Opinion
16-P-1186
06-14-2017
ESTATE OF Star T. WAAGE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Kim L. Farber (Kim) appeals from an order of the Probate and Family Court disqualifying her husband, Attorney Peter S. Farber (Peter), from representing Kim in the underlying proceedings concerning her challenge to the final account of her decedent mother's court-appointed estate representative, Attorney Lisa F. Sherman (Attorney Sherman). Disqualification orders in civil actions are immediately appealable under the doctrine of present execution. We affirm.
Because the parties share a surname, we will refer to them by their first names.
"Pursuant to the present execution doctrine, an order is ‘immediately appealable if it concerns an issue that is collateral to the basic controversy ... and the ruling will interfere with rights in a way that cannot be remedied on appeal from the final judgment.’ " Commonwealth v. Delnegro, 91 Mass. App. Ct. 337, 341 (2017), quoting from Rodriguez v. Somerville, 472 Mass. 1008, 1009 (2015). In general, a motion to disqualify opposing counsel is usually due to a conflict of interest. See Bays v. Theran, 418 Mass. 685, 691 (1994) (representation of current client conflicts with interests of former client); Steinert v. Steinert, 73 Mass. App. Ct. 287, 289-290 (2008) (attorney also witness). However, disqualification may occur if the judge determines that an attorney's "continued participation as counsel taints the legal system or the trial of the cause before it." Borman v. Borman, 378 Mass. 775, 788 (1979). "We review an order disqualifying counsel for abuse of discretion." Bryan Corp. v. Abrano, 474 Mass. 504, 509 (2016). See Steinert v. Steinert, supra at 288.
Kim mistakenly claims our review is de novo due to the document based record.
Here, in allowing the motion to disqualify, the judge detailed the extensive history of disputes during Attorney Sherman's appointment, including Peter's physical assault of Attorney Sherman. Specifically, the judge found that after private auction, Kim was the high bidder for the decedent's former home in Chatham, where her brother was then residing. Kim and Peter appeared at the site, where Attorney Sherman was present to conduct an inspection of the premises prior to relinquishing the property to Kim. After being denied access to the home by Attorney Sherman, who placed herself in the doorway in an attempt to prevent Peter and Kim from entering, Peter physically grabbed Attorney Sherman's arm and pushed her aside to gain access to the residence. Attorney Sherman, who was recovering from surgery of which Peter was aware, became upset, and the police were called. A criminal complaint for assault and battery issued against Peter. Peter later admitted to sufficient facts for a finding of guilty, which was accepted by the court. This incident was also reported to the Board of Bar Overseers.
The judge further found that Peter's physical assault on Attorney Sherman represented "the most recent occurrence of [Peter's] disregard for the authority of this [c]ourt, its appointed fiduciary, and for the decorum and integrity demanded of the judicial process." Elaborating, the judge stated that Peter and Kim "have continued to undermine and obstruct efforts to bring this case to final resolution, while failing to acknowledge their own dilatory conduct."
Peter also claims that disqualification should not be the vehicle for enforcing the rules of professional conduct, and the judge should have left any sanction for his conduct to the Board of Bar Overseers. We disagree. See Bryan Corp. v. Abrano, supra at 516 (rejecting claim that "judge did not have the authority to disqualify [law firm] as a means of remedying its ethical violations").
In Comuso v. National R.R. Passenger Corp., 267 F.3d 331 (3d Cir. 2001), the issue of disqualification arose in a case involving a physical altercation between counsel. There, an attorney appealed from an order of a District Court imposing sanctions against him for approaching opposing counsel with his "fists cocked," threatening to kill him, and calling him a multitude of disparaging names, all during a court recess. Id. at 333. The incident required the attorney's assistant to physically pull the attorney away from opposing counsel. See ibid. One of the sanctions imposed against the attorney was disqualification from continuing representation as counsel for the plaintiff. See id. at 334. Although the order was not immediately appealable in Comuso as it is the present case, the appellate court nonetheless determined that the District Court had properly exercised its mandamus authority as an appropriate judicial response to disqualify the attorney based on the attorney's outrageous conduct, and recognized the "district court's inherent power to discipline attorneys appearing before it." Id. at 339-340. See Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991). See also Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 236-237 (2d Cir. 1977) ("[W]e have sought to strike a delicate balance between the [litigant's] interest in representation by counsel of its choice and the need to maintain high ethical standards within the profession of law"). That same inherent authority exists here. See Borman v. Borman, supra.
While we recognize that Kim has an interest in having the counsel of her choosing, that right is not absolute and must yield where counsel's participation would taint the trial. See ibid.; McCourt Co. v. FPC Properties, Inc., 386 Mass. 145, 151 (1982). As the judge found, despite Peter's admission to sufficient facts, he "appeared not to realize the severity and the significance of his behavior, or alternatively chose to disregard it as he continued to pursue deposing Attorney Sherman while the parties were engaged in court-ordered conciliation, and where no future trial date had been set." At bottom, the judge did not abuse his discretion when he determined that Peter's "continued participation in these proceedings would so taint not only the trial of the cause before it, but the legal system in general, that the harsh consequence of disqualification is necessary in this case." See Borman v. Borman, supra.
The judge also found that Peter "has also continued to obstruct the resolution of this matter (and thereby incur additional expenses to the [e]state) by continually disputing Attorney Sherman's actions as court-appointed [p]ersonal [r]epresentative."
The appellee's motion to strike is allowed.
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Order disqualifying attorney affirmed.