Blondell v. Littlepage

JAMES R. EYLER, Judge. In this appeal, we consider whether the Circuit Court for Baltimore County properly entered summary judgment in favor of an attorney with respect to tort and contract claims brought by the attorney’s co-counsel, based on actions taken in the course of their joint representation of a client. Appellant, William J. Blondell, Jr., Esq. (“Blondell”), was engaged by Lois A. and Hugh Jack Corbin (the “Corbins”) to represent them with respect to their medical malpractice claim.

Blondell filed a complaint and, at a later time, referred the matter to appellee, Diane M. Littlepage, Esq. (“Littlepage”). Both ¹²⁸ continued to represent the Corbins pursuant to a fee sharing agreement. The agreement, which gave Littlepage primary responsibility in handling the matter, provided that Blondell would remain as co-counsel and provide services as requested by Littlepage. 1 Eventually, the Corbins settled the case, but for a sum less-than-anticipated by Blondell, based at least partially on their acceptance of Littlepage’s advice that Blondell’s delay in filing the complaint raised an arguably meritorious statute of limitations defense.

Following the settlement, Blondell brought claims against Littlepage for fraud/deceit, breach of contract, breach of fiduciary duty, negligence, and intentional interference with contractual relations. Blondell based his claims on allegations that Littlepage improperly advised the Corbins that there was an arguably meritorious limitations defense when the defense lacked merit, that Littlepage breached a duty to consult and communicate with him during settlement negotiations, and improperly advised the Corbins that they explore a legal malpractice action against him for the diminution in value of their claim based on his delay in filing their complaint. The circuit court granted Littlepage summary judgment on all counts, concluding that Littlepage owed no tort duty to Blondell, that Littlepage fulfilled her contractual duty, and that Littlepage, as a matter of law, could not have interfered with the contract between Blondell and the Corbins because she was a party to the agreement. The sole issue presented by Blondell on appeal is as follows: Was the circuit court legally correct in granting appellee’s summary judgment motion on all claims by appellant against appellee, as co-counsel in a medical negligence matter, after appellee, without informing or consulting appellant, advised the clients to settle the matter by falsely stating to them that appellant had not timely filed their ¹²⁹ claim and had committed malpractice, necessitating an immediate settlement?

For the reasons that follow, we agree with the conclusions of the circuit court and, therefore, affirm the judgment. Facts and Proceedings In May 1999, Doctor Amile A. Korangy performed a mammogram on Lois Corbin and reported no abnormalities in the results. Subsequently, in November 1999, Ms. Corbin detected a lump in her left breast. Ms. Corbin scheduled the first available appointment with her gynecologist, Doctor Dee Hubbard, who examined Ms. Corbin on January 18, 2000.

Dr. Hubbard scheduled Ms. Corbin for another mammogram on January 19, 2000, and a sonogram on January 21, 2000, both of which returned results suspicious for malignancy. A subsequent biopsy confirmed that Ms. Corbin had breast cancer. In approximately May 2000, the Corbins retained Blondell to pursue a possible claim for medical malpractice against Dr. Korangy, believing that he misread Ms. Corbin’s May 1999 mammogram. On January 21, 2008, Blondell filed a medical malpractice claim against Dr. Korangy in the Health Claims Arbitration Office.

The parties elected to waive arbitration, and on April 8, 2003, the Health Claims Arbitration Office transferred the case to the Circuit Court for Baltimore County- In approximately January 2004, while the case was in early discovery, Blondell referred the Corbins’ claim to Littlepage. 2 On January 15, 2004, the Corbins executed a document titled “Acknowledgment and Consent to Fee-Sharing Agreement” that stated: Pursuant to the applicable Rules of Professional Conduct, I/we, the undersigned, do hereby acknowledge that I/we have been advised by the law firm of Diane M. Littlepage, Esquire that the legal fee in my/our case will be shared between Diane M. Littlepage, Esquire and William Blondell, ¹³⁰ Esquire on the basis of the anticipated division of services to be rendered in the case. I/we understand that Diane M. Littlepage, Esquire, will have primary responsibility for the prosecuting my/our claim [sic], including handling court appearances and the trial of the case, should such become necessary, and that, William Blondell, Esquire will act as co-counsel in the case and will perform other services ,as requested by Diane M. Littlepage, Esquire. I/we hereby consent to the sharing of the fee and understand that the fee-sharing agreement will have NO effect on the overall fee to be charged in my/our case. Blondell and Littlepage acknowledge that, while the writing did not address the specific division of the fee, they orally agreed to divide any contingency fee fifty-fifty.

Littlepage entered an appearance on behalf of the Corbins. Though Blondell remained counsel of record, he had no further contact with the Corbins, and aside from a few sporadic discussions with Littlepage, was not asked to and did not actively participate in the case from that point forward. In March 2005, Dr. Korangy filed a motion for summary judgment, asserting that the claim was barred by the three-year statute of limitations, see Maryland Code (2006 RepLVol., 2008 Supp.), § 5-109(a) of the Courts and Judicial Proceedings Article, because Ms. Corbin was on inquiry notice no later than January 18, 2000, and the claim was not filed until January 21, 2003. Littlepage filed an opposition after discussing the matter with Blondell.

By order dated May 31, 2005, the circuit court denied Dr. Korangy’s motion. A pre-trial settlement conference was held in August, 2005. In a conversation before the conference, Blondell suggested to Littlepage that he accompany her to the conference because of his familiarity with the settlement judges. Littlepage did not object to Blondell’s suggestion, but Blondell ultimately did not attend the conference. 3 ¹³¹ According to Littlepage, the settlement judge advised her during the conference that “Dr. Korangy’s limitations argument was compelling and that Dr. Korangy would likely prevail in making such an argument to the trial judge or on appeal.” Dr. Korangy also indicated that he would appeal an adverse verdict on the limitations issue.

Littlepage discussed the limitations problem in a conversation with Blondell following the settlement conference, but the pair had no further discussions regarding the settlement negotiations. 4 As the September 12, 2005 trial date approached, Littlepage discussed with the Corbins various factors influencing a potential settlement, including Ms. Corbin’s failing health, a scheduling conflict between the trial and Ms. Corbin’s daughter’s wedding, the cost the Corbins would incur in the event of a defense verdict, and the limitations issue. In addition, Little-page stated her opinion that Blondell unnecessarily delayed filing their claim, thus creating an arguable limitations defense that diminished the value of their claim. Littlepage recommended that the Corbins consult with counsel regarding a possible malpractice claim against Blondell, and provided them with the names of attorneys that regularly handled such claims. The Corbins eventually decided to settle the claim against Dr. Korangy for $225,000, which was significantly less than the $1 million initially demanded by Littlepage, and the $350,000 recommended by the settlement judge. 5 Littlepage remitted one-half of the contingency fee to Blondell.

On December 18, 2006, Blondell filed a complaint against Littlepage, which contained counts alleging fraud/deceit, ¹³² breach of contract, breach of fiduciary duty, and negligence. 6 Blondell’s claims rested on the assertion that Littlepage was obligated to consult and communicate with him on the Corbin matter, and that her failure to do so, and her false representations to the Corbins concerning a possible limitations defense and legal malpractice action, caused him to suffer economic and nón-economic damages. On October 15, 2007, Littlepage moved for summary judgment asserting, among other things, that no actionable duty was owed to Blondell. On October 29, 2007, before the court ruled on the summary judgment motion, Blondell filed an amended complaint adding a count for intentional interference with contractual relations. 7 On November 13, 2007, Littlepage filed a renewed and supplemental motion for summary judgment. On December 19, 2007, the motion was argued, and on December 31, 2007, the circuit court issued an order granting-summary judgment in favor of Littlepage on all counts.

As to the fraud/deceit, breach of fiduciary duty, and negligence counts, the circuit court noted that no reported Maryland decision had addressed whether a legally cognizable duty existed between co-counsel on these facts, but the court cited a number of decisions from other jurisdictions to support its conclusion that no such duty existed. Regarding the breach of contract claim, the court found that nothing in the fee sharing agreement required Littlepage to consult with Blondell, and that neither her failure to do so nor any other act constituted a breach of that agreement. Finally, the court observed that a tortious interference with contractual relations claim requires that the interference come from a third party, and because Littlepage was a party to the representation agree ¹³³ ment with the Corbins, she could not have interfered with that agreement. On January 8, 2008, Blondell moved to alter or amend the judgment, arguing that the court had erroneously characterized the complaint as one for a fee larger than that which he received.

According to Blondell, the fee he would have received from a larger settlement was merely a measure of damages, “but the nature of the action and the claims advanced involved larger questions.” On February 14, 2008, the court denied Blondell’s motion. This appeal followed. Standard of Review Summary judgment is proper when there is “no genuine dispute as to any material fact” and the moving party “is entitled to judgment as a matter of law.” Maryland Rule 2-501 (a). We review the grant of summary judgment de novo.

Zitterbart v. Am. Suzuki Motor Corp., 182 Md.App. 495, 501 , 958 A.2d 372 (2008) (citing Crickenberger v. Hyundai Motor Am., 404 Md. 37, 45 , 944 A.2d 1136 (2008)). If no material facts are disputed, we must determine whether the circuit court correctly granted summary judgment as a matter of law. Ross v. State Bd. of Elections, 387 Md. 649, 659 , 876 A.2d 692 (2005).

In doing so, we consider the facts in the light most favorable to the party against whom judgment was granted. Green v. H & R Block, 355 Md. 488, 502 , 735 A.2d 1039 (1999). Appellate review of an order granting summary judgment is ordinarily limited to “the grounds upon which the trial court relied in granting summary judgment.” 8 Standard Fire Ins. Co. v. Berrett, 395 Md. 439, 451 , 910 A.2d 1072 (2006); Ross v. State Bd. of Elections, 387 Md. 649, 659 , 876 A.2d 692 (2005). ¹³⁴ Discussion I. Claims premised on the recognition of an actionable duty between co-counsel With the exception of the tortious interference with contractual relations claim and the breach of contract claim addressed later in this opinion, this appeal centers on the question of whether Littlepage owed a tort duty to her co-counsel, Blondell, in the conduct of their joint representation of the Cor-bins.

Blondell’s argument, in general terms, is that Littlepage in her capacity as co-counsel owed him an actionable “duty of fair conduct ... as it exists between business partners or contracting parties.” Mr. Blondell argues that this duty is derived from their contractual relationship via the fee sharing agreement; Littlepage’s “clear and plain responsibility ... governed by the Rules of Professional Conduct and by other duties”; and her “ultimate duty ... as an officer of the court.” Littlepage argues that, regardless of how characterized, Blondell’s claims are for a higher fee, that her “paramount and undivided duty of loyalty” was to the Corbins, and that any duty to Blondell as referring or co-counsel “would create an impermissible conflict” with this paramount duty. Littlepage argues that the fee sharing agreement’s only purpose was to obtain the client’s written consent to the division of fees, as required by Rule 1.5(e) of the Maryland Lawyers’ Rules of Professional Conduct (RPC), and thus it did not impose a duty on her to consult or communicate with Blondell. Littlepage notes that no reported Maryland case has answered the question of whether a legally cognizable tort duty exists between co-counsel, but she points to a number of cases from other jurisdictions refusing to recognize such a duty, and asserts that this position is consistent with Maryland’s requirement of strict privity or its equivalent in attorney malpractice cases. Blondell distinguishes the cases relied on by Littlepage and the circuit court by arguing that those cases only addressed whether an attorney has a duty to protect cocounsel’s interest in a prospective contingency fee.

Blondell argues that his ¹³⁵ claims are not based on the allegation that Littlepage obtained an inadequate settlement “per se.” Rather, Blondell asserts that Littlepage violated her duty to him by “deliberately misle[ading] the Corbins into settling by telling them limitations remained a serious concern”; “telling them that they had been victims of malpractice by [Blondell]”; and “suggesting to them that they sue Blondell for malpractice.” (Emphasis in original). According to Blondell, “[t]hese statements were patently false, were made by Littlepage about her own co-counsel, and were made without consulting him.” 9 We shall consider BlondelFs arguments in greater detail below, but our application of tort principles to the present facts leads us to conclude that Littlepage owed no actionable duty to Blondell in her capacity as co-counsel. A. Negligence and fraudulent concealment The essential elements of both negligence and fraudulent concealment 10 include the existence of a duty owed to the plaintiff by the defendant. 11 William L. Prosser, The Law ¹³⁶ of Torts § 53 (4th ed.1971) explains the source and nature of the duty requirement: We owe [the duty requirement] to three English cases, decided between 1837 and 1842. The rule which developed out of them was that no action could be founded upon the breach of a duty owed only to some person other than the plaintiff.

He must bring himself within the scope of a definite legal obligation, so that it might be regarded as personal to him. ‘Negligence in the air, so to speak, will not do.’ The statement that there is or is not a duty begs the essential question—whether the plaintiffs interests are entitled to legal protection against the defendant’s conduct. It is therefore not surprising to find that the problem of duty is as broad as the whole law of negligence, and that no universal test for it ever has been formulated. It is a shorthand statement of a conclusion, rather than an aid to analysis in itself. Yet it is embedded far too firmly in our law to be discarded, and no satisfactory substitute for it, by which the defendant’s responsibility may be limited, has been devised.

But it should be recognized that “duty” is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. (footnotes omitted). In Jacques v. First National Bank, 307 Md. 527 , 515 A.2d 756 (1986), the Court of Appeals examined the concept of tort duty at length, writing: The duty with which we are here concerned is a duty imposed by law as a matter of sound policy, for the violation ¹³⁷ of which a person may be held to respond in damages in tort. This duty is conveniently, if not lyrically, referred to as a “tort duty.” A tort duty does not always coexist with a moral duty.

Neither must a duty imposed by statute necessarily create a tort duty. Nor does a duty assumed or implied in contract by that fact alone become a tort duty. The mere negligent breach of a contract, absent a duty or obligation imposed by law independent of that arising out of the contract itself, is not enough to sustain an action sounding in tort. Still, while every contractual duty does not also impose a tort duty, where a contractual relationship exists between persons and at the same time a duty is imposed by or arises out of the circumstances surrounding or attending the transaction, the breach of such duty is a tort and the injured party may have his remedy by an action on the case, or he may waive the tort and sue for the breach of the contract.

In determining whether a tort duty should be recognized in a particular context, two major considerations are: the nature of the harm likely to result from a failure to exercise due care, and the relationship that exists between the parties. Where the failure to exercise due care creates a risk of economic loss only, courts have generally required an intimate nexus between the parties as a condition to the imposition of tort liability. This intimate nexus is satisfied by contractual privity or its equivalent. By contrast, where the risk created is one of personal injury, no such direct relationship need be shown, and the principal determinant of duty becomes foreseeability. 307 Md. at 533-35 , 515 A.2d 756 (citations, quotation marks and footnotes omitted).

In sum, the recognition of an actionable tort duty between parties is ultimately a policy decision made by analyzing the nature of the relationship and the alleged harm. 12 ¹³⁸ Maryland has generally. required strict privity in attorney malpractice actions. See generally Flaherty v. Weinberg, 303 Md. 116, 127-31 , 492 A.2d 618 (1985). This test requires a malpractice plaintiff to prove “(1) the attorney’s employment; (2) his neglect of a reasonable duty; and (3) loss to the client proximately caused by that neglect of duty.” Id. at 128 , 492 A.2d 618 (citing Kendall v. Rogers, 181 Md. 606, 613 , 31 A.2d 312 (1943)). Under this standard, a non-client third party, who may have some other type of contractual relationship with the attorney, ordinarily is unable to maintain a malpractice action as a matter of law because the attorney’s professional obligations are only to the client.

In Flaherty, the Court recognized a limited exception to the strict privity requirement based on a third party beneficiary theory. Id. at 129, 492 A.2d 618 . The Court framed the test for recovery under this theory as “whether the intent to benefit [the third party] actually existed, not whether there could have been an intent to benefit the third party.” Id. at 131 , 492 A.2d 618 . “Thus,” the Court stated, “to establish a duty owed by the attorney to the nonclient the latter must allege and prove that the intent of the client to benefit the nonclient was a direct purpose of the transaction or relationship.” Id. at 130-31 , 492 A.2d 618 . Despite this apparent loosening of the strict privity standard, the Court refused to apply the exception in later cases.

Noble v. Bruce, 349 Md. 730, 733 , 709 A.2d 1264 (1998), ¹³⁹ rejected a third party beneficiary argument in consolidated cases involving malpractice actions by testamentary beneficiaries for negligent estate planning and negligent drafting of the testator’s will, respectively. Id. at 733 , 709 A.2d 1264 . The Noble Court instead decided to adhere to the rule of strict privity and hold that the suits were barred as a matter law. Id. at 759 , 709 A.2d 1264 .

In doing so, the Court cited a number of public policy considerations for applying the strict privity rule in the will drafting and estate planning context: First, the rule protects the attorney’s duty of loyalty to and effective advocacy for his or her client. While the testator/client is alive, the lawyer owes him or her a “duty of complete and undivided loyalty.” The strict privity rule protects an attorney’s obligation to direct his or her full attention to the needs of the client. An attorney’s preoccupation or concern with potential negligence claims by third parties might result in a diminution in the quality of the legal services received by the client as the attorney might weigh the client’s interests against the attorney’s fear of liability to a third party. Second, there exists the danger of placing conflicting duties on an attorney during the estate planning process if a nonclient is permitted to maintain a cause of action against a testator’s attorney.

As a result, an attorney’s loyalty might become divided between the testator/client and the beneficiaries. Third, courts fear that absent the strict privity rule there would be no limit as to whom a lawyer would be obligated.... Furthermore, parties to a contract for legal services would lose control of their agreement if liability without privity were permitted. As one commentator noted, the strict privity rule has been retained in some jurisdictions because “not only should an attorney know in advance who is being represented and for what purpose, but also the attorney should be able to control the scope of the representation and the risks to be accepted.

Imposing-liability in favor of nonclients, generally speaking, threatens those interests. In threatening the interests of the attorney, the interests of potential clients may also be ¹⁴⁰ compromised; they might not be able to obtain legal services as easily in situations where potential third party liability exists. Before abandoning privity, the courts need a good reason for thinking that the private arrangements are inadequate.” Id. at 741-42 , 709 A.2d 1264 (quoting John H. Bauman, A Sense of Duty: Regulation of Lawyer Responsibility to Third Parties by the Tort System, 37 S. Tex. L.Rev. 995, 1005-06 (1996)) (internal citations omitted).

Ferguson v. Cramer, 349 Md. 760 , 709 A.2d 1279 (1998), similarly considered “whether a beneficiary under a will may maintain a cause of action for professional malpractice against an attorney retained by the personal representative of the testator’s estate.” Citing the same public policy considerations listed in Noble , the Court once again held that the strict privity rule applied and the suit by the beneficiary was barred as a matter of law. Id. at 776 , 709 A.2d 1279 . While discussing the need to protect the attorney-client relationship, the Court noted that the suit was not unacceptable due to an actual conflict of interest between the beneficiary and personal representative, but rather due to the potential conflict of interest: While the fiduciary in the performance of this service may be exposed to the potential of malpractice ..., the attorney by definition represents only one party: the fiduciary. It would be very dangerous to conclude that the attorney, through performance of his service to the administrator and by way of communication to estate beneficiaries, subjects himself to claims of negligence from the beneficiaries.

The beneficiaries are entitled to even-handed and fair administration by the fiduciary. They are not owed a duty directly by the fiduciary’s attorney. Id. at 774 , 709 A.2d 1279 (quoting Goldberg v. Frye, 217 Cal.App.3d 1258 , 266 Cal.Rptr. 483, 489-90 (1990)). Blondell does not style his suit as an attorney malpractice action, and indeed he could not, because he was not a client of Littlepage.

Rather, Blondell bases his claims on the co- ¹⁴¹ counsel relationship and the fee sharing agreement. Nonetheless, the policy considerations underlying the strict privity requirement apply with equal force here. Blondell’s theory elevates the co-counsel relationship to a special status, allowing associated attorneys to sue one another, seeking an affirmative recovery, as distinguished from contribution or indemnification when sued as alleged joint tortfeasors, on the basis of allegedly erroneous or improper legal advice given to the client. The resulting expansion of potential tort claims by non-clients, and the accompanying potential effect on an attorney’s duty of loyalty to the client, is precisely the problem the strict privity rule seeks to avoid.

In arguing for the existence of a tort duty, Blondell cites the declaration in Restatement (Third) of Law Governing Lawyers § 56 that lawyers are “subject to liability to a client or nonclient when a nonlawyer would be in similar circumstances.” The duty he proposes, however, would apply only to lawyers because it is premised on the co-counsel relationship. Section 56 merely recognizes the obvious, i.e., being a lawyer does not provide blanket protection from liability when liability would otherwise exist. See supra note 12. Moreover, Blondell’s proposed duty would constitute a new exception to the strict privity requirement by making lawyers liable for malpractice to a special third-party class.

Thus, refusing to recognize the novel tort duty between co-counsel proposed by Blondell is not at all inconsistent with the proposition that a lawyer should share the same tort liability as a nonlawyer would under similar circumstances. Blondell also selectively quotes Restatement (Third) Law Governing Lawyers § 51 to illustrate circumstances in which co-counsel owe one another a tort duty. The cited provisions state in their entirety that a lawyer owes a duty of care: (2) to a nonclient when and to the extent that: (a) the lawyer or (with the lawyer’s acquiescence) the lawyer’s client invites the nonclient to rely on the lawyer’s opinion or provision of other legal services, and the non-client so relies; and ¹⁴² (b) the nonclient is not, under applicable tort law, too remote from the lawyer to be entitled to protection; (3) to a nonclient when and to the extent that: (a) the lawyer knows that a client intends as one of the primary objectives of the representation that the lawyer’s services benefit the nonclient; (b) such a duty would not significantly impair the lawyer’s performance of obligations to the client; and (c) the absence of such a duty would make enforcement of those obligations to the client unlikely[.] If we construe these provisions to apply to the co-counsel relationship, which is clearly not their intent, and assuming the questionable proposition that the provisions in their entirety are consistent with Maryland law, the existence of a tort duty on the facts before us does not follow. First, an attorney does not “invite[ ] [co-counsel] to rely on [his or her] opinion or provision of other legal services.” Instead, it is the client who relies on the services collectively provided by co-counsel, with each attorney independently responsible for providing competent and diligent representation.

Second, the client certainly does not “intend[ ] as one of the primary objectives of the representation” that the lawyer’s services benefit co-counsel. 13 Finally, even if we make the assumption, which we reject, that imposing a tort duty between co-counsel with respect to legal advice given to the joint client “would not significantly impair the lawyer’s performance of obligations to client,” those obligations are likely to be enforced without such a duty through malpractice actions by clients. . The mere existence of a contract, in this context a fee sharing agreement, is also not enough to create a tort duty. Jacques, 307 Md. 527, 534 , 515 A.2d 756 (“[A] duty assumed or implied in contract by that fact alone [does not] become a tort duty.”). In fact, the fee sharing agreement here directly ¹⁴³ contradicts Blondell’s position that Littlepage owed him a duty of consultation and communication, stating that Blondell would provide services “as requested” by Littlepage.

Though Blondell technically remained co-counsel, and had some minimal involvement in the case, these circumstances are not enough to elevate his relationship with Littlepage to special status. Likewise, the Rules of Professional Conduct and an attorney’s duty as an officer of the court, cited by Blondell, are not viable sources for the recognition of an actionable tort duty between co-counsel. As the preamble to the RPC states: Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies.

They are not designed to be a basis for civil liability. See also Atty. Griev. Comm’n v. Stein, 373 Md. 531, 544 , 819 A.2d 372 (2003).

While Blondell’s effort to “rectify [what he perceives as] a case of fraud and dishonesty by a member of the bar,” may be laudable, the proper course of action in such cases is to file a complaint in accordance with the law governing disciplinary proceedings. 14 The cases cited by Blondell, in which courts have allowed an attorney to recover from co-counsel for misconduct during their joint representation, do not recognize the type of tort duty envisioned here. Kramer v. Nowak, 908 F.Supp. 1281 (D.Pa.1995), and Musser v. Provencher, 28 Cal.4th 274 , 121 Cal.Rptr.2d 373 , 48 P.3d 408 (2002) involved, respectively, contribution and indemnification actions by attorneys found liable to a joint client for the negligent actions of their associated attorney. This case does not involve either an indemnification or contribution action by one tortfeasor ¹⁴⁴ against another; thus, we fail to see the import of these cases here. Though Kramer additionally recognized that, under certain circumstances, an attorney-employee may owe a tort duty to the employee’s attorney-employer under general agency principles, 908 F.Supp. at 1292 , that is not the situation before us.

Littlepage was not an employee of Blondell. In Cavicchi v. Koski, 67 Mass.App.Ct. 654 , 855 N.E.2d 1137 (2006), attorney John Cavicchi succeeded in having his client’s criminal conviction vacated. He and William Koski then entered