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15-P-359 Appeals Court

ZVI CONSTRUCTION COMPANY, LLC vs. FRANKLIN LEVY & another.1

No. 15-P-359.

Suffolk. January 12, 2016. - October 6, 2016.

Present: Kafker, C.J., Cohen, & Blake, JJ.

Notice, Timeliness. Conversion. Evidence, Privileged 

communication. Privileged Communication. Waiver.

Attorney at Law, Attorney-client relationship. Practice, 

Civil, Notice of appeal, Appeal, Complaint, Waiver. Fraud.

Civil action commenced in the Superior Court Department on 

January 28, 2013.

A motion to dismiss, a motion to strike, and a motion to 

compel discovery were heard by Christine M. Roach, J.; the 

remaining issues were heard by Janet L. Sanders, J., on motions 

for summary judgment; and entry of separate and final judgment 

was ordered by Kenneth W. Salinger, J.

Richard E. Briansky for the plaintiff.

Christopher R. O'Hara (Ian J. Pinta with him) for the 

defendants.

COHEN, J. The plaintiff, ZVI Construction Company, LLC 

(ZVI), brought suit against the defendants, Attorney Franklin 

 

1 Lawson & Weitzen, LLP.
2

Levy and the law firm of Lawson & Weitzen, LLP (L & W), claiming 

that they had engaged in misrepresentation and other wrongdoing 

in connection with a mediated settlement between ZVI and the 

defendants' clients: The Upper Crust, LLC, and its affiliated 

entities (collectively, The Upper Crust), and two of its 

principals, Brendan Higgins and Joshua Huggard. As a result of 

orders entered by two different Superior Court judges, all of 

ZVI's claims against the defendants were dismissed, and ZVI 

filed a notice of appeal. Despite the fact that ZVI's notice of 

appeal was filed before the entry of a separate and final 

judgment and, hence, was premature, we exercise our discretion 

to decide this matter. After consideration of the arguments 

presented, we affirm.

1. Background.

2 Except where indicated, the following 

facts are not in dispute. Brendan Higgins, Joshua Huggard, and 

Jordan Tobins were members and managers of numerous limited 

liability companies operating a small chain of pizzerias known 

as The Upper Crust. On April 5, 2012, Higgins, Huggard, and The 

Upper Crust, all of whom were represented by Levy and his firm, 

L & W, filed a civil lawsuit against Tobins. In or around July,

 

2 ZVI's brief and the record include many communications 

that were ruled protected from disclosure by the attorney-client 

privilege. Given our agreement with that ruling, we have not 

taken these documents into account in reaching our decision. 

Even if we had done so, however, they would not have changed the 

conclusions reached herein.
3

2012, a settlement was reached in that action and documented in 

a memorandum of understanding (Tobins MOU). The Tobins MOU 

provided, inter alia, as follows:

"Tobins will pay or cause to be paid, by cash, bank check 

or wired funds $250,000 to the Upper Crust, said payment to 

be made no later than October 1, 2012 (the 'Closing 

Payment') and shall be made to an account or payee as 

designated by the Upper Crust in writing" (emphasis 

supplied).

Meanwhile, on April 6, 2012, ZVI had filed its own lawsuit 

against The Upper Crust, Higgins, Huggard, and Tobins, alleging 

that they had failed to pay ZVI for construction work performed 

on The Upper Crest restaurants (collection action). In the 

collection action, Higgins, Huggard, and The Upper Crust again 

were represented by Levy and L & W.

The parties to the collection action subsequently agreed to 

mediate their dispute. The mediation took place on September 6, 

2012, at which time all parties to the collection action, their 

respective legal counsel, and the mediator executed a mediation 

agreement that provided, in pertinent part:

"The parties further agree that the mediation, including 

all communications, documents and other materials, used 

during said mediation, including all communications between 

and among the parties and their counsel, shall be 

confidential and shall not be used for any purpose other 

than for said mediation" (emphasis supplied).

Prior to the mediation, ZVI was aware that The Upper Crust 

had limited assets and significant debt, was under government 
4

investigation for unfair labor practices, and was dealing with

significant internal management issues. ZVI also had been 

informed by The Upper Crust's legal counsel that The Upper Crust 

might file for bankruptcy. At the mediation, the parties to the 

collection action reached a settlement that was memorialized in 

a written agreement (ZVI settlement), which provided, among 

other things, that:

"On or before October 3, 2012, Upper Crust LLC shall pay to 

the plaintiff [ZVI] the sum of $250,000, which funds are 

being paid by Jordan S. Tobins to Upper Crust LLC in 

satisfaction of his obligation under his separate 

memorandum of understanding with Huggard, Higgins and the 

Upper Crust LLC. In the event that said Tobins fails to 

make the $250,000 payment, this agreement shall be null and 

void." (Emphasis supplied.)

The ZVI settlement did not contain an escrow provision or 

otherwise call for or obligate Levy or L & W to act as escrow 

agents. Levy and L & W were never specifically asked, nor did 

they expressly agree, to act as an escrow agent for ZVI's 

benefit. They also were not parties or signatories to the ZVI 

settlement.

In the present case, the central dispute concerns what

occurred at the mediation. ZVI alleges that prior to the 

execution of the ZVI settlement, both Tobins and ZVI proposed 

that the $250,000 due under the Tobins MOU be paid directly by 

Tobins to ZVI; however, according to ZVI, Levy insisted that the 

money be paid to The Upper Crust first and then delivered to 
5

ZVI. ZVI further alleges that, in order to induce both Tobins 

and ZVI to execute the settlement, Levy "represented that he 

would pay the funds to ZVI." ZVI claims to have executed the 

settlement in reliance upon this representation. Levy and L & W 

deny all of the above allegations.

Approximately ten days after the mediation, on September 

17, 2012, Tobins's legal counsel sent Levy an electronic mail 

message (e-mail), in which he set forth "a list of issues that 

we'll need to address," including the following regarding the 

payment due under the Tobins MOU: "Payment ($250k on or before 

October 1 -- to you to pay ZVI)." The following day, Levy 

responded by e-mail and, regarding that specific issue, wrote, 

"I will send you my firm's escrow wire info."

Subsequently, on Friday, September 28, 2012, an entity 

named Ditmars, Ltd., acting on Tobins's behalf, wired the 

$250,000 due under the Tobins MOU to the Interest on Lawyers' 

Trust Account (IOLTA account) maintained by L & W. Upon receipt 

of the funds, Levy, who was in Hong Kong at the time, sent his 

associate at L & W, Joshua Segal, an e-mail, directing him to 

"make sure the money is held and we do not release it to anyone 

until I give directions. Especially note the money is not to be 

released to ZVI or [ZVI's legal counsel Richard] Briansky or 

anyone. Very important. Thanks." Both Levy and Segal 

testified that Levy was concerned about having clear written 
6

instructions from his client before the funds were released to 

anyone.

The same day, September 28, 2012, Dan Hurley, The Upper

Crust's chief financial officer (CFO) and accountant, sent Levy 

an e-mail directing as follows:

"[H]ere is how I would like the 250,000 distributed from 

your IOLTA account.

"Murphy and King $64,644.00

"Lawson and Weitzen $21,447.28

"DiNicola, Seligson & Upton, LLP $9,246.26

"[T]hanks!!

"I will make sure your office has all the wire information 

to make these transfers."

Later that day, Hurley sent Segal an e-mail directing him to 

wire the balance of the $250,000, estimated to be $154,692.46, 

to The Upper Crust's payroll account, entitled the JJB Hanson 

Management Payroll Account. The next day, Saturday, September 

29, 2012, Hurley forwarded yet another e-mail to Segal and Levy, 

summarizing his instructions regarding disbursement of the 

$250,000:

"Here is the . . . email I sent to Franklin [Levy] late 

yesterday afternoon with the amounts that need to go out. 

Please have John send these first thing Monday morning, if 

he can. I think Franklin may have confirmed this with you 

but if not, please verify with him. You will be leaving 

the $21,447.28 in the Lawson and Weitzen account for the 

August 31, 2012 invoice. On Monday John should send out 3 

wires. Murphy and King, DiNicola, Seligson & Upton, LLP 

and JJB Manag[e]ment Hanson, Inc. which should be the 

remaining balance of the $250,000. [T]hat amount should be 

$154,662.46. Let me know if you [have] any questions. 

Thanks!!"
7

Two days later, on Monday, October 1, 2012, the $250,000 in 

funds were disbursed from L & W's IOLTA account as follows:

$64,644.00 to Murphy and King

$21,417.28 to Lawson & Weitzen

$9,246.26 to DiNicola, Seligson & Upton, LLP

$154,692.46 to JJB Hanson Management Payroll Account

The $21,417.28 sent to L & W was in payment of a bill for legal 

services, dated September 14, 2012, that had been sent to The 

Upper Crust.

Meanwhile, on September 20, 2012, Higgins, Huggard, and The 

Upper Crust had met with a bankruptcy attorney, Harold Murphy, 

and retained him and his law firm, Murphy & King, P.C. (Murphy & 

King). On October 4, 2012, The Upper Crust and affiliated 

entities, represented by Murphy & King, filed a petition for 

bankruptcy under Chapter 11 of the United States Bankruptcy 

Code. ZVI was never paid the $250,000 due under the ZVI 

settlement.

On January 28, 2013, with The Upper Crust entities in 

bankruptcy, ZVI initiated the present action, filing a verified 

complaint against Levy and L & W. Subsequently, on March 12, 

2013, ZVI filed an unverified amended complaint, which, among 

other things, added Higgins and Huggard as defendants. Levy and

L & W responded by filing two motions: (1) a motion to strike 

all allegations in the amended complaint concerning a statement 

allegedly made by Levy at mediation, see Mass.R.Civ.P. 12(f),
8

365 Mass. 754 (1974); and (2) a motion to dismiss all counts 

against them in the amended complaint, see Mass.R.Civ.P. 

12(b)(6), 365 Mass. 754 (1974). ZVI opposed both motions.

After a hearing, a judge of the Superior Court (first 

judge) issued a memorandum and order (1) allowing the motion to 

strike the alleged statement made at mediation, because its use 

was prohibited by the confidentiality provision in the mediation 

agreement, and (2) dismissing most, but not all, of the claims 

against Levy and L & W. Then, based on the allowance of the 

motion to strike and, to a large extent, on other, independent

grounds detailed in the memorandum and order, the judge 

dismissed in their entirety the claims against Levy and L & W 

for aiding and abetting fraud (count V), misrepresentation 

(count VI), breach of an alleged escrow agreement (count VII), 

breach of fiduciary duty (count VIII), and conspiracy (count X). 

As for the remaining claims against Levy and L & W, the judge

allowed the claims for tortious interference with contractual 

relations (count III), conversion (count IX), and violation of 

G. L. c. 93A, § 11 (count XII), to proceed, but only as to the 

$21,417.28 that was disbursed to L & W, and not as to the rest 

of the $250,000 that was disbursed to third parties from the 

IOLTA account.3

 

3 On appeal, ZVI does not challenge the partial dismissal of 

counts III, IX, and XII.
9

Upon the completion of discovery, Levy and L & W filed a 

motion for summary judgment as to what remained of those three 

counts (III, IX, and XII). See Mass.R.Civ.P. 56(c), as amended, 

436 Mass. 1404 (2002). ZVI opposed and filed a cross motion for 

summary judgment on what remained of the claim for conversion 

(count IX). After a hearing, another judge of the Superior 

Court (second judge) issued a memorandum of decision and order 

(1) allowing Levy and L & W's motion and dismissing all 

remaining claims against them, and (2) denying ZVI's cross

motion. A judgment to that effect subsequently entered on 

January 5, 2015, and, on January 26, 2015, ZVI filed a notice of 

appeal.

2. Discussion. a. Premature notice of appeal. We first 

confront a threshold procedural issue. Because there remained 

unresolved claims against Higgins and Huggard, and there was no 

final judgment, ZVI's notice of appeal was premature. At oral 

argument, this procedural defect was called to the attention of 

the parties, who then returned to the trial court where another 

Superior Court judge (third judge) allowed their joint motion 

for the entry of a separate and final judgment. See

Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974). At that point, 

however, in order to perfect its appeal, ZVI should have filed a 

new notice of appeal. This it did not do.
10

We nevertheless exercise our discretion to treat the appeal 

as properly before us. See, e.g., Lewis v. Emerson, 391 Mass. 

517, 518-520 (1984); Lawrence v. Lawrence Patrolmen's Assn., 56 

Mass. App. Ct. 704, 706 n.4 (2002); Scannell v. Attorney Gen., 

70 Mass. App. Ct. 46, 47 n.2 (2007). We do so because the 

issues are of importance and have been fully briefed. In 

addition, ZVI's claims against Higgins and Huggard have now been 

resolved.4

b. Conversion. ZVI contends that the second judge erred 

when, at the summary judgment stage, she dismissed what remained 

of the claim for conversion, i.e., the transfer of $21,417.28 

from the IOLTA account to L & W. Our review proceeds under 

well-established summary judgment standards.5 We conclude that 

 

4 We note that reaching the merits is consistent with 

decisions under the cognate Federal rule, which consider the 

subsequent entry of a separate and final judgment to cure a 

premature notice of appeal. See Clausen v. Sea-3, Inc., 21 F.3d 

1181, 1184 (1st Cir. 1994). See also National Assn. of Bds. of 

Pharmacy v. Board of Regents of the Univ. Sys. of Ga., 633 F.3d 

1297, 1306-1307 (11th Cir. 2011), and cases cited. However, we 

express no opinion as to whether the Federal approach is 

suitable for Massachusetts and should be adopted here.

5 "In considering a motion for summary judgment, we review 

the evidence and draw all reasonable inferences in the light 

most favorable to the nonmoving party. Because our review is de 

novo, we accord no deference to the decision of the motion 

judge. The defendants, as the moving parties, have the burden 

of establishing that there is no genuine issue as to any 

material fact and that they are entitled to judgment as a matter 

of law. Once the moving party establishes the absence of a 

triable issue, the party opposing the motion must respond and 

allege specific facts establishing the existence of a material 
11

Levy and L & W sustained their burden of establishing 

entitlement to judgment as a matter of law.

"The elements of conversion require that a defendant be 

proved to have 'intentionally or wrongfully exercise[d] acts of 

ownership, control or dominion over personal property to which 

he has no right of possession at the time.'" Grand Pac. Fin. 

Corp. v. Brauer, 57 Mass. App. Ct. 407, 412 (2003), quoting from 

Abington Natl. Bank v. Ashwood Homes, Inc., 19 Mass. App. Ct. 

503, 507 (1985). Here, the premise of ZVI's argument is that 

the $250,000 was its property. As the second judge reasoned, 

however, even though the $250,000 was owed to ZVI under the ZVI 

settlement, the money was not held by the defendants for the 

benefit of ZVI; nor was it placed in an escrow account. Rather, 

it was held as client funds in an IOLTA account, where it 

belonged to and was under the exclusive dominion and control of 

The Upper Crust. See Mass.R.Prof.C. 1.15, as appearing in 440 

Mass. 1338 (2004); Matter of Sharif, 459 Mass. 558, 564 (2011). 

See also Phillips v. Washington Legal Foundation, 524 U.S. 156, 

164 (1998) ("[T]he principal held in IOLTA trust accounts is the 

'private property' of the client"); Washington Legal Foundation

v. Legal Foundation of Wash., 236 F.3d 1097, 1106 (9th Cir. 

2001) ("[T]he money [in IOLTA accounts] belongs to the 

 

fact in order to defeat the motion." Drakopoulos v. U.S. Bank 

Natl. Assn., 465 Mass. 775, 777-778 (2013) (quotations and 

citations omitted).
12

clients"); Kimble Mixer Co. vs. Hall, No. 2003 AP 01 0003, at 34 

(Ohio Ct. App. Feb. 22, 2005) ("[F]unds deposited in an IOLTA 

account remain the property of the client"). That being the 

case, where the funds were distributed in accordance with the 

client's instructions,

6 the defendants cannot be found to have 

converted the funds, even insofar as they were used by the 

client to pay L & W's invoice.

Nor can the defendants be faulted for having Tobins's

attorney transmit the funds to L & W's IOLTA account in the 

first place. There was nothing in the ZVI settlement, or, for 

that matter, in the Tobins settlement, that required the money 

to be paid to The Upper Crust's attorneys for the benefit of ZVI 

or to be held by them in an escrow account.7 The Tobins 

settlement provided that the $250,000 was to be paid to The 

Upper Crust, and that it would be transmitted to an account to 

be designated by The Upper Crust. The ZVI settlement, in turn, 

simply provided that The Upper Crust pay the $250,000 to ZVI. 

While ZVI may have come to regret not having structured the 

 

6 Despite ZVI's argument to the contrary, it is evident from 

the record that there is no genuine dispute that The Upper 

Crust's CFO, Hurley, had the authority to provide direction as 

to the distribution of the $250,000.

7 As the first judge remarked, there is nothing that 

"plausibly supports a meeting of the minds on an escrow 

agreement, and a promise to send a 'firm's wire info[rmation]' 

cannot reasonably be read otherwise."
13

mechanics of settlement differently, those were the terms to 

which the parties had agreed.8

c. Motion to strike alleged mediation statement. ZVI next 

argues that the first judge erred when, due to the provision in 

the mediation agreement barring the use of mediation 

communications for any purpose other than the mediation, she 

struck any reference in the amended complaint to Levy's alleged 

misrepresentation to the effect that he would pay the $250,000 

to ZVI after it was received from Tobins. More particularly, 

ZVI argues that the judge erred in failing to recognize a fraud 

exception to the contractual provision.

Whether a fraud exception should be recognized in such

circumstances is an undecided question in Massachusetts. We 

note, however, that our Legislature has recognized the 

importance of preserving the confidentiality of communications 

made during mediation, where those communications have been made

in the presence of a qualified mediator.9 See G. L. c. 233, 

 

8 As we conclude that the judge did not err in dismissing 

ZVI's claim for conversion, it follows that the judge did not 

err in dismissing ZVI's G. L. c. 93A claim insofar as it rests 

on the conversion claim.

9 General Laws c. 233, § 23C, inserted by St. 1985, c. 325, 

provides in pertinent part: "Any communication made in the 

course of and relating to the subject matter of any mediation 

and which is made in the presence of such mediator by any 

participant, mediator or other person shall be a confidential 

communication and not subject to disclosure in any judicial or 

administrative proceeding; provided, however, that the 
14

§ 23C. While the first judge did not explicitly so state in her 

decision on the motion to strike, it is implicit in her 

discussion of § 23C that she believed the statute did not apply, 

because, in addition to alleging that Levy's statement was made 

at mediation, ZVI also alleged that the statement was not made 

in the presence of the mediator.10 Given the plain language of 

the statute, we are constrained to agree.

Nevertheless, the statute is instructive. It gives broad 

confidentiality protection to mediation communications, barring 

disclosure in any judicial or administrative proceeding, and 

creating only one express exception for the mediation of labor 

disputes. Significantly, the statute does not include an 

exception for fraud.11 In light of that omission, we would be 

hard pressed to find that such an exception exists in the 

circumstances of this case, where there is a confidentiality 

 

provisions of this section shall not apply to the mediation of 

labor disputes."

10 As the first judge noted, "[t]his distinction is of more 

than passing interest because of the pleadings in this case. 

The original complaint . . . was verified, and did not identify 

whether the alleged representation by Levy with respect to 

handling the settlement funds was made within or without the 

presence of the mediator. . . . The Amended Complaint, which is 

not verified, adds the sentence . . . , 'Levy's representation 

occurred outside the presence of the mediator.'"

11 It has been held, however, that, under some 

circumstances, there can be an at-issue waiver. See Bobick v. 

United States Fid. & Guar. Co., 439 Mass. 652, 658 n.11 (2003).
15

agreement,12 negotiated between sophisticated business people 

with the assistance of legal counsel, that is even broader than 

§ 23C. Indeed, were there to be a fraud exception to the 

parties' mediation confidentiality agreement when no such 

exception exists under the confidentiality provisions of § 23C, 

it could lead to the incongruous situation where two identical 

claims of fraud at mediation are alleged, but only one can go 

forward because the mediator was not within earshot at the 

moment when one of the communications was uttered.

We also note that, like § 23C, the most recent version of 

the Uniform Mediation Act (UMA), which has been adopted by 

eleven States and the District of Columbia,13 does not include 

fraud among the recognized exceptions to the "privilege" 

protecting against the disclosure of "mediation communications." 

See Uniform Mediation Act (amended 2003), 7A (Part III) U.L.A. 

§ 6 (2006). In fact, the comments accompanying the UMA reveal 

that a fraud exception was specifically considered and rejected. 

See id. at § 6 comment 5. Furthermore, while we have not been 

 

12 The parties' agreement provides that "all communications 

between and among the parties and their counsel, shall be 

confidential and shall not be used for any purpose other than 

for said mediation."

13 See S.D. Codified Laws §§ 19-13A-1 to 19-13A-15 (2016) 

(UMA). See also Uniform Mediation Act (amended 2003), 7A (Part 

III) U.L.A. 73 (Supp. 2016) (noting Hawaii, Idaho, Illinois, 

Iowa, Nebraska, New Jersey, Ohio, Utah, Vermont, Washington, and 

District of Columbia have adopted UMA).
16

asked to do so here, we are not aware of any case where a court 

has created a fraud exception to a mediation confidentiality 

statute. We also are not aware of any case where a court has 

created such an exception to a mediation confidentiality 

agreement.

The closest case we have located is Facebook, Inc. v. 

Pacific N.W. Software, Inc., 640 F.3d 1034 (9th Cir. 2011), 

involving the highly-publicized dispute between Facebook 

founder, Mark Zuckerberg, and Cameron and Tyler Winklevoss. At 

issue in that case was whether the Winklevosses could rescind a 

mediated settlement on the ground that the plaintiffs had 

committed securities fraud by overstating the value of Facebook 

shares that would be transferred to the Winklevosses as part of 

the settlement. See id. at 1038. Because the parties had 

signed a mediation confidentiality agreement, providing that 

"[n]o aspect of the mediation shall be relied upon or introduced 

as evidence in any arbitral, judicial, or other proceeding," the 

court refused to allow the Winklevosses to support their 

securities fraud claims with evidence of what transpired at 

mediation. Id. at 1041. Of significance to the court was that 

the Winklevosses were sophisticated parties, who had been 

represented by counsel, and who had acquired enough information 

during the course of the litigation to know that the valuation 
17

representations made by their opponents should be received with 

caution. See id. at 1039.

The same factors are operative here. The parties to the 

mediation agreement and the ZVI settlement were all business

people, represented by counsel. ZVI also had obtained 

sufficient information to know that any assurances of payment 

should be viewed cautiously. ZVI knew of The Upper Crust's 

significant financial difficulties and that it was contemplating 

bankruptcy. Moreover, in the collection action, ZVI had 

asserted claims of fraud and unfair and deceptive acts against 

The Upper Crust.

Furthermore, the mediation agreement merely precluded the 

parties from disclosing mediation communications; it did not bar 

the assertion of claims for fraud, based upon independent 

support. There also is no suggestion that the mediation 

agreement itself was procured by fraud. Under these 

circumstances, we agree with the first judge that the mediation 

agreement, and the confidentiality provision therein, are

enforceable. The judge did not abuse her discretion in striking 

from the amended complaint the statement Levy allegedly made 

during the mediation.

In any event, even if we were to assume that the first 

judge should not have allowed the motion to strike, we agree 

with her assessment that Levy's alleged statement, to the effect 
18

that he would make sure that ZVI would be paid from the funds 

received from Tobins, does not amount to actionable fraud. Even 

if Levy had made such a statement, he was not personally 

guaranteeing payment; nor does ZVI suggest he was. Indeed, Levy 

cannot reasonably be understood as having taken on any personal 

legal obligations to ZVI. As previously discussed, he was not 

asked, and did not agree, to act as an escrow agent, and no such 

obligation was included in the settlement agreement. 

Furthermore, Levy was not a party to, and did not sign, the 

settlement agreement.

Finally, in light of the plain language of the ZVI 

settlement that The Upper Crust "shall pay to [ZVI] the sum of 

$250,000," ZVI cannot reasonably suggest that it relied on any

assurance that it would be paid the Tobins funds.14 See 

Masingill v. EMC Corp., 449 Mass. 532, 541 (2007). Thus, to the 

extent that ZVI's claims based on that alleged statement remain 

at issue,

15 they would fail as a matter of law even if the

alleged statement should not have been struck.

16

 

14 An action for fraud or deceit requires proof of a 

"misrepresentation of a material fact, made to induce action, 

and reasonable reliance on the false statement to the detriment 

of the person relying." Hogan v. Riemer, 35 Mass. App. Ct. 360, 

365 (1993).

15 Six counts rested, in whole or in part, on the alleged 

mediation statement: aiding and abetting fraud (count V); 

misrepresentation (count VI); breach of alleged escrow agreement 

(count VII); breach of fiduciary duty (count VIII); conspiracy 
19

d. Motion to compel. Lastly, ZVI challenges the first 

judge's denial of a motion to compel the production of various 

communications between the defendants and the clients they 

represented in the collection action, i.e., The Upper Crust and 

its principals. The judge found and ruled that the defendants 

had established that the communications were privileged under 

the "common interest/joint defense doctrine," see Hanover Ins. 

Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass. 609, 612-617 

(2007), and that ZVI had not demonstrated a waiver exception 

within the scope recognized by Massachusetts law. Apparently, 

Higgins and Huggard agreed to waive any arguable personal 

privilege they had in the subject communications as part of the 

settlement of their own disputes with ZVI. Citing those 

waivers, as well as the alleged failure of The Upper Crust's 

 

(count X); and violations of G. L. c. 93A, § 11 (count XII). 

Four of those counts also were dismissed by the first judge for 

reasons independent of the alleged mediation statement, and ZVI 

has not challenged those reasons on appeal. As a result, the 

only counts at issue on appeal are what remained of the counts 

for misrepresentation (count VI) and violations of G. L. c. 93A, 

§ 11 (count XII).

16 The defendants also argue summarily that all of ZVI's 

claims fail because ZVI suffered no damages. Specifically, the 

defendants contend that the transfer of funds to ZVI was barred 

by an injunction in another Superior Court case. The defendants 

further contend that any payment would have been a voidable 

preference payment made within ninety days of The Upper Crust's 

bankruptcy filing, in violation of 11 U.S.C. § 547(b) (2012). 

We have been informed by the parties that these arguments are 

the subject of a separate contempt action. Because they are not 

factually developed in the record before us, we do not consider 

them.
20

bankruptcy trustee to take affirmative steps to maintain the 

confidentiality of the subject communications, ZVI claims that 

the judge's denial of its motion was in error. We disagree.

As an initial matter, it is important to note what is not 

at issue in this appeal. First, ZVI does not dispute that 

Higgins, Huggard, and The Upper Crust had jointly engaged Levy 

and L & W to represent them at the time of the subject 

communications. Second, ZVI does not contest that, absent 

waiver, the subject communications are protected by the 

attorney-client privilege. Third, ZVI does not claim that, 

again, absent waiver, The Upper Crust, acting through the 

trustee, has no legitimate right to assert the attorney-client 

privilege as to those communications. Finally, ZVI acknowledges 

that the trustee has not expressly waived the attorney-client 

privilege as to the subject communications. With these 

limitations in mind, we address ZVI's arguments.

ZVI first argues that the waivers by Higgins and Huggard 

preclude the application of the attorney-client privilege, 

because waiver by one or more, but not all jointly represented 

clients destroys the privilege for all of them. As our 

appellate courts have yet to confront this issue, we must look 

elsewhere for guidance. Notably, ZVI has not directed us to any 

authority holding that one client in a co-client relationship 

can waive the privilege for all clients as to third parties. 
21

Meanwhile, there is a wealth of authority holding otherwise.

As ZVI acknowledges, there are many cases holding that, in 

circumstances where multiple clients are jointly represented by 

the same counsel, or in the analogous situation where multiple 

clients represented by separate counsel join together pursuant 

to a so-called "common interest" or "joint defense" agreement,

all of the clients must waive the attorney-client privilege for 

a waiver to occur. See In re Teleglobe Communications Corp. v. 

BCE Inc., 493 F.3d 345, 363 (3d Cir. 2007) ("[W]aiving the 

joint-client privilege requires the consent of all joint 

clients"); United States v. BDO Seidman, LLP, 492 F.3d 806, 817 

(7th Cir. 2007) ("[T]he privileged status of communications 

falling within the common interest doctrine cannot be waived 

without the consent of all of the parties"); John Morrell & Co.

v. Local Union 304A of the United Food & Commercial Workers, 

AFL-CIO, 913 F.2d 544, 556 (8th Cir. 1990), cert. denied, 500 

U.S. 905 (1991), quoting from Ohio-Sealy Mattress Mfg. Co. v. 

Kaplan, 90 F.R.D. 21, 29 (N.D. Ill. 1980) ("It is fundamental 

that 'the joint defense privilege cannot be waived without the 

consent of all parties to the defense'"); State v. Maxwell, Kan. 

App. 2d 62, 65 (1984) ("[W]here several persons employ an 

attorney and a third party seeks to have communications made 
22

therein disclosed, none of the several persons -- not even a 

majority -- can waive this privilege").

17

ZVI claims that these cases ignore the fact that when a 

client chooses to disclose a communication, the confidentiality 

that forms the "foundation" of the attorney-client privilege is 

destroyed, and, hence, the right to assert the privilege 

thereafter is lost. However, while this argument may have merit 

when there is only one client, it is not apt when a client who 

has agreed to be jointly represented by the same attorney(s) 

acts unilaterally and discloses a communication arising out of 

the joint attorney-client relationship. To the contrary, the 

concept of confidentiality would be undermined if such 

unilateral acts were condoned. As one Federal court has 

explained, requiring all clients to waive the privilege "is 

necessary to assure joint defense efforts are not inhibited or 

even precluded by the fear that a party to joint defense 

 

17 See also the Restatement (Third) of the Law: The Law 

Governing Lawyers § 75 (2000), which provides:

"(1) If two or more persons are jointly represented by 

the same lawyer in a matter, a communication of either coclient that otherwise qualifies as privileged under §§ 68-

72 and relates to matters of common interest is privileged 

as against third persons, and any co-client may invoke the 

privilege, unless it has been waived by the client who made 

the communication.

"(2) Unless the co-clients have agreed otherwise, a 

communication described in Subsection (1) is not privileged 

as between the co-clients in a subsequent adverse 

proceeding between them."
23

communications may subsequently unilaterally waive the 

privileges of all participants, either purposefully in an effort 

to exonerate himself, or inadvert[e]ntly." Western Fuels Assn.,

Inc. v. Burlington N. R.R. Co., 102 F.R.D. 201, 203 (D. Wyo. 

1984).

We agree with the prevailing authority, and discern no 

error in its application here by the first judge. Absent a 

waiver by the trustee on behalf of The Upper Crust, it is 

irrelevant whether Higgins and Huggard waived any personal 

privilege they may have held.

While acknowledging that the trustee did not expressly 

waive the attorney-client privilege, ZVI next argues that a 

waiver can be implied from what it suggests was the trustee's 

failure to react after ZVI induced Higgins and Huggard to 

disclose the communications. Again, however, the argument lacks 

merit. The record reflects that Levy and L & W acted repeatedly 

and successfully to protect the privilege of the subject 

communications throughout this action.18 According to the 

trustee's affidavit submitted in support of those efforts, ZVI's 

counsel contacted him on several occasions asking him to waive 

the privilege on behalf of The Upper Curst, and he refused to do 

 

18 Levy and L & W successfully opposed ZVI's motion to 

compel production of the subject attorney-client communications. 

Then, when ZVI, despite that ruling, attached the communications 

to its summary judgment filing, Levy and L & W successfully 

moved to strike them.
24

so every time. It is not clear what more the trustee reasonably 

should have done. See Magnetar Technologies Corp. v. Six Flags 

Theme Park Inc., 886 F. Supp. 2d 466, 486 (D. Del. 2012) ("[A]

waiver of a joint privilege is not accomplished by failing to 

take precautions to prevent disclosing documents in the custody 

of a former joint client or through delay in not immediately 

requesting their return"). Furthermore, given that the waiver 

of the privilege was not complete until the trustee consented, 

ZVI should not be permitted to use the premature disclosure of 

the communications by Higgins and Huggard -- a disclosure that 

ZVI induced -- as grounds for arguing that the trustee had 

impliedly waived the privilege. In sum, the first judge 

correctly concluded that there was no implied waiver.

3. Conclusion. The orders allowing Levy and L & W's 

motion to strike and denying ZVI's motion to compel are

affirmed. The judgment entered January 5, 2015, and the final 

judgment as to the claims against Levy and L & W entered January 

22, 2016, are affirmed.

So ordered.