Mirra, et al. v. Mirra, et al. (Lawyers Weekly No. 12-044-17)

LEONARD MIRRA and SANDRA CAPO, individually and derivatively on behalf of MIRRA CO., INC.
This lawsuit concerns a dispute among shareholders in a closely-held corporation known as Mirra Co., Inc. Plaintiffs Leonard Mirra (known as Lenny) and his sister Sandra Capo are minority shareholders. Their brother Anthony Mirra, Jr., is also a minority shareholder; he is named as a defendant only because he is a necessary party with respect to Plaintiffs’ claim challenging purported transfers of stock from Norino Mirra to his children Christopher Mirra and Natalie Wright.
Defendants Norino Mirra and Mirra Co. have moved to compel production of 44 emails among Lenny, Sandra, their lawyer at Posternak Blankstein & Lund, and Anthony. Defendants argue that these emails are not privileged because they were shared with Anthony, who is not represented by Posternak. Plaintiffs argue that the emails are privileged because Anthony had and still has an implied attorney-client relationship with Posternak.
The Court will ALLOW the motion to compel because it concludes, based on Anthony’s sworn deposition testimony, that Anthony never had any kind of attorney-client relationship with Posternak. Absent such a relationship, any privilege in the disputed emails was waived when Plaintiffs voluntarily shared them with Anthony. In re Adoption of Sherry, 435 Mass. 331, 336 (2001).
As the party asserting the attorney-client privilege, Plaintiffs have “the burden of establishing that the privilege applies to the communications at issue.” Clair v. Clair, 464 Mass. 205, 215 (2013). “Generally, the attorney-client privilege protects only ‘confidential communications between a client and its attorney undertaken for the purpose of obtaining legal advice.’ ” DaRosa v. City of New Bedford, 471 Mass.
– 2 –
446, 463 (2015), quoting Suffolk Constr. Co. v. Division of Capital Asset Mgmt., 449 Mass. 444, 448 (2007).
It is undisputed that Anthony never had any express attorney-client relationship with Posternak. In 2010 Lenny, Sandra, and Anthony all met with Attorney Nicholas Nesgos of Posternak to discuss ongoing disputes with the majority shareholders in Mirra Co. (Defendants do not seek disclosure of anything said at that meeting.) Thereafter Lenny and Sandra hired Posternak to represent them. Anthony did not. He never signed an engagement letter with Posternak, never paid Posternak any money, never asked Posternak to represent him, and was never told that Posternak or Attorney Negros was representing him.
Plaintiffs insist that Anthony nonetheless had an implied attorney-client relationship with Posternak. In an interesting twist, Anthony does not join in that argument and does not oppose the motion to compel production of emails he received or sent.
“An attorney-client relationship may be implied ‘when (1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney’s professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance.’ ” DaRoza v. Arter, 416 Mass. 377, 381 (1993), quoting DeVaux v. American Home Assurance Co., 387 Mass. 814, 817-818 (1983). “All three requirements of this test must be met to establish the relationship.” Id.
Plaintiffs’ claim that Anthony had an implied attorney-client relationship with Posternak fails to meet the first requirement, because Plaintiffs have not convincingly demonstrated that Anthony ever sought advice or assistance from Attorney Nesgos. The Court credits Anthony’s sworn deposition testimony that he never asked Nesgos to provide him with any legal advice. It follows that “[n]o implied attorney-client relationship came into existence.” DaRoza, supra, at 382. Even if Anthony somehow relied upon Posternak to protect his interests, that would not establish an implied attorney-client relationship in the absence of credible evidence that Anthony actively sought Posternak’s advice or assistance. See Fanaras Enterprises, Inc. v. Doane, 423 Mass. 121, 125 (1996).
– 3 –
Plaintiffs have muddied the waters by submitting an affidavit in which Anthony says, contrary to his deposition testimony, that “I went to the meetings with Attorney Nesgos because my brother and sister asked me to go and because I wanted to receive legal advice from Attorney Nesgos about our rights as minority shareholders.”
If the Court were considering a motion for summary judgment, it would have to disregard Anthony’s affidavit to the extent that it contradicts his prior, sworn deposition testimony. See York v. Zurich Scudder Investments, Inc., 66 Mass. App. Ct. 610, 611 (2006) (“a party cannot create a disputed issue of fact by the expedient of contradicting by affidavit statements previously made under oath at a deposition” (quoting O’Brien v. Analog Devices, Inc., 34 Mass. App. Ct. 905, 906 (1993)).
In this context, the Court must decide whether it believes the testimony Anthony gave at his deposition in October 2016 or the materially different statement Anthony endorsed by signing his affidavit in March 2017.
The Court is not required to believe everything Anthony says in his affidavit. In deciding a motion supported by sworn affidavits, “the weight and credibility to be accorded those affidavits are within the judge’s discretion” and “[t]he judge need not believe such affidavits even if they are undisputed.” Commonwealth v. Furr, 454 Mass. 101, 106 (2009). An affidavit “is a form of sworn testimony the credibility of which is to be determined by the judge.” Psy-Ed Corp. v. Klein, 62 Mass. App. Ct. 110, 114, rev. denied, 442 Mass. 1114 (2004).
In the exercise of its discretion, the Court credits Anthony’s deposition testimony that he never sought any legal advice from Attorney Nesgos; it does not credit the contrary statement in Anthony’s affidavit that, on second thought, he did seek legal advice from Nesgos. The deposition testimony is more credible because there is no evidence other than the affidavit to corroborate Anthony’s sudden change of heart. To the contrary, there is evidence that in January 2012 Mr. Nesgos told the opposing lawyer, who was representing Norino and his brother Ralph Mirra, that Nesgos did not represent Anthony. The fact that Anthony does not oppose the motion to compel, and has no problem with Defendants seeing the emails he sent or received, shows that Anthony does not consider these emails to be privileged and weighs
– 4 –
heavily against Plaintiffs’ contention that Anthony had been seeking advice from Posternak or considered Negros to be his lawyer. It is understandable that Anthony would want to support his siblings and sign an affidavit that apparently was put together by their lawyer. But the Court does not believe and therefore gives no weight to this part of Anthony’s affidavit.
Lenny and Sandra were free to take private email communications they were having with their lawyer and share them with Anthony. In so doing, however, they waived the attorney-client privilege.
The motion by Defendants Norino Mirra and Mirra Co., Inc., to compel the production of 44 emails that were sent to or received from Anthony Mirra, and that Plaintiffs claim are privileged, is ALLOWED. Plaintiffs shall produce these emails forthwith.
25 April 2017
Kenneth W. Salinger
Justice of the Superior Court

Full-text Opinions