Gorovitz v. Plan. Bd. of Nantucket, 475 N.E.2d 377 (Mass. 1985). · Go Syfert
Gorovitz v. Plan. Bd. of Nantucket, 475 N.E.2d 377 (Mass. 1985). Cases Citing This Book View Copy Cite
“court resources are sorely taxed by the increasing use of disqualification motions as harassment and dilatory tactics”
65 citation events (21 in the last 25 years) across 13 distinct courts.
Strongest positive: NGM Insurance v. Cotter (masssuperct, 2009-11-13)
Treatment trajectory · 1985 → 2026 · click a year to view as-of
1985 2005 2026
Top citers, strongest first. 27 distinct citers. How cited ↗
discussed Cited as authority (quoted) NGM Insurance v. Cotter
Mass. Super. Ct. · 2009 · signal: see also · quote attribution · 1 verbatim quote · confidence low
court resources are sorely taxed by the increasing use of disqualification motions as harassment and dilatory tactics
examined Cited as authority (rule) Verizon Yellow Pages Co. v. Sims & Sims, PC (4×) also: Cited "see", Cited "see, e.g."
Mass. Super. Ct. · 2003 · confidence medium
The Court relied on the fact that Gorovitz was a party litigant, and that as a general partner, he possessed the “rights and powers of a partner in a partnership without limited partners.” Id. at 249 (citations omitted).
cited Cited as authority (rule) Chauhan v. Dana-Farber Cancer Institute, Inc.
Mass. Super. Ct. · 2001 · confidence medium
Id. at 65 ; Gorovitz v. Planning Board of Nantucket, 394 Mass. 246, 250 (1985).
cited Cited as authority (rule) Commonwealth v. Jordan
Mass. App. Ct. · 2000 · confidence medium
See Borman v. Borman, 378 Mass. 775, 787-788 (1979); Gorovitz v. Planning Bd. of Nantucket, 394 Mass. 246, 250 (1985); Adoption of Erica, 426 Mass. 55, 63 (1997).
discussed Cited as authority (rule) Forgue v. Forgue
Mass. Super. Ct. · 2000 · confidence medium
It is well settled that courts “encourage deference to an attorney’s best judgment as to whether his representation of a client brings him into conflict with any provisions of the disciplinary code.” Adoption of Erica, supra at 63, Gorovitz v. Planning Bd. of Nantucket, 394 Mass. 246, 250 (1985); Borman v. Borman, 378 Mass. 775, 788 (1979). 3 Attorney Guerrier has been insistent that he has no conflict of interest in representing Ms. Forgue since his representation of her in this matter does not include the disclosure of any confidential information in the prior matter.
discussed Cited as authority (rule) Adoption of Erica (2×) also: Cited "see"
Mass. · 1997 · confidence medium
See Wellman, supra at 502 ; Gorovitz v. Planning Bd. of Nantucket, 394 Mass. 246, 250 (1985); Borman v. Borman, 378 Mass. 775, 788 (1979). 8 Dunn has been insistent that she has no conflict of interest in representing Erica, and absent any evidence on the subject, we shall not assume that she has disclosed or used any confidential information of her former client, or that she will do so.
discussed Cited as authority (rule) Jarosz v. Union Products, Inc.
Mass. Super. Ct. · 1997 · confidence medium
This Court is also mindful of the concern that ”[t]he high costs of attorney disqualification on litigants and on the court system militate against the indiscriminate allowance of disqualification motions,” Gorowitz v. Planning Bd. of Nantucket, 394 Mass. 246, 250 (1985), that “(c]ourt resources are sorely taxed by the increasing use of disqualification motions as harassment and dilatory tactics,” Id. at 250 n.7, and that Courts should be “cautious [about] judicial disqualification of counsel.” Byrnes v. Jamitkowski, 29 Mass.App.Ct. 107, 109 (1990), citing Serody v. Serody, 19 Mass…
discussed Cited as authority (rule) Kveraga-Olson v. Sternberg (2×)
Mass. Super. Ct. · 1997 · confidence medium
Borman v. Borman, supra at 790 ; Gorovitz v. Planning Board of Nantucket, 394 Mass. 246, 250 (1985); Serody v. Serody, 19 Mass.App.Ct. 411, 413 (1985).
cited Cited as authority (rule) Fusco v. Rocky Mountain I Investments Limited Partnership
Mass. App. Ct. · 1997 · confidence medium
The most commonly cited opinion is Gorovitz v. Planning Bd. of Nantucket, 394 Mass. 246, 249 (1985).
cited Cited as authority (rule) Mindick v. Stop & Shop Companies, Inc.
Mass. Super. Ct. · 1995 · confidence medium
Grovitz v. Planning Board of Nantucket, 394 Mass. 246, 250 (1985); Borman v. Borman, 378 Mass. 775, 788 (1979).
discussed Cited as authority (rule) Cholfin v. Gordon
Mass. Super. Ct. · 1995 · confidence medium
Recognizing the limited circumstances under which motions to disqualify should be allowed and the efforts a court should make to find some other way to solve what appear to be problems engendered by an attorney’s appearance, see generally Gorovitz v. Planning Board of Nantucket, 394 Mass. 246, 250 (1984); Commonwealth v. Goldman, 395 Mass. 495, 507-09 (1985), cert. denied, 474 U.S. 906 (1986), I severed the third-party claim for separate trial and denied defendant’s motion to disqualify.
discussed Cited as authority (rule) Estate of Andrews Ex Rel. Andrews v. United States (2×)
E.D. Va. · 1992 · confidence medium
See, e.g., In re American Cable Publications, Inc., 768 F.2d 1194, 1196 (10th Cir.1985); Bottaro, 680 F.2d at 897-98; Harrison v. Keystone Coca-Cola Bottling Co., 428 F.Supp. 149, 152-53 (M.D.Pa.1977); Gorovitz v. Planning Bd., 394 Mass. 246 , 475 N.E.2d 377, 379-80 (1985); O’Neil v. Bergan, 452 A.2d 337, 344-45 (D.C.1982); Borman, 393 N.E.2d at 856 ; Mansur v. Drage, 484 So.2d 618, 619 (Fla.Dist.Ct.App.), rev. denied, 492 So.2d 1333 (Fla.1986) (table); Oppenheim v. Azriliant, 89 A.D.2d 522 , 452 N.Y.S.2d 211, 212 (1st Dep’t 1982).
discussed Cited as authority (rule) Beckstead v. Deseret Roofing Co., Inc.
Utah Ct. App. · 1992 · confidence medium
It does not address that situation in which the lawyer is the party litigant.” Gorovitz v. Planning Bd. of Nantucket, 394 Mass. 246 , 475 N.E.2d 377, 379 (1985); Borman v. Borman, 378 Mass. 775 , 393 N.E.2d 847, 856 (1979); see Presnick v. Esposito, 8 Conn.App. 364 , 513 A.2d 165, 166-67 (1986); O’Neil v. Bergan, 452 A.2d 337, 344 (D.C.1982).
discussed Cited as authority (rule) Colonial Gas Co. v. Aetna Casualty & Surety Co. (2×)
D. Mass. · 1991 · confidence medium
Both the “high cost upon litigants and upon the court system militaJTTagamlitThe indiscriminate allowance of ' di$quaIfficatioh~motions.” Gorovitz v. Planning Board of Nantucket, 394 Mass. 246 , 475 N.E.2d 377, 380 (1985).
discussed Cited as authority (rule) Rizzo v. Sears, Roebuck & Co. (2×)
D. Mass. · 1989 · confidence medium
Another concern is the “high costs of attorney disqualification on litigants and on the court system.” Gorovitz v. Planning Board of Nantucket, 394 Mass. 246, 250 , 475 N.E.2d 377, 380 (1985).
discussed Cited as authority (rule) Wellman v. Willis
Mass. · 1987 · confidence medium
In Unified Sewerage Agency v. Jelco Inc., 646 F.2d 1339 , 1348 n.12 (9th Cir. 1981), the court *502 stated that “obvious” must be assessed in reference to an objective standard under which the ability of the attorney to represent adequately the interests of each client is “free from substantial doubt.” In Gorovitz v. Planning Bd. of Nantucket, 394 Mass. 246, 250 (1985), and Borman v. Borman, 378 Mass. 775, 788 (1979), we encouraged deference to the exercise of an attorney’s best judgment as to whether such employment will bring the attorney into conflict with the code. 17 Hale and Do…
discussed Cited as authority (rule) Skeen v. Chase Manhattan Bank
10th Cir. · 1985 · confidence medium
See Bottaro v. Hatton Associates, 680 F.2d 895, 897 (2d Cir.1982); International Electronics Corp. v. Flanzer, 527 F.2d 1288, 1294 (2d Cir.1975); Theobald v. Botein, Hays, Sklar & Herzberg, 465 F.Supp. 609, 610 (S.D.N.Y.1979); Harrison v. Keystone Coca-Cola Bottling Co., 428 F.Supp. 149, 152-53 (M.D.Pa.1977); Cardwell v. Russo, 40 Conn.Sup. 162 , 484 A.2d 487, 488 (1984) (dicta); O’Neil v. Bergan, 452 A.2d 337, 344-45 (D.C.1982); Gorovitz v. Planning Board, 394 Mass. 246 , 475 N.E.2d 377, 379-80 (1985); Borman v. Borman, 378 Mass. 775 , 393 N.E.2d 847, 856 (1979); Oppenheim v. Azriliant, 89 …
discussed Cited as authority (rule) In Re American Cable Publications, Inc., Debtor. Matthew D. Skeen, Trustee v. Chase Manhattan Bank, and Cable T v. Magazine, Inc., Intervenor-Defendant-Appellee. Oliver E. Frascona, and Third Party v. Paul Gaston, Third Party William J. Wipperfurth, Third Party
3rd Cir. · 1985 · confidence medium
See Bottaro v. Hatton Associates, 680 F.2d 895, 897 (2d Cir.1982); International Electronics Corp. v. Flanzer, 527 F.2d 1288, 1294 (2d Cir.1975); Theobald v. Botein, Hays, Sklar & Herzberg, 465 F.Supp. 609, 610 (S.D.N.Y.1979); Harrison v. Keystone Coca-Cola Bottling Co., 428 F.Supp. 149, 152-53 (M.D.Pa.1977); Cardwell v. Russo, 40 Conn.Sup. 162 , 484 A.2d 487, 488 (1984) (dicta); O'Neil v. Bergan, 452 A.2d 337, 344-45 (D.C.1982); Gorovitz v. Planning Board, 394 Mass. 246 , 475 N.E.2d 377, 379-80 (1985); Borman v. Borman, 378 Mass. 775 , 393 N.E.2d 847, 856 (1979); Oppenheim v. Azriliant, 89 A.…
cited Cited as authority (rule) Sanborn v. Johns
Mass. App. Ct. · 1985 · signal: cf. · confidence medium
Cf. Gorovitz v. Planning Bd. of Nantucket, 394 Mass. 246, 250 (1985).
discussed Cited "see" Horen v. Board of Education (2×)
Ohio Ct. App. · 2007 · signal: see · confidence high
See, for example, Gorovitz v. Planning Bd. of Nantucket (1985), 394 Mass. 246, 250 , 475 N.E.2d 377 (DR 5-102 does not address the situation in which the lawyer is the party litigant and, furthermore, the underlying principles are not violated because any perception by the jury that an attorney lacked credibility would be attributed to his status as a litigant, not as an attorney).
cited Cited "see" Cacciola v. Nellhaus
Mass. App. Ct. · 2000 · signal: see · confidence high
See Gorovitz v. Planning Bd. of Nantucket, 394 Mass. 246, 249 (1985).
discussed Cited "see" Gosselin v. O'DEA (2×)
D. Mass. · 1999 · signal: see · confidence high
See Gorovitz v. Planning Bd. of Nantucket, 394 Mass. 246 , 475 N.E.2d 377, 380 (1985); Shapira v. Budish, 275 Mass. 120 , 175 N.E. 159, 161 (1931).
cited Cited "see" Byington v. City of Boston
Mass. App. Ct. · 1994 · signal: see · confidence high
See Gorovitz v. Planning Bd. of Nantucket, 394 Mass. 246, 250 (1985); Serody v. Serody, 19 Mass. App. Ct. 411, 413 (1985).
discussed Cited "see" Arthur J. Halleran, Jr., Etc. v. Harry M. Hoffman, Etc. (2×)
1st Cir. · 1992 · signal: see · confidence high
See Gorovitz v. Planning Board of Nantucket, 394 Mass. 246, 249 , 475 N.E.2d 377 (1985); Milton Commons Assoc. v. Board of Appeals, 14 Mass.App.Ct. 111 , 111 n. 1, 436 N.E.2d 1236 , app. denied, 387 Mass. 1101 , 440 N.E.2d 21 (1982); Roberts-Haverhill Assoc. v. City Council of Haverhill, 2 Mass.App.Ct. 715, 721 , 319 N.E.2d 916 (1974).
cited Cited "see" Curtis v. JJ. Duffy Adjustment Service, Inc.
Mass. App. Ct. · 1991 · signal: see · confidence high
See Gorovitz v. Planning Bd. of Nantucket, 394 Mass. 246, 248-249 (1985)(a lawyer may serve as counsel and testify if he is a party to the action).
discussed Cited "see" Colonial Acquisition Partnership v. Colonial at Lynnfield, Inc. (2×)
S.D.N.Y. · 1988 · signal: see · confidence high
See Gorovitz v. Planning Board of Nantucket, 394 Mass. 246 , 475 N.E.2d 377, 380 (1985) (all partners must be parties to suit involving rights of limited partnership); Roberts-Haverhill Associates v. City Council of Haverhill, 2 Mass.App.Ct. 715 , 319 N.E.2d 916, 920 (1974) (improper to bring suit in name of partnership without disclosing identity of any individual partners).
discussed Cited "see, e.g." Old Saratoga Square Partnership v. Compton
N.Y. App. Div. · 2005 · signal: see also · confidence low
This rule does not, however, generally control when the attorney is also a litigant (see Walker & Bailey v We Try Harder, 123 AD2d 256, 257 [1986]; Oppenheim v Azriliant, 89 AD2d 522, 522 [1982], appeal dismissed 57 NY2d 955 [1982]; see also Gorovitz v Planning Bd. of Nantucket, 394 Mass 246, 475 NE2d 377 [1985]).
Retrieving the full opinion text from the archive…
Sidney Gorovitz & Others vs. Planning Board of Nantucket
Massachusetts Supreme Judicial Court.
Mar 12, 1985.
475 N.E.2d 377
Joseph P. Gibbons for the plaintiffs., John C. Foskett for the defendant.
Hennessey, Liacos, Abrams, Lynch, O'Connor.
Cited by 33 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 80%
Citer courts: Massachusetts Superior Court (1)
Abrams, J.

This case poses the question whether a general partner of a limited partnership, who serves as the partnership’s legal counsel and who is a named plaintiff in an action, may represent the partnership in that action if he intends to testify at trial. We conclude that, under Rule 3:07 of the Rules of the Supreme Judicial Court (1981) and G. L. c. 221, § 48, [2] he may do so.

[*247] The case is submitted on a statement of agreed facts. The plaintiffs are general partners of the Nantucket Collaborative, a limited partnership owning a forty-five acre parcel of land in Nantucket. In December, 1981, the plaintiffs applied to the Nantucket planning board (board) for issuance of a special permit for construction of a commercial development on the land. The application was denied on May 3,1982, and a motion to reconsider was subsequently denied. On May 26, 1982, the plaintiffs brought an action in the Superior Court pursuant to G. L. c. 40A, § 17, alleging that denial of their application was outside the scope of the board’s authority and that the board’s deliberations and decision were arbitrary and prejudicial. The plaintiffs sought an annulment of the board’s decision, and compensatory and punitive damages.

Sidney Gorovitz, a named plaintiff, had been a general partner in the Nantucket Collaborative, as well as its legal counsel, since its inception. Furthermore, as “the only one of the Plaintiffs who participated in the Nantucket Planning Board meetings which led to the events surrounding Plaintiffs’ claims [Gorovitz was] clearly the Plaintiffs’ key material witness, and intended] to testify at trial.” On March 9, 1983, the board filed a motion for an order preventing plaintiffs’ counsel from testifying as a witness at trial, contending that DR 5-101(B) and DR 5-102(A),* * [3] “specifically prohibit an attorney from acting in the dual role of counsel and witness on behalf of his clients.” [4] The judge[*248] allowed the motion, finding “no showing of any exceptional circumstance which would operate to permit the dual role of witness-advocate herein sought.” The judge allowed Sidney Gorovitz to “withdraw as counsel for plaintiffs in or within 30 days ... if successor counsel file an appearance herein, in which event nothing would prevent [Gorovitz’s] testimony as a witness thereafter.”

In response to the plaintiffs’ request for clarification, the judge instructed the parties on March 28, 1983, that his order pertained equally “to any law partner or associate of Sidney Gorovitz”; that Mr. Gorovitz could not testify at trial unless he and his law firm withdrew as counsel prior to April 25, 1983; and that the disqualification of Mr. Gorovitz applied not only to his representation of the other named plaintiffs, but to his appearance pro se as well. The order was stayed by a single justice of the Appeals Court, pending review by the full bench. We transferred the case to this court on our own motion.* *** [5] We vacate the disqualification order.

Mr. Gorovitz convincingly argues that this court’s decision in Borman v. Borman, 378 Mass. 775 (1979), establishes his right to represent the Nantucket Collaborative despite the constraints of DR 5-101 and DR 5-102. We agree. “To apply DR 5-102 when the testifying advocate is a litigant in the action[*249] miscomprehends the thrust of the rule. Disciplinary Rule 5-102 regulates lawyers who would serve as counsel and witness for a party litigant. It does not address that situation in which the lawyer is the party litigant. Any perception by the public or determination by a jury that a lawyer litigant has twisted the truth surely would be due to his role as a litigant and not, we would hope, to his occupation as a lawyer. ... As a party litigant, moreover, a lawyer could represent himself if he so chose. G. L. c. 221, § 48. Implicit in the right of self-representation is the right of representation by retained counsel of one’s choosing. A party litigant does not lose this right merely because he is a lawyer and therefore subject to DR 5-102” (emphasis in original) (citations omitted). Borman, supra at 788-789. Mr. Gorovitz is a party litigant, and his right to appear pro se is thus established.

The board, however, attempts to evade the ineluctable implication of Borman by arguing that Mr. Gorovitz is not, in fact, acting pro se. They contend that he is a litigant in this action in name only and is thus not appearing pro se. They maintain that he is representing not himself but the other named partners, and that, in this posture, the Borman rule ought not apply.

This argument misapprehends the role of a general partner in a limited partnership as well as the nature of this cause of action. It is true that, as a matter of pleading, “[wjith certain exceptions ... all partners must be parties to a suit involving partnership rights.” Shapira v. Budish, 275 Mass. 120, 126 (1931). See Gordon v. Medford, 331 Mass. 119, 124 (1954). But that rule does not signify that Mr. Gorovitz’s interest in the instant action is based only on a formality. A general partner of a limited partnership possesses “the rights and powers ... of a partner in a partnership without limited partners.” G. L. c. 109, § 24, as appearing in St. 1982, c. 202, § 1. Mr. Gorovitz’s interest, moreover, does not perceptibly differ from the interests of the other named partners in this action. The limited partnership here owns land in the name of the partnership. See G. L. c. 109, § 6; G. L. c. 108A, § 8 (3). The other named plaintiffs and Mr. Gorovitz have an identical interest in maximizing the profitability of the partnership’s investment in that land.

[*250] The high costs of attorney disqualification on litigants [6] and on the court system [7] militate against the indiscriminate allowance of disqualification motions. Thus, “[w]hen a lawyer, exercising his best judgment, determines that his employment will not bring him into conflict with the code, disqualification may occur only if the trial court determines that his continued participation as counsel taints the legal system or the trial of the cause before it.” Borman v. Borman, supra at 788. There is no basis here on which to conclude that Mr. Gorovitz’s representation of the Nantucket Collaborative threatens either the integrity of the legal system or the vigorous prosecution of the partnership’s cause of action. This is clearly an instance in which “a long or extensive professional relationship with a client may have afforded a lawyer, or a firm, such an extraordinary familiarity with the client’s affairs that the value to the client of representation by that lawyer or firm in a trial involving those matters would clearly outweigh the disadvantages of having the lawyer, or a lawyer in the firm, testify to some disputed and significant issue.” ABA Comm. on Ethics and Professional Responsibility, Formal Op. 339 (1975).

We vacate the judge’s disqualification order and remand to the Superior Court for further proceedings.

So ordered.

2

General Laws c. 221, § 48, provides: “Parties may manage, prosecute or defend their own suits personally, or by such attorneys as they may engage;[*247] but not more than two persons for each party shall, without permission of the court, be allowed to manage any case therein.”

3

See S.J.C. Rule 3:07 (1) and (2), as appearing in 382Mass. 768 (1981).

4

Supreme Judicial Court Rule 3:07, DR 5-102 (A), as appearing in 382 Mass. 780 (1981), provides in full:

“If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B) (1) through (4).”

Supreme Judicial Court Rule 3:07, DR 5-101(B) (l)-(4), as appearing in 382 Mass. 779 (1981), provides in full:

[*248] “A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:

“(1) If the testimony will relate solely to an uncontested matter.

“(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.

“(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.

“(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.”

5

The plaintiffs’ appeal from the order disqualifying Sidney Gorovitz as counsel is properly before us for determination under the doctrine of present execution. SeeBormanv. Borman, 378 Mass. 775,779-781 (1979) (disqualification order is conclusive of party’s right to counsel of his choice and therefore effectively unreviewable on appeal from judgment).

6

In his order, the judge found “no showing of any exceptional circumstance” which would prevent the partnership from obtaining other counsel. He stated: “Certainly, reasonable arrangement with a willing trial advocate could be made.” In view of our holding, we need not reach the question of “substantial hardship” under DR 5-101(B)(4). We note, however, that the only assets of the Nantucket Collaborative evident on the record are its real estate holdings in Nantucket. Insisting that the plaintiffs encumber that realty to procure a new lawyer to litigate their claim imposes a significant burden on them, if not a “substantial hardship.” See Brown & Brown, Disqualification of the Testifying Advocate — a Firm Rule?, 57 N.C. L. Rev. 597, 620 (1979).

7

Court resources are sorely taxed by the increasing use of disqualification motions as harassment and dilatory tactics. See Borman v. Borman, supra at 787-788. See also Serody v. Serody, 19 Mass. App. Ct. 411, 414 (1985); Brown & Brown, supra at 621; Note: Prospective Waiver of the Right to Disqualify Counsel for Conflicts of Interest, 79 Mich. L. Rev. 1074, 1074-1075 (1981); Developments in the Law — Conflicts of Interest in the Legal Profession, 94 Harv. L. Rev. 1244, 1285 (1981).