MARY ELLEN WESSELL vs. MINK BROOK ASSOCIATES, INC., & another. [Note 1]

KANTROWITZ, J. This case involves a dispute between an employee and her former employer regarding unpaid wages. The plaintiff, Mary Ellen Wessell, successfully sued Mink Brook Associates, Inc. (Mink Brook), and owner Robert C. Stone under the Wage Act for lost wages and retaliatory discharge after Stone refused to issue her a paycheck, she complained, and she was fired.

In this appeal, the defendants argue that the trial judge improperly denied their pretrial motion to disqualify opposing counsel because Wessell's attorney, who was her long-time personal friend, had previously provided informal legal advice to her on certain topics in Wessell's capacity as an employee of Mink Brook. The defendants also contend that the judge improperly instructed the jury on compensatory damages on the retaliation claim. We affirm.

Background. [Note 2] Mink Brook was incorporated in 1993 as a franchisee of Paul Davis Restoration, a national company that performed restoration work on houses to mitigate damage from flooding, fire, mold, or other problems. Stone was Mink Brook's owner and president. In 2007, Stone contacted Wessell to discuss hiring her to work on the company's financial matters and record-keeping. She joined Mink Brook in its Worcester office as a subcontractor at an hourly rate, and in 2008 she became the company's "business manager" at an annual salary of $50,000. Wessell's duties included managing accounts, human resources, payroll, bookkeeping, insurance policies, vehicle registration, and licenses. She would occasionally work from home on a laptop computer that Stone purchased. Wessell also performed unpaid work duties during her vacations or at times outside of her business hours. Employees received paychecks every two weeks. Wessell testified that she worked about fifty hours per week. [Note 3]

During Wessell's employment at Mink Brook, she occasionally sought informal legal advice from a close friend, Attorney John

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Welsh, whom she had known for many years. [Note 4] In 2008 and 2009, Wessell consulted with Attorney Welsh on a former employee's breach of postemployment covenants, and Welsh drafted a cease-and-desist letter. In 2010, on matters involving another former employee, Wessell exchanged electronic mail messages (e-mails) with Welsh, and he reviewed correspondence that Mink Brook sent to the Attorney General's office. Sometime in 2010, Welsh notified Wessell that he would no longer provide legal advice to Mink Brook. [Note 5] However, on June 15, 2011, Wessell again contacted Welsh, who agreed as a "friend" to provide advice on an issue involving building access by a Mink Brook job applicant who had a physical disability. [Note 6]

Wessell testified that as of late 2011, she observed numerous problems or irregularities with the company's finances and operations. [Note 7] She informed Stone of some of her observations, including her belief that an employee was "stealing from him." Stone said "[b]asically nothing" in response to this information.

Shortly thereafter, in early January, 2012, Stone called Wessell into a meeting in which the accused employee was present. At this meeting, Stone accused Wessell of lying about her reporting of work hours since her automobile accident (see note 3, supra). He demanded financial reports that were impossible for her to provide, and he ultimately demoted her from business manager, placed the accused employee in that role, and required Wessell to report to that employee.

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On March 28, 2012, during a meeting with several employees including Wessell, Stone addressed their financial concerns about Mink Brook and informed them that the company was not closing but was experiencing "just a little bump in the road." Stone then named several employees who would still receive their upcoming paychecks, but he did not name Wessell. When she inquired about her paycheck, he stated that she would not receive it. Wessell responded that this was unfair and that she wanted to meet privately with Stone after the group meeting. One hour later, Wessell and Stone met privately in her office. Wessell demanded to be paid, and Stone replied that she "could afford not to get paid." The next day, March 29, 2012, Wessell again met with Stone and the accused employee. Stone stated that Wessell was stealing money and reimbursing herself without authorization, which Wessell denied. Stone then fired her. [Note 8]

Wessell formally retained Welsh who, on June 19, 2012, filed the instant complaint against Mink Brook and Stone, alleging claims of nonpayment of wages and retaliatory firing in violation of the Wage Act, G. L. c. 149, §§ 148, 148A. [Note 9] On January 2, 2014, nearly one and one-half years after the litigation began and eleven days before trial, the defendants filed a motion to disqualify Welsh, claiming a conflict of interest given Welsh's attorney-client relationship with them. [Note 10] One week later the trial judge, after a hearing, denied the motion. The judge ruled that Welsh's advice to Wessell, given when she worked for Mink Brook, was informal, free, and unrelated to the issues in her complaint. The judge concluded that although Welsh's personal relationship with Wessell gave Mink Brook a "valuable contact," Mink Brook and Welsh never established an attorney-client

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relationship. [Note 11]

On January 14, 2014, the jury found for the plaintiff and awarded damages for lost wages and unused vacation time, up to the date of her firing, of $3,750. The jury also awarded lost compensation from the date of firing up to the date of the verdict, minus earnings from Wessell's subsequent employment elsewhere, of $54,880.90. On January 24, 2014, the court entered an amended judgment that trebled the amount, as required under G. L. c. 149, § 150, [Note 12] and added interest, for an award of $187,111.38. This appeal followed. [Note 13]

Motion to disqualify. Denial of a motion to disqualify an attorney is reviewed for abuse of discretion. Steinert v. Steinert, 73 Mass. App. Ct. 287 , 288 (2008). A moving party must show, first, that the current representation is adverse to the interests of the former client, and second that the matters of the two representations are substantially related. Slade v. Ormsby, 69 Mass. App. Ct. 542 , 546 (2007), citing Adoption of Erica, 426 Mass. 55 , 61 (1997). See Mass.R.Prof.C. 1.9, 426 Mass. 1342 (1998). [Note 14]

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An attorney-client relationship "may be, but need not be, express; the relationship can be implied from the conduct of the parties." Page v. Frazier, 388 Mass. 55 , 62 (1983). For an implied attorney-client relationship, (1) a party must seek advice from an attorney, (2) the advice sought must be within the attorney's professional competence, and (3) the attorney agrees to give, or actually gives, the advice. DeVaux v. American Home Assur. Co., 387 Mass. 814 , 818 (1983). Additionally, "the question whether there was an attorney-client relationship depends on the reasonableness of the [complaining party's] reliance." Id. at 819.

For matters to be "substantially related," courts have consistently found that counsel must possess confidential information that could be used against the former client in the current representation. See Masiello v. Perini Corp., 394 Mass. 842 , 847-850 (1985); Adoption of Erica, 426 Mass. at 63. [Note 15] When determining whether matters are substantially related, a judge should make a factual determination by comparing "the overlap and similarity" between the former and current representations. Slade v. Ormsby, 69 Mass. App. Ct. at 547. [Note 16]

Courts discourage "eleventh hour maneuvers" to disqualify opposing counsel where the moving party has advance notice of the representation by opposing counsel but waits to raise the issue until the eve of trial. Masiello v. Perini Corp., 394 Mass. at 850. Such tactics "are disruptive to the efficient administration of justice and are costly." Ibid. "Court resources are sorely taxed by the . . . use of disqualification motions as harassment and dilatory tactics." Gorovitz v. Planning Bd. of Nantucket, 394 Mass. 246 , 250 n.7 (1985).

Here, even if an attorney-client relationship existed between Welsh and the defendants, the judge properly denied the motion to disqualify because Welsh's services, including his advice on handicap accessibility and review of certain letters, never involved matters "substantially related" to Wessell's Wage Act dispute. See Slade v. Ormsby, 69 Mass. App. Ct. at 546. Although Welsh advised Wessell on specific Mink Brook employee matters, those matters were not substantially related to Wessell's

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complaint because there was no overlap or similarity. See id. at 547. Also, Welsh never gained confidential information in the prior matters that disadvantaged Mink Brook at trial here. [Note 17] See Masiello v. Perini Corp., 394 Mass. at 847-850; Adoption of Erica, 426 Mass. at 63. [Note 18]

Lastly, as the judge noted before trial, the defendants' motion had all the indications of being an "eleventh hour maneuver[]" to disqualify opposing counsel despite numerous opportunities before trial to raise the objection. Masiello v. Perini Corp., 394 Mass. at 850. The defendants filed their motion on the eve of trial, about one and one-half years after Wessell's complaint. Without a sufficient explanation for the extraordinary delay, [Note 19] the motion was properly denied not only as without merit but also as a dilatory tactic.

Damages under Wage Act. The defendants argue that the judge erred when he instructed the jury that they could award the plaintiff compensatory damages ("back pay") for a violation of the Wage Act, specifically for a retaliatory firing prohibited under G. L. c. 149, § 148A. [Note 20] They maintain that one who violates § 148A "shall be punished or shall be subject to a civil citation or order as provided in [G. L. c. 149, §] 27C," only, and that § 148A does not enable a private individual to obtain compensatory

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damages because the criminal and civil penalties in § 27C are the exclusive remedy, enforceable by the Attorney General only, for § 148A violations. [Note 21]

The Wage Act has interrelated mechanisms to ensure that employees are timely paid and protected when that right is asserted. Under G. L. c. 149, § 148, as amended by St. 1992, c. 133, § 502, an employer "shall pay weekly or bi-weekly each such employee the wages earned by him to within six days of the termination of the pay period during which the wages were earned if employed for five or six days in a calendar week . . . ." The first paragraph of G. L. c. 149, § 148A, inserted by St. 1977, c. 590, mandates that "[n]o employee shall be penalized by an employer in any way as a result of any action on the part of an employee to seek his or her rights under the wages and hours provisions of this chapter." Completing the circle, G. L. c. 149, § 150, authorizes an employee faced with a violation of § 148 or § 148A to bring a civil action "for any damages incurred, and for any lost wages and other benefits." [Note 22] See Fernandes v. Attleboro Hous. Authy., 470 Mass. 117 , 126-127 (2014).

The defendants' view, that the remedy under § 148A is limited to criminal and civil penalties and not damages from the date of retaliation up to the date of judgment, is overly restrictive, essentially ignores G. L. c. 149, § 150, and leaves those aggrieved with no option other than a complaint to, and action by, the

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Attorney General. The Wage Act, when read as a whole to ensure payment and to protect employees who assert that right, does not support the defendants' assertion that the § 27C language is exclusive and only allows actions by the Attorney General. In so arguing, the defendants ignore the authorization in § 150 for a private cause of action for retaliation prohibited by the first paragraph of § 148A.

In sum, read in totality, for wage claims under § 148, an employee may recover earned wages that an employer has withheld. For retaliation claims under § 148A, an employee terminated by an employer for asserting a wage right may recover damages stemming from the termination. Damages for retaliation may include earnings from the date of termination up to trial. See Johnson v. Spencer Press of Me., Inc., 364 F.3d 368, 379 (1st Cir. 2004) ("An award of back pay compensates plaintiffs for lost wages and benefits between the time of the discharge and the trial court judgment"). [Note 23]

Here, the defendants' retaliatory firing of Wessell violated § 148A, which triggered Wessell's § 150 remedy for recovery of "any damages incurred, and . . . any lost wages and other benefits." The judge correctly instructed the jury that if they found that the defendants fired Wessell in retaliation, the jury could award her damages based on her earnings from the date of her termination until the date of the jury's decision. See Fernandes v. Attleboro Hous. Authy., 470 Mass. at 130 & n.11.

Amended judgment affirmed.