Hlatky v. Horowitz, et al. (Lawyers Weekly No. 12-033-17)

1484CV03733-____________________ BLS2
Plaintiff Lynn Hlatky, Ph.D., has moved to disqualify the law firm Lynch
Brewer Hoffman & Fink, LLP, from continuing to represent GeneSys Research
Institute, Inc., (“GRI”) in this matter. Dr. Hlatky’s claims in this lawsuit arise from
her work at GRI as a principal investigator and director of a cancer research
laboratory; Hlatky left GRI in September 2014. Attorney John Dennis, who is a
Lynch Brewer partner, served as GRI’s lawyer while Dr. Hlatky worked there.
Hlatky says Lynch Brewer should be disqualified because Dennis represented her
at the same time he was representing GRI, and did so on a matter that is
substantially related to the matters in dispute in this lawsuit. The Court is not
convinced that Dr. Hlatky and Mr. Dennis had an actual or implied attorney-client
relationship. In any case, Dr. Hlatky has not shown that Mr. Dennis learned any
confidences from Dr. Hlatky that would be relevant to this litigation. The Court will
therefore DENY the motion to disqualify.
“Motions to disqualify” the lawyers and law firm representing a party to
litigation “must be considered in light of the principle that courts ‘should not lightly
interrupt the relationship between a lawyer and her client.’ ” G.D. Mathews & Sons
Corp. v. MSN Corp., 54 Mass. App. Ct. 18, 20 (2002), quoting Adoption of Erica,
426 Mass. 55, 58 (1997). “Disqualification has very serious consequences for both
client and lawyer.” Adoption of Erica, supra, at 65 n.11, quoting 1 G.C. Hazard &
W.W. Hodes, The Law of Lawyering § 1.9:112, at 304 (2d ed. 1990). Thus,
“disqualification, as a prophylactic device protecting the attorney-client
relationship, is a drastic measure [that] courts should hesitate to impose except
when absolutely necessary.” Id. at 58, quoting Masiello v. Perini Corp., 394 Mass.
842, 848 (1985). It is not needed here.
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Dr. Hlatky has not shown that she had any attorney-client relationship with
Attorney Dennis. It is undisputed that during the relevant period Dr. Hlatky knew
that Attorney Dennis was counsel for GRI, and Hlatky had retained her own lawyer
at the firm Todd & Weld to represent her personal interests vis-à-vis GRI. Hlatky
has not produced any contemporaneous documentation suggesting that Dennis ever
agreed to serve as her personal attorney, that Hlatky believed he had done so, or
that Hlatky was ever billed for any services provided by Dennis. To the contrary,
throughout their email exchanges in late 2013 and early 2014 both Hlatky and
Dennis repeatedly refer to Dennis as GRI’s attorney, and never say anything to
suggest that Dennis was also representing Hlatky. In November 2014, when Hlatky
filed her first affidavit in this case, she described these emails to and from Dennis
as correspondence that she “had with GRI’s counsel.”
Although Dr. Hlatky may have reasonably believed that Attorney Dennis was
looking out for her interests, because for a period of time he believed that her
interests and GRI’s interests were the same, that is not sufficient to establish an
attorney-client relationship. See Robertson v. Gaston Snow & Ely Bartlett,
404 Mass. 515, 522-523 & 525-526 (1989) (no attorney-client relationship formed
merely because corporate officer understood that corporation’s lawyer was looking
out for his personal interests).
Dr. Hlatky correctly notes that an attorney-client relationship may be
implied where someone seeks and obtains “advice or assistance from an attorney”
regarding “matters within the attorney’s professional competence,” even where the
person receiving the advice never formally retained the lawyer to represent them.
See DeVaux v. American Home Assurance Co., 387 Mass. 814, 817-818 (1983),
quoting Kurtenbach v. TeKippe, 260 N.W.2d 53, 56 (Iowa 1977).
But Dr. Hlatky has not shown that she sought or received any legal advice
from Attorney Dennis. The mere fact that Hlatky and Dennis communicated
directly about Hlatky’s dissatisfaction with GRI board members, and her desire that
the GRI members transfer control of the organization to Hlatky, is not enough to
show that any implied attorney-client relationship was established. See Daroza v.
Arter, 416 Mass. 377, 381-382 (1993) (communications between employee and
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counsel for employer did not establish implied attorney-client relationship where
counsel never provided employee with personal legal advice or assistance). Plaintiff
notes that Attorney Dennis previously filed an affidavit in this case stating that in
an October 2013 email he “advised” Dr. Hlatky of certain things. That was not an
admission that Mr. Dennis provided any personal legal advice to Dr. Hlatky. It is
apparent from context that Dennis was merely noting that he had informed Hlatky
of certain facts. Lawyers often use the verb “advise” to mean that they informed or
notified someone of something. See The American Heritage Dictionary, 2d College
Ed., 82 (1985) (meaning of transitive verb advise includes “to inform; notify,” as in
“advise a person of a decision”).
In any case, Dr. Hlatky has not proved that she ever shared with Attorney
Dennis any confidential information that she withheld from others at GRI. Thus,
there would be no grounds for disqualifying Lynch Brewer even if Attorney Dennis
had once represented Hlatky, which he did not. “[W]here there exist no confidences
from the first representation [that] would be relevant to the second, disqualification
is unnecessary and the parties’ choice of counsel should prevail.” Masiello,
394 Mass. at 848; accord Mailer v. Mailer, 390 Mass. 371, 374 (1983); Wessell v.
Mink Brook Assocs., Inc., 87 Mass. App. Ct. 747, 753 (2015). By rule, “[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 person’s
interests are materially adverse to the interests of the former client unless the
former client consents after consultation.” S.J.C. Rule 3:07, Rules of Prof. Conduct,
Rule 1.9(a). This “[p]rohibition of successive representation arises from ‘the
attorney’s duty … to preserve his client’s confidences and secrets.’ ” G.D. Mathews &
Sons, 54 Mass. App. Ct. at 21, quoting Bays v. Theran, 418 Mass. 685, 691 (1994).
Two matters are “substantially related” within the meaning of Rule 1.9(a) only “if
the previous representation exposed counsel to confidential information that could
be used against the client in the present litigation[.]” R&D Muller, Ltd. v.
Fontaine’s Auction Gallery, LLC, 74 Mass. App. Ct. 906, 907 (2009) (rescript).
Dr. Hlatky has not shown that Lynch Brewer has access to any confidential
information that could be used against her in this case.
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Finally, as Dr. Hlatky correctly points out in a footnote to her memorandum,
the possibility that she may call Attorney Dennis as a witness at trial does not
require that Lynch Brewer be disqualified from representing GRI.
“ ‘[D]isqualification is not required in every case in which counsel could give
testimony on behalf of his client on other than formal or uncontested matters,’ nor is
it automatically granted where a party attempts to call opposing counsel.” Smaland
Beach Ass’n, Inc. v. Genova, 461 Mass. 214, 221 (2012) (citations omitted), quoting
Byrnes v. Jamitkowski, 29 Mass. App. Ct. 107, 109 (1990). The rules of professional
conduct “prohibit[] a lawyer from acting ‘as an advocate at trial in which the lawyer
is likely to be a necessary witness.’ ” Id., 461 Mass. at 225 (emphasis in original),
quoting Mass. R. Prof. Conduct 3.7(a). If Dennis proved to be a necessary witness at
trial, Rule 3.7(a) would probably bar him from also serving as trial counsel for GRI.
But that future possibility provides no basis for disqualifying Dennis’s colleagues at
Lynch Brewer from continuing to represent GRI in this case, either now or at trial.
See Smaland at 226-227; Steinert v. Steinert, 73 Mass. App. Ct. 287, 290-291
Plaintiff’s motion to disqualify the counsel representing GeneSys Research
Institute, Inc., is DENIED.
March 27, 2017
Kenneth W. Salinger
Justice of the Superior Court

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