Gorovitz v. Planning Bd. of Nantucket

• Decision Date: 12 March 1985
• Citation: 394 Mass. 246,475 N.E.2d 377
• Parties: Sidney GOROVITZ et al. 1 v. PLANNING BOARD OF NANTUCKET.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 377

475 N.E.2d 377

394 Mass. 246

Sidney GOROVITZ et al. ¹ v. PLANNING BOARD OF NANTUCKET.

Supreme Judicial Court of Massachusetts Nantucket.

Argued Dec. 4, 1984.

Decided March 12, 1985.

Joseph P. Gibbons, Boston, for plaintiffs.

John C. Foskett, Boston, for defendant.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, LYNCH and O'CONNOR, JJ.

ABRAMS, Justice.

This case poses the question whether a general partner of a limited partnership, who serves as the partnership's legal counsel and who is a named plaintiff in an action, may represent the partnership in that action if he intends to testify at trial. We conclude that, under Rule 3:07 of the Rules of the Supreme Judicial Court and G.L. c. 221, § 48, ² he may do so.

The case is submitted on a statement of agreed facts. The plaintiffs are general partners of the Nantucket Collaborative, a limited partnership owning a forty-five acre parcel of land in Nantucket. In December, 1981, the plaintiffs applied to the Nantucket planning board (board) for issuance of a special permit for construction of a commercial development on the land. The application was denied on May 3, 1982, and a motion to reconsider was subsequently denied. On May 26, 1982, the plaintiffs brought an action in the Superior Court pursuant to G.L. c. 40A, § 17, alleging that denial of their application was outside the scope of the board's authority and that the board's deliberations and decision were arbitrary and prejudicial. The plaintiffs sought an annulment of the board's decision, and compensatory and punitive damages.

Sidney Gorovitz, a named plaintiff, had been a general partner in the Nantucket Collaborative, as well as its legal counsel since its inception. Furthermore, as "the only one of the Plaintiffs who participated in the Nantucket Planning Board meetings which led to the events surrounding Plaintiffs' claims, [Gorovitz was] clearly the Plaintiffs' key material witness, and intend[ed] to testify at trial." On March 9, 1983, the board filed a motion for an order preventing plaintiffs' counsel from testifying as a witness at trial, contending that DR 5-101(B) and DR 5-102(A), ³ "specifically prohibit an attorney from acting in the dual role of counsel and witness on behalf of his clients." ⁴ The judge allowed the motion, finding "no showing of any exceptional circumstance which would operate to permit the dual role of witness-advocate herein sought." The judge allowed Sidney Gorovitz to "withdraw as counsel for plaintiffs in or within 30 days ... if successor counsel file an appearance herein, in which event nothing would prevent [Gorovitz's] testimony as a witness thereafter."

In response to the plaintiffs' request for clarification, the judge instructed the parties on March 28, 1983, that his order pertained equally "to any law partner or associate of Sidney Gorovitz"; that Mr. Gorovitz could not testify at trial unless he and his law firm withdrew as counsel prior to April 25, 1983; and that the disqualification of Mr. Gorovitz applied not only to his representation of the other named plaintiffs, but to his appearance pro se as well. The order was stayed by a single justice of the Appeals Court, pending review by the full bench. We transferred the case to this court on our own motion. ⁵ We vacate the disqualification order.

The plaintiff convincingly argues that this court's decision in Borman v. Borman, 378 Mass. 775, 393 N.E.2d 847 (1979), establishes his right to represent the Nantucket Collaborative despite the constraints of DR 5-101 and DR 5-102. We agree. "To apply DR 5-102 when the testifying advocate is a litigant in the action miscomprehends the thrust of the rule. Disciplinary Rule 5-102 regulates lawyers who would serve as counsel and witness for a party litigant. It does not address that situation in which the lawyer is the party litigant. Any perception by the public or determination by a jury that a lawyer litigant has twisted the truth surely would be due to his role as a litigant and not, we would hope, to his occupation as a lawyer.... As a party litigant, moreover, a lawyer could represent himself if he so chose. G.L. c. 221, § 48. Implicit in the right of self-representation is the right of representation by retained counsel of one's choosing. A party litigant does not lose this right merely because he is a lawyer and therefore subject to DR 5-102" (emphasis in original) (citations omitted). Borman, supra at 788-789, 393 N.E.2d 847. Mr. Gorovitz is a party litigant, and his right to appear pro se is thus established.

The board, however, attempts to evade the ineluctable implication of Borman by arguing that Mr. Gorovitz is not, in fact, acting pro se. They contend that he is a litigant in this action in name only and is thus not appearing pro se. They maintain that he is representing not himself but the other named partners, and that, in this posture, the Borman rule ought not apply.

This argument misapprehends the role of a general partner in a limited partnership as well as the nature of this cause of action. It is true that, as a matter of pleading, "[w]ith certain exceptions ... all partners must be parties to a suit involving partnership rights." Shapira v. Budish, 275 Mass. 120, 126, 175 N.E. 159 (1931). See Gordon v. Medford, 331 Mass. 119, 124, 117 N.E.2d 284 (1954). But that rule does not signify that Mr. Gorovitz's interest in the instant action is based only on a formality. A general partner of a limited partnership possesses "the rights and powers ... of a partner in a partnership without limited partners." G.L. c. 109, § 24, as appearing in St.1982, c. 202, § 1. Mr. Gorovitz's interest, moreover, does not perceptibly differ from the interests of the other named partners in this action. The limited partnership here owns land in the name of the partnership. See G.L. c. 109, § 6; G.L. c. 108A, § 8(3). The other named plaintiffs and Mr. Gorovitz have an identical interest in maximizing the profitability of the partnership's investment in that land.

The high costs of attorney disqualification on litigants ⁶ and on the court system ⁷ militate against the indiscriminate allowance of disqualification motions. Thus, "[w]hen a lawyer, exercising his best judgment, determines that his employment will not bring him into conflict with the code, disqualification may occur only if the trial court determines that his continued participation as counsel taints the legal system or the trial of the cause before it." Borman v. Borman, supra, 378 Mass. at 788, 393 N.E.2d 847. There is no basis here on which to conclude that Mr. Gorovitz's representation of the Nantucket Collaborative threatens either the integrity of the legal system or the vigorous prosecution of the partnership's cause of action. This is clearly an instance in which "a long or extensive professional relationship with a client may have afforded a lawyer, or a firm, such an extraordinary familiarity with the client's affairs that the value to the client of representation by that lawyer or firm in a trial involving those matters would clearly outweigh the disadvantages of having the lawyer, or a lawyer in the firm, testify to some disputed and significant issue." ABA Comm. on Ethics and Professional Responsibility, Formal Op. 339 (1975).

We vacate the judge's disqualification order and remand to the Superior Court for further proceedings.

So ordered.

1 Akira Yamashita, Nobutaka Ashihara, George T. Tobey, and Donald Jemmott, general partners of the Nantucket Collaborative, a Massachusetts limited partnership. These general partners are nominal parties. See Gordon v....