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14-P-1120                                                Appeals Court

MARY ELLEN WESSELL       vs.    MINK BROOK ASSOCIATES, INC., & another.1


                                No. 14-P-1120.

            Worcester.         April 7, 2015. - August 5, 2015.

              Present:   Kantrowitz, Kafker, & Hanlon, JJ.


Massachusetts Wage Act. Attorney at Law, Disqualification,
     Attorney-client relationship, Conflict of interest.
     Employment, Retaliation, Termination. Damages, Wrongful
     discharge of employee, Back pay. Practice, Civil,
     Instructions to jury, Damages.



     Civil action commenced in the Superior Court Department on
June 19, 2012.

     A motion to disqualify the plaintiff's attorney was heard
by David Ricciardone, J., and the case was tried before him.


     Gregg S. Haladyna for the defendants.
     Steven D. Weatherhead (John F. Welsh with him) for the
plaintiff.


    KANTROWITZ, J.       This case involves a dispute between an

employee and her former employer regarding unpaid wages.          The

plaintiff, Mary Ellen Wessell, successfully sued Mink Brook

    1
        Robert C. Stone.
                                                                      2


Associates, Inc. (Mink Brook), and owner Robert C. Stone under

the Wage Act for lost wages and retaliatory discharge after

Stone refused to issue her a paycheck, she complained, and she

was fired.

     In this appeal, the defendants argue that the trial judge

improperly denied their pretrial motion to disqualify opposing

counsel because Wessell's attorney, who was her long-time

personal friend, had previously provided informal legal advice

to her on certain topics in Wessell's capacity as an employee of

Mink Brook.   The defendants also contend that the judge

improperly instructed the jury on compensatory damages on the

retaliation claim.     We affirm.

     Background.2    Mink Brook was incorporated in 1993 as a

franchisee of Paul Davis Restoration, a national company that

performed restoration work on houses to mitigate damage from

flooding, fire, mold, or other problems.     Stone was Mink Brook's

owner and president.     In 2007, Stone contacted Wessell to

discuss hiring her to work on the company's financial matters

and record-keeping.     She joined Mink Brook in its Worcester

office as a subcontractor at an hourly rate, and in 2008 she

     2
       Our recitation includes both evidence put before the judge
on the defendants' pretrial motion to disqualify Wessell's
counsel and evidence put before the jury at trial. The latter
we generally present in the light most favorable to Wessell.
Much was undisputed, but where there was a relevant conflict, or
a finding by the judge, we will so note.
                                                                     3


became the company's "business manager" at an annual salary of

$50,000.   Wessell's duties included managing accounts, human

resources, payroll, bookkeeping, insurance policies, vehicle

registration, and licenses.     She would occasionally work from

home on a laptop computer that Stone purchased.     Wessell also

performed unpaid work duties during her vacations or at times

outside of her business hours.     Employees received paychecks

every two weeks.     Wessell testified that she worked about fifty

hours per week.3

     During Wessell's employment at Mink Brook, she occasionally

sought informal legal advice from a close friend, Attorney John

Welsh, whom she had known for many years.4    In 2008 and 2009,

Wessell consulted with Attorney Welsh on a former employee's

breach of postemployment covenants, and Welsh drafted a cease-

and-desist letter.     In 2010, on matters involving another former

employee, Wessell exchanged electronic mail messages (e-mails)

with Welsh, and he reviewed correspondence that Mink Brook sent


     3
       In April, 2011, Wessell was involved in a car accident,
which required approximately eight weeks of recuperation and
lost work. When Stone protested the lost time, Wessell worked
part-time from home. She was paid at an hourly rate.
     4
       Attorney Welsh stated in an affidavit that "I have known
Ms. Wessell for over 35 years. She has been my sister's best
friend since grade school." He further stated that "Ms. Wessell
would call me intermittently (once every 12-18 months) for
advice concerning personnel issues she was handling on behalf of
the company."
                                                                    4


to the Attorney General's office.   Sometime in 2010, Welsh

notified Wessell that he would no longer provide legal advice to

Mink Brook.5   However, on June 15, 2011, Wessell again contacted

Welsh, who agreed as a "friend" to provide advice on an issue

involving building access by a Mink Brook job applicant who had

a physical disability.6

     Wessell testified that as of late 2011, she observed

numerous problems or irregularities with the company's finances

and operations.7   She informed Stone of some of her observations,

including her belief that an employee was "stealing from him."

Stone said "[b]asically nothing" in response to this

information.




     5
       Welsh stated in his affidavit that he stopped providing
legal advice to Mink Brook because he found Stone's treatment of
Wessell to be unacceptable. Additionally, he had a billing and
stolen property dispute with Mink Brook regarding work performed
on his home. The defendants dispute receiving notice that
Welsh's legal advice stopped in 2010.
     6
       The defendants also alleged that Welsh helped Wessell
prepare an employee handbook for Mink Brook.
     7
       Regarding Mink Brook's finances, Wessell testified that
sales were low and customers were complaining. On at least one
occasion, Wessell had to delay issuing paychecks to herself and
other employees. Wessell testified that Stone charged personal
expenses to company credit cards and used company money to pay
his son large amounts of money for cleaning the bathrooms, to
provide his wife with a salary, to make payments on his home
mortgage, and to purchase several items that were unrelated to
the company's home restoration business.
                                                                   5


    Shortly thereafter, in early January, 2012, Stone called

Wessell into a meeting in which the accused employee was

present.   At this meeting, Stone accused Wessell of lying about

her reporting of work hours since her automobile accident (see

note 3, supra).   He demanded financial reports that were

impossible for her to provide, and he ultimately demoted her

from business manager, placed the accused employee in that role,

and required Wessell to report to that employee.

    On March 28, 2012, during a meeting with several employees

including Wessell, Stone addressed their financial concerns

about Mink Brook and informed them that the company was not

closing but was experiencing "just a little bump in the road."

Stone then named several employees who would still receive their

upcoming paychecks, but he did not name Wessell.    When she

inquired about her paycheck, he stated that she would not

receive it.   Wessell responded that this was unfair and that she

wanted to meet privately with Stone after the group meeting.

One hour later, Wessell and Stone met privately in her office.

Wessell demanded to be paid, and Stone replied that she "could

afford not to get paid."   The next day, March 29, 2012, Wessell

again met with Stone and the accused employee.     Stone stated
                                                                   6


that Wessell was stealing money and reimbursing herself without

authorization, which Wessell denied.   Stone then fired her.8

     Wessell formally retained Welsh who, on June 19, 2012,

filed the instant complaint against Mink Brook and Stone,

alleging claims of nonpayment of wages and retaliatory firing in

violation of the Wage Act, G. L. c. 149, §§ 148, 148A.9    On

January 2, 2014, nearly one and one-half years after the

litigation began and eleven days before trial, the defendants

filed a motion to disqualify Welsh, claiming a conflict of

interest given Welsh's attorney-client relationship with them.10

One week later the trial judge, after a hearing, denied the

motion.   The judge ruled that Welsh's advice to Wessell, given

when she worked for Mink Brook, was informal, free, and

unrelated to the issues in her complaint.   The judge concluded

     8
       Wessell testified that she later received a check for a
portion of the money that Mink Brook owed her for wages.
     9
       Wessell's complaint stated that she received a right-to-
sue letter from the Attorney General; this letter is not
included in the record appendix, but the defendants raise no
issue on this subject. Wessell's complaint also included a
quantum meruit claim that was eventually dismissed by
stipulation of the parties.
     10
       The matter of representation by Welsh was apparently
considered by the defendants when they were defaulted in late
2012. Counsel for the defendants told the trial judge on
January 9, 2014, at the hearing on the motion to disqualify,
that the default occurred because Stone considered the complaint
"just an intimidation tactic," and believed that Welsh could not
bring the complaint because of his prior legal assistance to
Mink Brook.
                                                                   7


that although Welsh's personal relationship with Wessell gave

Mink Brook a "valuable contact," Mink Brook and Welsh never

established an attorney-client relationship.11

     On January 14, 2014, the jury found for the plaintiff and

awarded damages for lost wages and unused vacation time, up to

the date of her firing, of $3,750.    The jury also awarded lost

compensation from the date of firing up to the date of the

verdict, minus earnings from Wessell's subsequent employment

elsewhere, of $54,880.90.    On January 24, 2014, the court

entered an amended judgment that trebled the amount, as required

under G. L. c. 149, § 150,12 and added interest, for an award of

$187,111.38.    This appeal followed.13



     11
          The judge found:

          "There's a very de minimis interaction between Ms.
     Wessell and Mr. Welsh in terms of some of this informal
     advice and education on legal topics such as handicap
     accessibility and what to do with a competing former
     employee and things of that nature. These contexts to me
     arise out of the personal relationship between the two. I
     think he was representing Mink Brook in only the most
     technical sense, and certainly by going ahead and
     representing Ms. Wessell in this case I don't think that
     there is any basis for an abuse of confidential information
     regarding Mink Brook that he learned in the course of any
     of this advice. The advice Mr. Welsh gave on these few
     exchanges over the course of several years were on clearly
     unrelated matters . . . ."
     12
       The statute states, in pertinent part, "An employee so
aggrieved who prevails in such an action shall be awarded treble
damages, as liquidated damages, for any lost wages and other
benefits and shall also be awarded the costs of the litigation
                                                                    8


     Motion to disqualify.   Denial of a motion to disqualify an

attorney is reviewed for abuse of discretion.    Steinert v.

Steinert, 73 Mass. App. Ct. 287, 288 (2008).    A moving party

must show, first, that the current representation is adverse to

the interests of the former client, and second that the matters

of the two representations are substantially related.    Slade v.

Ormsby, 69 Mass. App. Ct. 542, 546 (2007), citing Adoption of

Erica, 426 Mass. 55, 61 (1997).    See Mass.R.Prof.C. 1.9, 426

Mass. 1342 (1998).14

     An attorney-client relationship "may be, but need not be,

express; the relationship can be implied from the conduct of the

parties."   Page v. Frazier, 388 Mass. 55, 62 (1983).   For an

implied attorney-client relationship, (1) a party must seek

advice from an attorney, (2) the advice sought must be within

the attorney's professional competence, and (3) the attorney


and reasonable attorneys' fees."    G. L. c. 149, § 150, as
amended by St. 2008, c. 80, § 5.
     13
       On April 8, 2014, the court further ordered an award of
Wessell's costs and attorney's fees, which together totaled
about $40,000. The defendants did not file an appeal from that
order, and its correctness is not before us.
     14
       Rule 1.9(a) states, "A lawyer who has formerly
represented a client in a matter shall not thereafter represent
another person in the same or a substantially related matter in
which that person's interests are materially adverse to the
interests of the former client unless the former client consents
after consultation." The Massachusetts Rules of Professional
Conduct "specifically incorporate" the substantial relationship
test. Adoption of Erica, 426 Mass. at 61.
                                                                     9


agrees to give, or actually gives, the advice.   DeVaux v.

American Home Assur. Co., 387 Mass. 814, 818 (1983).

Additionally, "the question whether there was an attorney-client

relationship depends on the reasonableness of the [complaining

party's] reliance."   Id. at 819.

     For matters to be "substantially related," courts have

consistently found that counsel must possess confidential

information that could be used against the former client in the

current representation.   See Masiello v. Perini Corp., 394 Mass.

842, 847-850 (1985); Adoption of Erica, 426 Mass. at 63.15    When

determining whether matters are substantially related, a judge

should make a factual determination by comparing "the overlap

and similarity" between the former and current representations.

Slade v. Ormsby, 69 Mass. App. Ct. at 547.16

     Courts discourage "eleventh hour maneuvers" to disqualify

opposing counsel where the moving party has advance notice of

the representation by opposing counsel but waits to raise the

issue until the eve of trial.   Masiello v. Perini Corp., 394

Mass. at 850.   Such tactics "are disruptive to the efficient

     15
       One can envision a scenario where matters are
substantially related despite a lack of confidential
information. Such is not the case here.
     16
       "[T]he exact parameters" of when two matters are
substantially related has not been delineated in the case law.
Slade v. Ormsby, 69 Mass. App. Ct. at 547 n.11, citing Adoption
of Erica, 426 Mass. at 62.
                                                                  10


administration of justice and are costly."     Ibid.   "Court

resources are sorely taxed by the . . . use of disqualification

motions as harassment and dilatory tactics."    Gorovitz v.

Planning Bd. of Nantucket, 394 Mass. 246, 250 n.7 (1985).

     Here, even if an attorney-client relationship existed

between Welsh and the defendants, the judge properly denied the

motion to disqualify because Welsh's services, including his

advice on handicap accessibility and review of certain letters,

never involved matters "substantially related" to Wessell's Wage

Act dispute.   See Slade v. Ormsby, 69 Mass. App. Ct. at 546.

Although Welsh advised Wessell on specific Mink Brook employee

matters, those matters were not substantially related to

Wessell's complaint because there was no overlap or similarity.

See id. at 547.    Also, Welsh never gained confidential

information in the prior matters that disadvantaged Mink Brook

at trial here.17   See Masiello v. Perini Corp., 394 Mass. at 847-

850; Adoption of Erica, 426 Mass. at 63.18


     17
       Regarding the employee handbook that Welsh was alleged to
have helped to create for Mink Brook, the judge found the
defendants' contention to be an "overstatement."
     18
       While Welsh infrequently gave uncompensated legal advice
to Wessell, the defendants and Welsh never expressly created any
formal representation agreement. See Page v. Frazier, 388 Mass.
at 62. Additionally, while a closer question, they never formed
an implied agreement. Even though Wessell sought and obtained
advice from Welsh that was within his professional competence,
and for the purpose of furthering Mink Brook's interests, Mink
Brook could not reasonably have concluded that based on this
                                                                  11


     Lastly, as the judge noted before trial, the defendants'

motion had all the indications of being an "eleventh hour

maneuver[]" to disqualify opposing counsel despite numerous

opportunities before trial to raise the objection.   Masiello v.

Perini Corp., 394 Mass. at 850.   The defendants filed their

motion on the eve of trial, about one and one-half years after

Wessell's complaint.   Without a sufficient explanation for the

extraordinary delay,19 the motion was properly denied not only as

without merit but also as a dilatory tactic.

     Damages under Wage Act.   The defendants argue that the

judge erred when he instructed the jury that they could award

the plaintiff compensatory damages ("back pay") for a violation

of the Wage Act, specifically for a retaliatory firing

prohibited under G. L. c. 149, § 148A.20   They maintain that one




infrequent, informal, and free advice that Welsh represented the
company. See DeVaux v. American Home Assur. Co., 387 Mass. at
818-819.
     19
       At oral argument, counsel for the defendants explained
that the original claim was for a minimal amount, and there was
a belief that the matter would be settled prior to trial.
(Indeed, during the hearing on the disqualification motion,
defense counsel told the judge that "there was always a hope
that it would settle or resolve, or it would just go away at
some point.") Even so, that belief had to dissipate as the
trial date approached.
     20
       The judge instructed the jury that "if you find that Ms.
Wessell was terminated unlawfully from making a complaint
regarding the Wage Act, then she is entitled to damages of the
amount she would have earned if she had not been wrongfully
                                                                  12


who violates § 148A "shall be punished or shall be subject to a

civil citation or order as provided in [G. L. c. 149, §] 27C,"

only, and that § 148A does not enable a private individual to

obtain compensatory damages because the criminal and civil

penalties in § 27C are the exclusive remedy, enforceable by the

Attorney General only, for § 148A violations.21

     The Wage Act has interrelated mechanisms to ensure that

employees are timely paid and protected when that right is

asserted.   Under G. L. c. 149, § 148, as amended by St. 1992,

c. 133, § 502, an employer "shall pay weekly or bi-weekly each

such employee the wages earned by him to within six days of the

termination of the pay period during which the wages were earned

if employed for five or six days in a calendar week . . . ."

The first paragraph of G. L. c. 149, § 148A, inserted by


discharged from the date of her termination, forward to this
date."
     21
       The second paragraph of § 148A, which the defendants cite
as support for their argument, states,

          "Any employer who discharges or in any other manner
     discriminates against any employee because such employee
     has made a complaint to the attorney general or any other
     person, or assists the attorney general in any
     investigation under this chapter, or has instituted, or
     caused to be instituted any proceeding under or related to
     this chapter, or has testified or is about to testify in
     any such proceedings, shall have violated this section and
     shall be punished or shall be subject to a civil citation
     or order as provided in section 27C."

G. L. c. 149, § 148A, as amended by St. 1999, c. 127, § 144.
                                                                  13


St. 1977, c. 590, mandates that "[n]o employee shall be

penalized by an employer in any way as a result of any action on

the part of an employee to seek his or her rights under the

wages and hours provisions of this chapter."   Completing the

circle, G. L. c. 149, § 150, authorizes an employee faced with a

violation of § 148 or § 148A to bring a civil action "for any

damages incurred, and for any lost wages and other benefits."22

See Fernandes v. Attleboro Hous. Authy., 470 Mass. 117, 126-127

(2014).

     The defendants' view, that the remedy under § 148A is

limited to criminal and civil penalties and not damages from the

date of retaliation up to the date of judgment, is overly

restrictive, essentially ignores G. L. c. 149, § 150, and leaves

those aggrieved with no option other than a complaint to, and

action by, the Attorney General.   The Wage Act, when read as a

whole to ensure payment and to protect employees who assert that

right, does not support the defendants' assertion that the § 27C


     22
       "An employee claiming to be aggrieved by a violation of
[§ 148, § 148A, or other specified sections] may, 90 days after
the filing of a complaint with the attorney general, or sooner
if the attorney general assents in writing, and within 3 years
after the violation, institute and prosecute . . . a civil
action for injunctive relief, for any damages incurred, and for
any lost wages and other benefits." G. L. c. 149, § 150, as
amended by St. 2008, c. 80, § 5. (We note that the 2014
amendments to § 150, even had they not postdated the events at
issue in this litigation, did not change the language applicable
here. See St. 2014, c. 260, § 11; St. 2014, c. 292, § 1.)
                                                                  14


language is exclusive and only allows actions by the Attorney

General.   In so arguing, the defendants ignore the authorization

in § 150 for a private cause of action for retaliation

prohibited by the first paragraph of § 148A.

     In sum, read in totality, for wage claims under § 148, an

employee may recover earned wages that an employer has withheld.

For retaliation claims under § 148A, an employee terminated by

an employer for asserting a wage right may recover damages

stemming from the termination.   Damages for retaliation may

include earnings from the date of termination up to trial.     See

Johnson v. Spencer Press of Me., Inc., 364 F.3d 368, 379 (1st

Cir. 2004) ("An award of back pay compensates plaintiffs for

lost wages and benefits between the time of the discharge and

the trial court judgment").23

     Here, the defendants' retaliatory firing of Wessell

violated § 148A, which triggered Wessell's § 150 remedy for

     23
        While the defendants failed to object after the judge
delivered his final instructions to the jury, it appears that
defense counsel throughout challenged the back pay jury
instruction. At a precharge hearing, defense counsel objected
to the proposed instruction, and the judge acknowledged his
objection. Although a judge may save or preserve rights at an
earlier time that might, in some circumstances, excuse the need
for a timely objection later, "we discourage the practice."
Commonwealth v. Almele, 87 Mass. App. Ct. 218, 224 (2015). See
Rotkiewicz v. Sadowsky, 431 Mass. 748, 751 (2000), citing Flood
v. Southland Corp., 416 Mass. 62, 66-67 (1993). See also id. at
67 ("Cautious counsel, however, wisely will renew any earlier
objection with specificity after the charge unless the judge
then instructs otherwise"); Mass.R.Civ.P. 51(b), 365 Mass. 816
(1974).
                                                                  15


recovery of "any damages incurred, and . . . any lost wages and

other benefits."   The judge correctly instructed the jury that

if they found that the defendants fired Wessell in retaliation,

the jury could award her damages based on her earnings from the

date of her termination until the date of the jury's decision.

See Fernandes v. Attleboro Hous. Authy., 470 Mass. at 130 &

n.11.

                                   Amended judgment affirmed.
