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Masiello v. Perini Corp., 394 Mass. 842, 477 N.E.2d 1020

Facts

In 1979, attorney Robert D. City represented a joint venture in lawsuits related to the extension of the Massachusetts Bay Transportation Authority's Red Line. Perini Corporation, involved in the construction, requested Mr. City to represent it in these actions. In 1981, Mr. City was consulted by Anthony Masiello regarding property damage allegedly caused by the construction. After an initial attempt to settle the claim, Mr. City withdrew when it became clear that litigation was necessary. He later represented the Masiellos again in 1984, leading to the disqualification motion from Perini Corporation.

In 1979, Robert D. City represented Morrison-Knudsen, White, and Mergantime—a joint venture—in three lawsuits relating to the extension of the Massachusetts Bay Transportation Authority's Red Line through Cambridge and Somerville.

Issue

Did Mr. City violate conflict-of-interest principles by simultaneously representing the Masiellos while also representing Perini Corporation in other matters?

The company argues that the judge erred in refusing to disqualify plaintiffs' counsel on the grounds that: (1) counsel, without the defendant's consent, had simultaneously represented the Masiellos and the company, in violation of Disciplinary Rules 5–105(B) and 5–105(C), appearing in S.J.C. Rule 3:07, 382 Mass. 781 (1981); and (2) the Code of Professional Responsibility bars representation adverse to a former client where, as here, there is a substantial relationship between the subject matter of the present representation and that of a former representation.

Rule

An attorney may not represent clients with conflicting interests without consent, and disqualification is warranted if the current representation is substantially related to the former representation and involves the use of confidential information.

Disciplinary Rule 5–105(B) provides: “A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5–105(C).”

Analysis

The court applied the 'substantial relationship' test to determine whether Mr. City's prior representation of Perini Corporation was related to the current case involving the Masiellos. The judge found that the subject matter of Mr. City's previous work was not substantially related to the current claim and that he had not received any confidential information that would disadvantage Perini Corporation. Therefore, the court concluded that Mr. City's representation of the Masiellos did not violate conflict-of-interest rules.

The judge applied the “substantial relationship” test, see note 5 infra, in analyzing the propriety of Mr. City's representation of the plaintiffs in view of his previous work for the defendant.

Conclusion

The court affirmed the denial of Perini Corporation's motion to disqualify Mr. City as counsel for the Masiellos, concluding that there was no conflict of interest.

The denial of the defendant's motion for the removal of the plaintiffs' counsel is affirmed.

Who won?

Masiello, as the court affirmed the denial of the motion to disqualify their counsel, finding no conflict of interest.

The court affirmed the denial of Perini Corporation's motion to disqualify Mr. City as counsel for the Masiellos, concluding that there was no conflict of interest.

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