discussing the bar against assigning fraud claims and questioning, but not deciding, whether it still survives
How later courts described this case
- discussing the bar against assigning fraud claims and questioning, but not deciding, whether it still survives
- summary judgment should not have been entered where reasonableness of reliance was question for jury to decide based on all facts and circumstances
- distinguishing statements and circumstances
- de novo standard of review of allowance of motion for summary judgment
Written by the judges who cited it.
The opinion
Brown, J.
(concurring). The attorney-client privilege should never be used to shield deceptive practices. The manners and “morals of the market place,” Meinhard v. Salmon, 249 N.Y. 458, 464 (1928) (Cardozo, C.J.), have no place in the legal *45 profession. “[A] fiduciary’s silence is equivalent to a stranger’s lie.” Energy Resources Corp. v. Porter, 14 Mass. App. Ct. 296, 304 (1982) (Brown, J., concurring).
If the fact finder ultimately accepts Nova’s view of the facts, then Kunian counseled and assisted his client, KCI, to act in a way that he knew or certainly should have known was fraudulent vis-á-vis PBL. In his December 28, 2000, letter, Kunian expressly represented to Saltiel (and PBL) that, in exchange for PBL’s “continu[ing] representation” of KCI in an appeal before this court, KCI “will not transfer” its Hyde Park real estate “without putting an agreed upon amount in escrow pending resolution of the legal fees.”
It cannot be gainsaid that an attorney in the discharge of his professional responsibilities may not permissibly mislead or intentionally make false statements, particularly knowing full well that third parties or opposing counsel will rely on such assertions — here, a promise — to their detriment. See Kirkland. Constr. Co. v. James, 39 Mass. App. Ct. 559, 561-564 (1995). It is alleged that in reliance of Kunian’s letter, PBL not only refrained from engaging in further collection efforts to obtain payment of its outstanding fees, but also agreed to act as counsel for KCI in the specific legal matter referenced by Kunian. See in this regard Williams v. Ely, 423 Mass. 467, 475 (1996). If proven, this conduct was deceitful, aided and abetted fraud, as well as unethical, see Mass.R.Prof.C. 1.2(d), 426 Mass. 1310 (1998); Mass.R.Prof.C. 4.1, 426 Mass. 1401 (1998), and in a realm well beyond protected attorney-client relations.
In short, Kunian’s conduct could be viewed as part of a deliberate scheme by KCI to avoid paying PBL’s fees. Likewise, this same conduct by Kunian could reasonably be determined to be violative of G. L. c. 93A. If the allegations against Kunian are proven, then he crossed the line, and he was not conflicted — this was merely bad behavior. See generally Jacobs & Laurence, Professional Malpractice § 16.9, at 343-344 & § 16.21, at 348 (2007). To paraphrase Justice Kaplan, attorneys “should take care to behave” themselves. See Commonwealth v. Tirrell, 382 Mass. 502, 513 (1981) (Kaplan, J., dissenting).