Law Offices of Jeffrey S. Glassman v. Palmisciano, Civil Action No. 07-10306-DPW.

690 F.Supp.2d 5

LAW OFFICES OF JEFFREY S. GLASSMAN, Plaintiff, v. Raymond PALMISCIANO and Robert Lafazia, Defendants Amica Mutual Insurance, Inc., Reach and Apply Defendant.

Civil Action No. 07-10306-DPW.

United States District Court, D. Massachusetts.

December 29, 2009.

Edward C. Cooley, Giarusso, Norton, Cooley & McGlone, Quincy, MA, Jeffrey S. Glassman, Law Offices of Joel H. Schwartz, P.C., Boston, MA, for Plaintiff.

William P. Devereaux, Matthew C. Reeber, Pannone Lopes & Devereaux LLC, Fred T. Polacek, Providence, RI, for Defendants.

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, District Judge.

This action is brought by the Law Offices of Jeffrey S. Glassman, LLC (the "Plaintiff" or "Glassman LLC") against Robert Palmisciano, a former client, and Raymond Lafazia, a successor attorney, (collectively, the "Defendants"),¹ alleging that Palmisciano failed to honor his contingency fee agreement with Plaintiff (the "Contingency Agreement") and that Lafazia interfered with that agreement. Plaintiff and Defendant Lafazia have moved for summary judgment in their favor on Plaintiff's claims. For the reasons discussed below, I will deny Plaintiff's motion for summary judgment and will grant in part and deny in part Defendant Lafazia's motion for summary judgment.

I. BACKGROUND

A. The Parties

Plaintiff Glassman LLC is a law firm located in Massachusetts. Glassman LLC is the successor in interest of the Law Offices of Jeffrey S. Glassman LLP ("Glassman LLP") which assigned its assets and liabilities, including the contractual obligations and rights it had under the Contingency Agreement, to Plaintiff in June 2006.

Defendant Robert Palmisciano is an individual currently residing in Rhode Island. While this fact is disputed among the parties, it appears that Palmisciano also resided in Rhode Island but had a post office box in Massachusetts at the time he entered into the Contingency Agreement with Plaintiff.

Defendant Raymond Lafazia is a Rhode Island attorney and a resident of Rhode Island.

B. The Facts

1. The Creation of the Contingency Agreement

On May 14, 2003, Palmisciano went to Glassman LLP's office in Boston to obtain legal representation with respect to a North Kingston, Rhode Island accident involving a 2002 collision of a car he operated with a car operated by Caroline Peck during which Palmisciano suffered personal injuries.² Palmisciano signed that day the Contingency Agreement pursuant to which he retained Glassman LLP to "handle, compromise, adjust and do any and all necessary things" regarding his personal injury claim. Under the Contingency Agreement, Palmisciano agreed that:

if Glassman LLP is discharged with a pending offer, it shall be considered that Glassman LLP has substantially performed his duties pursuant to the contingency. Moreover, Glassman LLP under the Contingency shall be compensated for One-Third (33%) of the gross amount of the settlement offer at the time of discharge, or 40% at the time of the discharge after initiation of a law suit.

The Contingency Agreement further provided that Palmisciano "is in any event liable to Glassman LLP for reasonable expenses and disbursements."

2. The Role of Attorneys Glassman, Cohen and McKinney in the Palmisciano v. Peck Matter

From 2003 to 2005, Glassman LLP prosecuted Palmisciano's claim by, among other things, compiling medical documentation and other documents. In an attempt to negotiate a prelitigation resolution of Palmisciano's claim, Attorney Jeffrey Glassman sent a formal demand for settlement to Arnica on April 26, 2005.

A mediation was held in Providence, Rhode Island in October 2005. When the negotiations broke off, Arnica had offered $175,000.00. Attorney Glassman at that point informed Palmisciano that Attorney Neil Cohen, then a partner at Glassman LLP, would be handling the case as his trial attorney.

On November 10, 2005, Glassman LLP filed a law suit on behalf of Palmisciano in the Washington County Superior Court of Rhode Island, Palmisciano v. Peck, Civil Action No. WC-2005-0683, (the "Peck case"). Prior to filing suit, Glassman LLP had engaged a Rhode Island attorney, Patrick McKinney, to act as local counsel. Cohen was subsequently admitted pro hac vice on motion filed by McKinney. During the discovery process, Attorney Glassman continued to conduct negotiations with Arnica's Senior Claims Supervisor, Paul Schino, in an effort to reach a settlement.

In March 2006, Cohen left Glassman LLP over a business dispute. Cohen did not, however, contact Palmisciano to inform him that he left Glassman LLP. Palmisciano only learned about Cohen's departure in May 2006 when he received a communication from Glassman LLP asking him to approve two pro hac vice admission forms designed to allow other Massachusetts attorneys to appear before the Washington County Superior Court of Rhode Island. Palmisciano refused to sign the forms without further discussion.

On June 21, 2006, Arnica offered $425,000.00 and Attorney Glassman purported to accept Arnica's offer on behalf of Palmisciano. On the same day, Attorney Glassman sent Palmisciano a settlement release suggesting that Palmisciano should reconsider his decision not to sign the paperwork pending a forthcoming surgery. Palmisciano refused to sign the settlement release and sent Attorney Glassman an email on that same day stating that Glassman did not have any authority to accept any offer without his agreement and that Glassman was to cease all activity in this matter until he further heard from Palmisciano.

Shortly after instructing Glassman to take no further action in the Peck matter, Palmisciano had a conversation with McLaughlin, who had referred the matter to Glassman, see Note 2 supra, in which Palmisciano told McLaughlin, "Attorney Lafazia has told me that I can get this 425 without paying any attorney's fees at all.... Attorney Lafazia has come up with a way so that I won't have to pay him any money, and why should I have to pay that Jew."

At the beginning of September of 2006, Palmisciano contacted Cohen who agreed to meet him in Attleboro, Massachusetts. Palmisciano and Lafazia met with Cohen and discussed Cohen's entering a stipulation of withdrawal of his pro hac vice appearance in the matter. Meanwhile, based upon Glassman's purported agreement to settle the Peck case, Arnica filed an application to enforce settlement in October 2006. Shortly thereafter, Glassman filed a petition to apportion settlement proceeds.

3. The Dispute Concerning the McKinney and Cohen "Discharge"

On October 23, 2006, a hearing was held regarding the enforcement of the settlement. During this hearing, Palmisciano declared that he no longer wished to have McKinney and Cohen represent him in the Peck matter. Lafazia subsequently entered an appearance on behalf of Palmisciano and confirmed to the Court that he would continue to prosecute the case on behalf of Palmisciano.

During the hearing, McKinney moved for permission to withdraw in accordance with Rule 1.17 of the Rhode Island Supreme Court Rules of Professional Conduct. The Court allowed the motion and further requested McKinney to submit orders reflecting his withdrawal as well as Cohen's withdrawal. McKinney drafted an order on the same day in which he declared that he was "allowed to withdraw as counsel of record for the Plaintiff effective October 23, 2006" and that Cohen's "admission pro hac vice was vacated," because they had both been "discharged by the Plaintiff." In addition, McKinney directed the order to allow Lafazia to enter a general appearance on behalf of Palmisciano.

During a hearing held on November 2, 2006, and in the absence of McKinney, Lafazia objected to the use of the word "discharge" in the draft order. Specifically, Lafazia declared that "he just didn't want it to appear that Mr. McKinney was discharged, because that had ramifications." The Court declared that it had not entered the proposed order because Lafazia had indicated to the Court in chambers that he objected to the form of this order and decided to hand the proposed order back to Lafazia.

During the November 2 hearing, the Court acknowledged that "there existed a dispute that was ongoing" regarding the Contingency Agreement. The Court further explained that:

it seemed abundantly clear ... that Mr. Palmisciano, on the eve of what appeared to be some serious surgery, did not want to settle his claim until all of the pieces were resolved, and communicated that preference to counsel. Mr. Glassman's suggestion that Mr. Palmisciano had authorized the settlement with Arnica without having resolved the remaining details appeared to this Court to be inconsistent with the surrounding facts and circumstances ... I find therefore that Mr. Glassman's authority to settle with Arnica was conditioned upon completion of ongoing discussions concerning the extent of fees and liens which had not yet been completed as of June 21st.

Finally, during a hearing held on December 1, 2006, Lafazia conceded that he sought to strike the word "discharged" from the order because "the real issues here are the controversies between Mr. Palmisciano and his former counsel." Specifically, Lafazia explained that he did not "want this determination of whether it's proper discharge, improper discharge, withdrawal, abandonment." McKinney responded that there was "absolutely no question but that counsel was discharged within the meaning of that term." The Court acknowledged that "it may very well be that the only logical conclusion is as Mr. McKinney stated." Nevertheless, the Court determined that it did not want to make a finding of fact on the issue of "discharge" because "this wasn't the proper forum to adjudicate the nature and extent of what occurred between Mr. Palmisciano and his prior counsel." Accordingly the Court revised the order to strike the word "discharged."

During deposition testimony in this case on June 4, 2008, Lafazia bluntly described the strategy...