Lubin & Meyer, P.C. v. Manning (Lawyers Weekly No. 09-065-17)



SUFFOLK, so                                                                                            SUPERIOR COURT


  1. 2017-02352-BLS2
















This action arises from disputes between a law firm, plaintiff Lubin & Meyer, P.C., and a former associate, defendant John Manning.  Plaintiff alleges that Manning breached his fiduciary duties to the firm and also made false representations.  It alleges that as a result of these actions, Manning forfeited his rights under a referral fee agreement entered into at the time of his departure.  Manning has counterclaimed.  The case is now before the Court on the plaintiff’s Motion to dismiss certain counts of that counterclaim, specifically:  Count II (for defamation), Count III (for invasion of privacy), Count V (for intentional infliction of emotional distress), Count VI (for abuse of process) and Count VII (alleging a violation of 93A claim).  This Court concludes that the Motion must be Allowed as to all counts except for Count VI, which will remain in the case.


Manning was employed as an associate at Lubin & Meyer from 2012 through February 23, 2016, when he was terminated.  At the time of his departure, the firm provided Manning with a letter confirming that he was entitled to payment on two cases that he claims to have generated while at the firm (the Referral Fee Agreement).  According to the Complaint, the firm later discovered that Manning had engaged in certain conduct which breached his fiduciary duties to the firm:  in particular, he failed to inform certain clients that the firm had rejected their claims and misled them as to the status of their cases.  Lubin & Meyer also alleges that Manning represented to it  that he had caused one of the clients covered by the  Referral Fee Agreement to retain Lubin & Meyer when in fact that was not the reason for the client’s decision.  Lubin & Meyer subsequently lodged a complaint about Manning with the Board of Bar Overseers (BBO) and then filed this lawsuit against Manning – a fact reported by the Boston Business Journal.   

In his counterclaim, Manning alleges that Lubin & Meyer made false and defamatory statements about him.  These statements are contained in the Complaint that Lubin & Meyer filed and that were later repeated in the Boston Business Journal article, which was based on information “garnered directly” from the Complaint.  ¶¶ 7 and 23-24 of Counterclaim.  These same allegations form the basis for Manning’s claims that Lubin & Meyer invaded his privacy and intentionally inflicted emotional distress.  As to the abuse of press count, Manning alleges that the firm instituted this action for an ulterior purpose – namely, to obtain leverage against him so as to induce him into giving up his rights under the Referral Fee Agreement.  Finally, Manning alleges that the firm has violated Chapter 93A by its wrongful repudiation and attempted rescission of that Agreement.


It is well established that statements by a party or counsel in the institution of or during   a judicial proceeding are absolutely privileged, provided that such statements relate to that proceeding.  Sriberg v. Raymond, 370 Mass. 105, 108-109 (1976).  That privilege extends to statements that are made preliminary to a proposed or contemplated legal action.  Visnick v. Caulfield, 73 Mass.App.Ct. 809, 813 (2009) (ordering dismissal of defamation and other tort claims based on employee’s statements in EEOC filings and in  letter stating her intent to initiate that action).  It also applies to statements made to the  BBO.  See Bar Counsel v. Farber, 464 Mass. 784, 794 (2013).

As the Counterclaim makes clear, the defamation count is based on statements contained in Lubin & Meyer’s Complaint and the fact that the Boston Business Journal repeated these statements in an article ten days after the Complaint was filed.  There are no allegations that Lubin & Meyer made any other statements or provided information to the Journal beyond that information that was included in the Complaint itself.  The claims for intentional infliction of emotional distress and invasion of privacy   fare no better, since they rest on the same allegations.  If the claim is based on statements that are absolutely privileged, then it does not matter that it is asserted under a different legal theory; dismissal is required.  Doe v. Nutter, McLennan & Fish, 41 Mass.App.Ct.  137, 140-141 (1996) (affirming dismissal of 93A, invasion of privacy and intentional infliction of emotion distress claims).

This Court also agrees with  Lubin & Meyer that the 93A count must be dismissed.  It is well settled that disputes arising from the employment relationship cannot form the basis for a Chapter 93A clam.  See Manning v. Zuckerman, 388 Mass. 8, 12-13 (1983).  The Appeals Court and the SJC have steadfastly adhered to that rule, applying it even where the employment relationship has ended.  See e.g. Psy-ed v. Klein, 459 Mass. 697, 719, 720 (2011) (affirming dismissal of 93A claim alleging breach of settlement agreement between former employee and his employer); Weiler v. Portfolioscope, Inc., 83 Mass.App.Ct. 216, 231 (2013).  In the instant case, the 93A count is based on Lubin & Meyer’s refusal to honor the Referral Fee Agreement and actions that it allegedly took to induce Manning into giving up his rights under that agreement.  But the Referral Fee Agreement existed only by virtue of the employment relationship, so that disputes related to it cannot form the basis for a 93A claim.

Turning to Count VI alleging abuse of process, this Court concludes that it survives.  Abuse of process has been described as a “form of coercion to obtain collateral advantage, not properly involved in the proceeding itself.”  Cohen v. Hurley, 20 Mass.App.Ct. 439, 442 (1985), quoting Prosser & Keeton, Torts §121 (5th ed. 1984).  To sustain an abuse of process claim, a plaintiff must show that process was used  “for an ulterior or illegitimate purpose.”  Vittands v. Sudduth, 49 Mass.App.Ct. 401, 406, quoting Datacomm Interface Inc. v. Computerworld, Inc., 396 Mass. 760, 775-776 (1986).  In the instant case, Manning alleges that Lubin & Meyer filed this action in order to “embarrass and humiliate him” and to induce him into giving up his rights under the Referral Fee Agreement. ¶45 of Counterclaim.  In support of this claim, defense counsel argues that the Complaint goes beyond what was necessary to state a claim against Manning and incudes baseless allegations about absconding with files and stealing clients.  Particularly within the relatively small medical malpractice bar, word of this litigation  and the accusations that the Complaint levels against Manning will inevitably tarnish his reputation and hurt his legal career.  The Counterclaim alleges that Lubin & Meyer knew that and threatened litigation as a way to obtain leverage against him.  As further evidence of an ulterior motive, the defendant cites  the manner in which the Complaint was served: even though Lubin & Meyer knew Manning’s residential address, it chose to serve him at his  parents’ home and at the law office of his current employer.  Given the standard that this Court must apply at this early stage in the litigation, this Court concludes that these allegations are sufficient to state a claim.




For all the foregoing reasons and for other reasons articulated in Lubin & Meyer’s memoranda in support of the Motion, the Motion the Dismiss is ALLOWED as to Counts II, III, V and VII, which are hereby DISMISSED.  It is DENIED as to Count VI.


__________________________________                                                                                        Janet L. Sanders

Justice of the Superior Court



Dated: December 20, 2017




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