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-1141
STANLEY WEBB & another1
vs.
GEORGE LEONTIRE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Stanley and Jacqueline Webb, appeal from a
judgment after a bench trial in the Superior Court.2 We conclude
that the judge properly allowed defense counsel to question the
plaintiffs on criminal matters directly connected to the
defendant's representation of the plaintiffs. We further
conclude that the abundant evidence of the defendant's work
performed permitted the judge to find that the defendant had
fully earned the paid fee. Finally, concluding that the judge
1 Jacqueline Webb.
2"Because these parties share a surname, we will refer to each by first name." Franchi Mgt. Co. v. Flaherty, 93 Mass. App. Ct. 418, 419 n.7 (2018). properly found that the defendant did not act unfairly or
deceptively, we affirm.
1. Cross-examination on criminal matters. "A trial
judge's evidentiary ruling is owed 'great deference' and will
amount to an abuse of discretion only where we conclude that the
judge 'made a clear error of judgment in weighing the factors
relevant to the decision, such that the decision falls outside
the range of reasonable alternatives.'" Commonwealth v. Hinds,
494 Mass. 681, 689 (2024), quoting L.L. v. Commonwealth, 470
Mass. 169, 185 n.27 (2014). "Ultimately, it is 'a determination
for the judge to make and one which we do not disturb unless, in
our judgment, it is palpably wrong.'" Commonwealth v. Ramos, 63
Mass. App. Ct. 379, 381 (2005), quoting Commonwealth v. Fordham,
417 Mass. 10, 22 (1994).
Jacqueline Webb testified on direct examination that, when
she started at Nutel Communications, Inc. (Nutel), she was a
technician, and "then over time, [she] became a salesperson
attempting to gain new locations to dispense the phone cards.
And then after that, [she] worked mostly in office, where [she]
paid bills and accounting, that sort of thing." To impeach
Jacqueline's testimony that her role at the relevant time was
clerical, defense counsel asked her whether she made $9,000
deposits "to avoid the reporting requirements from the bank."
After the plaintiffs objected, the judge noted that he had
2 "never seen a case like this where a civil litigant who's facing
trial in a criminal matter has testified about the substance of
that criminal case." Consequently, he ruled, Jacqueline had
"open[ed] the door for cross-examination. Counsel is entitled
to inquire about the scope of her involvement with those
enterprises." See Commonwealth v. Quinn, 469 Mass. 641, 648
(2014) ("evidence that otherwise may be inadmissible may become
admissible where the [witness] opens the door to its
admission"). Having previously stated that "the underlying
criminal case is part and parcel to this overall dispute," the
judge ruled that "counsel is entitled to inquire to this witness
about her knowledge of what she was doing in and around the
time, not for purposes of securing a prosecution but to
determine her knowledge of whether she was knee-deep in this
process." See Mass. G. Evid. § 611(b)(1) (2025) ("A witness is
subject to cross-examination on any matter relevant to any issue
in the case, including credibility and matters not elicited
during direct examination"); Nuger v. Robinson, 32 Mass. App.
Ct. 959, 959-960 (1992).
Specifically, the judge stated that he would "allow some
testimony as to the scope of this witness's involvement with
Nutel only as it relates to impeachment of her testimony" and
where it "bears on the issue of what the scope of representation
was, whether a flat fee of the magnitude that was insisted on
3 . . . is appropriate or not, and then the issue of quantum
meruit." See Zabin v. Picciotto, 73 Mass. App. Ct. 141, 151
(2008), quoting Salem Realty Co. v. Matera, 10 Mass. App. Ct.
571, 576 (1980), S.C., 384 Mas. 803 (1981) (factors for quantum
merits include "the complexity of the case, the size of the case
in terms of dollars, . . . the fees usually charged for work of
the kind involved").
After Jacqueline denied making deposits "to evade the
reporting of cash transactions over $10,000," counsel asked her
whether she told her mother to "burn[] all the paperwork as it
pertains to the machines," whether she had personal knowledge
that the State police served her sister with papers, and whether
she had personal knowledge of the execution of the search
warrant at the Webb home. At the instruction of counsel,
Jacqueline refused to answer these questions. Counsel then
stated that Jacqueline "would invoke her privilege as to any
further questioning."3 Ultimately, the judge struck Jacqueline's
testimony.
To be sure, defense counsel's questions were aggressive and
concerning. The judge, however, tread carefully, ruling
"question by question" and reiterating that "as an overarching
3 The plaintiffs did not call Stanley as a witness, but the defendant did. When Stanley was asked whether he knew about the valuables in his house, counsel represented that he would refuse to answer any questions.
4 theme, [he does not] want this trial to get derailed" or to
"stray into that . . . open criminal case." The most troubling
question -- whether Jacqueline structured deposits to evade
reporting requirements -- was answered. The other questions,
about whether Jacqueline instructed her mother to burn paperwork
and whether she had personal knowledge about police action,
attempted to elicit evidence that would rebut her testimony
about her clerical role at Nutel and would explain the scope of
representation. We discern no abuse of discretion or palpable
error in the judge's decision to allow these questions. See
Laramie v. Philip Morris USA Inc., 488 Mass. 399, 413 (2021),
quoting Gath v. M/A-Com, Inc., 440 Mass. 482, 488 (2003) ("A
judge has broad discretion to make evidentiary rulings"); Carrel
v. National Cord & Braid Corp., 447 Mass. 431, 446 (2006) ("We
will not reverse such [evidentiary] decisions unless there is
palpable error").
In any event, the judge's decision to strike Jacqueline's
testimony was correct. "A witness . . . is not entitled to make
a blanket assertion of the privilege. The privilege must be
asserted with respect to particular questions, and the possible
incriminatory potential of each proposed question, or area which
the [opposing party] might wish to explore, must be considered."
Hasouris v. Sorour, 92 Mass. App. Ct. 607, 613 (2018), quoting
Commonwealth v. Martin, 423 Mass. 496, 502 (1996). Once
5 Jacqueline improperly made a blanket assertion of the privilege
against self-incrimination to avoid cross-examination, the trial
judge had no choice but to strike her testimony. See
Commonwealth v. Silva, 93 Mass. App. Ct. 609, 615 (2018).
Accord Commonwealth v. Pixley, 77 Mass. App. Ct. 624, 628-629
(2010).
2. Quantum meruit. Quantum meruit is "an obligation that
arises under quasi contract theory in which an obligation is
'created by law "for reasons of justice, without any expression
of assent and sometimes even against a clear expression of
dissent."'" Liss v. Studeny, 450 Mass. 473, 479 (2008), quoting
Salamon v. Terra, 394 Mass. 857, 859 (1985). "In determining
the fair value of an attorney's quantum meruit recovery, '[t]he
question of what is fair and reasonable compensation for legal
services rendered is one of fact for a trial judge to decide.'"
Hug v. Gargano & Assocs., P.C., 76 Mass. App. Ct. 520, 525
(2010), quoting Malonis v. Harrington, 442 Mass. 692, 699
(2004). "[A]n appellate court will accept the facts as found by
the judge in a jury-waived case, unless shown to be clearly
erroneous, and will accord deference to the judge's
conclusions." Zaskey v. Whately, 61 Mass. App. Ct. 609, 614
(2004), citing Mass. R. Civ. P. 52 (a), as amended, 423 Mass.
1402 (1996). "A trial judge's finding is clearly erroneous only
when, 'although there is evidence to support it, the reviewing
6 court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.'" H1 Lincoln,
Inc. v. South Washington St., LLC, 489 Mass. 1, 13 (2022), S.C.,
495 Mass. 484 (2025), quoting Demoulas v. Demoulas Super Mkts.,
Inc., 424 Mass. 501, 509 (1997), S.C., 428 Mass. 543 (1998), and
S.C., 432 Mass. 43 (2000).
In examining a quantum meruit claim, a trial judge "may
look to the terms of the underlying contract to help determine
appropriate recovery." Liss, 450 Mass. at 480. "Other factors
to be considered are the customary ones applicable in measuring
a legal fee: the special skills which may have been brought to
bear, the complexity of the case, the size of the case in terms
of dollars, the caliber of the services, the fees usually
charged for work of the kind involved, the time spent, and the
success achieved." Zabin, 73 Mass. App. Ct. at 151, quoting
Salem Realty Co., 10 Mass. App. Ct. at 576.
The attorney "always bears the burden of proof in any
proceeding to resolve a billing dispute, whether the lawyer
appears as a plaintiff seeking to recover a fee or as a
defendant in a suit for a refund." Sears, Roebuck & Co. v.
Goldstone & Sudalter, P.C., 128 F.3d 10, 17 (1st Cir. 1997).
"To satisfy this burden, the attorney must provide 'more than
purely speculative evidence that a client owes a particular
7 charge.'" Bistany v. PNC Bank, NA, 585 F. Supp. 2d 179, 184 (D.
Mass. 2008), quoting Sears, Roebuck & Co., supra.
Here, Attorney Leontire testified extensively to his
reconstruction of the work he performed. From June to August
2017, Attorney Leontire spent over 300 hours preparing for the
impending criminal litigation. He met with the plaintiffs,
called and texted the plaintiffs and the other attorneys, e-
mailed with the plaintiffs and related parties, reviewed dozens
of search warrants, years of tax returns, and other documents
pertaining to Nutel, and researched, "pull[ing] all the gaming
statutes in Massachusetts" and "look[ing] at prior
decisions. . . . that involved the gaming statutes." Attorney
Leontire met with the plaintiffs "pretty much every day," and
testified that "there wasn't a day that went by that [he] didn't
work between 10 and 15 hours every day," and "this was the only
case [he] worked on during this entire period." The
reconstructed accounting, supported by call, e-mail, and text
message logs, outlined all of these hours. Malonis, 442 Mass.
at 699-700 (attorney provided reconstructed invoice not from
contemporaneous time records). Cf. Bistany, 585 F. Supp. 2d at
184 (attorney provided only two affidavits in support of claim).
Attorney Leontire also brought forward an expert, Attorney
James Bolan, who opined that, "[g]iven the nature of the case,
given the issues involved, the risks involved, [the accounting]
8 also seemed quite appropriate," and confirmed that "$600 an hour
is consistent with fees charged for similar work." He went on:
"Mr. Leontire, particularly, performed a substantial amount of
work and that it was within the bounds of what had been agreed
and was appropriate."
The detailed evidence and testimony introduced by Attorney
Leontire provided more than adequate evidence to support the
judge's conclusion that, "under a theory of quantum meruit,
. . . the value of services rendered for the Webbs meets, and
potentially exceeds, the $139,705.26 fee paid by Stanley." See
Hug, 76 Mass. App. Ct. at 526 (judge properly awarded attorney
compensation based on skill and experience, usual fees, time
spent on claim, and other "intangible contributions"). We
discern no clear error.
3. Violation of G. L. c. 93A. a. Standard of review.
"To state a claim under the consumer protection statute, G. L.
c. 93A, § 9, a plaintiff must allege facts sufficient to
establish four elements: first, that the defendant has
committed an unfair or deceptive act or practice; second, that
the unfair or deceptive act or practice occurred 'in the conduct
of any trade or commerce;' third, that the plaintiff suffered an
injury; and fourth, that the defendant's unfair or deceptive
conduct was a cause of the injury." Rafferty v. Merck & Co.,
479 Mass. 141, 161 (2018), citing G. L. c. 93A, § 2 (a). "[T]he
9 practice of law constitutes 'trade or commerce' for purposes of
liability under c. 93A." Baker v. Wilmer Cutler Pickering Hale
& Dorr LLP, 91 Mass. App. Ct. 835, 850 (2017), quoting Brown v.
Gerstein, 17 Mass. App. Ct. 558, 570 (1984).
"[W]hether a particular set of acts, in their factual
setting, is unfair or deceptive is a question of fact." H1
Lincoln, Inc, 489 Mass. at 13-14, quoting Casavant v. Norwegian
Cruise Line Ltd., 460 Mass. 500, 503 (2011). "Courts must
consider whether the nature, purpose, and effect of the
challenged conduct is coercive or extortionate." Beverly v.
Bass River Golf Mgt., Inc., 92 Mass. App. Ct. 595, 606 (2018),
quoting Diamond Crystal Brands, Inc. v. Backleaf, LLC, 60 Mass.
App. Ct. 502, 507 (2004). "To rise to the level of an 'unfair'
act or practice, the defendant's conduct must generally be of an
egregious, non-negligent nature." Walsh v. TelTech Sys., Inc.,
821 F.3d 155, 160 (1st Cir. 2016). "Likewise, a practice or act
is 'deceptive' for purposes of G. L. c. 93A 'if it possesses a
tendency to deceive.'" Governo Law Firm LLC v. Bergeron, 487
Mass. 188, 194 n.13 (2021), quoting Aspinall v. Philip Morris
Cos., 442 Mass. 381, 394 (2004). We review the trial judge's
factual findings in this regard for clear error. Bruno v.
Alliance Rental Group, LLC, 103 Mass. App. Ct. 170, 183 (2023)
("Factual findings underpinning a c. 93A claim are reviewed for
clear error").
10 b. Billing from August 10 to August 20. Late on August
10, 2017, Stanley texted Attorney Leontire, demanding he not
"work on [the] case any further and provide [a] summary of hours
worked." Between August 10 and August 20, Attorney Leontire
requested payment for just over two hours of work that consisted
solely of communications regarding the close of the
representation. Nothing in Attorney Leontire's calculation of
"a de minimus amount of time attributable to communicating with
Stanley and coordinating the production and transfer of
documents to Stanley's new lawyer" reveals any conduct that is
unfair or deceptive. Indeed, upon termination of the
representation, a lawyer has an ethical duty to assist the
client and "take steps to the extent reasonably practicable to
protect a client's interests," Mass. R. Prof. C. 1.16(d), as
amended, 471 Mass. 1397 (2015). See Malonis, 442 Mass. at 700.
c. Posttermination accounting. On August 10, 2017,
Attorney Leontire and Stanley's attorney-client relationship
ended. Any agreement between the two likewise ended, and
Attorney Leontire had no right to recover under the agreement.
Halstrom v. Dube, 481 Mass. 480, 484-485 (2019). See Finard &
Co., LLC v. Sitt Asset Mgt., 79 Mass. App. Ct. 226, 230 (2011),
quoting Boswell v. Zephyr Lines, Inc., 414 Mass. 241, 250 (1993)
("[r]ecovery in quantum meruit presupposes that no valid
contract covers the subject matter of a dispute. Where such a
11 contract exists, the law need not create a quantum meruit right
to receive compensation for services rendered"). Attorney
Leontire was entitled instead to "recover the reasonable value
of his services on a theory of quantum meruit." Malonis, 442
Mass. at 701. Although the plaintiffs' subsequent counsel
threatened suit unless Attorney Leontire sent a "detailed
accounting of the criminal retainer of $139,900.00 and the
remainder of the monies," no accounting was required. Indeed,
Attorney Leontire testified that he never sent the accounting to
Stanley because subsequent counsel "immediately said he was
going to sue me."4 The trial judge reasonably found that
Attorney Leontire's decision to share a reconstructed accounting
through the Office of Bar Counsel complaint process was not
coercive, egregious, or an example of "delaying tactics that
were fraught with deceit, conflicts of interest, breach of
ethical rules of confidentiality of privileged information, and
the wrongful holding back of monies." Grand Pac. Fin. Corp. v.
Brauer, 57 Mass. App. Ct. 407, 419 (2003).
4 Although a prompt and contemporaneous accounting is expected in an ordinary hourly-rate representation, Attorney Leontire's expert established that an attorney working on a flat fee is not required "to keep contemporaneous records." In any event, "disciplinary rules provide standards of professional conduct of attorneys and do not in and of themselves create independent causes of action." Bratcher v. Moriarty, Donoghue & Leja, P.C., 54 Mass. App. Ct. 111, 115 n.8 (2002), quoting Doe v. Nutter, McClennen & Fish, 41 Mass. App. Ct. 137, 141 (1996).
12 d. "Nonrefundable" fee. The plaintiffs contend that
Attorney Leontire "acted as if the monies he secured from the
plaintiffs was not refundable," and, therefore, he violated
G. L. c. 93A. Although unlawful billing for a lawyer's services
may constitute a chapter 93A violation, see Sears, Roebuck &
Co., 128 F.3d at 19; Doucette v. Kwiat, 392 Mass. 915, 916-917
(1984); Guenard v. Burke, 387 Mass. 802, 809 (1982), the
plaintiffs' contention misses the mark. See also Malonis, 442
Mass. at 701, quoting Salem Realty Co., 10 Mass. App. Ct. at 575
("the right of a client to [change lawyers] has not much value
if the client is put at risk to pay the full contract price for
services not rendered and to pay a second lawyer as well");
Smith v. Binder, 20 Mass. App. Ct. 21, 23 (1985) ("if he
discharges his lawyer, the client is not bound to pay for
services not rendered").
Attorney Leontire testified that he "absolutely" did not
recall Attorney Jose Baez's describing the fee as nonrefundable.
Even though Attorney Jose Baez later sent a letter to the
plaintiff's subsequent counsel stating that "Stanley Webb signed
a nonrefundable fee agreement with the Baez Law Firm for
$250,000," the evidence did not require a finding that Attorney
Leontire "affirmatively adopted" the letter from Attorney Baez
13 through "willful inaction."5 Nowhere does the agreement state
that the fee was nonrefundable.6 To the contrary, the expert
explained that the plaintiffs were not charged a nonrefundable
retainer but a "flat fee, also known as a fixed fee," which is
"what [the attorney is] going to be paid for the case, assuming
[the attorney] make[s] it beginning to end." A flat fee can be
placed "immediately in [the attorney's] operating account"
because "[i]t's earned on payment." The expert further
explained that Florida, where Attorney Baez primarily practices,
"permits a nonrefundable true retainer and a nonrefundable flat
fee, which a lot of lawyers in Florida call a retainer."
In any event, upon Attorney Leontire's discharge, the issue
was one of quantum meruit. Attorney Leontire would indeed have
had to "return the unused portion of the fee that was already
[his]," but here Attorney Leontire had a reasonable belief that
he had earned the entire fee, as evidenced by the fact that the
5 Attorney Jose Baez, along with Attorney Ronald Sullivan and Attorney Leontire, constituted the Baez Law Firm.
6 The parties disputed whether the agreed-upon flat fee was $250,000 or $500,000 and whether the operative fee agreement stated "nonrefundable," but a signed fee agreement without the word "nonrefundable" was entered into evidence. The trial judge credited the defendant's and Attorney Sullivan's testimonies, and found that the fee agreement introduced in evidence was accurate. A judge's choice between "two permissible views of the evidence . . . cannot be clearly erroneous." Pehoviak v. Deutsche Bank Nat'l Trust Co., 85 Mass. App. Ct. 56, 65 (2014), quoting Edinburg v. Edinburg, 22 Mass. App. Ct. 199, 203 (1986).
14 judge ultimately found that he had done so. The judge likewise
interpreted the fee not as "nonrefundable" but as "fully earned
once the client pa[id] it," agreeing that, "if the legal
services were not fully performed and the client terminated the
services, then the [plaintiffs] would be 'entitled to an
evaluation of the quantum merit.'" We discern no error.
Judgment affirmed.
By the Court (Meade, Ditkoff & Toone, JJ.7),
Clerk
Entered: March 13, 2026.
7 The panelists are listed in order of seniority.