Vinci v. Byers11/21/2005
Middlesex.
September 13, 2005
Present: Greenberg, Kantrowitz, & Mills, JJ.
Limitations, Statute of. Attorney at Law, Malpractice.
Civil action commenced in the Superior Court Department on May 3, 2002.
The case was heard by Nancy Staffier, J., on a motion for summary judgment.
Rather than let sleeping dogs lie, the plaintiff, an attorney, was intent on shining light not only on the alleged malfeasance of the attorney who handled his divorce , but on his own malfeasance as well. Some might say that no good can come from this strategy.
On May 3, 2002, Paul J. Vinci filed a complaint alleging legal malpractice against Philip J. Byers, an attorney who represented Vinci in his divorce proceedings. Acting on Byers's motion for summary judgment, a judge in the Superior Court concluded that Vinci's cause of action was barred by the three-year statute of limitations, G. L. c. 260, ยง 4, and allowed the motion.
Vinci appeals, claiming that the continuing representation doctrine should be expanded and applied to his case; that Byers should be estopped from asserting the statute of limitations due to his conduct; that summary judgment could not be granted on Vinci's general negligence claim; and that the date of accrual of Vinci's cause of action could not be decided by summary judgment. We hold that the cause of action accrued prior to May, 1999, and that the continuing representation doctrine is inapplicable. We, therefore, affirm the judgment.
Facts
"We recite the material facts in the light most favorable to [Vinci], as the nonmoving party." Lyons v. Nutt, 436 Mass. 244, 245 (2002).
On or about November 10, 1996, Vinci, an attorney, retained Byers to represent him in his divorce proceedings. In mid-January, 1997, Vinci received a referral fee of about $228,000 for a personal injury case. According to Vinci, he immediately informed Byers, who told him to make the referral fee "disappear" so that it would not be known in the divorce negotiations at this point. This advice made Vinci uncomfortable, but he followed it nonetheless. Vinci loaned the full amount, as an unsecured ninety-day loan, to a high school friend on or about January 23, 1997, for an interest payment of $5,000. Between January 16, 1997, and June 30, 1998, Vinci, allegedly at Byers's direction, filed three financial statements with the Probate and Family Court that did not disclose the referral fee. The financial statement submitted on May 21, 1998, was signed by Vinci under the penalties of perjury.
In April, 1998, Vinci spoke with an attorney in his office concerning a hypothetical involving his own case. The attorney opined that the referral fee should be immediately disclosed to "the divorce attorney and/or spouse" and that "the [Internal Revenue Service (IRS)] tax issue [should be addressed] . . . as interest and penalties are incurring at substantial rates." Conversely, Byers allegedly told Vinci not to be concerned with the issue, as he (Byers) had consulted with another attorney who was a former member of the Board of Bar Overseers. Vinci, who himself had handled two divorce cases in the past, continued to follow Byers's obviously improper advice.
On June 30, 1998, Vinci and Byers met with Vinci's wife and her counsel for a "four-way meeting," presumably as required by Probate and Family Court Standing Order 1-88 (1988). During this meeting, the wife's counsel questioned Vinci as to whether he had recently received a large referral fee. Vinci responded in the affirmative, revealing its size. Byers allegedly disclaimed any knowledge of the referral fee, aborted the meeti
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