The opinion
Brown, J.
(concurring). As the majority opinion makes perfectly plain, the contention of the defendant Dorothy Edinburg is a “clearly independent issue raised here for the first time.” Royal Indem. Co. v. Blakely, 372 Mass. 86, 88 (1977). I thus am amazed that counsel presses so hard on appeal. I am, however, even more troubled by the fact that counsel has made the argument at all. On the contrary, not only is the record completely void of any reference to Mass.R.Civ.P. 56(f), 365 Mass. 825 (1974), 1 it reflects counsel’s representation to the court that the case was appropriate for summary judgment because it presented only questions of law. This “need for discovery” contention seems at most to be an afterthought. As I have said, much too often, there must be ethical as well as professional limits on how far a lawyer should go in attempting to resuscitate a hopeless issue. See Kennedy v. Kennedy, 20 Mass. App. Ct. 559, 564 (1985) (Brown, *926 J., concurring). This time it appears that counsel has gone too far. See S.J.C. Rule 3:07, Canon 1, DR 1-102(A)(5), as appearing in 382 Mass. 770 (1981). See also S.J.C. Rule 3:07, Canon 7, DR 7-102(A), as appearing in 382 Mass. 785 (1981). I enthusiastically support the award of counsel fees and double costs of appeal. See Farm Constr. Serv., Inc. v. Robinson, 21 Mass. App. Ct. 955, 956 (1986), and cases cited.
Geoffrey D. Wyler for Dorothy B. Edinburg.
George S. Abrams (Peter J. Sonnabend with him) for the plaintiffs.
Joseph H. Skerry, III, for Massachusetts Mutual Life Insurance Company.
“A party must resort to [Mass.R.Civ.P. 56(f)] when it is opposing summary judgment and is unable to present a sufficient affidavit because the necessary facts or evidence are possessed or controlled by the moving party” (emphasis supplied). A. John Cohen lns. Agency v. Middlesex Ins. Co., 8 Mass. App. Ct. 178,183 (1979).