COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
SUCV2016-3726-BLS2
JOHN J. MOONEY and MORGAN D. WHEELOCK,
Plaintiffs
vs.
DIVERSIFIED BUSINESS COMMUNICATIONS, DBC PRI-MED, LLC,
THEODORE WIRTH, KATHY WILLING, and OAKLEY DYER
Defendants
MEMORANDUM OF DECISION
ON NON-PARTY SULLIVAN & WORCESTER LLP’S MOTION
TO PRECLUDE MINTZ LEVIN
FROM PROSECUTING PLAINTIFF JOHN MOONEY’S MOTION
TO DISQUALIFY SULLIVAN &WORCESTER
In the instant case, Mintz Levin (Mintz) represents plaintiff John Mooney; it also represents the law firm of Sullivan & Worcester (S&W) — which is counsel for defendant Diversified — in unrelated immigration matters. Mintz has served upon S&W a motion to disqualify it from this lawsuit based on its prior representation of plaintiff Mooney on personal matters. S&W now asserts that Mintz is itself disqualified from prosecuting such a motion because that would run afoul of Rule 1.7 of the Rules of Professional Conduct. This Court disagrees.
Rule 1.7(a) prevents a lawyer who represents one client from representing another client if that representation would be “directly adverse” to the first client. [“T]he representation of a client adverse to another person ordinarily is not ‘directly adverse’ to the lawyer for the other person” within the meaning of Rule 1.7(a). ABA Formal Opinion 97-406 (1997) (emphasis added). Thus, Mintz is not prevented from representing plaintiffs simply because S&W (its own client) represents the defendants in this case: S&W’s and Mintz’s interests are not “directly adverse.”
That same ABA Opinion carves out an exception to this general rule, however: “if providing competent and diligent representation requires the representing lawyer to attack the credibility or integrity of its opponent in the third party matter, when the opponent is also his client, then the representing lawyer has a conflict under Rule 1.7(a), because his representation of the third party would be directly adverse to another client.” See fn. 4 of ABA Opinion 97-406. In support of that proposition, the opinion cites ABA Formal Opinion 92-367 (1992), which deals with the situation where a lawyer, in the course of representing one client, is placed in the position of cross examining another client. In that situation, disqualification would be required. Applying this reasoning to the instant case, S&W contends that Mintz cannot prosecute the motion to disqualify S&W from this case because that would amount to an attack on the integrity of its client S&W. The circumstances before this Court appear to be different, however.
Mintz is not placing itself in a position of having to cross examine its own client. Nor does it seem to be questioning S&W’s credibility by raising the issue of disqualification. Rather, it questions whether S&W can (because of S&W’s prior relationship with Mooney) continue to represent defendant Diversified Communications, which has made a counterclaim against Mooney. Although the rhetoric in letters exchanged among counsel on this issue has indeed been heated, Mintz has done so not as a direct attack on S&W’s integrity but as part of its zealous (perhaps overzealous) representation of plaintiffs in this case.
This Court reaches this conclusion without having actually seen the motion to disqualify. If that motion does indeed require the resolution of factual disputes which will call into question the credibility of certain S&W lawyers, then this Court will revisit this issue. Based on the
information before me now, however, this Court sees no reason to prevent Mintz from proceeding. S&W’s motion is therefore DENIED.
___________________________
Janet L. Sanders
Justice of the Superior Court
Dated; July 25, 2017