PHILIP J. McSTOWE vs. COLEMAN L. BORNSTEIN & another [Note 1] administrators.

WILKINS, J. The plaintiff sued the representatives of the estate of an attorney, alleging that the attorney negligently had failed to commence an action on behalf of the plaintiff before the statute of limitations barred that action. The defendants moved for judgment on the pleadings (Mass. R. Civ. P. 12[c], 365 Mass. 754 [1974]) on the ground that the plaintiff's claim did not survive the death of the attorney. Concluding that he was bound by prior decisions of this court, a Superior Court judge allowed the defendants' motion. However, the judge believed it time for "a fresh look at the issues presented by this case," and he reported the matter to the Appeals Court pursuant to Mass. R. Civ. P. 64, 365 Mass. 831 (1974). We allowed the

Page 805

plaintiff's application for direct appellate review. The basic question is whether the plaintiff's claim against the attorney survived the attorney's death. [Note 2] We hold that it did.

The essential allegations of the complaint may be stated briefly. In August, 1971, the plaintiff was injured as a result of the gross negligence of the operator of a motor vehicle in which the plaintiff was a passenger. Early in 1972, the plaintiff retained the services of Mr. Maynard G. Evans, a member of the bar of the Commonwealth, to pursue his rights against the operator and the owner of the motor vehicle. Mr. Evans undertook to represent the plaintiff. He was careless and negligent in

Page 806

representing the plaintiff and failed, within the time prescribed by law, to commence an action against the operator and the owner of the motor vehicle. The plaintiff claimed damages equivalent to those he would have recovered for the personal injuries sustained in the August, 1971, motor vehicle accident. Mr. Evans died on November 4, 1975. The complaint in this case was filed on July 8, 1976. It does not allege when the plaintiff first learned that Mr. Evans had not seasonably commenced the motor vehicle tort action.

The defendants rest their argument that the plaintiff's claim did not survive the attorney's death on principles of the common law and on the inapplicability of G. L. c. 228, Section 1, as amended through St. 1975, c. 377, Section 62, which reads in part: "In addition to the actions which survive by the common law, the following shall survive: ... (2) Actions of tort (a) for assault, battery, imprisonment or other damage to the person ... or (d) for damage to real or personal property ...." In particular, the defendants rely on our decision in Connors v. Newton, Nat'l Bank, 336 Mass. 649 (1958), a tort action based on the negligence of a deceased attorney, where we held that the claim did not survive by the common law and did not survive under G. L. c. 228, Section 1, because the plaintiff was not seeking damages to her person or to her property. [Note 3]

In this Commonwealth, the view has been that actions of contract survive by the common law (Sliski v. Krol, 361 Mass. 313, 315 [1972] [death of plaintiff's decedent];

Page 807

Treasurer & Receiver Gen. v. Sheehan, 288 Mass. 468, 471 [1934] [cause of action on implied or quasi contract survives death of defendant's testate]), but actions of tort do not (Gallagher v. First Nat'l Bank, 346 Mass. 587, 589-590 [1964]; Connors v. Newton Nat'l Bank, supra at 649; Jenks v. Hoag, 179 Mass. 583, 585 [1901]). See Cameron v. Sullivan, 372 Mass. 128, 133 n.6 (1977); Griffiths v. Powers, 216 Mass. 169, 170 (1913).

A client's claim against an attorney has aspects of both a tort action and a contract action. Most legal malpractice cases in Massachusetts have been brought as tort actions. In addition to Connors v. Newton Nat'l Bank, supra, see McLellan v. Fuller, 226 Mass. 374 (1917); Whitney v. Abbott, 191 Mass. 59 (1906); Wilson v. Coffin, 2 Cush. 316 (1848) (action on the case); Salisbury v. Gourgas, 10 Met. 442 (1845) (action on the case); Dearborn v. Dearborn, 15 Mass. 316 (1818) (action on the case); Gilbert v. Williams, 8 Mass. 51 (1811). See also Madden v. Palmer, 371 Mass. 894 (1976). But see Varnum v. Martin, 15 Pick. 440 (1834) (assumpsit on an implied promise). However, in Drury v. Butler, 171 Mass. 171 (1898), without discussion of the question of the survival of the claim, recovery was allowed in an action of contract against the administrators of the estate of a deceased attorney for the attorney's negligent failure to commence an action within the period of the statute of limitations. In Griffiths v. Powers, 216 Mass. 169 (1913), the plaintiff successfully maintained an action of contract against the executor of the will of an attorney. The question whether the contract action survived the attorney's death was not raised, but the court's analysis assumed implicitly that it did. Id. at 170. The only question was whether the statutory "forfeiture" of fivefold interest for failure to pay over money collected in behalf of a client could be imposed in an action of contract rather than tort. In Hendrickson v. Sears, 365 Mass. 83, 84 (1974), we stated that the plaintiff need not choose between the labels of "tort" and "contract" in bringing a legal malpractice suit and added that,

Page 808

"[t]he traditional view of an action for damages resulting from the negligence of an attorney is that the gist of the action, regardless of its form, is the attorney's breach of contract." Id. at 86.

The general rule elsewhere has been that an action for malpractice may be brought against the estate of a deceased attorney. See Annot, 65 A.L.R. 2d 1211 (1959). See also McGill v. Lazzaro, 62 Ill. App. 3d 151 (1978). It has been suggested in a recent article, written by counsel for the defendants in this case, that "a client seeking to recover for legal malpractice against the estate of his deceased attorney must sue in contract rather than in tort." Barry, Legal Malpractice in Massachusetts, 63 Mass. L. Rev. 15, 19 n.51 (1978).

We have looked with disfavor on rigid procedural distinctions between contract and tort and are more concerned today with substance than with form. See, e.g., Mechanics Nat'l Bank v. Killeen, ante 100, 115 (1979); Hendrickson v. Sears, 365 Mass. 83, 84 (1974). We conclude, consistent with earlier opinions of this court, that the existence of a contractual relationship between the plaintiff and the deceased attorney permits the plaintiff's claim against the attorney to survive the attorney's death. We rest our decision on the ground that contract actions survive a defendant's death by the common law. We need not consider whether, in any respect, the Legislature intended G. L. c. 228, Section 1, to bar this court from the exercise of its normal function of evolving common law principles. [Note 4] See Hannigan v. New Gamma-Delta Chapter

Page 809

of Kappa Sigma Fraternity, Inc., 367 Mass. 658, 661 (1975). It may be that in enacting G. L. c. 228, Section 1, the Legislature intended to do no more than simply add to the list of actions which survived, and thus it did not impliedly express a restriction on continuing development of common law principles.

Under principles of notice pleading (see Nader v. Citron, 372 Mass. 96, 98 [1977]), the plaintiff's complaint adequately presents a claim for the breach of the attorney's contractual obligation to use reasonable care in his representation of the plaintiff.

We acknowledge that this decision may raise the question of which statute or statutes of limitations apply to an action against an attorney, a matter which, in the medical malpractice field, has been resolved by statute. See G. L. c. 260, Section 4 (three-year period of limitation regardless of whether claim is based on tort or contract). No issue of the statute of limitations is involved in this case at this stage. [Note 5]

The order allowing the defendants' motion for judgment on the pleadings is vacated, and the case is remanded to the Superior Court for further proceedings.

So ordered.