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Commonwealth v. Jerome12/17/2002
. Charles treated Dessin close to two years earlier. His opinion that Dessin might experience a five per cent permanent impairment from the February 4, 1992, injury was expressed as a possibility. Dessin asserted no claim for permanent impairment either at that time or in connection with the November 2, 1993, accident. That Dr. Khalsa might fairly conclude that the possible five per cent impairment had not materialized, and that Dessin's condition at the time was wholly attributable to the more recent accident, is hardly remarkable. The same opinion was rendered by Dr. Jacques. There was no evidence that the defendant influenced the reports in question. We conclude that this evidence did not support a finding that the defendant knowingly submitted a false statement with the intention of deceiving the insurer.
(iii) The Commonwealth offers the defendant's resistance to the request of Arbella's investigator as evidence that it was his purpose to defraud the insurer by concealing Dessin's prior injuries. In this regard, the investigator requested medical reports pertaining to Dessin's prior accidents on April 5, 1990; June 5, 1990; February 22, 1991; November 30, 1991; February 4, 1992; March 30, 1992; June 24, 1993; and his subsequent accident on January 28, 1994. The defendant responded by forwarding authorizations for the insurer to obtain information regarding the immediately preceding accident (June 24, 1993) and the subsequent accident (January 28, 1994), and stated that " nformation regarding any other accidents is in no way relevant to this claim."
We agree that the information sought by the insurer was material to the processing of Dessin's claim. We do not agree that the defendant's refusal to produce the information in the circumstances is sufficient evidence of criminal intent. If the government is to prosecute as criminal statements made by attorneys in representation of their clients, it cannot leave vague the border between zealous advocacy and fraudulent behavior. As formal and informal discovery requests have become a way of life in the present practice of law, resistance to such discovery has also become customary. Such resistance is sometimes justified, sometimes not; but unjustified resistance is not criminal per se. The defendant's response that requests for information preceding the June 24, 1993, accident were not relevant to the present claim is at least as consistent with honest strategy -- to prevent the history of prior injuries from which the client had recovered from unfairly influencing the insurer adversely to the client in connection with the present claim -- as it is consistent with intent to defraud. That this was the insurer's first request may also have been a factor, given that a refusal to provide information when first asked often, as it did here, pays the dividend that the request is not pursued. Whether such a strategy constitutes appropriate practice of law is not the question before us. We address only the question whether the attempt to deflect the information requests in this case is sufficient evidence of an intention to defraud the insurer, and we conclude that it is not.
(iv) Finally, the Commonwealth charges that Mr. Lang, the defendant's associate and subsequently his partner, submitted to Arbella directly contradictory statements regarding the June 24, 1993, and November 2, 1993, accidents, thereby demonstrating the defendant's intent to defraud the insurer. We pass the question whether Mr. Lang's statements are attributable to the defendant for purposes of a prosecution under G.L. c.266, 111B, because this evidence, even if chargeable to the defendant, does not support a finding that the defendant knowingly submitted false statements rega
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