SMITH, J.
The plaintiffs, two attorneys (and one of their law firms) and a former class representative, filed multiple complaints in the Superior Court following the withdrawal of a potential class action settlement with Nestle Waters North America, Inc. (Nestle). The defendants are several attorneys
Facts. Much of the relevant background is set out in Ehrlich v. Stern, 74 Mass.App.Ct. 531, 532-535 (2009) (affirming denial of defendants' special motions to dismiss pursuant to G. L. c. 231, § 59H). We provide additional undisputed facts bearing on the issues on appeal, taken from the first judge's December 26, 2008, "consolidated memorandum of decision and order on motions for summary judgment."
The plaintiff attorneys are Christopher H. Bartle and Jan R. Schlichtmann. Defendants Thomas Sobol, Garve W. Ivey, Jr., and their respective law firms were originally Schlichtmann's cocounsel in representing the class. The litigation against Nestle had its origin in 2002, when Schlichtmann, Sobol, and Ivey (collectively, lead counsel) approached a number of bottled water companies (collectively, the competitors) with information that Nestle had misrepresented the source and quality of its Poland Springs brand of bottled water. Four of the competitors
Lead counsel notified Nestle of the claims, and settlement discussions ensued. As of May 29, 2003, Nestle indicated that it would pay no more than $20 million to resolve all claims against it. Sobol and Ivey concluded that Nestle's settlement offer was insufficient and wanted to proceed to litigation. Schlichtmann and Ehrlich disagreed, and continued to negotiate with Nestle. As a result of the disagreement, Ehrlich terminated Sobol and Ivey as her attorneys on May 30, 2003. On the evening of June 4, 2003, Schlichtmann reported on behalf of the competitors and the consumer class that he and Nestle had reached a proposed settlement.
On June 16, 2003, Nestle reported that it had accepted the terms of the settlement offer made on June 4. This apparently surprised Berry, who already had presented the June 4 offer as a
On June 18, 2003, Berry informed Sobol and Ivey that Vermont Pure had no objection to their filing of class actions against Nestle. While there was no dispute that Berry was authorized to do so, it was disputed whether Berry fully informed Vermont Pure of the potential impact of litigation on the settlement negotiations. Later the same day, Sobol and Ivey filed class actions against Nestle in a number of jurisdictions, with Kuhn and McGonagle as class representatives. Sobol and Ivey also disseminated information regarding the class claims against Nestle on a Web site and through other media. As a result, Nestle withdrew the settlement offer it had negotiated with Schlichtmann, causing Schlichtmann to lose millions of dollars in contemplated legal fees and Ehrlich to lose her anticipated right to direct monies to her favorite environmental causes.
Bartle and Schlichtmann each filed a complaint in Superior Court against the defendant attorneys for the attorney's fees Bartle and Schlichtmann would have received under the contingent fee agreements had the settlement with Nestle gone forward. Both alleged tortious interference with economic relations, civil conspiracy, breach of contract, and breach of the implied covenant of good faith and fair dealing, stemming from the defendant attorneys' filing of the class actions and the lost settlement opportunity. Schlichtmann raised additional claims for negligence and breach of fiduciary duty. Ehrlich joined in Schlichtmann's suit, her claims mirroring Schlichtmann's, but alleging as damages the benefits she would have derived from the settlement. Two related actions were filed, one by Vermont Pure against Sobol and Berry (and their respective law firms), and a second by Sobol and Ivey (and their respective law firms) against Glenwood Farms, Inc.; Carrabassett Spring Water Company; and Schlichtmann. The four suits were consolidated for purposes of pretrial proceedings.
In a decision dated December 26, 2008, the first judge decided eight motions for summary judgment in the consolidated cases.
A hearing later was held on Vermont Pure's professional misconduct and breach of conduct claims against the defendant attorneys, and the second judge found that Nestle's June 4, 2003, settlement offer would have been approved by a reasonable judge. On the basis of that finding, Schlichtmann and Ehrlich moved under Mass.R.Civ.P. 60(b)(6), 365 Mass. 828 (1974), to vacate the dismissal of their claims. Their motion was denied by the second judge. This appeal followed.
Discussion. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), citing Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). The nonmoving party's failure to prove an essential element of his case "renders all other facts immaterial" and mandates summary judgment in favor of the moving party. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991), citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
1. Bartle's and Schlichtmann's appeals. A principal issue on
Also relevant to our discussion is the absolute litigation privilege recognized by our courts. Based on similar policy grounds, it shields an attorney from civil liability to nonclients for statements made in the course of litigation. Sriberg v. Raymond, 370 Mass. 105, 109 (1976). An attorney's statements are privileged "where such statements are made by an attorney engaged in his function as an attorney whether in the institution or conduct of litigation or in conferences and other communications preliminary to litigation." Ibid. The privilege applies not only to defamation claims brought against the attorney, but to civil liability generally. Ibid. See Beecy v. Pucciarelli, 387 Mass. 589, 593-594 (1982) (action for malicious prosecution could not be brought against attorney who commenced lawsuit with client's authority and in good faith as to its grounds). The privilege "is based upon a public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients." Sullivan v. Birmingham, 11 Mass.App.Ct. 359, 361 (1981), quoting from Restatement (Second) of Torts § 586 comment a (1977).
Nevertheless, an attorney is not completely immune from liability to nonclients. Spinner v. Nutt, 417 Mass. 549, 552 (1994). For example, in Beecy v. Pucciarelli, supra at 592-594, the court suggested that an attorney who filed litigation without the client's permission or who knowingly agreed to bring a groundless
In an effort to address these policy concerns, courts in some jurisdictions have adopted a bright-line rule prohibiting lawsuits between cocounsel over the loss of prospective fees. See, e.g., Beck v. Wecht, 28 Cal.4th 289, 297-298 (2002) (public policy protecting attorney's undivided loyalty to client prohibited counsel from suing each other over prospective interests in contingent fee arrangement); Scheffler v. Adams & Reese, LLP, 950 So.2d 641, 653 (La. 2007) (undivided loyalty to client should not be diluted by duty to protect cocounsel's interest in prospective fees); Mazon v. Krafchick, 158 Wn.2d 440, 449 (2006) (undivided duty of loyalty to pursue case in client's best interest means that no duty exists between cocounsel that would allow recovery for lost or reduced prospective fees); Horn v. Wooster, 165 P.3d 69, 78-79 (Wyo. 2007) (refusal to recognize cause of action by one attorney against his negligent cocounsel for lost or reduced prospective fees, as duty of undivided loyalty to client could be compromised). Those courts flatly rejected any imposition of a duty of care owed by one attorney to another to protect an attorney's prospective interest in contingency fees.
Given the state of the law, Bartle and Schlichtmann do not raise any claims based on a direct duty of care between cocounsel.
With these principles in mind, we turn to the specific arguments raised by Bartle and Schlichtmann on appeal.
To establish a claim for interference with advantageous business relations, a plaintiff is required to prove that "(1) he had a business relationship for economic benefit with a third party, (2) the defendants knew of the relationship, (3) the defendants interfered with the relationship through improper motive or means, and (4) the plaintiff's loss of advantage resulted directly from the defendants' conduct." Cavicchi v. Koski, 67 Mass.App.Ct. 654, 657 (2006), quoting from Kurker, 44 Mass. App. Ct. at 191.
As concerns the specific claim of tortious interference against other attorneys for rights to prospective fees under a contingent fee agreement, Massachusetts courts have recognized that special policy considerations are implicated. In particular, this court has identified a strong public policy in protecting a client's right to seek advice and change counsel without subjecting new counsel to liability for tortious interference by former counsel. See Cavicchi, supra at 661, citing Malonis v. Harrington, 442 Mass. 692, 696, 697 n.6 (2004). See generally KACT, Inc. v. Rubin, 62 Mass.App.Ct. 689, 699-700 (2004), citing Restatement (Second) of Torts § 767 (1979) (relationship of parties, and "the social interests in protecting the freedom of action of the actor," may be considered in determining whether conduct amounted to improper means). For that reason, when an attorney-client relationship is at stake, an attorney's claim against another attorney for interference with advantageous business relations requires proof that the interference was
We agree with the first judge that the defendant attorneys' filing of class action suits did not satisfy this element of the claim. Initiating the lawsuits on behalf of the consumer class, regardless of motive, violated no duty to the plaintiffs, under the principles of Lamare, 418 Mass. at 276, as well as under the litigation privilege, and so did not constitute the improper means necessary to prove the plaintiffs' interference claims. Contrast Cavicchi, supra at 658-660 (attorney's defamatory statements about client's previous counsel constituted improper means to support claim for interference with advantageous business relations).
Bartle disputes that he is required to prove improper means strictly by proof of a common-law tort or violation of a statute.
Moreover, in Walsh, 350 Mass. at 590 n.1, the court observed that, for public policy reasons, in the context of an attorney-client relationship and the duty implicated thereby, the improper means alleged by one attorney against another must be "unlawful" to be actionable. "In such cases, it would seem that the cause of action is founded in that conduct and that the hurt from loss of the business relationship is a matter of damages flowing from the well recognized legal wrong." Ibid. It is well established that a violation of the disciplinary rules does not provide an independent basis for liability against an attorney. See Doe v. Nutter, McClennen & Fish, 41 Mass.App.Ct. 137, 141 (1996); Bratcher v. Moriarty, Donoghue & Leja, P.C., 54 Mass.App.Ct. 111, 115 n.8 (2002). We therefore decline to equate a violation of the disciplinary rules with the type of independent legal wrong necessary to establish a claim of tortious interference between attorneys.
Schlichtmann, for his part, argues that the defendant attorneys employed improper means that went beyond commencing the class actions, namely, their publishing of common interest materials on their Web site and communicating with other media, in
Bartle and Schlichtmann further claim that Berry improperly authorized Sobol and Ivey to file the class actions on behalf of Vermont Pure. On this point, we concur with the first judge that Berry's duty of loyalty was to Vermont Pure rather than to the plaintiffs. We also conclude that Berry's authorization of the class action filings was protected by the litigation privilege, which serves as a defense to claims of interference with advantageous business relations brought by nonclients, based on statements made preliminary to litigation. See Visnick v. Caulfield, 73 Mass.App.Ct. 809, 812-813 (2009). See also Blanchette v. Cataldo, 734 F.2d 869, 877 (1st Cir. 1984), citing Sriberg v. Raymond, 414 F.Supp. 396, 398 (D. Mass.), aff'd, 544 F.2d 15 (1st Cir. 1976). To the extent Berry's authorization constituted improper conduct toward his own client, the plaintiffs fail to convince us that a breach of Berry's duty to Vermont Pure provided the independent tort to support the plaintiffs' tortious interference claims. See, e.g., Walsh, 350 Mass. at 590 n.1.
b. Civil conspiracy. To prove their claims for civil conspiracy, the plaintiffs must show an underlying tortious act in which two
The same holds true with regard to Schlichtmann's argument that Sobol and Ivey conspired with Berry to deceive and manipulate Vermont Pure into authorizing the filing of the class actions and firing Schlichtmann. Sobol's and Ivey's alleged role in these actions was subject to the protections outlined in Lamare, Walsh, and Cavicchi, as discussed, supra. In sum, Schlichtmann points to no authority supporting his contention that the defendant attorneys' alleged misconduct formed the underlying tortious conduct required to establish a conspiracy claim brought by a nonclient.
c. Breach of contract. As to Bartle's breach of contract claim against Berry, the record confirms the first judge's conclusion that the claim fails because Berry did not sign the relevant agreements.
Schlichtmann's breach of contract claim is based on Sobol's
2. Ehrlich's appeal. While the substance of Ehrlich's claims largely mirrors those of Schlichtmann, rather than lost attorney's fees, she claims as damages the loss of the benefits of the settlement with Nestle that would have inured to her, had the defendant attorneys not filed suit against Nestle. She now appeals from the first judge's determination that she suffered no compensable damages. Because we concur with the judge's ruling that Ehrlich has no individual cause of action against the defendant attorneys, we do not reach her argument concerning damages.
Sobol and Ivey represented Ehrlich in her role as a putative class representative of the consumer class until she fired them on May 30, 2003. She accordingly bases her arguments on Sobol's and Ivey's duty owed to her as their former client. Ehrlich maintains that as a former client, she still was owed a duty of loyalty by Sobol and Ivey when they filed the class actions on June 18, 2003, which caused her to lose the benefits of Nestle's settlement offer.
We recognize that ordinarily, in accordance with the Rules of Professional Conduct, an attorney's duty of loyalty continues even after termination of the attorney-client relationship.
Specifically, the attorney representation agreement signed by Ehrlich provides that Sobol and Ivey could represent other individuals and classes in the litigation, and that Sobol's and Ivey's primary duty was to the consumer class, rather than to Ehrlich, in the event she disagreed with their representation.
3. The rule 60(b)(6) motion. Schlichtmann and Ehrlich further argue that the second judge abused her discretion in denying their motion to vacate the judgments pursuant to Mass.R.Civ.P. 60(b)(6), 365 Mass. 828 (1974). In support of their claim, they point to the judge's finding that Nestle's June 4, 2003, offer to settle the class claims was reasonable and would have been approved by a judge.
Assuming, without deciding, that the second judge's finding in the related case would constitute sufficient grounds for relief in this case under rule 60(b)(6), Schlichtmann and Ehrlich fail to show that the finding requires a different result in the summary judgment motions decided in this case. Under Walsh, supra, the defendant attorneys' alleged improper motive for rejecting the settlement offer was not material to the plaintiffs' claims of interference against an attorney. And, as previously discussed, Schlichtmann and Ehrlich provide no authority for the proposition that actions taken by the defendant attorneys on behalf of
4. Late summary judgment motion by Ivey, Ragsdale, and their firm. Schlichtmann and Ehrlich lastly argue that the second judge erred in granting summary judgment in favor of Ivey, Ragsdale, and their firm, as she wrongly concluded that she was bound by the first judge's December 26, 2008, summary judgment decision, and misapplied the law of the case doctrine. We disagree with this characterization of the second judge's decision. In fact, in deciding the late motion for summary judgment,
Schlichtmann and Ehrlich also argue that Ivey's and Ragsdale's failure to serve with their summary judgment motion a statement of material facts, pursuant to rule 9A(b)(5) of the Rules of the Superior Court, or to file an additional statement of material facts in response to the plaintiffs' rule 9A(b)(5) submission in response to the motion, required the second judge to construe the plaintiffs' factual assertions as uncontested and, on that basis, deny the motion for summary judgment. According to the record, however, the second judge, in addition to deciding the summary judgment motion, also granted Ivey's and Ragsdale's motion for leave to adopt by reference the summary judgment materials filed by Sobol, Berman, and Berry in support of their earlier motions. The second judge also rejected the plaintiffs' request to sanction Ivey and Ragsdale for their failure to submit a rule 9(b)(5) statement, noting that the function and purpose of the rule, to assist the judge and facilitate case management, had not been thwarted by the omission. See Dziamba v.
Judgments affirmed.
Order denying rule 60(b)(6) motion affirmed.