Mooney, et al. v. Diversified Business Communications, et al. (Lawyers Weekly No. 12-101-17)

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 […]

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