The defendant Erin Furey has filed an Amended Motion to Disqualify Her Former Attorneys from Representing the Plaintiff Herein (Motion to Disqualify). Furey seeks to disqualify the law firm Holland & Knight, LLP from continuing to represent the plaintiff Twin Caliber (MA) LLC (Twin Caliber), on the grounds that Holland & Knight attorneys formerly represented Furey in a substantially related matter. For the reasons set forth below, the Motion to Disqualify is denied.
Twin Caliber is record title holder of condominium unit no. 406W and its accompanying parking space in the Marina Point Condominium in Quincy, Massachusetts, by a deed filed with the Norfolk County Land Court as Document No. 1,191,813 on January 6, 2010 (the Quincy condo). Simon Fireman was Twin Calibers sole member, and Ken Meewes is its manager. [Note 1] The complaint alleges that in February 2009, Furey was given permission to live in the Quincy condo, but was not granted any ownership interest. The complaint further alleges that Furey wrongfully held herself out as the Quincy condos owner and leased it to another family, collecting and keeping the rents. Twin Caliber seeks a declaration that Furey has no legal interest in the Quincy condo and no right to collect rents, and an order for restitution of all rent payments.
Furey filed a counterclaim for fraud and to quiet title, seeking a declaration that Twin Caliber has no title in the Quincy condo and that Furey is the beneficial owner, and a judgment awarding her title to the condo. [Note 2] Furey owned the Quincy condo as joint tenant with Robert S. Abrams from February 26, 1988 until it was sold at foreclosure in 1993. Furey alleges that, in 1990, she began a personal relationship with Fireman which continued through 2008. Furey alleges that at the time of the foreclosure, Fireman told her to let the Quincy condo be sold so that he could buy it at a reduced price. He told her that the Quincy condo would always be hers, that he would set up a trust to pay the bills on the condo, and that when he passed away, the Quincy condo would be conveyed to her with a trust to pay all its expenses. Furey claims that this promise induced her to allow the property that she owned to go into foreclosure.
Furey alleges that Fireman told her that his attorney, Allan J. Landau of Holland & Knight, was the attorney handling the paperwork for this transaction. It is undisputed that Landau was Firemans attorney from before the time Furey met Fireman, and continued to represent Fireman until Firemans death in 2011.
The Quincy condo was sold at foreclosure auction to GE Capital Asset Management Corporation on May 18, 1993 for $170,000. On June 8, 1994, GE Capital Asset Management Corporation conveyed the Quincy condo to Carol A. Nichols for $180,000. Furey alleges, and Twin Caliber appears to agree, that Nichols purchased the Quincy condo as a straw for Fireman. In January 1996, the Quincy condo was conveyed to Jeanne T. Collins, as trustee of Shamrock Realty Trust. Collins was Landaus longtime assistant, both at Holland & Knight and at Landaus previous firm. Furey alleges that Collins used a Holland & Knight bank account to pay the expenses and taxes of the Quincy condo while Furey continued to occupy the condo. In March 1997, the Quincy condo was conveyed to Twin Caliber, LTD, a Hong Kong company. Collins, through a Holland & Knight account, continued to pay the expenses and taxes on the condo. Twin Caliber, LTD conveyed the Quincy condo to Twin Caliber on January 6, 2010.
Furey has moved to disqualify Holland & Knight as attorney for Twin Caliber on the grounds that Landau and two other attorneys at Holland & Knight, Steven Cohen and Hank Jackson, represented her in matters the same as or substantially related to this action. She further alleges that Collins, in her capacity as agent for Landau, provided legal advice to Furey that would require Holland & Knights disqualification. In support of her Motion to Disqualify, Furey has submitted her affidavit and exhibits that include 598 pages of emails. With its opposition, Twin Caliber submitted the affidavits of Collins and Landau, along with the affidavit of attorney Gordon P. Katz authenticating attached exhibits. With her reply, Furey submitted her second affidavit, and with its sur-reply, Twin Caliber submitted the second affidavits of Collins and Landau. Relevant emails and factual statements in the affidavits are discussed below.
Fureys Motion to Disqualify is based on Rule 1.9(a) of the Massachusetts Rules of Professional Conduct. That rule provides: A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that persons interests are materially adverse to the interests of the former client unless the former client consents after consultation. Supreme Judicial Court R. 3:07, Mass. R. Prof. Con. 1.9(a). In determining whether a lawyer should be disqualified under Rule 1.9(a), the threshold question is whether an attorney-client relationship existed between the moving party and the attorney. Id.; Bays v. Theran, 418 Mass. 685 , 690 (1994). If the moving party and the attorney had an attorney-client relationship, then the court must determine whether the attorneys current representation of another client is in the same or substantially related matter, and whether that matter is adverse to the interests of the moving party. Mass. R. Prof. Con. 1.9(a). It is clear that in this current action, the interests of Twin Caliber are materially adverse to those of Furey. Therefore, the court must determine (a) whether Landau, Cohen, or Hanks, or Collins as Landaus agent, represented Furey, and, if so, (b) whether the matter in which any of them represented Furey is the same as or substantially related to this action. [Note 3]
In assessing a motion for disqualification, the court must reconcile[e] the right of a person to counsel of his choice on the one hand, and the obligation of maintaining the highest standards of professional conduct and the scrupulous administration of justice, on the other. Slade v. Ormsby, 69 Mass. App. Ct. 542 , 545 (2007), quoting Mailer v. Mailer, 390 Mass. 371 , 373 (1983). In making that determination, it must keep in mind that a court should not lightly interrupt the relationship between a lawyer and [its] client. Adoption of Erica, 426 Mass. 55 , 58 (1997). Disqualification is a drastic measure to be used as a prophylactic device for protecting the attorney-client relationship, and courts should hesitate to impose disqualification except where absolutely necessary. Id.; G.D. Matthews & Sons Corp. v. MSN Corp., 54 Mass. App. Ct. 18 , 20 (2002). A disqualification may occur only if the trial court [judge] determines that [a lawyers] continued participation as counsel taints the legal system. Slade, 69 Mass. App. Ct. at 546, quoting Borman v. Borman, 378 Mass. 775 , 788 (1979). Because a motion for disqualification is by its nature intensely fact specific, these concerns require the court to undertake a searching review of the evidence before ordering disqualification. Erica, 426 Mass. at 63-64; Slade, 69 Mass. App. Ct. at 546. The court will consider the Motion for Disqualification with respect to Landau, Collins, Cohen, and Jackson in turn. [Note 4] The court will then consider two other theories under which Furey seeks disqualification, namely, that Furey is a third-party beneficiary of Holland & Knights representation agreement with Fireman, or that Landau must be disqualified because he is a necessary witness in this action.
Allan Landau. An attorney-client relationship may be either expressly constituted or implied through the conduct of the parties. Page v. Frazier, 388 Mass. 55 , 62 (1983). The presence of an attorney-client relationship is a question of fact. Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515 , 522 (1989). The parties agree that there was no express attorney-client relationship between Landau and Furey. As Landau states in his affidavit, there is no record of Fureys formally engaging Landau or Holland & Knight as her attorney. No record of any payment by Furey or bill to Furey has been presented to the court. See Symmons v. OKeeffe, 419 Mass. 288 , 300 (1995) (lack of fee agreement, retainer or bill shows that no attorney-client relationship existed). Therefore, the court must review the evidence to determine if there existed an implied attorney-client relationship between Landau and Furey.
An attorney client relationship may be implied when (1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney's professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance.... In appropriate cases the third element may be established by proof of detrimental reliance, when the person seeking legal services reasonably relies on the attorney to provide them and the attorney, aware of such reliance, does nothing to negate it. DeVaux v. American Home Assurance Co., 387 Mass. 814 , 817-818 (1983), quoting Kurtenbach v. TeKippe, 260 N.W.2d 53, 56 (Iowa 1977); see Bays, 418 Mass. at 690. All three elements must be met. DaRoza v. Arter, 416 Mass. 377 , 381 (1993). To imply an attorney-client relationship ... the law requires more than an individual's subjective, unspoken belief that the person with whom he is dealing, who happens to be a lawyer, has become his lawyer. Sheinkopf v. Stone, 927 F.2d 1259, 1265 (1st Cir. 1991). An analysis of an implied attorney client relationship focuses on the way in which the parties conducted themselves. See DaRoza, 416 Mass. at 381. The evidence, if any, of an implied attorney-client relationship between Landau and Furey will be found in the communications between them that have been presented by Furey.
The only written communications between Landau and Furey before the court are emails dating from 2008 and 2009. In several of these emails in April and May 2008, Landau is copied; the main recipients are Cohen and Jackson. Landau is the direct recipient of two emails in April 2008 and February 2009. These emails concern Fureys dispute with Cohen and Jackson regarding their handling of mold remediation at the West Palm Beach condominium in which she was residing and her request for return of materials (what she described as work product) that she had provided them. [Note 5] A December 8, 2009 email from Furey to Landau is one of a series of settlement communications in which she attempted to negotiate an agreement with Fireman for her support. In none of these communications does Landau render legal advice or agree to render legal advice to Furey, and they do not constitute attorney-client communications.
Fureys claim that she had an attorney-client relationship with Landau therefore rests on a series of conversations that she alleges to have had with him beginning in 1993. She describes these conversations in the two affidavits she submitted with her motion. In his two affidavits submitted with Twin Calibers opposition, Landau denies ever having had any of these conversations, except for a brief telephone call to Landaus home in 2008, in which Landau declined to speak because it was the eve of the Jewish High Holidays. For the purpose of deciding this motion, the court will not assess the credibility of Furey and Landau, but rather assume arguendo that the conversations Furey describes actually took place. Furey describes the following conversations.
(a) Furey alleges that she spoke with Landau and Fireman in 1993, at the time of the foreclosure of the Quincy condo. She alleges that Landau and Fireman both told her that she should not retain an attorney and challenge the foreclosure, but rather should let the Quincy condo be bought at auction by Fireman. In return, Fireman would arrange for her to own the condo, either as a beneficiary of a trust or outright. Furey alleges that she was told that Landau would prepare the documents to create the trust.
(b) Furey met Landau at several social functions hosted by Fireman.
(c) Fireman often had Furey speak to Landau in order to resolve disputes between Fireman and Furey.
(d) Landau prepared Furey to testify in connection with Firemans sentencing on charges of violation of campaign finance laws. Furey alleges that after she testified, Landau told her that he had amended the trust documents to further benefit her.
(e) Furey provided sworn testimony in a lawsuit brought by Carol Nichols against Fireman, which helped get the action dismissed. Furey alleges that after this testimony, Landau again stated that he would amend the trust for her benefit.
(f) Furey states that she expressed concern to Landau about the effect of transferring the Quincy condo from entity to entity, stating, All these deeds and money flying around the world makes me very nervous. Furey alleges that Landau told her not to worry, that he had been doing this a long time, and that she should not file tax returns because the IRS thinks youre dead. Youre better off that way.
(g) Furey expressed concern to Landau about the closing for a condominium in West Palm Beach in which she resided (the West Palm Beach condo) and how that closing was handled by another attorney. [Note 6] Landau purportedly told Furey that they only used that attorney once in a while, and that he would make sure that she never had to deal with him again.
(h) Furey alleges that Landau asked her to have tenants at the Quincy condo pay their rent in cash.
(i) When Furey expressed concern to Landau about how she would live after Fireman died, Landau reportedly said, Well continue to send you Hong Kong wires or youll receive envelopes of cash from Ken Meewes.
(j) In June 2008, Furey retained her own attorney to help her negotiate and memorialize an agreement regarding her rights in the Quincy condo and the West Palm Beach condo. At her attorneys suggestion, she spoke to Fireman, who reported to her what Landau had told him.
Based on these factual allegations, Fureys attorney-client relationship with Landau, if any, began no earlier than 1993 and ended in June 2008 when she engaged her own attorney in and negotiated with Fireman.
The communications between 1993 and 2008 that Furey describes do not imply that any attorney-client relationship existed between Landau and her. A comparison with the communications found to have created an attorney-client relationship in Bays is instructive. In Bays, the defendant approached the attorney for legal advice and provided him with information and documents. The attorney actually discussed the governing statute, the prior Land Court action, and complaint filed in Land Court, as well as Land Court or Registry documents, and advised the defendant with respect to some of the basic legal considerations. Bays, 418 Mass. at 688.
In contrast with the interactions in Bays, in none of these communications described by Furey is Landau expressly or impliedly agreeing to give legal advice or actually giving Furey the requested legal advice or assistance. DeVaux, 387 Mass. at 818. In many of the conversations, Furey is not requesting legal advice. There is no such request at the social functions, in connection with her testimony in the Nichols action, or in connection with Landaus purported instruction that she collect rents in cash. In the other conversations, Landau is not giving or promising to give Furey legal advice. In the initial 1993 conversation concerning the foreclosure, Landau is speaking on behalf of his client Fireman and communicating Firemans proposal to Furey that if she lets Fireman buy the Quincy condo at foreclosure, Fireman will ensure that she will eventually obtain beneficial or record title to the condo. His conversations with Furey to resolve her disputes with Fireman were at Firemans request, not Fureys. In subsequent conversations on the issue of title to the Quincy condo or the creation of a trust, Landau repeats the commitment allegedly made by Fireman. His alleged preparation of Furey for her testimony was, again, done on behalf of Fireman, as was the repeated promise to revise the trust. [Note 7] His statement that the IRS thinks youre dead was not legal advice, nor was his telling Furey that attorney Lynch would no longer be used. His request that she have her tenants pay cash was just thata request, not legal advice. In short, in these conversations, Furey did not seek or rely upon, nor did Landau expressly or impliedly give or agree to give, legal advice. DeVaux, 387 Mass. at 817-818.
What these conversations reveal is that, rather than representing Furey, Landau was acting on behalf of and in the interests of his client Fireman, and attempting to carry out Firemans wishes. To imply that, at the same time, he was representing Furey would be to imply that Landau had breached his duty of loyalty to Fireman. Absent more compelling evidence of a representation than what Furey has presented, a court should not imply the existence of an attorney-client relationship that would potentially breach a duty owed by the attorney to another client. See Symmons, 419 Mass. at 300 (court would not find that attorney for settler of trust was also attorney for beneficiaries). That Furey may have subjectively believed that Landau was lawyer is not sufficient to imply the existence of an attorney-client relationship. Sheinkopf, 927 F.2d at 1265. There was no implied attorney-client relationship between Landau and Furey.
Jeanne Collins. Collins is not an attorney. She was, however, Landaus assistant at Holland & Knight and at his previous firm. As Landaus assistant, she could be held to have actual authority as Landaus agent so that her communications with Furey would be imputed to Landau, so long as she was acting within the scope of her employment. DeVaux, 387 Mass. at 818. She could also be held to have apparent authority as Landaus agent, if Landaus conduct reasonably caused Furey to believe that Collins had the authority to act for him. Id. at 819. The kind of interaction required to establish an agency by which Collinss communications with Furey would create an implied attorney-client relationship between Furey and Landau can be seen in the DeVaux decision. In that case, the plaintiff called the attorneys office seeking legal advice in connection with a fall she had suffered at a store. The attorneys secretary returned the call and told the plaintiff to write the store describing the fall and write the attorney to ask for legal advice. The secretary also arranged a medical examination for the plaintiff with the stores insurer. The plaintiff wrote the attorney, explicitly asking for legal advice, and delivered the letter to the secretary, which she misfiled. Id. at 816. The court held that it was possible for a factfinder to find from these interactions that the secretary acted as the attorneys agent, and that an attorney-client relationship resulted from the interactions. Id. at 820-821.
In contrast, the court finds in this case that the communications between Collins and Furey submitted by Furey do not support a finding that Collins acted as Landaus agent and created an implied attorney-client relationship between Landau and Furey. These communications consist of multiple email exchanges between Collins and Furey. Many of these email exchanges were not within the scope of Collinss employment. Rather, they were personal emails concerning Fureys dogs, Collinss health, or various jokes. In many emails, Collins gave Furey advice about Fureys relationship with Fireman, but this was always personal advice. In none of these personal emails was Collins rendering legal advice.
In other emails, Collins was acting within the scope of her employment. These emails report to Furey about the payment of Quincy condo expenses by Holland & Knight on behalf of Fireman, or notify Furey that a wire transfer has been made to her account on behalf of Fireman. These communications were consistent with Collinss role as trustee of Shamrock Realty Trust, which owned the Quincy condo until 1997, or as agent for Twin Caliber, LTD or its successor Twin Caliber as owner of the condo. In none of these emails is Collins rendering legal advice as an agent for Landau, and Furey could not reasonably have believed from anything Landau told her that Collins was doing so.
Furey points to five email exchanges in particular which, she argues, show Collins rendering legal advice on behalf of Landau. A June 14, 2006 email from Collins to a Mr. Kan in Hong Kong said that Fireman requested Kan to obtain a proxy so that Furey could vote on behalf of Twin Caliber at the Marina Point Condominium Association meeting that night. The proxy was obtained and forwarded to Furey. This email does not show a legal representation of Furey. Collins is explicitly requesting the proxy on behalf of Landaus client Fireman. In an email exchange on July 18, 2007, Furey discussed a proposal she intended to make to Fireman that he convey the Quincy condo and/or the West Palm Beach condo to her. Collins emailed back that she did not think this was a good idea and gave her opinion on what she thought Fireman intended to do. In this email, Collins explicitly stated that she was giving her personal opinion: As I said before, this is just what I would do this did not come from anyone but me. Collins did not give legal advice in this email.
In an email exchange on September 10, 2007, Furey stated: Dear Jeanne, As per our conversation of last week, I have postponed tomorrows appointment with the lawyer. Collins replied: Erin, I am straight out estimated taxes are due this week and I am way behind. I dont have an answer for you as my boss is not coming in today . . . . Talk tomorrow . . . :). This exchange is ambiguous, at best. In her affidavit, Collins states that the reference to her boss . . . not coming in today referred to her need to work on the estimated taxes. Furey argues that this reference means that Collins was going to consult Landau about legal advice. Whatever the correct inference, this exchange standing alone cannot support an inference that Collins was rendering legal advice to Furey on behalf of Landau, especially as the other communications that Furey points to with Landau and Collins do not show either of them rendering legal advice.
On September 11, 2007, Furey sent Collins an email in which she said, Your boss asked for the following information and then set forth her Florida voter registration information. It is not clear from the email who is the boss to which Furey refers, Fireman or Landau. In any event, nothing in this email shows any legal advice being rendered or relied upon.
Fureys and Collinss July 2007 discussion concerning conveying the Quincy condo to Furey continued in an email exchange on September 20, 2007. Collins told Furey that even if Twin Caliber gave Furey some kind of back-dated title to the Quincy condo, Nichols as a previous owner might create issues (her exact words were big problem there). Furey responded with two proposed scenarios, stating One of these should work . . . please, GOD! Collins responded:
Believe me, they will do a records search on the property. They will see her name and force her to make disclosure and they can do that if they feel it has a bearing on the matter at hand. I have no issue with back dating, BUT, the Hong Kong attorneys will have one even if Carol doesnt.
In these emails, Collins is again giving her personal opinions, both of what she thought Nichols would do and of what Firemans Hong Kong attorneys might object to. This exchange is part of the series of personal conversations Collins and Furey had about Fureys plans, and reflects the personal friendship they had at the time and the personal advice Collins regularly gave Furey. They do not show Collins rendering legal advice to Furey on behalf of Landau.
The final email exchange took place on October 2, 2007. In her email, Furey apologized for this mornings explosion, and appended to the email several photographs of dogs and cats. It appears from the context that the conversation Furey referred to concerned Fureys plans to make a malpractice claim against her dentist and obtain a settlement, and to ask Fireman to transfer his ownership interest in Twin Caliber, Ltd. to her. This proposal appears to have been the beginning of negotiations that led Furey to retain her own attorney. Collins replied:
I dont like to have to be the one to give you the harsh realities of life, but I dont know who else will do it. You are in a mess with the IRS which is going to be much bigger than you can imagine. No matter what we try, no matter how you take funds from any compensation from your teeth, you will be waving a red flag in front of the bull (IRS). If we transfer the company to you, it also waves a red flag in front of them. I wish I could tell you something more positive, but I have to be honest with you. I dont think its worth the risk of losing everything you have in addition to everything you will ever have . . . . Believe it or not, I am trying very hard to protect you from that as is everyone else. If you insist, we can move the Company over to you today but I can guarantee that you wont have it long it will take about 30 days before the IRS is all over you. By default, they will then come after himself [Note 8] as thats where your money comes from and he did not declare the gift to you on his gift tax return.
I dont like to see you beholden to anyone this is why I stress getting some sort of job or business going for yourself. You NEED to be independent.
I have to go now, well talk in the a.m.
In this email, Collins gives her opinion on, among other things, what she sees as the legal implications to Furey of obtaining a settlement from the dentist or of having Twin Caliber Ltd. transferred. The entire email makes clear, however, that Collins is rendering her personal opinion and expressing her personal concern for Furey. The reference to what we could do (i.e., transfer the company), simply reflects Collinss knowledge of Fureys situation and relationship with Fireman and her concerns about financial independence. There is no indication that Collins has consulted with Landau, or is speaking for him. This email does not show an agency relationship between Collins and Landau in which Collins is or reasonably could be taken as giving legal advice on behalf of Landau.
The email exchanges between Furey and Collins certainly reflect a complicated and at times deeply troubled relationship between Furey and Firestone. They indicate that over time Furey became more and more concerned about her financial and personal reliance on Firestone. They also show that Furey and Collins had a relationship in which they shared their personal concerns and gave each other advice, including advice about Fureys relationship with Fireman. They do not, however, show that Collins gave Furey legal advice on behalf of Landau. Collinss communications with Furey did not create an implied attorney-client relationship between Furey and Landau or Holland & Knight.
Even assuming, arguendo, that Landau, either by his own actions or through Collins, created an implied attorney-client relationship with Furey with respect to the Quincy condo, the Motion to Disqualify would be denied. The SJC and the Appeals Court have repeatedly emphasized that the reason for disqualifying an attorney from representing a client in a matter adverse and substantially related to a prior representation is that the subsequent representation exposes the attorney to an intolerably strong temptation to breach his duty of confidentiality to the former client. Bays, 418 Mass. at 691, quoting Note, Developments in the Law: Conflicts of Interest in the Legal Profession, 94 Harv. L. Rev. 1244, 1318 (1981); G.D. Matthews & Sons, 54 Mass. App. Ct. at 21. Although Rule 1.9(a) does not explicitly refer to the risk of disclosing client confidences in the way that Rules 1.9(b) and (c) do, compare Mass. R. Prof. Con. 1.9(a), 1.9(b), 1.9(c), cases decided after the adoption of Rule 1.9(a) have continued to ground the disqualification analysis on the intolerable risk of disclosure, whereby it is assumed that the subsequent representation would compel the sharing of client confidences. See Erica, 426 Mass. at 63 (case arising before but decided after adoption of Rule 1.9(a); relying on no showing that confidential information was or might be disclosed); R&D Muller, Ltd. v. Fontaines Auction Gallery, LLC, 74 Mass. App. Ct. 906 , 907 (2009) (prohibition of successive representation arises from attorneys duty to preserve clients confidences and secrets); Slade, 69 Mass. App. Ct. at 546 (if adverse and substantial relationship tests met, assumed that confidences have been shared because of intolerably strong temptation to breach duty of confidentiality); G.D. Matthews & Sons, 54 Mass. App. Ct. at 21 (prohibition of successive representation arises from duty to preserve clients confidences and secrets).
In this action, even if Landau were Fureys attorney, there would be no intolerable risk of his disclosing Fureys confidences and secrets. The reason is that Furey has put those very confidences and secrets at issue in her counterclaim. Her counterclaim is that she has equitable title to the Quincy condo because she was promised that the condo would be conveyed to her and she relied on that promise. Her alleged evidence in support of this claim is the very conversations with Landau in 1993 and afterward that she says are attorney-client communications that require Landaus and Holland & Knights disqualification. By putting these communications at issue in this case, Furey has waived any attorney-client privilege she might have had with Landau with respect to those communications. Darius v. Boston, 433 Mass. 274 , 277-278 (2001); Global Investors Agents Corp. v. National Fire Ins. Co. of Hartford, 76 Mass. App. Ct. 812 , 816-817 (2010). Thus, the duty to preserve client confidences that undergirds the disqualification rule no longer applies to Landau. Indeed, to disqualify Landau and Holland & Knight on the basis of these communications would necessarily rely on a finding that these communications were privileged, which in turn would bar them from sharing these communications with Twin Calibers successor counsel. This would prevent Twin Caliber from consulting with Landau on whether he had the alleged conversations with Furey, what he or she might have said, and whether there were other communications that relate to the alleged promise. Twin Caliber would be unfairly barred from gathering the evidence necessary to defend itself against Fureys claims. Furey cannot use her alleged communications with Landau and Collins as both a shield requiring disqualification of Holland & Knight and a sword to prove her claims.
Steven Cohen and Hank Jackson. Cohen and Jackson were attorneys in Holland & Knights West Palm Beach office. The evidence in the emails indicates that in 2007, Furey was living in the West Palm Beach condo. It appears that the condo was contaminated with mold. Beginning in December 2007, Cohen communicated with Furey about the mold contamination. He wrote to the condominium board, identifying himself as counsel for the owner of the West Palm Beach condo. Furey was a bcc (blind copy) on that letter. Furey sent Cohen information about and photographs of the condo. He and Jackson attempted to arrange for an inspection and evaluation of the condo by a mold remediation expert. In April 2008, Furey stopped working with Cohen and Jackson, and asked for the return of the work product she had sent them.
The emails establish that there was an implied attorney-client relationship between Furey and Cohen and Jackson. Cohen was initially instructed by Holland & Knight to work with Furey on the mold issue, and was given a billing number to which he would bill his time. Cohen met with Furey. Both Cohen and Jackson communicated with Furey about strategies for dealing with the mold, and took action on her behalf, writing to the condominium board and talking to mold remediation experts. Although Cohen stated in his letter to the board that he represented the condo owner, the bcc to Furey indicates that he wished to keep his communication with her privileged, a sign of an attorney-client relationship. Cohen and Jackson gave Furey legal advice and acted as attorneys on her behalf.
Having found that Cohen and Jackson represented Furey, the court must determine if this matter in which Holland & Knight is representing Twin Caliber is the same as or substantially related to the matter on which Cohen and Jackson represented Furey. Mass. R. Prof. Con. 1.9(a). This case is not the same as the dispute concerning the West Palm Beach condo. Therefore, the appropriate inquiry is whether the two matters are substantially related.
In Bays, the SJC referred to the substantial relationship test, but did not adopt it. Bays, 418 Mass. at 691-692. Rule 1.9(a) explicitly adopted the test, as the SJC recognized in Erica, 426 Mass. at 61. The Erica decision discusses the two different standards that courts from other jurisdictions have applied to determine if the former and current matters are substantially related. The first test focuses on the subject or factual contexts of the former and current matters. Id. at 62. The second test, described as a stricter standard, requires the showing of a relationship between the issues of the two matters. Id. At least one court has held that a substantial relationship between issues will be found only if the relationship is patently clear; that is, only if the issues involved were identical or essentially the same. Id., quoting India v. Cook Indus., 569 F.2d 737, 740 (2d Cir. 1978). The Erica court declined to adopt a test, finding no substantial relationship under either standard. Id. Subsequent courts have only required a searching inquiry into the overlap and similarity between the two matters. Slade, 69 Mass. App. Ct. at 547 (2007); see G.D. Matthew & Sons, 54 Mass. App. Ct. at 21-22 (finding substantial relationship without explicitly applying either standard).
Under either standard, the West Palm Beach condo dispute handled by Cohen and Jackson and this action are not substantially related matters. The West Palm Beach condo matter concerned an entirely different property than the Quincy condo at issue in this action. The West Palm Beach condo matter concerned the limited issue of mold contamination of the condo, its extent and remediation, and potential liability for the remediation. This action concerns title, whether record or equitable, to the entirely separate Quincy condo. This action raises issues, such as the alleged promises of Fireman and Landau, Fureys reliance, and the rental of the Quincy condo, that have nothing to do with any of the issues, legal or factual, raised in the West Palm Beach condo matter. The two matters are not substantially related, and Holland & Knight cannot be disqualified on the basis of its representation of Furey with respect to the mold contamination of the West Palm Beach condo. [Note 9]
Third-party beneficiary. Furey also argues that Holland & Knight should be disqualified because she is the third-party beneficiary of the attorney-client relationship between Holland & Knight and Fireman. Relying on the test set forth in Nycal Corp. v. KPMG Peat Marwick LLP, 426 Mass. 491 , 495-498 (1998), she argues that she was the intended beneficiary of information supplied by Holland & Knight and that she justifiably relied to her detriment on false information that she was provided. Leaving aside the merits of her claim as a third-party beneficiary, Furey cannot rely on that theory as grounds for disqualification. Nycal concerns the issue of negligence liability for damages suffered as a result of relying on false information. Its analysis begins with the assumption that the plaintiff does not have any fiduciary or contractual relationship with the defendant. Id. at 493. Rule 1.9(a), on the other hand, requires that there be or have been a fiduciary attorney-client relationship between the attorney and the former client. A person with no such attorney-client relationship cannot seek disqualification of the attorney.
Landau as necessary witness. Furey also suggests that Holland & Knight should be disqualified because Landau is a necessary witness in this action. Rule 3.7 of the Rules of Professional Conduct provides that a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness, with some exceptions. Mass. R. Prof. Cond. 3.7(a). Landau is not acting as Twin Calibers advocate at trial; another lawyer from Holland & Knight is doing so. One of the exceptions to Rule 3.7(a) is that a lawyer may advocate in a trial in which another lawyer in the lawyers firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9. Id. at 3.7(b); Smaland Beach Assn, Inc. v. Genova, 461 Mass. 214 , 225-226 (2012). Rule 1.7 concerns general conflicts of interest, and is not at issue here. As discussed, Holland & Knight is not disqualified under Rule 1.9. Landau can testify at trial without requiring Holland & Knights disqualification.
The evidence presented by Furey does not establish that she had an attorney-client relationship with Landau. It does not establish that Collinss communications with Furey showed that Collins acted as Landaus agent and gave Furey legal advice. The evidence shows an attorney-client relationship between Furey and Cohen and Jackson, but the matter on which they represented her is not substantially related to this case. Therefore, for the reasons set forth above, Defendant Fureys Amended Motion to Disqualify Her Former Attorneys from Representing the Plaintiff Herein is hereby DENIED. [Note 10]
While this Motion to Disqualify was under advisement, the discovery deadline of February 28, 2012 passed. The deadline for filing dispositive motions, March 31, 2012, is fast approaching without discovery having been completed. The deadlines in this case should be extended. The parties are instructed to submit a joint proposed revised discovery and motion schedule by March 30, 2012.
By the Court (Foster, J.)
[Note 1] Fireman passed away in September 2011, after the complaint was filed.
[Note 2] The counterclaim also names as counterclaim defendants the estate of Simon Fireman and Allan J. Landau, then an attorney at Holland & Knight. It does not appear from the relief soughta declaratory judgmentthat the estate and Landau are necessary parties. That question, however, is not before the court on this motion, and will not be addressed.
[Note 3] Because an attorneys disqualification under Rule 1.9(a) is imputed to the attorneys firm, if the actions of attorneys Landau, Cohen or Hanks, or of Collins, require disqualification, then Holland & Knight would be required to withdraw from its representation of Twin Caliber. Supreme Judicial Court R. 3:07, Mass. R. Prof. Con. 1.10(a).
[Note 4] There is some suggestion in Fureys motion that her numerous email exchanges with Ken Meewes support disqualification of Holland & Knight. Meewes is not an attorney; he is the CFO of Aqua Leisure Industries, one of Firemans companies. Furey did not have an attorney-client relationship with Meewes, and her communications with Meewes are not evidence supporting her motion to disqualify.
[Note 5] Cohen and Jacksons interactions with Furey are discussed in more detail below.
[Note 6] Record title to the West Palm Beach condo is held by another entity controlled by Firemans estate and is the subject of an action in Florida in which Holland & Knight does not represent the record title holder.
[Note 7] Whether Landau actually prepared Furey to testify or not, he was not Firemans attorney in the criminal proceeding. Fireman was represented in that proceeding by attorneys from firms other than Holland & Knight.
[Note 8] The word himself refers to Fireman.
[Note 9] For the same reasons, to the extent any emails to or from Landau indicate his involvement in the West Palm Beach condo matter, that involvement does not require his or Holland & Knights disqualification.
[Note 10] In deciding the Motion to Disqualify, the court has relied on certain factual assertions made in affidavits and found in emails submitted as exhibits, and, where factual assertions have conflicted, accepted the factual assertions of Furey solely for the purposes of deciding the motion. The factual discussions in this memorandum and order are therefore necessarily preliminary in nature. These factual discussions are neither intended, not should they be construed, as having any precedential weight or effect in further proceedings in this case, all of which shall be determined in the light of the evidence offered and admitted on those occasions.