finding waiver by failure to object after the passage of ten daysSummary of this case from Barberton Rescue Mission v. Hawthorn
April 10, 1980.
The case was submitted on briefs.
Irwin Kwiat for Irving Levitt.
Arthur Goldberg for Paul Levitt another.
In February, 1972, a long-standing intimacy between the Levitt brothers dissolved in a barrage of recrimination, spawning lawsuits both criminal and civil. The civil actions arose from their tangled finances and the various seizures of each other's valuables alleged to have taken place when the amity they previously enjoyed broke down. Irving brought his suit against Paul and his wife on June 6, 1972; they brought theirs against him on June 27, 1972. The two cases were tried together to a master on various dates in 1974, the trial lasting three weeks and producing, apparently, twenty or more volumes of transcript. The master's report in the case brought by Paul and his wife was wholly favorable to them; his report in Irving's case was favorable in part to Irving but more favorable to Paul and his wife. The reports in both cases were filed in court on January 16, 1975. After numerous hearings on objections and other matters, both reports were adopted by the judge on April 15, 1976. Eight months later, on December 9, 1976, Irving, through new counsel, filed motions in both cases to disqualify the attorney who had represented Paul and his wife from 1972 on. The grounds for the motions were that the same attorney had represented Irving in a divorce proceeding in 1949 and 1950 and had represented him again in proceedings for modification of the support provisions of the divorce decree in 1960 and 1967. On June 10, 1977, Irving filed motions in both cases for new trials on the same grounds. Irving and the attorney in question filed affidavits bearing on the question whether the attorney had obtained confidential information in the course of his earlier representation of Irving which was probative of issues in the pending actions. Evidence was taken, including testimony by the attorney who had represented Irving during the master's hearings to the effect that he had been aware from the outset that the attorney for Paul and his wife had represented Irving in the divorce proceedings. On all the evidence the judge could properly find that Irving was not prejudiced by his former attorney's representation of Paul and his wife in the present actions. Rule 20 of the Superior Court (1954) (see now the identical Rule 3 of the Superior Court ) requires that an objection to the right of an attorney to appear for the opposite party is to be made within ten days after the entry of the case or of the appearance of the attorney. A later objection need not be entertained. Arsenault v. Arsenault, 337 Mass. 189, 193-194 (1958). A party is not privileged to hold such an objection until after he has learned the outcome of the trial. At that late date it might well have been an abuse of discretion for the judge to allow Irving's motions in the absence of a showing of substantial prejudice. Compare Pisa v. Commonwealth, 378 Mass. 724, 729-730 (1979). Indeed, absent a more substantial showing of conflict than was made here, a disqualification of counsel even on a timely motion might have been unnecessarily violative of Paul's and his wife's right to representation by counsel of their choice. See Borman v. Borman, 378 Mass. 775, 787 (1979). These appeals were frivolous. Paul and his wife shall have double costs of these appeals, plus interest computed at the rate of twelve percent per annum from November 27, 1978, on the amount of Irving's liability to them established in the respective first numbered paragraphs of the judgments appealed from.