Opinion
21-P-268
01-19-2022
GEORGE LABADIE v. JUDITH ELLEN PIETRAS.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
Citing the doctrine of present execution based on the litigation privilege, the defendant appeals from interlocutory orders of the Superior Court, which partially denied her motion for summary judgment on the plaintiff's claims and denied the defendant's motion for reconsideration. We agree with the motion judge that genuine questions of material fact preclude determination whether the parties were in an attorney-client relationship and, if so, definition of the scope and limits of any such relationship.
Because the appeal is before us solely on the basis of present execution, we consider only the issues relating to the defendant's claim of privilege, and not other substantive bases on which the defendant might seek reversal of the order on her motion for summary judgment. See Shapiro v. Worcester, 464 Mas. 261, 265 (2013) .
Following the plaintiff's conviction of various financial crimes, and the reversal of some but not all of those convictions on appeal, see Commonwealth v. Labadie, 467 Mass. 81 (2014), the Committee for Public Counsel Services (CPCS) on July 27, 2016, appointed the defendant "to determine whether there is a reasonable likelihood that [the plaintiff] can benefit from a lawyered post-conviction proceeding." In a letter to the plaintiff shortly after that appointment, dated August 4, 2016, the defendant advised the plaintiff of her appointment and described generally the nature of the screening work she intended to perform. Within that letter, the defendant informed the plaintiff, "I will tell you, as I tell all clients, that I was a prosecutor for the Hampden District Attorney's Office and the Northwestern District Attorney's Office." Ultimately, in a letter to CPCS dated January 5, 2017, the defendant recommended that CPCS decline to appoint counsel for the plaintiff. The plaintiff's multi-count civil complaint against the defendant, and the orders that are the subject of this appeal, followed.
In Commonwealth v. Francis, 485 Mass. 86 (2020), the Supreme Judicial Court recently discussed the nature of the CPCS screening process, and the role of an attorney appointed as screening counsel. Among other things, the court cited the failure of a CPCS screening attorney to raise legal issues on a criminal defendant's behalf as relevant in determining that the defendant had waived certain claims. See id. at 110-111. If a CPCS screening counsel's actions (or inactions) may work a waiver of substantive claims by a criminal defendant, it would appear that an attorney-client relationship would exist between screening counsel and the person whose case they are appointed to screen, at least to some extent. Since the actions of screening counsel could operate to affect substantive rights of a criminal defendant, it would likewise appear that screening counsel would have a duty to discharge the screening function in a manner that does not negligently and adversely affect the defendant.
In the present case, the crux of the plaintiff's claim is that the defendant improperly concluded that there were no bases to challenge the plaintiff's remaining convictions that would warrant appointment of counsel by CPCS to pursue them. Because the actions of screening counsel may adversely affect the substantive rights of a criminal defendant whose case they are appointed to screen, and given the communications between the defendant and the plaintiff and the actions the defendant took as screening counsel, such as discussing the plaintiff's case with his prior attorneys, we cannot say as matter of law that no attorney-client relationship existed between the parties. As the motion judge observed, the litigation privilege raised by the defendant to bar the plaintiff's claims protects attorneys from claims by nonclients for statements made during litigation.
So much of the summary judgment order as concludes that there are genuine issues of material fact regarding the existence of an attorney-client relationship is affirmed. The remainder of the summary judgment order is not before us in this appeal. For the same reasons as discussed above, the order denying the motion for reconsideration is affirmed.
So ordered.
Green, C.J., Rubin & Massing, JJ.
The panelists are listed in order of seniority.