior Court, 208 Mass. 162, 179 (1911). I also assume that the issue of whether an attorney should be disqualified is a matter addressed to the sound discretion of the trial court. Henriksen v. Great American Savings and Loan, 14 Cal.Rptr.2d 184, 186 (1992). I understand completely that “disqualification, as a prophylactic device for protecting the attorney-client relationship, is a drastic measure which courts should hesitate to impose exceptwhen absolutely necessary. A disqualification of counsel, while protecting the attorney-client relationship, also serves to destroy a relationship by depriving a party of representation of their own choosing.” Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 721 (7th Cir., 1982). “Unquestionably, the ability to deny one’s opponent the services of capable counsel is a potent weapon. Confronted with such a motion, courts must be sensitive to the competing public policy interest of preserving client confidences and of permitting a party to obtain counsel of his choice.” Manning v. Waring, Cox, James, Sklar and Allen, 849 F.2d 222, 224 (6th Cir., 1988). Accordingly, “such motions should be viewed with extreme caution for they can be misused as techniques of harassment.” Freeman v. Chicago Musical Instrument Co., supra at 722.

Rule 3:07 of the Supreme Judicial Court provides: “The practice of law by members of the Massachusetts Bar shall be regulated by the Cannons of Ethics and Disciplinary Rules attached hereto and incorporated by reference herein.” DR5-105(A) provides as follows:

A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except the extent permitted under DR5-105(C).

DR5-105(D) provides:

If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner or associate or any other lawyer associated with him or his firm may accept or continue such employment. . .

Here, Rich was actively involved as plaintiffs counsel in each of the above captioned matters. It is uncontested that she had access to and responsibility for each of the plaintiffs’ files while at Donovan & O’Connor, and that she directly communicated with the plaintiffs, drafted pleadings, consulted with experts, and performed other services on the plaintiffs’ behalf. Therefore, it is clear beyond all doubt that Rich, who possesses extensive confidential information about each of the plaintiffs, would be disqualified from representation of any of the defendants in these cases, and no one contends otherwise. The issue is whether Oliveira should be vicariously disqualified.

[420]*420Consideration of the issue must begin with the notion, widely recognized in the law, that knowledge possessed by one attorney in a law firm is presumed to be shared with other attorneys in that firm. Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 710-11 (7th Cir. 1976). For example, in Henriksen v. Great American Savings and Loan, supra, the court held:

We are mindful of the right of parties to counsel of their choice, and of the financial burden imposed if disqualified counsel must be replaced. However, those interests must be balanced against the need to maintain high ethical standards of professional responsibility. Here, the compelling reason for disqualification from misrepresentation is [the attorney’s] former personal involvement on petitioner’s behalf in the identical action. Under these circumstances, the law firm representing the defendant also must be disqualified.

However, as Judge Flannery points out in his erudite analysis of the problem, “the strong trend in the Federal courts [is] that the presumption is rebuttable,” citing U.S. v. Lord Electric Co., 637 F.Supp. 1556, 1564 (W.D. Washington, 1986). Many courts have recognized that, because the presumption is rebuttable, it is appropriate to consider whether a screening mechanism, sometimes referred to as a “Chinese wall” or “ethical wall,” might in some cases allow a law firm to avoid a complete disqualification. See INA Underwriters Insurance Company v. Rubin, 635 F.Supp. 1 (E.D. Pen., 1983). However, the courts which have considered the matter have insisted that a very strict standard of proof be applied to the rebuttal of the presumption, and have held that any doubts as to the existence of the effectiveness of a Chinese wall must be resolved in favor of disqualification. LaSalle National Bank v. County of Lake, 703 F.2d 252, 257 (7th Cir.) 1983); Westinghouse Electric Corp. v. Gulf Oil Corp., 588 F.2d 221, 225 (7th Cir., 1978).

Of course, the effectiveness of such insulating mechanisms must be evaluated on a case-by-case basis.

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Related

Dr. Ing. Max Schloetter v. Railoc of Indiana, Inc.
546 F.2d 706 (Seventh Circuit, 1976)
Alfred B. Freeman v. Chicago Musical Instrument Co.
689 F.2d 715 (Seventh Circuit, 1982)
Ina Underwriters Insurance v. Rubin
635 F. Supp. 1 (E.D. Pennsylvania, 1983)
NFC, INC. v. General Nutrition, Inc.
562 F. Supp. 332 (D. Massachusetts, 1983)
Commonwealth v. Lugo
503 N.E.2d 974 (Massachusetts Appeals Court, 1987)
Nelson v. Green Builders, Inc.
823 F. Supp. 1439 (E.D. Wisconsin, 1993)
Henriksen v. Great American Savings & Loan
11 Cal. App. 4th 109 (California Court of Appeal, 1992)
Crocker v. Justices of the Superior Court
94 N.E. 369 (Massachusetts Supreme Judicial Court, 1911)
Manning v. Waring, Cox, James, Sklar & Allen
849 F.2d 222 (Sixth Circuit, 1988)

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Bluebook (online)
2 Mass. L. Rptr. 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ruef-v-quinn-masssuperct-1994.