Boswell v. Zephyr Lines, Inc.

• Decision Date: 01 February 1993
• Citation: 414 Mass. 241,606 N.E.2d 1336
• Parties: Noreen J. BOSWELL v. ZEPHYR LINES, INC., & another. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1336

606 N.E.2d 1336

414 Mass. 241

Noreen J. BOSWELL v. ZEPHYR LINES, INC., & another. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued Oct. 5, 1992.

Decided Feb. 1, 1993.

Richard J. Vita, Boston, for Dane M. Shulman.

Camille F. Sarrouf, Boston, for Emidio DiLoreto.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and GREANEY, JJ.

LIACOS, Chief Justice.

This appeal arose out of a fee dispute between two members of the Massachusetts bar, Mr. Dane M. Shulman and Mr. Emidio DiLoreto. We summarize the underlying facts, as set forth in the record, including the affidavits submitted by the parties. ²

Between 1967 and 1989, DiLoreto and Shulman maintained a professional relationship under an oral agreement, the precise contours of which are in dispute. Shulman asserts that he employed DiLoreto on a case by case basis. Shulman contends that, pursuant to the agreement, he would compensate DiLoreto only for those cases which DiLoreto personally brought to a successful conclusion while working for Shulman. DiLoreto, on the other hand, claims that he worked as Shulman's independent cocounsel rather than as his employee. DiLoreto also contends that the oral agreement contemplated that he should receive payment regardless of which attorney settled a particular case. ³

DiLoreto maintained his own law office throughout his relationship with Shulman. However, DiLoreto always used Shulman's law office to serve the clients whom Shulman turned over to him. All meetings between DiLoreto and these clients took place in Shulman's law office, and DiLoreto used Shulman's stationery when corresponding with the clients. Also, the name and address of Shulman's law office appeared on all the pleadings and motions which DiLoreto signed.

In July, 1989, the professional relationship between DiLoreto and Shulman ended. ⁴ Shulman requested that DiLoreto return the case files which Shulman had turned over to him. DiLoreto asserts that, on November 7, 1989, he returned most such files. DiLoreto also contends that Shulman authorized him to continue to work on twenty-five active cases. While Shulman acknowledges that DiLoreto returned a majority of files, Shulman also asserts that he never authorized DiLoreto to retain any case files. Shulman claims that he did not even know that DiLoreto had retained files until DiLoreto forwarded settlement checks to Shulman's office. On December 7, 1989, Shulman requested in writing that DiLoreto return all the remaining files, and DiLoreto complied.

Among the cases which DiLoreto returned was the personal injury claim that underlies the present fee dispute. On August 22, 1985, Shulman entered into a contingent fee agreement with the plaintiff, Noreen J. Boswell. ⁵ Pursuant to the arrangement that we described above, Shulman assigned the Boswell file to DiLoreto. On November 7, 1986, Shulman's law office filed a complaint on Boswell's behalf in the Superior Court. Shulman himself signed the complaint. Subsequent pleadings and motions were signed by one of three attorneys: Shulman, DiLoreto, or DiLoreto's daughter, Elizabeth. Regardless of which attorney signed a particular pleading or motion, the name and address of Shulman's law office appeared underneath the signature.

DiLoreto asserts that he conducted most of the pretrial work and the settlement negotiations on behalf of Boswell. On November 29, 1989, DiLoreto wrote to Boswell that the defense had offered $53,000 in settlement of her claim. DiLoreto's letter also stated that DiLoreto was likely to obtain an offer of $60,000. DiLoreto, however, returned Boswell's file to Shulman before the case settled.

Subsequently, Shulman's office settled the case, thereby obtaining the right to a contingent fee of $21,000. On December 18, 1989, DiLoreto filed an attorney's lien pursuant to G.L. c. 221, § 50 (1990 ed.). DiLoreto and Shulman filed opposing affidavits. Based on these affidavits and on court records, but without holding an evidentiary hearing, the judge below allowed DiLoreto's motion to enforce the lien. The judge ruled that DiLoreto performed "substantial work" in the Boswell case, and that DiLoreto's signing of motions and pleadings constituted an "appearance" on behalf of Boswell. This appearance, the court held, entitled DiLoreto to an attorney's lien amounting to $10,500, or one-half of the net contingent fee. Shulman appealed this ruling to the Appeals Court, and we transferred the case on our own motion.

In Massachusetts, attorneys have a statutory right to assert a charging lien securing compensation for their legal services. G.L. c. 221, § 50. See Elbaum v. Sullivan, 344 Mass. 662, 663, 183 N.E.2d 712 (1962). In relevant part, the attorney's lien statute provides that "[f]rom the authorized commencement of an action, counterclaim or other proceeding in any court ... the attorney who appears for a client ... shall have a lien for his reasonable fees and expenses" (emphasis added). G.L. c. 221, § 50. DiLoreto argues that the judge properly construed this language when she held that DiLoreto's signing of some pleadings and motions constituted an "appearance" within the meaning of the attorney's lien statute. DiLoreto bases this argument on Mass. R.Civ.P. 11(b)(1), 365 Mass. 753 (1974), which provides that the "filing of any pleading, motion, or other paper shall constitute an appearance by the attorney who signs it, unless the paper states otherwise." Such an appearance, DiLoreto argues, entitles him to recover one-half of the contingent fee generated from the Boswell case pursuant to his agreement with Shulman.

Shulman, in turn, asserts that the judge below erred in several respects. First, Shulman asserts that DiLoreto was not Boswell's attorney of record and thus did not "appear" for Boswell within the meaning of G.L. c. 221, § 50. ⁶ Rather, Shulman argues that DiLoreto was his employee and "appeared" in the Boswell case, if at all, only as a representative of Shulman's law office. Shulman points out that DiLoreto did not file a notice of appearance pursuant to rule 11(b)(2), which states that "[a]n appearance in a case may be made by filing a notice of appearance, containing the name, address, and telephone number of the attorney or person filing the notice." Further, Shulman notes that each time DiLoreto signed a pleading or a motion the name and address of Shulman's law office followed DiLoreto's signature.

Shulman also argues that the judge below erred when she established a lien in DiLoreto's favor without determining that DiLoreto had a contractual right to recover against Boswell. Shulman points out that DiLoreto was not a party to the contingent fee agreement into which Shulman and Boswell entered. Shulman argues that, in the absence of such a written retainer agreement, DiLoreto has no right to collect a fee from Boswell. See S.J.C. Rule 3:05, as appearing in 382 Mass. 762 (1981); S.J.C. Rule 3:07, DR 2-106(C), as appearing in 382 Mass. 773 (1981). Without an underlying contractual right to recover, Shulman argues, DiLoreto may not assert an attorney's lien pursuant to G.L. c. 221, § 50. Finally, Shulman contends that, even if DiLoreto had the right to file a lien, the judge below erred when she established the lien and its amount without an evidentiary hearing and on the sole basis of the affidavits and court records of the original case presented by the parties. ⁷

This case requires us to determine the circumstances in which an attorney hired by retained counsel to assist in the preparation of a case may file a lien in the original action under G.L. c. 221, § 50. This issue is one of first impression in this Commonwealth, but the courts of some of our sister States have discussed this question under attorney's lien statutes presenting the same language as ours. We now turn to an examination of these decisions.

The attorney's charging lien statute of New York provides that "the attorney who appears for a party" may assert "a lien upon his client's cause of action." N.Y.Jud.Law § 475 (McKinney 1983). The New York courts have construed this language to confine the use of the statute to the attorney of record in a particular case. Rodriguez v. City of New York, 66 N.Y.2d 825, 827, 498 N.Y.S.2d 351, 489 N.E.2d 238 (1985). See D'Amico v. Nuzzo, 138 A.D.2d 667, 668, 526 N.Y.S.2d 481 (1988). While a litigant may employ additional counsel, the additional attorney may not assert a statutory lien, regardless of the extent to which he or she contributes to the litigation of a case. Barnum v. Srogi, 96 A.D.2d 723, 723-724, 465 N.Y.S.2d 358 (1983). ⁸ Thus, where a lawyer retained by the client employs another attorney to conduct a trial, the additional attorney is not entitled to file a lien pursuant to the New York statute. Id.

Other courts have disagreed with the New York approach. In Nickel Rim Mines Ltd. v. Universal-Cyclops Steel Corp., 202 F.Supp. 170, 173, 175 (D.N.J.1962), for instance, the court, applying New Jersey law, rejected the New York rule and refused to confine the use of the New Jersey attorney's lien statute to an attorney of record. ⁹ Nickel Rim Mines Ltd. involved an out-of-State attorney who, pursuant to the local rules of court, had participated in the conduct of a trial but had hired a local attorney of record to sign all pleadings and motions. The court held that, under New Jersey law, a trial counsel may file a statutory lien even if he or she is not the attorney of record. Id. at 175, citing St. John the Baptist Greek Catholic Church v. Gengor, 124 N.J.Eq. 449, 2 A.2d 337 (Ch.1938). This rule, the court reasoned, should extend to an out-of-State attorney who participates in the conduct of a litigation but is not the attorney of record. Nickel-Rim Mines Ltd., supra at 175. Accord Liberty v. Liberty, 226 Wis. 136, 139, 276 N.W. 121 (1937). The Supreme Court of Minnesota has reached a similar result. See Meacham v. Ballard & Co., 184 Minn. 607, 612-613, 240 N.W. 540 (1931) (rejectin...