Tenant Who Was A Client Of Organization Objects

March 08, 2004

Massachusetts Lawyers Weekly
By Jason M. Scally

A tenant suing his landlord could force the landlord's lawyers to withdraw from the case where they had previously worked for a legal-services organization with which the tenant had established an attorney-client relationship, a U.S. District Court judge has ruled.

The landlord's attorneys, in opposition to the tenant's motion to disqualify them, argued that they did not have access to any confidential information regarding the plaintiff since the plaintiff, in her prior dealings with the legal-services organization, had only spoken with the organization's paralegals.

But Judge Nathaniel M. Gorton disagreed and granted the tenant's motion to disqualify.

The judge, citing confidential information viewed in camera, found that contact between the plaintiff and paralegals under the lawyers' control was enough to create a conflict of interest with the attorneys.

"Although this case presents a somewhat novel context of [conflict of interest] principles," Gorton said, "the fact that [the plaintiff] sought and obtained advice from a low-income legal services provider fails to alter the fundamental conflict of interest analysis."

In the underlying action regarding the tenant's unfair housing claim that stemmed from the landlord's alleged refusal to allow home modifications for a disabled tenant, the judge also allowed the tenant to attach the landlord's property.

The 15-page decision is Rodriguez v. Montalvo, et al., Lawyers Weekly No. 02-028-04.

Support Staff Creates Conflict

Jonathan L. Mannina of Worcester, the attorney for the plaintiff, said the decision is significant because the judge found that an attorney-client relationship was formed, even when the client only spoke with a paralegal.

"To my knowledge, there aren't any other cases out there, at least in Massachusetts, where that's happened," he said.

Urging caution, Mannina said: "What lawyers need to be aware of is that the actions of paralegals and other non-lawyer staff may create attorney-client relationships that may be imputed to attorneys and firms as a whole."

The plaintiff's attorney said it was also important to note that the Rules of Professional Conduct treat legal-services organizations as law firms when it comes to conflicts of interest and disqualification.

However, he remarked that since disqualification cases are often fact-specific, "it's a little hard to predict the precedential value of any case."

Because of the ongoing nature of the case, Mannina declined to comment specifically on the underlying landlord-tenant dispute. But he said that obtaining the attachment of the landlord's real estate was significant, because in his experience "housing providers and their counsel often do not appreciate the significance of fair housing cases and the exposure that their clients potentially face."

David P. Florio of Lunenburg, who along with Anna R. Phillips represented the defendants before being conflicted-out, said he was disappointed and surprised in his and his partner's disqualification.

"My partner never remembers having any contact with the plaintiff [and] I don't remember having any contact with the plaintiff," he said, adding that neither speak or read Spanish — the plaintiff's only language. "But we don't know what the judge saw in the in camera review."

Because he didn't get to see the confidential records, Florio said he was caught in a Catch-22 situation and felt "hamstrung in my ability to defend myself."

Florio added that the ruling makes it difficult for he and other former legal-services practitioners to determine which cases may end up in a potential conflict.

"I can't even call my former firm to do a conflict check," he said, "because that's confidential information."

Prior Involvement Alleged

The conflict of interest claim stemmed from July 2001, when the plaintiff, Maria Rodriguez, contacted the Massachusetts Justice Project seeking legal help in a dispute with her landlord, Victor Montalvo.

The landlord had allegedly refused to allow the plaintiff, at her own expense, to make modifications to the entranceway of the apartment to accommodate her handicapped son, who was in a wheelchair and needed a ventilator.

Instead, the landlord allegedly only allowed the plaintiff to use a temporary ramp, which the plaintiff claimed was unsafe in winter, and too small to fit her son's wheelchair and ventilator.

The defendants' attorneys, Florio and Phillips, were staff attorneys at MJP at the time, and worked there until 2002 when they left to open their own law firm.

In her dealings with MJP, the plaintiff spoke with two paralegals, Flor Cintron and Keyda Montalban. Phillips was allegedly responsible for reviewing Cintron's intake files at the time, although there was a dispute over the extent of that supervision.

MJP ultimately referred the plaintiff's case to the Legal Assistance Corp. of Central Massachusetts, which represented her in the underlying unfair housing action against the landlord that she filed after her son died in June 2002.

Along with claims for statutory violations of the Fair Housing Act, the Massachusetts Anti-Discrimination Statute and other related common law claims, the plaintiff sought an attachment of the defendants' real estate in the amount of $125,000.

The plaintiff also filed a motion to dismiss the landlord's attorneys from the case, arguing that they had a conflict of interest since they once worked at MJP, where the plaintiff had previously sought legal advice regarding her dispute with the landlord.

Attorneys Disqualified

Gorton granted the plaintiff's motion to disqualify, finding that the attorney-client relationship between the plaintiff and the defense counsels' former paralegal at MJP was enough to raise a conflict of interest.

He observed that if a paralegal creates the confidential attorney-client relationship, then "that relationship may be imputed to the attorney supervisor and consequently to the firm as a whole" — a premise supported by prior caselaw, he noted.

Regarding confidential information, Gorton said that "[t]he former client is not required to prove that the attorney actually misused the information, but only need show that the tempting situation existed because of an attorney-client relationship that was established in the former representation, and that the 'former and current representations are both adverse and substantially related.'"

In this case, the judge said, "[t]he substantial relationship between the subject matters (indeed their identity) raises the specter that information gleaned from Rodriguez's communications with MJP could be used against her by her adversary in the very same action."

After reading, although not divulging, information contained in the MJP file, Gorton concluded that there was information that was confidential in nature, and that the plaintiff "would have been objectively reasonable in following the advice provided by MJP and therefore would have been reasonable in imputing to MJP, as a whole, the existence of an attorney-client relationship."

Attachment Allowed

In addition to disqualifying the defendants' attorneys, Gorton also authorized an attachment on the defendants' property.

In order to prove her claims, the judge said that the plaintiff would have to show that the defendants "refused a modification of the premises that was both reasonable and necessary to afford [the plaintiff's son's] full enjoyment thereof."

The judge determined that the modifications were "likely necessary" for the plaintiff's son to receive full enjoyment of the premises, since the temporary ramp that the landlord allowed required the plaintiff to disconnect her son from the ventilator in order to bring him up the ramp.

He added there was apparently no dispute from the defendants that the requested modifications were "reasonable," so as a result, Gorton determined that the plaintiff had a "reasonable likelihood of success on the merits."

The judge also expressed concern that the defendants might have encumbered the property by mortgaging the premises, registering a homestead declaration and becoming a tenant in common on another property.

"Based on those actions and the above reasoning," Gorton said, "an attachment of Defendants' real estate in the amount of $75,000 will be authorized."

Although the plaintiff had requested an attachment of up to $125,000, the judge found the reduced amount was "a more reasonable figure."

Questions or comments may be directed to the writer at jscally@lawyersweekly.com.

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