

September 27, 1995

                United States Court of Appeals
                    For the First Circuit

                                             

No. 95-1023

                  FLANDERS &amp; MEDEIROS, INC.,

                     Plaintiff, Appellee,

                              v.

                    ELIZABETH V. BOGOSIAN,

                    Defendant, Appellant.

                                             

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

        [Hon. Ronald R. Lagueux, U.S. District Judge]                                                                

                                             

                            Before

                   Torruella, Chief Judge,                                                     
                    Stahl, Circuit Judge,                                                    
              and Dominguez, * District Judge.                                                          

                                             

                         ERRATA SHEET                                     ERRATA SHEET

   Please make the following correction:

        Page 2, line 5 from bottom of page:

             Delete "Woloohojian (now deceased) and Harry
Woloohojian."

             Insert "Woloohojian and Harry Woloohojian (now
deceased)."

                             

*Of the District of Puerto Rico, sitting by designation.

                United States Court of Appeals                            United States Court of Appeals
                    For the First Circuit                                For the First Circuit
                                         

No. 95-1023

                  FLANDERS &amp; MEDEIROS, INC.,

                     Plaintiff, Appellee,

                              v.

                    ELIZABETH V. BOGOSIAN,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

        [Hon. Ronald R. Lagueux, U.S. District Judge]                                                                

                                         

                            Before

                    Torruella, Chief Judge,                                                      
                    Stahl, Circuit Judge,                                                    
               and Dominguez,* District Judge.                                                         

                                         

Keven A. McKenna with whom Bruce Hodge was on brief for                                                  
appellant.
Matthew F. Medeiros and Erik Lund with whom Robert Karmen,                                                                     
Flanders &amp; Medeiros Inc., Cynthia C. Smith, and Posternak, Blankstein                                                                             
&amp; Lund were on brief for appellee.              

                                         
                      September 13, 1995
                                         

                 
*Of the District of Puerto Rico, sitting by designation.

          STAHL, Circuit Judge.  This case arises from the                      STAHL, Circuit Judge.                                          

representation of defendant-appellant Elizabeth Bogosian

("Bogosian") by plaintiff-appellee Flanders &amp; Medeiros

("F&amp;M") in hotly contested litigation involving family real-

estate partnerships.  After Bogosian failed to endorse over

to F&amp;M checks made payable to Bogosian by the defendant in

the underlying litigation and delivered to F&amp;M as her

counsel, F&amp;M sued Bogosian for breach of contract.  Bogosian

counterclaimed for malpractice and breach of the attorney-

client contract.  The district court awarded summary judgment

to F&amp;M on all claims.  We now reverse the award of summary

judgment on F&amp;M's breach-of-contract claim, and affirm the

district court's ruling on Bogosian's counterclaims.

                              I.                                          I.                                            

          In  November  1989,  following  the  withdrawal  of

Bogosian's prior counsel from the underlying litigation, F&amp;M,

a  Providence,   Rhode  Island,  law  firm,   took  over  the

representation  of Bogosian,  a  citizen of  Florida, in  the

ongoing lawsuits  stemming from  her involvement in  a family

real estate empire created by her and her two brothers, James

H.   Woloohojian  and   Harry  Woloohojian   (now  deceased).

Bogosian had few liquid assets at  the time from which to pay

her lawyers  but stood  to receive  substantial amounts  as a

result of  her lawsuits.   In  a letter sent  to Bogosian  on

November  24,  1989 (the  "November  24  letter"), and  which

                             -2-                                          2

Bogosian then signed indicating her  agreement, F&amp;M explained

the terms of  its representation.   The firm  would obtain  a

$25,000  retainer  from  Bogosian,  to  be  deposited  in  an

interest-bearing account; it would   bill Bogosian each month

at  its lawyers' hourly rates, with each bill due and payable

within ten days after receipt; and interest would  accrue (at

a local  bank's prime  rate) on  bills outstanding for  sixty

days or more.  The letter further stated:

          We  recognize that you  may be  unable to
          pay our monthly statements  in full on an
          ongoing basis.   To the  extent that  you                                                               
          are unable to pay  those bills from other                                                               
          sources,  you have  agreed to  apply your                                                               
          first  proceeds  out   of  the   E  &amp;   J                                                               
          receivership,   the  Woloohojian   Realty                                                               
          Associates   receivership    and/or   the                                                               
          federal  court  litigation,[1                                                   ] until  all                                                               
          of our outstanding  bills, including  any                                                               
          accrued  interest,  are  paid   in  full.                                                               
          Appended to this  letter as Exhibit  A is
          an Assignment that  we would  ask you  to
          execute.   That  assignment gives  us  an
          interest in the  proceeds of those  court
          proceedings  up  to  the  amount  of  our
          bills.   It is my  understanding that you

                                                    

1.  The  "E &amp;  J  receivership" and  the "Woloohojian  Realty
Associates receivership" are  state court actions  concerning
two  family real  estate  partnerships.   The "federal  court
litigation"  (or  "valuation"  litigation)  was   brought  by
Bogosian in the United States District Court for the District
of  Rhode Island  to  dissolve the  family-owned  Woloohojian
Realty   Corporation  ("WRC"),   pursuant  to   Rhode  Island
corporations  law.   See R.I.  Gen. Laws    7-1.1-90.   After                                    
Bogosian filed her lawsuit,  WRC exercised its option to  buy
out Bogosian's one-third share of the corporation rather than
face dissolution.  In April 1995,  the district court adopted
as its  findings  the  report  of a  special  master  valuing
Bogosian's  WRC  stock  at   $4,901,801.    See  Bogosian  v.                                                                     
Woloohojian, 882 F. Supp. 258, 261, 266 (D.R.I. 1995).                          

                             -3-                                          3

          have  reviewed  this  agreement with  Ted
          Pliakas[2] and have found it acceptable.

(emphasis added).  The referenced assignment (the "assignment

document") included the following language:

          1.    Assignee  has agreed  to  represent
          Assignor in said actions at  hourly rates
          set  forth in a  letter from  Assignee to
          Assignor dated November 24, 1989.

          2.   Assignor  anticipates that  she will                                                               
          receive substantial sums in  said actions                                                               
          (the  "Recoveries"),  out  of  which  she                                                               
          expects and  agrees to pay the legal fees                                                               
          and  out-of-pocket  expenses  payable  to                                                               
          Assignee.                               

          3.   To  the  extent  that Assignor  owes                                                               
          Assignee  any   money  for  out-of-pocket                                                               
          expenses and legal  services rendered  by                                                               
          Assignee in connection with said actions,                                                               
          Assignor  hereby   assigns  to  Assignee,                                                               
          effective as  of the  day and  year first                                                               
          above  written,  that   portion  of   the                                                               
          Recoveries which is necessary to  pay all                                                               
          of  Assignee's  then unpaid  bills.   The                                                         
          remainder  of  the  Recoveries  shall  be
          payable to Assignor.

          4.  In the event that there is a recovery
          in fewer  than all of  said actions,  and
          Assignee  is paid  in full,  and Assignor
          later incurs additional legal  expense to
          Assignee which is  not paid on a  current
          basis,  Assignee  shall   be  paid   such
          additional    legal   expense    out   of
          additional amounts, if any,  recovered by
          Assignor in the remaining actions.

          5.   Nothing  contained herein  shall  be
          construed  so as  to  limit  Assignee  to
          payment  of  its   legal  expenses   from
          amounts  recovered  by  Assignor in  said
          actions.

                                                    

2.  Bogosian's personal attorney.

                             -4-                                          4

(emphasis added).   Both parties  signed the  document.   F&amp;M

filed an  appropriate financing statement with  the office of

the  Secretary of  State, asserting  F&amp;M's rights  as secured

party to "[a]ll of Debtor's rights to the recoveries received

by Debtor arising from" Bogosian's various lawsuits.

          F&amp;M  represented  Bogosian  pursuant to  the  above

terms in at least ten different matters between late 1989 and

the  end of 1992,  with the bulk  of its time  devoted to the

valuation litigation.   In July  1990, the district  court in

that case ordered  WRC (1)  to grant Bogosian  a $10  million

mortgage  on one of WRC's properties as security to guarantee

eventual payment  of her  shares' value  once that  value had

been determined,  and (2)  to provide Bogosian  with "interim

distribution" payments  of an  initial $100,000  plus $10,000

per  month, to continue until  the entry of  a final judgment

determining the fair value of her shares.3

          On December  23,  1992, without  -- so  far as  the

record shows -- any solicitation from either Bogosian or F&amp;M,

WRC delivered two  checks to F&amp;M  made payable to  Bogosian.4

                                                    

3.  F&amp;M  asserted  no  claim  to  these payments,  presumably
because it had argued to the district court that the payments
were necessary  for Bogosian to meet  her day-to-day expenses
and  demands of other  creditors.  WRC  appealed the district
court's  order, and  we  affirmed.   Bogosian v.  Woloohojian                                                                         
Realty Corp., 923 F.2d 898 (1st Cir. 1991).                        

4.  The voluntary payment  followed on  the heels  of a  jury
verdict in  Bogosian's favor  in a Massachusetts  state court
lawsuit  initiated by  WRC, in  which  WRC sought  damages in
excess of  $20 million  for Bogosian's alleged  usurpation of

                             -5-                                          5

The checks, one for $900,000 and the other for $100,000, were

accompanied by a letter stating the following:

               Enclosed   please   find   two   (2)
          Woloohojian  Realty Corp.  ("WRC") checks
          totalling $1 Million  Dollars payable  to
          Elizabeth   V.   Bogosian.     This   sum
          represents a  voluntary principal payment
          made by WRC on account of Mrs. Bogosian's
          former shareholder interest.  This entire
          sum shall constitute an  immediate credit
          toward  any  principal  sums   which  may
          become  due and owing to Mrs. Bogosian in
          the federal court  proceeding on  account
          of  WRC's purchase  of her  shares and/or
          WRC's liquidation.

               WRC,   James  Woloohojian   and  the
          Estate   of   Harry  Woloohojian   remain
          willing to negotiate a  global settlement
          with  Mrs. Bogosian  which covers  all of
          the  substantive  areas  detailed in  the
          offer of settlement  dated September  30,
          1992 which  I sent  to Mr. Prentiss.   If
          Mrs. Bogosian  is interested in  a global                                                               
          settlement,  kindly  forward her  written
          counterproposal on or before December 31,
          1992.      We   are  prepared   to   meet
          immediately  thereafter  to  negotiate  a
          final resolution.

               Kindly  acknowledge your  receipt of
          this letter and the two checks by signing
          and returning  the enclosed copy  of this
          letter. . . .

          When WRC  delivered  the checks  to F&amp;M's  offices,

Bogosian owed the  law firm $999,957  in accrued legal  fees,

expenses and  interest.   F&amp;M  contacted Bogosian's  attorney

                                                    

corporate  opportunities.   WRC had  previously held  out the
prospect of obtaining substantial damages from this and other
lawsuits -- thus offsetting the value of Bogosian's  stock in
WRC  --   in  contesting  Bogosian's   request  for   interim
distributions in the valuation litigation.

                             -6-                                          6

(Pliakas)5  and asked  that Bogosian  indorse the  two checks

over to F&amp;M pursuant to their assignment agreement.  Bogosian

refused,  and  that  same  day faxed  to  F&amp;M  the  following

handwritten letter:

          Please be  advised that  I do not  accept
          nor  do I authorize  the acceptance  of a
          check  from  Woloohojian Realty  Corp. or
          any affiliates as partial payment  of any
          kind for any purpose.

          I  have  been advised,  as your  firm has
          represented to Judge Boyle, by Eustace T.
          Pliakas, Esq., my primary counsel, that a
          355  division  of  the corporation  would
          have no adverse  tax consequences for  me                                                               
          or WRC and that  if his Honor Judge Boyle                            
          so  decides as to effect that result that
          it would be very favorable to me.

          As you know, WRC has purported that there
          will  be major  tax consequences  for the
          liquidation of  property in order  to pay
          for  my  shares  which  sale  Judge Boyle
          stated in the  last hearing would  "never
          happen."

          If by  some means,  at the time  of Judge
          Boyle's  final decision,  I am  forced to
          take  dollars   instead  of  mortgageable
          property,  I question whether or not such
          principal of tax effecting does not apply
          to me. [sic]

          In any event I do not wish to prematurely
          determine   Judge   Boyle   [sic]   final
          [unreadable]  decision.    I   will  only
          accept, as  I have requested  you pursue,
          similar interim relief as I have received
          in  the  past   to  meet   my  on   going
          obligations.

                                                    

5.  F&amp;M  explained  that  it contacted  Pliakas  rather  than
Bogosian  directly  because  it  recognized  that  it  had  a
conflict of interest with Bogosian regarding the checks.

                             -7-                                          7

          I  will  not  in  my  present  health  or
          circumstances accept any coercive tactics
          or any actions taken which is directed to
          creating fear of retribution to myself or
          any members of my family.

WRC   eventually  dropped   its  requirement   that  Bogosian

acknowledge in  writing receipt  of the checks  (and possible

acknowledgment  that the  checks were  payments of  principal

rather than interest), but  Bogosian still refused to indorse

them.   F&amp;M  and Pliakas  discussed over  the next  couple of

weeks whether  the parties  could share  the  money,6 but  no

agreement  was  reached.   Thus,  on  January  14, 1993,  F&amp;M

initiated the present action  in the district court, alleging

that  Bogosian  had  breached  the  assignment  agreement  by

refusing  to indorse the checks over to F&amp;M.  Bogosian denied

the breach, arguing that the  checks were not "proceeds" from

the  litigation  because  neither   the  court  nor  she  had

authorized such payment,  and counterclaimed, alleging  legal

malpractice  and  breach  of  contract  by  F&amp;M.    Following

discovery,  both parties  moved  for summary  judgment.   The

district  court  ruled  that  F&amp;M  was  entitled  to  summary

judgment on all claims, and Bogosian appealed.    

                                                    

6.  Bogosian claims that she neither knew  of nor approved of
these negotiations,  but that  Pliakas undertook them  on his
own  because he  feared  that F&amp;M's  abandonment of  Bogosian
could severely harm her position in the ongoing litigations.

                             -8-                                          8

                             II.                                         II.                                            

A.  Standard of Review                                  

          We  review a  grant  of summary  judgment de  novo,                                                                        

reading  the  record  in  the  light  most  favorable  to the

nonmovant.  See,  e.g., Byrd  v. Ronayne,      F.3d      (1st                                                    

Cir.  1995).    Summary   judgment  is  appropriate  if  "the

pleadings,  depositions,  answers  to   interrogatories,  and

admissions  on file,  together with  the affidavits,  if any,

show that there is no  genuine issue as to any material  fact

and  that the  moving party  is entitled to  a judgment  as a

matter of law."  Fed. R. Civ. P. 56(c).

B.  F&amp;M's Breach-of-Contract Claim                                              

          The district court granted  F&amp;M summary judgment on

its   breach-of-contract   claim   because   the   assignment

agreement, the court  reasoned, was an "absolute  assignment"

of Bogosian's  "entire interest  in any future  proceeds from

those  litigations to F&amp;M up to the outstanding amount of the

legal bills.  Having  so assigned the proceeds, Bogosian  had

no power to reject  them.  She was  obligated to indorse  the

checks and pay them over to F&amp;M."   Flanders &amp; Medeiros, Inc.                                                                         

v.  Bogosian, 868 F. Supp.  412, 421 (D.R.I.  1994).  Whether                        

Bogosian  had a good faith basis for refusing the checks, the

court held, is "irrelevant."  Id.                                             

          The  district  court's  analysis contains  a  fatal

flaw:    It  assumes  that,  because  Bogosian  assigned  her

                             -9-                                          9

interest in future  litigation proceeds up  to the amount  of

any  outstanding legal bills, she  also gave up  her right to

reject  any  offer  of  partial  payment.    But  the  latter

proposition does  not necessarily  follow from the  former; a

litigant may (and often  does) assign expected proceeds while

retaining  the right to accept or reject any offer of payment

or settlement.  None of the cases cited by the district court                                

in support of its construction of the assignment agreement --

and subsequently adopted by F&amp;M as authority for its position

in  its appellate brief -- stands for the proposition that an

assignment   of  expected  litigation   proceeds  deprives  a

litigant  of his  or  her  right  to  control  the  terms  of

settlement.    For  example,  the court  cited  Berkowitz  v.                                                                     

Haigood,  606 A.2d 1157, 1160 (N.J. Super. Ct. Law Div. 1992)                   

(holding that assigned  proceeds in attorney's trust  account

belong to  client's  assignee  and client  has  no  right  to

receive  them), for  the  proposition that  Bogosian,  having

assigned the proceeds, had  no power to reject the  proffered

checks.  But the funds the assignee was claiming in Berkowitz                                                                         

were part of  a settlement  to which Haigood  had agreed  and                                                                    

which  had  already  been  paid  into  his  attorney's  trust

account.  Id. at 1159-60.   The court's reliance on Herzog v.                                                                      

Irace,  594 A.2d  1106  (Me. 1991),  is similarly  misplaced.                 

That decision's  holding that a  "client is  not entitled  to

receive  funds once he has  assigned them to  a third party,"

                             -10-                                          10

id.  at 1109, is predicated on the client's acceptance of the                                                                  

settlement offer from which the funds in question derive, id.                                                                         

at  1108.   In  neither  of  these  cases  did  the  assignee

challenge  the assignor-litigant's  rejection of an  offer of

settlement or partial payment.

          Nothing  in the  assignment  agreement purports  to

transfer  Bogosian's fundamental  right  to  control her  own

litigation and  accept or reject a  settlement offer, whether

in whole or in part.  See R.I.  Rules of Professional Conduct                                     

Rule 1.2(a) ("A  lawyer shall  abide by  a client's  decision

whether  to accept  an offer  of  settlement of  a matter.").

Whether a  contract that abrogated this  axiomatic duty would

even be upheld under Rhode  Island law is a question  we need

not  reach,   for  the  assignment  contains   no  indication

whatsoever  that  the  parties  intended   such  a  contract.

Without  a   clear  expression   of  intent  to   abrogate  a

fundamental  rule  of  the  attorney-client  relationship, we

would be loath to find such intent.  Thus, the assignment  of

"recoveries"  or "proceeds"  by  Bogosian  to  her  attorneys

presumes  her  prior  acceptance   of  a  proffered  payment.                                

Otherwise, the  proffered payment  remains nothing  more than

just  that; until  it  has been  accepted  by the  client  or

ordered by  the court, it constitutes  neither "proceeds" nor

"recoveries"  but  only  an   offer  of  payment  or  partial

settlement.

                             -11-                                          11

          Nor   does  F&amp;M  seriously  dispute  that  Bogosian

retained  the right to accept or reject any settlement offer.

In  fact,  F&amp;M concedes  in  its  brief that  the  assignment

agreement operated  as a  security  agreement, with  Bogosian

retaining control over  her cause  of action, and  not as  an

absolute assignment of litigation rights:

          The agreement did  not assign  Bogosian's
          causes  of action  to F&amp;M (F&amp;M  could not
          have sued WRC on those causes of action),
          but only assigned the first proceeds from
          the  litigation; it did  not give  F&amp;M an
          interest  in  the  litigation beyond  the
          amount  of its  earned  fees  and  costs.
          Moreover,   the    assignment   was   not
          absolute: it would have  been ineffective
          if Bogosian had simply paid her bills.7

Brief  of  Plaintiff-Appellee  at  20.8    These  concessions                                         

                                                    

7.  A few  pages further along  in its brief,  F&amp;M apparently
decided  that  it  had   better  argue  that  the  assignment
agreement was in fact an absolute  assignment.  Responding to
Bogosian's attempt  to distinguish In  re Apex  Oil Co.,  975                                                                   
F.2d 1365 (8th Cir.  1992) -- which the district  court cited
for the  proposition that an assignment  transfers all rights
in the assigned property -- on the ground that the assignment
in  that  case  was  absolute rather  than  conditional,  F&amp;M
informed  this  Court  that  "the  assignment  here  was  not
conditioned upon  anything."  Brief of  Plaintiff-Appellee at                                                                      
28 n.13.  We find F&amp;M's first interpretation more convincing.

8.  F&amp;M  also cited  numerous cases  as  upholding agreements
"such  as  the  one  between  F&amp;M  and  Bogosian,"  Brief  of                                                                         
Plaintiff-Appellee  at   20,  all  of  which   construed  the                                             
agreements  as security  for  an attorney's  unpaid fees  and
expenses  rather than  as absolute  assignments of  proceeds.
E.g.,  Skarecky &amp; Horenstein, P.A.  v. 3605 N.  36th St. Co.,                                                                        
825 P.2d 949, 952 (Ariz. App. 1991); In re Conduct of Taylor,                                                                        
878 P.2d 1103, 1110  (Or. 1994); Burk v. Burzynski,  672 P.2d                                                              
419,  423  (Wyo.  1983).    Although   the  language  of  the
agreements in  some of  these cases more  clearly established
that  they were  intended to  operate as  security agreements
than  the assignment  agreement  here, both  the November  24

                             -12-                                          12

notwithstanding, F&amp;M argues that  Bogosian still had no right

to reject WRC's  $1 million voluntary payment because  it was

not an offer  of settlement.  At least after  WRC dropped the

requirement that  Bogosian stipulate that the  money would be

applied  to  principal  and  not interest,  F&amp;M  argues,  WRC

imposed no conditions on  Bogosian's acceptance of the money.

Therefore, so this argument goes, Bogosian could not have had

any valid reason for rejecting the checks.

          This  argument  also  misses  the  mark,   for  the

proffered payment did in  fact contain an implicit condition:

namely, that  the $1  million portion of  Bogosian's ultimate

award represented by the two checks would be paid in cash and

not property.   Bogosian, in accepting  the checks, would  be

forgoing  her right to attempt in the future to structure the

payment  of that  portion  of her  award  in an  advantageous

manner.  Thus, while WRC's offer of payment may not have been

a  partial  "settlement  offer"   in  the  usual  sense,  its

acceptance nevertheless could  have limited Bogosian's future

options, and she  may well  have had  legitimate reasons  for

refusal.

                                                    

letter  and   the   assignment  document   limit   Bogosian's
assignment of proceeds  to the extent  that Bogosian has  not
paid F&amp;M's  bills.   Thus, F&amp;M  would have  no rights to  any
proceeds unless and only to the extent that Bogosian fails to
pay her attorney's bills.  This is an assignment for purposes
of security.  See In  re Apex Oil, 975 F.2d at 1369  ("We see                                             
no meaningful  difference between a security  interest and an
assignment for purposes of security.").

                             -13-                                          13

          Moreover, there is evidence that the possibility of

Bogosian  ultimately receiving property  rather than  cash in

exchange  for  her  shares  is no  pipedream.    The  statute

governing  the valuation  litigation provides that,  once the

value of  Bogosian's shares have been  determined, "the court

shall set forth in its order . . . the purchase price and the

time within which the  payment shall be made, and  may decree                                                                         

such other terms and  conditions of sale as it  determines to                                                                         

be  appropriate . .  . ."  R.I.  Gen. L. 7-1.1-90.1 (emphasis                           

added).  The  district court in  the valuation case  recently

stated:

          What   [Bogosian's]   judgment  will   be
          remains to be seen.   It may be that  the                                                               
          court  will  order  satisfaction  of  the                                                               
          purchase   price   by  the   transfer  of                                                               
          particular  parcels  of  real estate,  at                                                          
          least  in part, a result contended for by
          Plaintiff.      What   is  clear   beyond
          peradventure is that it is for this Court
          to  determine, under the precise terms of
          the statute, the "terms and conditions of
          sale   as  it   determines  appropriate."
          Until  this Court has had the opportunity
          to do  so,  Plaintiff  does  not  have  a
          definable   interest   in  any   specific
          property.    There  is  no  judgment  for
          Plaintiff which may be levied upon.

Bogosian v. Woloohojian,  C.A. No. 88-0373B, slip. op. at 7-8                                   

(D.R.I. Aug. 4, 1995) (emphasis added).

          Nevertheless, F&amp;M  argues that, even  assuming that

Bogosian eventually could receive property instead of cash as                                     

payment for her shares,  she could not have had  a good-faith

reason  for  rejecting  the  checks because:  (1)  she  would

                             -14-                                          14

eventually  have to  pay  the law  firm  in cash,  so even  a

disposition  of property  by the  court would  necessitate an

eventual sale of  assets, and (2) any payments made  to F &amp; M

would be tax-deductible, so a cash payment from WRC would not

have  any  adverse  tax   consequences.    This  argument  is

similarly unpersuasive: Bogosian  could conceivably  mortgage

any  property she receives and  pay F&amp;M from  those funds, or

perhaps F&amp;M would even acquire  an interest in the  property.

And even if a  cash payout would be tax-deductible,  Bogosian

might prefer  a disposition of  property for  non-tax-related

reasons,  e.g., because  she believes  the property  is worth

more  than  its  court-assigned  valuation,  or  because  she

believes its  appreciation rate  and income stream  will more

than compensate  for interest costs she  incurs in mortgaging

it to  pay off F&amp;M.   In any event, Bogosian  asserted in her

faxed response to F&amp;M, on the same day that F&amp;M requested her                                                  

indorsement of  the checks, that she did not want to do so in

part  to avoid  foreclosing the  possibility of  the district

court awarding her "mortgageable property" instead of cash.

          If  Bogosian did not  in fact reject  the checks in

good faith,9 but rather simply because she wanted the cash in

                                                    

9.  F&amp;M  is correct, of course, in stating that good faith is
not a defense to a breach-of-contract claim.  See Restatement                                                                         
(Second) of Contracts   11, introductory note (1979).   We do                                 
not  hold that a  good-faith belief that she  did not have to
assign the checks to F&amp;M would absolve Bogosian of liability;
rather,  we hold that if Bogosian rejected the checks in good                                                      
faith  -- i.e., for some legitimate reason not connected to a

                             -15-                                          15

her hands rather  than in  F&amp;M's coffers, then  she may  well

have  breached the  covenant of  good  faith implicit  in all

contracts under Rhode Island  law.  See Crellin Technologies,                                                                         

Inc. v. Equipmentlease Corp.,  18 F.3d 1, 10 (1st  Cir. 1994)                                        

("Rhode  Island  recognizes  that  virtually  every  contract

contains  an implied covenant of good  faith and fair dealing

between the parties."); Ide Farm &amp; Stable, Inc. v. Cardi, 297                                                                    

A.2d  643, 645 (R.I.  1972) (stating that  purpose of implied

covenant  of   good  faith  and  fair  dealing  is  "so  that

contractual objectives may be  achieved").  We find, however,

that a  rational jury, presented with  the evidence contained

in the summary judgment  record, could conclude that Bogosian

rejected the  checks for  a legitimate reason,  and therefore

summaryjudgment                          onF&amp;M'sbreach-of-contractclaim                                                       isinappropriate.10

                                                    

desire  to keep the money  herself and avoid  the dictates of
the assignment  agreement --  then she has  not breached  the
contract.

10.  A  rational jury  might also  conclude, of  course, that
Bogosian only had an  aversion to receiving cash when  it was
going  into F&amp;M's pocket,  as counsel for F&amp;M  put it at oral
argument.  The fact  that Pliakas tried to negotiate  a share
of the $1  million for Bogosian,  and Bogosian's argument  to
the  district court that F&amp;M should not have asserted a claim
to  the money when  it knew that  she needed the  cash to pay
other creditors, support this view.  Divining Bogosian's true
intent requires an assessment of  her credibility, a task for
the factfinder, not the court.
          We have also considered, and found meritless, F&amp;M's
assertion that  comments by Bogosian's attorney  in a related
interpleader  action estops  her  from arguing  now that  the
proffered $1 million were  not "proceeds."  In the  course of
arguing  against  the  interpleading  of  WRC's  $1  million,
Bogosian's  attorney  told  the  court that  the  funds  were
"proceeds" of the valuation  litigation and their disposition

                             -16-                                          16

          Although  we  remand  for  trial on  the  issue  of

liability,  we leave intact that part of the district court's

summary judgment ruling establishing the amount Bogosian owed

F&amp;M  as  of  the  date  of  alleged  breach,  plus  interest.

Bogosian argues that this  would be inappropriate because F&amp;M

never  specifically  asked  for  "partial  summary  judgment"

pursuant to  Fed. R.  Civ.  P. 56(d).   We  know  of no  such

requirement; Rule 56(d) states that a court,  "[i]f on motion                                                                         

under this rule (Rule  56) judgment is not rendered  upon the                                                                         

whole case[,] . . . shall if practicable" specify those facts                                                    

that  are without  substantial controversy.   F&amp;M's pleadings

and  affidavits made  clear that  it was  asserting that  the

legal fees  and expenses  detailed in its  billing statements

were  fair  and  reasonable  in  light  of  the  services  it

performed  for  Bogosian.    Bogosian   never  contested  the

accuracy or truthfulness  of any of those statements, nor did

she adduce any expert testimony that the  requested fees were

excessive.   Bogosian offered her  own opinion that  the fees

charged  for   certain  portions   of  the  litigation   were

                                                    

should  be determined in that  action.  We  do not understand
his  comments to amount to an assertion of rights by Bogosian
to  the money,  and we  therefore hold  that Bogosian  is not
estopped  from  arguing  that  the  funds  were  not in  fact
"proceeds" or "recoveries."

                             -17-                                          17

excessive,11 but her  generalized assertions  are not  enough

to create a "substantial controversy" about the amount she is

obligated to pay  under her contract with  F&amp;M, assuming that

she is found  to have breached  that contract.   See Fed.  R.                                                                

Civ.  P. 56(e) ("When a  motion for summary  judgment is made

and  supported as provided in this rule, an adverse party may

not  rest upon the mere allegations or denials of the adverse

party's  pleading,  but  the  adverse  party's  response,  by

affidavits or  as otherwise provided  in this rule,  must set

forth specific facts  showing that there  is a genuine  issue

for  trial."); see  also  Bennett v.  Martin-Trigona, 686  F.                                                                

Supp.  6,  9  (D.D.C.  1988) (awarding  summary  judgment  to

plaintiff-attorney after defendant-client  failed to  provide

evidence of specific errors in  bills); cf. Pfeifer v. Sentry                                                                         

Ins.,  745 F. Supp. 1434, 1443 (E.D. Wis. 1990) (stating that                

when  amount  of attorney  fee  is  challenged, attorney  has

burden of  proving reasonableness of fee,  but opposing party

has responsibility to state objections with particularity and

clarity).

          This  is not a  fee-award case, where  the court is

called on  to determine  a reasonable  attorney's fee  in the

                                                    

11.  For example, Bogosian asserted  that she was billed more
than   $200,000  for   work   concerning   her   "Section   8
partnerships" yet no lawsuit was ever  filed.  Bogosian never
bothered to direct us (or the district court) to the specific
billing  entries that  she  claims represent  this work,  let
alone those entries that she deems excessive.

                             -18-                                          18

first  instance;  it  is  a  contract  case,  and  Bogosian's

obligations to F&amp;M are defined by that contract.  See Laverty                                                                         

v.  Pearlman,  654  A.2d  696, 703  (R.I.  1995)  ("[W]hat  a                        

plaintiff may be bound to pay and what an attorney is free to

collect under a fee agreement are not necessarily measured by

the  'reasonable attorney's  fee' that  a defendant  must pay

pursuant to a court order." (quoting Venegas v. Mitchell, 495                                                                    

U.S. 82,  90 (1990)); see also A Sealed Case, 890 F.2d 15, 17                                                        

(7th Cir.  1989) ("Fees are  matters of contract,  and unless

the  fee  is  so   exorbitant  that  its  collection  offends

[professional   conduct  rules],  disputes   about  that  are

resolved under  that body of  law.").  A  $1 million  fee for

extensive  work  performed  in a  number  of  bitterly-fought

lawsuits  is not  on its  face exorbitant,  and Bogosian  has

utterly failed  to provide evidence  that any of  the claimed

fees   and  expenses   were   in  fact   not  incurred,   are

unreasonable, or exorbitant.  Thus, the amount owed to F&amp;M on

its   breach-of-contract   claim   is  not   in   substantial

controversy and is deemed established upon remand.12

C.  Bogosian's Counterclaims                                        

          Bogosian's  counterclaim,  by the  district court's

count,   alleged  thirty-four  instances  of  malpractice  or

breach-of-contract  by F&amp;M.    Flanders &amp;  Medeiros, Inc.  v.                                                                     

                                                    

12.  Subject,  of  course,  to appropriate  recalculation  of
interest and  fees incurred under the  contract subsequent to
the district court's summary judgment order.

                             -19-                                          19

Bogosian,  868  F. Supp.  at 417  n.4  (D.R.I. 1994).13   The                    

district  court granted  F&amp;M summary  judgment on  each claim

because Bogosian had failed  to adduce competent evidence, in

the form of  expert testimony,  on the standard  of care  and

scope of  duty to  which F&amp;M should  be held, or  on damages.

Id.   Bogosian  now  argues  that the  district  court  erred               

because (1)  merely identifying  an expert witness  who would                                           

                                                    

13.  The   district   court's    characterization   of    the
allegations, with which we largely agree, was as follows:

          (a)  F&amp;M's  failure to  obtain sufficient
          interim relief in the WRC litigation; (b)
          F&amp;M's   failure  to   properly  supervise
          expert  witness  Eric  Berenson   in  the
          appraisal  proceeding before  the Special
          Master;  (c) F&amp;M's  failure to  insist on
          certified  income and  expense statements
          from WRC in the valuation proceeding; (d)
          F&amp;M's  failure to  object to  the Special
          Master's  report on  the basis  of, inter
          alia,   the    appropriateness   of   the
          comparables  relied  upon by  the Special
          Master to  arrive at the value of certain
          real  estate,  his  valuation   of  WRC's
          management business based upon two years'
          management  contracts,  and the  issue of
          whether there  was a waterway  on another
          site;   (e)   F&amp;M's  withdrawal   of  its
          representation  of  Bogosian  in the  WRC
          litigation, and its failure to bring suit
          to   enjoin   Bogosian's   brother   from
          entering  into  unauthorized   management
          contracts; (f) F&amp;M's numerous failures to
          take  action  in  relation  to   the  two
          receiverships; and (g)  F&amp;M's failure  to
          take  action  to have  Bogosian's brother
          declared incapacitated  and terminated as
          a   general  partner  of  the  Section  8
          limited partnerships.

886 F. Supp. at 417 n.4.

                             -20-                                          20

testify  in support  of her  claims was  enough to  survive a

summary  judgment motion,14  and  (2) certain  of her  claims

did not require expert testimony.

          Bogosian's first  argument is  plainly  wrong.   We

stated  in Focus Inv. Assocs. v. American Title Ins. Co., 992                                                                    

F.2d 1231, 1239 (1st Cir. 1993), that under Rhode Island law,

"a legal malpractice plaintiff  must present expert testimony

establishing  the  appropriate standard  of  care  unless the

attorney's  lack of  care and  skill is  so obvious  that the

trier of  fact can resolve  the issue as  a matter of  common

knowledge."  We further explained that claims that "fall into

the  'common   knowledge'  category   are  those  where   the

negligence is  'clear and palpable,' or where  no analysis of

legal  expertise  is  involved."    Id.    Virtually  all  of                                                   

Bogosian's claims require  analysis of  legal expertise,  and

therefore the  mere identification  of an expert  expected to                                              

testify  at trial would in no way demonstrate the standard of

care applicable to F&amp;M, an essential element of her case.

                                                    

14.  Bogosian   filed  a   supplemental  response   to  F&amp;M's
interrogatories  identifying an  expert  witness prepared  to
testify on  her  behalf on  February  15, 1994,  almost  five
months after  the September 24, 1993,  discovery closure date
and only  a week  before the  summary  judgment motions  were
argued before  a magistrate-judge.  The supplemental response
contained  no  indication  of  the  nature or  basis  of  the
expert's  expected testimony other than to  say that he would
testify    "in   support   of"    Bogosian's   defenses   and
counterclaims.

                             -21-                                          21

          Summary  judgment is  "mandate[d] .  . .  against a

party who fails to make a showing sufficient to establish the

existence of an  element essential to that  party's case, and

on which that party will bear the burden of proof  at trial."

Celotex  Corp. v.  Catrett, 477  U.S. 317,  322 (1986).   The                                      

moving  party  discharges  his   or  her  initial  burden  of

"showing"  the  absence of  a  genuine  issue concerning  any

material  fact by pointing  out to  the district  court "that

there is  an absence  of evidence  to  support the  nonmoving

party's  case."  Id. at  325.  F&amp;M  discharged this burden by                                

pointing in its summary judgment motion to Bogosian's absence

of  expert  testimony  in  support  of  her  counterclaims.15

Therefore, summary judgment was appropriate as to all of  her

claims that required the analysis of legal expertise.16

                                                    

15.  Bogosian argues that F&amp;M  only complained of her failure
to  identify an  expert witness,  and thus  she was  under no                        
obligation  to do  any  more than  that.   F&amp;M's  motion  for
summary judgment, however, clearly states that Bogosian "must
present  expert  testimony"  and  that  she  "has  no  expert
testimony to support this claim."  Stating that Bogosian  had
not  yet  even  identified an  expert  witness  was  simply a
stronger way  of stating that she had  no hope of bearing her
burden of proof at trial.

16.  Bogosian also argues that  the district court abused its
discretion  in denying her request,  pursuant to Fed. R. Civ.
P. 56(f), for more time to produce expert witness affidavits.
She  bases this argument  on the notion  that the requirement
that she adduce expert  testimony to survive summary judgment
was  a "new rule" dreamed  up by the  magistrate-judge at the
summary  judgment hearing,  and that  its application  to her
case constitutes an  abuse of discretion.   This argument  is
legal  poppycock;  the  requirement of  expert  testimony  in
proving most types  of malpractice claims has been  so widely
adopted  that "it may even be malpractice to litigate a legal

                             -22-                                          22

          Bogosian  also argues  that not  all of  her claims

were of  the  type  that  required  expert  testimony.    For

example, she argues that the district court failed to realize

that  her allegation that F&amp;M breached its duty of loyalty to

Bogosian  when it  placed its  own interest  in getting  paid

ahead of Bogosian's possible interest in receiving a property

distribution rather than cash, adequately limned a breach-of-

fiduciary  duty  claim.    Similarly,  she  argues  that  her

allegation  that  F&amp;M  withdrew  from  ongoing litigation  in

violation of their contract states a breach-of-contract claim

(assuming  that  the contract  contains  an  implied term  to

continue   representation  until   the   conclusion  of   the

litigation) that  is completely  distinct from F&amp;M's  duty to

perform to the  appropriate standard of care.   These claims,

Bogosian  argues,   as  well  as  a   smattering  of  similar

allegations contained in her counterclaim, require  no expert

testimony because they do not  require the analysis of  legal

expertise.

          We  need not  answer the  question  Bogosian poses,

because even  assuming arguendo that Bogosian  has adequately                                           

stated claims that  do not require expert  testimony, she has                                      

failed to  introduce adequate evidence of  damages to support

any  of her  claims.   See 1  Ronald E.  Mallen &amp;  Jeffrey M.                                      

                                                    

malpractice case without expert  testimony."  Wilburn Brewer,
Jr., Expert Witness Testimony  in Legal Malpractice Cases, 47                                                                     
S.C. L. Rev. 727, 733 (1994). 

                             -23-                                          23

Smith, Legal Malpractice    16.1 (1989) ("Since the objective                                    

of  a  legal malpractice  suit  is  usually  the recovery  of

monetary compensation  for an  injury, pleading and  proof of

damages  are essential to a cause of action."); cf. Moores v.                                                                      

Greenberg,  834 F.2d  1105, 1111  (1st Cir.  1987) ("Whatever                     

form a legal malpractice action takes, the plaintiff  has the

burden  of  introducing  evidence  to  justify  an  award  of

consequential  damages.").    In  her  Counterclaim, Bogosian

raised the  specter of having  to hire additional  lawyers to

duplicate work  already performed by  her abandoning lawyers,

yet  she never provides further  evidence of such  costs.  In

answering  F&amp;M's  interrogatories  regarding the  nature  and

scope  of  her  damages,  Bogosian  repeatedly  answered  (or

incorporated by reference) that  "[a]n expert will assess the

value of  damages sustained from Flanders  &amp; Medeiros' breach

upon obtaining  further discovery."   Such an  assessment was

never  forthcoming.  As for F&amp;M's placing its own interest in

getting   paid  ahead  of  Bogosian's  possible  interest  in

obtaining a property distribution for the  full amount of her

stock's  value, the $1 million was never received by F&amp;M, and

the  record  contains no  evidence  that  the possibility  of

Bogosian receiving a  distribution entirely  in property  has

been diminished  at all.17   Thus,  Bogosian had  not adduced

                                                    

17.  The   checks  eventually   expired;  WRC   initiated  an
interpleader action  in the  district court to  determine the
rights of  various creditors  of Bogosian, including  F&amp;M, to

                             -24-                                          24

competent evidence sufficient  to prove an essential  element

of her claim, namely,  that these alleged breaches by  F&amp;M --

whether or not proof thereof would require expert testimony -

- have in fact damaged her.  Therefore, summary judgment must

be granted for F&amp;M on these claims.

                             III.                                         III.                                             

          For  the foregoing  reasons,  the  decision of  the

district  court is reversed  in part,  affirmed in  part, and                                                                         

remanded  for   further  proceedings  consistent   with  this                                                                         

opinion.                   

                                                    

funds WRC expected to pay to her.

                             -25-                                          25
