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A recent decision by the federal appeals court in Boston could have ramifications for attorneys who share letterhead, office space and other administrative trappings in a group setting, but who practice independently. In William J. Gosselin v. Raymond A. Webb, et al. (Case No. 00-1617), the 1st U.S. Circuit Court of Appeals vacated a summary judgment that favored a group of Lowell, Mass., attorneys doing business as Field, Hurley, Webb & Sullivan over plaintiff Gosselin’s contention that they should be held liable for the alleged malpractice of one of their former colleagues. The appeals decision found there was enough evidence that “may convey to a reasonable factfinder that [former Gosselin counsel] James O’Dea shared equal standing with the other attorneys who make up the ‘firm’ Field Hurley.” As a result, the malpractice suit launched by Gosselin, holding Field Hurley “vicariously liable for the alleged professional misdeeds” of O’Dea, was remanded for trial in U.S. District Court in Boston. The appeals court’s March 16 decision, written by U.S. District Court Judge Mary M. Lisi of the District of Rhode Island, overturned the district court ruling by federal Judge George A. O’Toole. EVIDENCE OF ‘HOLDING OUT’ Lisi cited a building directory that listed O’Dea along with the lawyers’ group posted in the lobby of their Lowell offices as among the evidence that he “held himself out” as a partner of a firm, as outlined in Atlas Tack Corp. v. DiMasi, 637 N.E.2d 230, 232 (Mass. App. Ct. 1994). Other evidence the judge used to support that finding included conversations Gosselin and his wife had with O’Dea and another attorney practicing at the site as well as the fact that O’Dea included the address of the Field Hurley offices on his letterhead stationery. “Evidence of ‘holding out’ may consist of ‘words spoken or written or … conduct,’” wrote Lisi. Gosselin, who lost his job in 1992 and faced foreclosure on his home, hired O’Dea to represent him on claims for back wages and damages under the Americans with Disabilities Act and a bankruptcy filing. Though O’Dea also practiced in Washington, D.C., Gosselin signed papers and met with O’Dea in the Field Hurley office in Lowell. Gosselin rejected an arbitration award from his former employer, based on O’Dea’s advice to proceed instead with an ADA suit. When Gosselin learned the attorney allegedly failed to file his claim, he sued O’Dea and Field Hurley attorneys for malpractice. During the course of the suit, filed last year in federal court, Gosselin settled his malpractice claim against O’Dea. William N. Hurley, representing the Field Hurley group, which also includes attorneys Raymond A. Webb, Arthur C. Sullivan Jr., and Marshall L. Field, said he believed the federal appeals court “worked hard to keep the decision as narrow as it needs to be. I’m not certain it expands prior law,” Hurley said. In allowing the case to go forward, the appeals court, however, also relied on Rule 7.5 of the Massachusetts Rules of Professional Conduct. That rule warns lawyers against the use of a trade name, such as the way the Lowell group used Field, Hurley, Webb & Sullivan. The rule states, “Lawyers who are not in fact partners such as those who are only sharing office facilities, may not denominate themselves [as such] … for those titles, in the absence of an effective disclaimer of joint responsibility, suggest partnership in the practice of law.” LOWER COURT MISSED THE MARK An ethics opinion from the Massachusetts Bar Association in 1985 provided the same advice, the appeals court found. “We believe that the district court’s assessment missed the mark in two ways,” Lisi wrote. “First, the district court seemed to focus on the fact that neither O’Dea nor the appellees ever ‘expressly described’ O’Dea as a partner in the firm. Secondly, the district court failed to view those facts through a lens properly adjusted in accordance with the jurisprudence regarding Rule 56 of the Federal Rules of Civil Procedure.” That rule requires the Field Hurley group to provide “a concise statement of the material facts of record as to which the moving party contends there is no genuine issue to be tried … ,” according to a footnote in the decision. “This court proceeds as did the district court, without a conforming statement of fact, and any negative consequences of that omission must be borne by the appellees.” Both points — the adherence to Rule 56 and the omission of a clear statement on whether O’Dea was a member of a partnership — are “wake up calls” to all attorneys, maintained Gosselin’s counsel, Joseph H. Reinhardt, of the Boston law firm The McCabe Group. “There was no signage that he was not in partnership with these other folks,” said Reinhardt. “If you’re going to practice in this kind of arrangement, you have to let the public know.” His co-counsel, Boston attorney Philip Y. Brown, said it is important to clarify such space-sharing arrangements to the public, “particularly in this climate today in which you have so many relationships [between] lawyers and firms,” such as contract lawyers, of counsel and other types of nonequity positions. “In this case, it wasn’t so much whether [the Field Hurley lawyers] were partners, but whether the law firm was affiliated with Mr. O’Dea,” added Brown, an attorney at Adler, Pollock & Sheehan. “There are lots of office-sharing situations,” he said. “But in most cases the attorneys have a delineation … . They list themselves separately.”

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