Marchetti v. Atwood, et al. (Lawyers Weekly No. 09-041-17)

NO. 17-00749
Plaintiff Carl Marchetti contends that defendant, attorney Jack M. Atwood and his professional corporation, Jack M. Atwood, P.C. (collectively, “Atwood”), committed legal malpractice in connection with Atwood’s representation of Marchetti in a criminal case. As a result of the alleged malpractice, Marchetti claims that he served jail time for several offenses after he was found guilty at trial rather than receiving a sentence of home detention following a guilty plea. Marchetti thus brings claims for legal malpractice (Counts One and Two) and breach of contract (Counts Three and Four) against Atwood and his firm. In addition, Marchetti seeks relief pursuant to Chapter 93A against both defendants (Counts Five and Six).
Before the Court is Atwood’s motion to dismiss under Mass. R. Civ. P. Rule 12(b)(6). In consideration of the parties’ helpful memoranda of law and illuminating oral arguments,1 and for the reasons that follow, Atwood’s motion to dismiss is ALLOWED.
1 The parties’ written and oral advocacy in this case was exemplary.
Because it is evaluating the legal sufficiency of a complaint pursuant to Mass. R. Civ. P. 12(b)(6), the Court will accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff’s favor. See, e.g., Berish v. Bornstein, 437 Mass. 252, 267 (2002); Nader v. Citron, 372 Mass. 96, 98 (1977).
Atwood submits public records to support his motion. The Court may properly consider these materials without converting the motion into one for summary judgment. See, e.g., Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550, 555 (2008) (“while the allegations of the complaint generally control in evaluating a motion under rule 12(b)(6), matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account. Properly considered public records include the records of other courts in related proceedings, of which the judge may take judicial notice in any event”) (citations, internal punctuation omitted).
Marchetti was a pawn shop owner. On July 16, 2010, he was indicted in Commonwealth v. Marchetti, Barnstable Superior Court C.A. No. 1072-CR-00112 (the “Criminal Action”), on six counts of knowingly receiving stolen property in excess of two hundred and fifty dollars. Sometime in July 2010, Marchetti engaged Atwood to defend him in the Criminal Action. Marchetti agreed to pay Atwood a flat fee of $ 20,000 for his legal services. Atwood did not provide Marchetti a written engagement letter or other contract, and thereafter did not provide Marchetti with itemized billing statements for the services Atwood performed.
On July 23, 2012, Marchetti sought to change his not guilty plea to guilty, with the hope that he would receive no more than one year of home confinement as punishment. A judge of the Barnstable Superior Court held a plea colloquy on that date. During it, the parties offered
their anticipated sentencing recommendations – the Commonwealth told the Court it would recommend one year of home confinement and ten years of probation, during which Marchetti would be prohibited from engaging in the sale of any precious metals, gems, stones, and the like, whereas Atwood, on Marchetti’s behalf, indicated he would recommend five years of probation. The Court advised Marchetti that, “[b]ased on everything I know up to this point, … I will most likely give you a ten-year probationary period that includes the first year under home confinement; and for the entire ten-year period, conditions that include no dealing in precious metals, no dealing in precious stones, no smelting, no refining, no secondhand dealing.”
The change of plea went forward, and the Court engaged in a plea colloquy with Marchetti. After it, the Court accepted the guilty plea. The Clerk then asked Marchetti, “on Indictment 2010-112-01, charging you with … six counts of receiving stolen property over $ 250, how do you plead to each and every count? Guilty or not guilty?” Marchetti responded, “guilty,” and confirmed that he had pled guilty willingly, freely and voluntarily, without being forced to plead guilty and without being promised or threatened in any manner. Accordingly, the Court found that the guilty plea was “voluntarily tendered with full knowledge of its consequences. In all respects, the plea is appropriate.”
After the Court accepted the plea, it heard defense counsel’s sentencing argument, and the following occurred:
MR. ATWOOD: I would suggest that the Defendant was facing a very difficult trial situation: Six very pathetic… women would be taking the stand who are victims of a house break; and that’s obviously a sympathy invoking type situation… [I]t would be a difficult trial because these women are absolutely flawless. And they would be saying, these are my items. And, of course, they value these items greatly, as to the retail value or even more. So, we were faced with that. We were also faced with an immunized individual who would be testifying that he took his aunt’s property and went to Defendant’s shop. And that’s also a difficult situation… with regard to this case, if it was tried, it would have resulted in
guilty at least on one of the charges. And I warned the Defendant that if he was convicted on one, he might well be treated and convicted on all six indictments. So, I’m suggesting… that it would be a very difficult trial….
THE COURT: Stop. Stop right there. The matter stands for trial.
… You are not going to stand in this courtroom and offer such heart-felt, sincere remorse. And I say that sarcastically. This matter stands for trial … It is a continuation of everything I observed by his demeanor during his change of plea. Every bit of his demeanor was “Judge, I didn’t do this.” And now his lawyer is basically telling me, Judge, he ain’t that bad a soul. You know, he just had the deck stacked against him. Sorry, I’m not buying it….
MR. ATWOOD: … I apologize to the Court. I have failed my client. It’s – obviously something I have said is truly ineffective assistance of counsel here. I don’t know what else to say.
At a subsequent hearing, the trial judge explained his reasons for ordering the case to stand for trial:
[W]hat happened is that throughout the plea colloquy, the Defendant was giving very clear signals that while he saying he knew the property was stolen, he was denying any criminal culpability… [Attorney Atwood] started with what I would best characterize as being an explanation of why plea is being put forward that frankly just absolutely reinforced Mr. Marchetti’s negativity… You used the word “pathetic,” and I take that in the original sense of the word pathos, evoking sympathy; not in – I think in more modern times the word has developed more of a – almost a negative connotation… My reason for not taking the plea is not an outrage of Mr. Marchetti in any way. It’s not an outrage at … Mr. Atwood. It’s simply a matter that I was not satisfied the man had committed the crime.
Marchetti was tried in January 2013 and convicted on five of the six indictments. The next day, Marchetti was sentenced to eight to ten years.
On December 16, 2013, Marchetti filed a complaint against Atwood with the Board of Bar Overseers (“BBO”) in which Marchetti alleged that Atwood negligently represented him, caused his imprisonment, and tried to cover up his malpractice. Marchetti claimed that “[a]s a result of Mr. Atwood[’]s egregious remarks to the Court, during my change of plea hearing, I was denied the right to plead guilty and was forced to go to trial,” after which he was
imprisoned. Marchetti argued that he would not have been imprisoned had Atwood not upended the plea. The BBO dismissed the complaint as unfounded.
Atwood ceased representing Marchetti by January 21, 2014, at which time Marchetti began representing himself. On that date, Marchetti filed a pro se motion to vacate his conviction with the Barnstable Superior Court, alleging that he had previously pled guilty to the offenses for which he was convicted at trial, that the trial judge had abused his discretion when he ordered the defendant to stand trial, and that the error ultimately arose from “trial counsel[’]s egregious comments made to the court following the defendants [sic] guilty pleas on July 23, 2012.” The Court denied the motion.
Marchetti sought appellate relief. On February 21, 2017, the Appeals Court concluded that the trial court had erred by refusing to accept the plea after it was tendered, finding that doing so violated double jeopardy principles. Commonwealth v. Marchetti, 91 Mass. App. Ct. 1107 (2017). The Appeals Court ordered that the convictions based on the guilty pleas be affirmed and remanded the case for resentencing. By the time of the Appeals Court ruling, Marchetti had served four years in state prison. Upon remand, the trial judge sentenced Marchetti to serve five years of probation in addition to the four years in prison which Marchetti had already served.
To survive a motion to dismiss, a complaint must properly set forth the legal basis for the plaintiff’s entitlement to relief. Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive the motion, the complaint must contain “allegations plausibly suggesting (not merely consistent with)” an entitlement to relief, and “must be enough to raise a right to relief above the speculative level.”
Iannacchino, 451 Mass. at 636, quoting Twombly, 550 U.S. at 555. The complaint in this case does not satisfy this standard.
Malpractice and Breach of Contract Claims (Counts One through Four):2 Marchetti alleges that Atwood was negligent and breached his contract to represent him because Atwood “incited the court” to refuse to accept his guilty plea and failed to take necessary corrective action to address the double jeopardy violation, as was later found by the Appeals Court. Atwood responds that Marchetti’s claim is meritless as a matter of law.
Malpractice claims brought against criminal defense lawyers by their disappointed clients are disfavored for substantial policy reasons and are therefore limited to those defendants who allege that they are actually innocent of the crimes with which they were charged. See Glenn v. Aiken, 409 Mass. 699, 70407 (1991) (to state a claim for malpractice against a criminal defense attorney, a criminal defendant has the burden of proving actual innocence as well as attorney negligence). As the Supreme Judicial Court explained in Correia v. Fagan, 452 Mass. 120, 127-129 (2008):
When a plaintiff is a former criminal defendant claiming that his or her defense attorney negligently defended the plaintiff against a criminal charge, the “[t]he causal requirement between the lawyer’s negligence and damage then becomes twofold . . . .” R.E. Mallen & J.M. Smith, Legal Malpractice § 27:13, at 1040 (2008). The plaintiff “must prove by a preponderance of the evidence, not only that the negligence of the attorney defendant caused [the plaintiff] harm, but also that [the plaintiff] is innocent of the crime charged.” Glenn v. Aiken, 409 Mass. 699, 707 (1991). See Wiley v. County of San Diego, 19 Cal. 4th 532, 545 (1998) (“in a criminal malpractice action actual innocence is a necessary element”). Thus, the attorney’s negligence is not the cause of the “former client’s injury as a matter of law, unless the plaintiff former client proves that he [or she] did not commit the crime.” Glenn v. Aiken, supra at 702-703. See Ang v. Martin, 154 Wash. 2d 477, 485 (2005) (“Unless criminal malpractice plaintiffs can prove by a preponderance of the evidence their
2 “The gist of an action for damages resulting from the negligence of an attorney, ‘regardless of its form, is the attorney’s breach of contract.’” Fall River Savings Bank v. Callahan, 18 Mass. App. Ct. 76, 81-82 (1984), quoting Hendrickson v. Sears, 365 Mass. 83, 86 (1974).
actual innocence, their own bad acts, not the alleged negligence of defense counsel, should be regarded as the cause in fact of their harm”); Wiley v. County of San Diego, supra at 539 (“Only an innocent person wrongly convicted due to inadequate representation has suffered a compensable injury because in that situation the nexus between malpractice and palpable harm is sufficient to warrant a civil action, however inadequate, to redress the loss”).
This bifurcation of the cause element of a criminal malpractice action is consistent with public policy. “A person who is guilty need not be compensated for what happened . . . as a result of [the] former attorney’s negligence [as] [t]here is no reason to . . . reward [] [that person] indirectly for [the] crime.” Glenn v. Aiken, supra at 707. See Levine v. Kling, 123 F.3d 580, 582 (7th Cir. 1997) (“Tort law provides damages only for harms to the plaintiff’s legally protected interests . . . and the liberty of a guilty criminal is not one of them”); Wiley v. County of San Diego, supra at 538 (any subsequent negligent conduct by attorney is superseded by greater culpability of plaintiff’s criminal conduct).3
Innocence, in this context, refers to “actual innocence, [and] not simply legal innocence.” Ang v. Martin, supra at 484. “[B]ecause of the heavy burden of proof in a criminal case, an acquittal doesn’t mean that the defendant did not commit the crime for which he [or she] was tried; all it means is that the government was not able to prove beyond a reasonable doubt that [the defendant] committed it.” Levine v. Kling, supra. Consequently, in criminal malpractice cases, an acquittal alone will not “suffice as proof of innocence.” Moore v. Owens, 298 Ill. App. 3d 672, 675 (1998). Instead, the plaintiff has the greater “burden of proving [by a preponderance of the evidence] that he [or she] was innocent of the [crimes] charged in the underlying criminal proceeding.” Glenn v. Aiken, supra at 704.
Marchetti does not allege that he was actually innocent of the charges against him in the matter in which he was represented by Atwood – to the contrary, he concedes he was guilty. Under Correia, then, his claim against Atwood is barred.
3 As the Supreme Judicial Court also noted in Glenn, “[t]here is a further policy reason for the rule we adopt. Most criminal defendants in this Commonwealth are represented by counsel appointed at public expense or private counsel whose fees are not substantial. The public has a strong interest in encouraging the representation of criminal defendants, particularly those who are ruled to be indigent. The rule we favor helps to encourage that kind of legal representation by reducing the risk that malpractice claims will be asserted and, if asserted, will be successful.” Glenn, 409 Mass. at 707-08.
Marchetti argues that his case is distinguishable on its facts – that even though he does not claim innocence, he nonetheless has stated a claim against Atwood because he served jail time he otherwise would not have served but for the alleged malpractice. In support, he cites a footnote from a 1999 Appeals Court decision, Labovitz v. Feinberg, 47 Mass. App. Ct. 306, 312, n 10 (1999), in which the Appeals Court noted that, while in the usual case, a criminal malpractice complainant must successfully withdraw or vacate his guilty plea in the underlying criminal case and then allege actual innocence, there may be “unusual circumstances” where vacating the prior plea may be unnecessary, such as “at the sentencing stage following a guilty plea, [where an attorney’s alleged negligence] result[s] in the convict already having served a longer sentence than he otherwise would have served.” He also cites a footnote in Correia, 452 Mass. at 129, n. 14, in which the Supreme Judicial Court compared the actual innocence rule that it was following with the reasoning in a federal appellate case, Levine v. Kling, 123 F.3d 580, 582 (7th Cir. 1997). In Levine, the Seventh Circuit noted that a “case in which the defendant is guilty in fact but has a sound legal defense, such as double jeopardy” would not be “barred” by the actual innocence requirement.
Marchetti’s reliance on these footnotes is misplaced, and his argument on this point is erroneous. Marchetti’s reading of Labovitz to suggest actual innocence is not a requirement in a malpractice case is neither supported by that case nor by Correia; in fact, both cases require a defendant in a malpractice case like this to allege actual innocence. Further, the comparison made in Correia between the actual innocence requirement and the exception recognized in Levine was not adopting the Levine approach but contrasting it with the Massachusetts rule. Indeed, Correia specifically rejected Levine’s finding that an allegation of legal innocence may substitute for an assertion of actual innocence, such as where a guilty defendant has a valid legal
defense of double jeopardy. See Correia, 452 Mass. at 128, n. 13 (“‘Even in cases where the causal link between an attorney’s negligence and a client’s erroneous imprisonment is most obvious (such as where the attorney fails to bring a clearly meritorious motion to suppress evidence that establishes guilt, which the [S]tate could not prove without it), civil recovery by a guilty plaintiff is not warranted’ without proof of innocence”) (citations omitted).
As Correia recognizes no exception to the actual innocence requirement on policy grounds, and Marchetti does not allege actual innocence, his malpractice claim against Atwood is fatally defective.4 Accordingly, Counts One through Four are barred as a matter of law and are dismissed.
Chapter 93A (Counts Five and Six): Marchetti’s Chapter 93A claims also fail as a matter of law.
4 Even had his malpractice claims been meritorious, they would have been barred by the three year statute of limitations. See G. L. c. 260, § 4. “The statute of limitations applicable to a legal malpractice claim begins to run when a client ‘knows or reasonably should know that he or she has sustained appreciable harm as a result of the lawyer’s conduct.’” Lyons v. Nutt, 436 Mass. 244, 247 (2002), quoting Williams v. Ely, 423 Mass. 467, 473 (1996). Marchetti claims that he was harmed when he was sentenced after trial on January 29, 2013; on that date, he knew that he would be imprisoned and not sentenced to home confinement, the result for which he had hoped as the result of his failed plea. His complaint was thus due by January 29, 2016. It was filed in July 2017, a year-and-a-half too late. Even applying the continuing representation doctrine, the result is the same. Under that principle, the statute of limitations in a legal malpractice action is tolled until the client’s representation by the lawyer whose conduct is at issue ceases or the client knows he or she has been harmed by the lawyer’s alleged misconduct, whichever is earliest. See Parr v. Rosenthal, 475 Mass. 368, 376, 383-84 (2016). As noted above, Marchetti was aware of his alleged harm in January 2013. The statute of limitations began running on that date under the continuing representation doctrine. Even using the date that Atwood ceased representing Marchetti – January 21, 2014 – Marchetti’s complaint was due by January 21, 2017, and was still filed some six months too late. Marchetti’s argument to avoid dismissal on this basis – that he did not have an actionable claim until after the Appeals Court ruled in February 2017 – is meritless. Marchetti simply did not need the Appeals Court to allege he was harmed; its decision merely provided Marchetti an argument to support his complaint seeking to redress for that alleged harm. The statute of limitations therefore was not tolled while Marchetti awaited the Appeals Court’s ruling. See, e.g., Spilios v. Cohen, 38 Mass. App. Ct. 338, 339-40 (1995) (“[a] cause of action for legal malpractice ‘does not accrue until a plaintiff knows or reasonably should know that [she] has sustained appreciable harm as a result of a defendant’s negligence,’” which harm “trigger[ed] the running of the limitations period, without waiting for judgment”) (emphasis added). Thus, had Marchetti’s claim not failed on the merits, it would have been dismissed on statute of limitations grounds. See Doe v. Harbor Schs., Inc., 446 Mass. 245, 247 (2006) (where there is no genuine issue as to when the plaintiff was put on notice of harm, summary judgment is appropriate).
Marchetti alleges that “Atwood’s failures to recognize and to remedy the fact that [he] had fallen victim to double jeopardy” violates Chapter 93A. This argument is meritless. At best, Atwood’s alleged failure to have recognized the double jeopardy issue constituted negligence, which is not enough to support an actionable Chapter 93A claim. See Darviris v. Petros, 442 Mass. 274, 278 (2004) (“[A] violation of G.L. c. 93A requires, at the very least, more than a finding of mere negligence.”).
Marchetti also asserts that Atwood’s failure to provide him with a fee agreement in 2010, and itemized bills in 2010 through January 2013, violated Chapter 93A. The statute of limitations on Chapter 93A claims is four years. G. L. c. 260, §5A. Marchetti’s claim concerning Atwood’s alleged failure to provide him with an engagement agreement in 2010 was thus due in 2014, and was filed three years too late. However, at least some of his billing complaints may be timely; Marchetti was last represented by Atwood in January 2014, making any billing-related claims from July 2013 to January 2014 potentially actionable. Nevertheless, even assuming these claims have merit, Marchetti’s complaint on this point fails because he does not allege that he was damaged by Atwood’s alleged failure to provide him with itemized bills. See Guenard v. Burke, 387 Mass. 802, 809 (1982) (assuming a Chapter 93A claim against lawyer arising from use of a purported contingent fee agreement is actionable, plaintiff’s failure to allege loss of money or property as a result of the agreement undercut Chapter 93A claim); see also Hershenow v. Enter. Rent-A-Car Co. Of Boston, Inc., 445 Mass. 790, 791 (2006) (where use of a form contract caused plaintiff no damage, plaintiff’s Chapter 93A claim was defective as a matter of law for failure to demonstrate causation under Chapter 93A, § 9(1); “proving a causal connection between a deceptive act and a loss to the consumer is an essential predicate for recovery under our consumer protection statute”).
Because Marchetti’s Chapter 93A claims are meritless, they must be dismissed.
Defendant’s motion to dismiss is ALLOWED.
Justice of the Superior Court
Dated: November 21, 2017

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