MacKinnon, et al. v. Berluti, et al. (Lawyers Weekly No. 12-145-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 13-4023 BLS 2 PAUL MACKINNON and THEODORE OLIVO, Plaintiffs vs. ROBERT R. BERLUTI and BERLUTI, McLAUGHLIN & KUTCHIN, LLP, Defendants FINDINGS OF FACT ON COUNT V OF COMPLAINT ALLEGING VIOLATION OF G.L.c. 93A This case involves a dispute between an attorney and two of his clients about the fee that the attorney collected in connection with a settlement of his clients’ contract and Wage Act claims against their former employer. The plaintiffs (the former clients) contend that the defendant attorney misled them as to the value of their claims and then collected as part of that settlement a fee that was excessive and substantially more than the contingent fee that the plaintiffs had originally agreed to pay. Plaintiffs asserted, among other things, claims for breach of contract and a violation of 93A. On September 26, 2016, the jury returned a verdict in favor of the defendants on the breach of contract counts. Specifically, they found that the written fee agreement that plaintiff Paul McKinnon had with the defendant Robert Berluti had been modified and that as a consequence of that modification, there was no breach of the fee agreement when the settlement proceeds were disbursed as they were. The jury made this finding in the context of a set of instructions which advised them of the special duties that an attorney owes to his client – duties which are fiduciary in nature. They also were instructed that the defendants bore the burden of 2 proving that there had been a modification. As to plaintiff Olivo, the jury found that he had no agreement with Berluti regarding the payment of attorney’s fees and therefore there was no breach of contract. This verdict was amply supported by the evidence. This Court reserved for itself the 93A Count. I informed the parties before submission of the contract count to the jury that I intended to adopt the findings of the jury as part of my own findings on the reserved 93A claim. I do so now. Moreover, there are no additional facts that plaintiffs have proven which would support the conclusion that the defendants engaged in unfair and deceptive business practices. Defendants are therefore entitled to judgment in their favor on this last remaining count in the case. In support thereof, this Court makes the following findings of fact. Olivo approached Berluti in 2008 about bringing a claim against his former employer Lindenmayr Monroe for unpaid commissions. Because Olivo had been terminated by the company and there was a possibility the company could assert counterclaims against him if he brought his own suit, it was agreed that Olivo would try to find […]