Opinion
20-P-562
04-01-2021
Asimakis IATRIDIS, trustee, v. Christos ZAHOPOULOS & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Asimakis Iatridis, trustee of the Mary D. Iatridis Revocable Trust (respectively, Attorney Iatridis or trustee, and trust) and an attorney licensed in Massachusetts, appeals from an order of a judge of the Superior Court allowing a motion to disqualify him from representing himself, as trustee, in certain aspects of the trustee's civil action against the defendants. We affirm.
As we discuss, the plaintiff is involved in this case in several different roles. In an effort to clarify which role we consider the plaintiff to be in at different points in our discussion, from this point on, we refer to him by the title most appropriate to each segment of the discussion, either as "Attorney Iatridis" or as "the trustee."
Background. The relevant procedural history is undisputed. The trustee initiated the underlying action in the Superior Court in January, 2019; in March, 2019, he filed a second amended complaint (complaint). The complaint named nine defendants, including two of Attorney Iatridis's three siblings and their spouses; Alice Taylor, an attorney who had represented Attorney Iatridis's late father in certain estate planning matters; two residents of Greece, a home nurse who cared for Attorney Iatridis's late father while the father was living in Greece, and a lawyer practicing in that country; and the tenants of a property owned by the trust in Newton. The complaint, comprising some eighty pages and 859 paragraphs, purported to make out twenty separate legal and equitable claims; many of the allegations were based on Attorney Iatridis's representations about his personal conversations and observations of his late parents and the defendants.
The trustee made claims against some or all defendants for declaratory judgment; quiet title as to properties in Massachusetts and in Greece; breach of loan contracts; conversion, trover, and detinue; fraud; deceit; negligent misrepresentation; lack of capacity as to the original cotrustees of the trust, Attorney Iatridis's late parents; undue influence; legal malpractice; breach of fiduciary duty; spousal debt pursuant to G. L. c. 209, § 1 ; trespass and ejection, as to property located in Greece; false imprisonment of Attorney Iatridis's late father; violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962 ; civil conspiracy; waste; unjust enrichment; violations of the Massachusetts Consumer Protection Act, G. L. c. 93A; and rent, allegedly owed by tenants of trust property.
As examples, the complaint alleged that in the course of Attorney Iatridis's participation in his parents' estate planning, his parents represented to him their intention to divide their estates equally among their children. The complaint alleged that Attorney Iatridis made certain personal observations of his late father's health and the status of his father's memory at different times, and that his father lacked testamentary capacity at times significant to the trustee's claims. The allegations included Attorney Iatridis's account of statements made to him by his sister, Anna Iatridis, in furtherance of an allegedly fraudulent transfer of an apartment in Greece from the trust to herself. The complaint also included the trustee's allegations of conflicting statements made directly to Attorney Iatridis by his father and sister about whether the father had known and approved of the sister's use of family funds for her personal expenses. The complaint suggested that Attorney Iatridis was the only witness to these observations and conversations.
Served with the complaint, defendant Alice Taylor moved to dismiss the trustee's claims against her; other defendants followed suit. Additionally, in June, 2019, Taylor moved to disqualify Attorney Iatridis from representing the trust in the action. Taylor argued that Attorney Iatridis was a necessary witness to this action, and that the Massachusetts Rules of Professional Conduct therefore barred him from representing the trust. See Mass. R. Prof. C. 3.7, as appearing in 471 Mass. 1434 (2015) ( rule 3.7 ).
The docket reflects that defendants Stavros Iatridis, Helen Sousounis, Anna Iatridis, and Christos Zahopoulos moved to join in Taylor's motion for disqualification. While the docket does not reflect that this motion to join was explicitly allowed, the trustee's motion to strike the joinder was denied, and the judge's memorandum of decision indicates that he recognized the other defendants as having joined the motion for disqualification. As the question whether Taylor alone, or Taylor and others, pressed the motion is not material to our decision, we need not resolve it.
After a hearing, and in a thoughtful written memorandum of decision, the judge allowed the motion to disqualify. Noting that Attorney Iatridis was "bound up in the various issues and will be a necessary witness during discovery and at trial"; acknowledging the "strong emotions" involved in the case; and recognizing that "[t]he allegations in the complaint are [Attorney Iatridis's] allegations and are based on his view of what occurred within his family," the judge concluded that "[g]iven [Attorney Iatridis's] inextricable roles in this case, [he] cannot act as lawyer, [t]rustee, beneficiary, and witness" because the "combination of roles has the likelihood of confusing a jury and further complicating an already confusing scenario." The judge did not, however, entirely preclude Attorney Iatridis from a role in representing the trust; rather, the judge disqualified him only from "representing himself as [t]rustee for purposes of depositions in this matter and from acting as counsel at trial." Otherwise, the judge ruled that "[Attorney Iatridis] may participate in the litigation except for any activity which would reveal his multiple roles if such were to become known at trial." This appeal followed. ,
We find no support for the trustee's suggestion that the judge failed to conduct a thorough review of the parties' submissions and oral argument after the hearing on the motion at issue here.
The trustee's appeal here was proper under the doctrine of present execution. See Smaland Beach Ass'n v. Genova, 461 Mass. 214, 219 n.10 (2012) ; Borman v. Borman, 378 Mass. 775, 780-781 (1979). None of the defendants contends otherwise.
On behalf of the trustee, Attorney Iatridis filed a motion to reconsider; the motion was denied. The trustee did not appeal that ruling.
Discussion. 1. Disqualification. Attorney Iatridis first challenges the judge's right to limit his ability to represent himself, as trustee, on the grounds that the limitation infringed on his statutory right to represent himself. See G. L. c. 221, § 48 ("Parties may manage, prosecute or defend their own suits personally, or by such attorneys as they may engage"). He then argues that because he was representing himself pro se, the limitations set forth in rule 3.7 (a), regarding his ability to act as both advocate for and witness in the instant litigation, did not apply to him. See rule 3.7 ("A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: ... disqualification of the lawyer would work substantial hardship on the client") & comment [3] ("This [r]ule does not prohibit the lawyer from acting as a witness if the lawyer is a party to the action and is appearing pro se"). We conclude that in representing himself as trustee, Attorney Iatridis was not acting pro se, and that rule 3.7 therefore applies. See Maddocks v. Ricker, 403 Mass. 592, 599 (1988) (though an interest to be respected, client's right to counsel of choice is not absolute).
In determining whether G. L. c. 221, § 48, applies, our review is de novo. See Genworth Life Ins. Co. v. Commissioner of Ins., 95 Mass. App. Ct. 392, 395 (2019). The terms of the trust authorized the trustee to retain counsel of his choice "for such trust." While we do not quarrel with the trustee's argument that, as a member of the Massachusetts bar, Attorney Iatridis could potentially represent the trust himself, cf. Braxton v. Boston, 96 Mass. App. Ct. 714, 717 (2019) (nonattorney trustee who is not beneficiary of trust may not represent trust in legal proceedings), we determine that in doing so, Attorney Iatridis was not representing himself as a natural person, but rather as a representative of a separate legal entity, the trust. See G. L. c. 221, § 48 ; Braxton, supra at 717 ("A trust is a legal entity with separate rights and responsibilities, and individuals who accept the advantages of the trust form must bear the burdens of that form [such as retaining counsel]"). Because, under these circumstances, we conclude that Attorney Iatridis was acting as representative of the trust, we determine he was not acting pro se. Cf. Varney Enters., Inc. v. WMF, Inc., 402 Mass. 79, 82 (1988) ("A person appearing pro se does not represent another").
We distinguish this situation from, for example, a situation in which a trustee defends against a claim of breach of fiduciary duty; in such a case, the claims are those of the trustee as a person, and not, as in this case, brought by or against a trustee as the representative of the trust as the actual party in interest.
Given this conclusion, we discern no error in the judge's application of rule 3.7 to this case. We view this case as distinguishable from those on which the trustee relies -- Gorovitz v. Planning Bd. of Nantucket, 394 Mass. 246 (1985) ; Borman v. Borman, 378 Mass. 775 (1979) ; and Luchs & Beckerman vs. P.B.&S. Bldrs., Inc., 1992 Mass. App. Div. 56. In Gorovitz, the court considered "whether [Gorovitz,] a general partner of a limited partnership, who serve[d] as the partnership's legal counsel and [was] a named plaintiff in an action, may represent the partnership in that action if he intends to testify at trial."Gorovitz, supra at 246. Concluding, inter alia, that Gorovitz, individually, had an interest in the litigation and that his role was not merely a representative one, the court held that Gorovitz had a right to appear pro se in the action and to represent the limited partnership. Id. at 249. Unlike in the instant case, Gorovitz himself "[was] the party litigant," and, as such, was able to establish "his right to appear pro se." Id.
In Borman, a divorce case, the wife sought to disqualify her husband's law firm from representing the husband in the divorce where the husband and another member of the firm (a partner not serving as husband's counsel) would likely testify as witnesses at the trial. See Borman, 378 Mass. at 778. The court concluded that the rule did not preclude the firm from representing the husband, and noted that, "[a]s a party litigant ... a lawyer could represent himself if he so chose." Id. at 789. There, too, however, the claims at issue related to the husband individually, and not merely in a representative capacity.
In that case, the wife relied on Disciplinary Rule 5-102(A), 359 Mass. 796, 814 (1972), the "predecessor" of rule 3.7. Smaland Beach Ass'n, 461 Mass. at 225.
Finally, in Luchs & Beckerman vs. P.B.&S. Bldrs., Inc., the panel considered whether the disciplinary rules required disqualification of a lawyer from defending a corporation of which he was a shareholder in a breach of contract claim. See id. at 56. While it is not apparent whether the lawyer/shareholder was a named party to the action (and, on that basis, we disagree with the reviewing panel's conclusion that the case was "on all fours with" Borman and Gorovitz ), we note that the panel nevertheless found convincing the defendant's argument that "[the rule is] inapplicable when the lawyer ... is a party litigant." See id. at 57. In sum, an essential element in the success of prior cases was the attorney's status as a party litigant, a status conspicuously absent here.
The judge's order in this case did not offend Attorney Iatridis's right under G. L. c. 221, § 48, to represent himself because the claims at issue were those of the trust, not the trustee. As our conclusion does not derive from Attorney Iatridis's status as an attorney, his equal protection argument fails. See Doe No. 1 v. Secretary of Educ., 479 Mass. 375, 391 n.28 (2018), quoting Doe v. Acton-Boxborough Regional Sch. Dist., 468 Mass. 64, 75 (2014) ("Classification, and differing treatment based on classification, are essential components of any equal protection claim").
Next, the trustee argues that if rule 3.7 applies to Attorney Iatridis in his representation of the trustee, as we conclude that it does, the judge's order should nonetheless be vacated based on the judge's application of an incorrect legal standard and his erroneous determination that the trustee has failed to show that Attorney Iatridis's disqualification as counsel would create a substantial hardship on the trust. We discern no abuse of discretion in the judge's ruling. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (abuse of discretion standard).
Rule 3.7 (a) provides, in relevant part, that a "lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness [except where] ... disqualification of the lawyer would work substantial hardship on the client." The trustee points to Borman for the proposition that "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." 378 Mass. at 788. While the judge here did not use the Borman language in his decision, he reasoned that limited disqualification in this case was necessary to prevent the jury from becoming confused by Attorney Iatridis's overlapping roles. In doing so, the judge recognized the rule's "primary purpose." Smaland Beach Ass'n v. Genova, 461 Mass. 214, 220 (2012), quoting Steinert v. Steinert, 73 Mass. App. Ct. 287, 291 (2008) (purpose of rule 3.7 is "to prevent the jury as fact finder from becoming confused by the combination of the roles of attorney and witness"). The judge's explanation adequately articulated his determination that Attorney Iatridis's participation in the jury-facing aspects of the case in these roles would threaten the fairness of the trial. This was sufficient justification for the judge's disqualification of Attorney Iatridis from acting as trial counsel. See Steinert, supra at 290-291 ( rule 3.7 confined to limiting attorney's participation in trial). Given the judge's implicit determination that Attorney Iatridis's involvement in deposition practice would present a similar risk to the fair presentation of the evidence at trial, we discern no abuse of discretion. See Borman, supra at 788 (even where attorney participation does not conflict with professional code, disqualification may occur where judge determines that attorney's continued participation in litigation "taints the legal system or the trial of the cause before it").
We likewise discern no abuse of discretion in the judge's determination that the trustee failed to show substantial hardship on the trust as a result of the disqualification order. See rule 3.7 (a). As we have noted, the order did not disqualify Attorney Iatridis entirely, or even from the majority of the case; it precluded only his participation in "activity which would reveal his multiple roles if such were to become known [to the jury]" -- i.e., engaging in deposition practice and acting as trial counsel -- and explicitly permitted him to represent the trust in all other respects. Attorney Iatridis remains free to pursue other discovery, by, for example, serving written requests, see Mass. R. Civ. P. 26 (a), as appearing in 382 Mass. 823 (1981), and seeking out witness statements privately. He is also not required to hire an attorney to do any of the other pretrial work and assessments for which his familiarity with family history and language skills may particularly suit him. Finally, as the case is in its infancy, the need for a trial is far from certain; as the trustee himself points out, it may be resolved before that point is reached. To the extent that, as the trustee avers, the trust has no current assets, we note that any out-of-pocket expenses that Attorney Iatridis may incur may be recoverable from the trust, if the trustee's claims are successful. See G. L. c. 203E, § 709 (2). In sum, we conclude that the judge acted within his discretion. See L.L., 470 Mass. at 185 n.27.
The trustee's argument that the judge could have tailored the order more narrowly, or could have avoided the risk of jury confusion by denying the motion and instead limiting the parties to a bench trial, are unavailing. First, the judge's order was limited; the only restrictions on Attorney Iatridis's participation in the case as a lawyer was a prohibition on his representing the trust at depositions and at trial. Second, as Attorney Iatridis confirmed at oral argument, the trustee did not propose any alternative methods of avoiding jury confusion. Particularly under these circumstances, we do not consider the judge's decision to have been an abuse of his discretion.
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Finally, we are aware of no grounds on which we could instruct the Superior Court to modify the order at issue here as the trustee suggests, allowing him to take depositions "with the proviso that any use of the depositions at trial be permitted in a manner to not disclose the involvement of Attorney Iatridis in the depositions," nor are we inclined to do so.
2. Attorney's fees and costs. The trustee's request for costs and fees on appeal pursuant to Mass. R. A. P. 26, as appearing in 481 Mass. 1655 (2019), is denied. The trustee's alternative request for leave to include appellate fees in any fee award he may receive in the underlying action is, at a minimum, premature and speculative. It is also denied.
Turning to the defendants' requests for appellate fees as a sanction for the trustee's frivolous appeal, see Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019), as we cannot conclude that the trustee's appeal was "totally devoid of merit" (quotation and citation omitted), Britt v. Rosenberg, 40 Mass. App. Ct. 552, 555 (1996), we deny the request. Cf. Avery v. Steele, 414 Mass. 450, 455 (1993), citing G. L. c. 211, § 10, and Mass. R. A. P. 25, as appearing in 376 Mass. 949 (1979) (double costs for frivolous appeal).
Order entered December 17, 2019, allowing motion to disqualify, affirmed.