NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-30

KERI LEE CONNOLLY ALDRED

vs.

STEPHEN JAMES ALDRED, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, wife, sued the defendant, her husband, in 

the Probate and Family Court, seeking separate support. Around 

six months after the plaintiff's initial complaint, the 

defendant filed a motion to disqualify the plaintiff's attorney 

from continuing to represent her in those proceedings. The 

Probate and Family Court judge granted the defendant's motion, 

seemingly on the ground that, because the plaintiff's attorney 

had previously represented the parties jointly in the 

defendant's adoption of the plaintiff's minor child, a conflict 

of interest in violation of Mass. R. Prof. C. 1.9 (a), as 
2

amended, 490 Mass. 1305 (2022), existed.1,2 The plaintiff 

appeals from that decision. Concluding that the attorney should 

not have been disqualified, we reverse.

Discussion. "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 gives informed 

consent, confirmed in writing." Mass. R. Prof. C. 1.9 (a). 

"Not every successive representation presents a conflict arising 

from the representation of a former client." Slade v. Ormsby, 

69 Mass. App. Ct. 542, 546 (2007), citing Adoption of Erica, 426 

Mass. 55, 61 (1997).

"Under the substantial relationship test, the Supreme 

Judicial Court has set forth two criteria to test a claim 

that an attorney should be disqualified because of a 

conflict arising from the representation of a former 

client: (1) the current representation must be adverse to 

the interests of the former client; and (2) the matters of 

the two representations must be substantially related" 

(quotations and citation omitted).

Slade, supra.

"A party generally enjoys the right to the counsel of his 

or her choice, and courts should not lightly interrupt the 

1 The judge did not issue written findings.

2 The plaintiff submitted uncontroverted affidavits from 

herself and her attorney asserting that the adoption proceedings

were uncontested. The record before us supports that claim.
3

relationship between a lawyer and [a] client" (quotations and 

citations omitted). Steinert v. Steinert, 73 Mass. App. Ct. 

287, 288 (2008). "The burden . . . rests on the party seeking 

disqualification to establish the need to interfere with the 

relationship." Id. "Where, as here, it is opposing counsel who 

seeks disqualification, we must 'be alert that the Canons of 

Ethics are not brandished for tactical advantage.'" Id., 

quoting Serody v. Serody, 19 Mass. App. Ct. 411, 414 (1985). 

"When disqualification occurs after employment has begun, it 

temporarily (and possibly permanently) disables the litigant in 

[her] effort to prosecute a claim or mount a defense." Borman

v. Borman, 378 Mass 775, 787 (1979).

"Under the present execution doctrine, a disqualification 

order, as we have here, is treated as a final judgment that is 

immediately appealable." Slade, 69 Mass. App. Ct. at 544, 

citing Borman, 378 Mass. at 780. "We review the 

disqualification order for an abuse of discretion." Steinert, 

73 Mass. App. Ct. at 288. "[A] judge's discretionary decision 

constitutes an abuse of discretion where we conclude the judge 

made a clear error of judgment in weighing the factors relevant 

to the decision, such that the decision falls outside the range 

of reasonable alternatives" (quotation and citation omitted). 

L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
4

In this instance, we conclude that the judge abused his 

discretion by granting the defendant's motion to disqualify. In 

order to grant the motion, the judge was required to consider 

both branches of the substantial relationship test. See Slade, 

69 Mass. App. Ct. at 546. It is a foregone conclusion that the 

first branch, inquiring whether "the current representation [is] 

adverse to the interests of the former client" was satisfied, as 

the parties oppose each other in the present case. Id. The 

judge was therefore required to turn to the second branch and 

consider whether the previous matter was "substantially related" 

to the present matter such that disqualification was 

appropriate. Id.

Such an analysis is "intensely fact specific." Coke v. 

Equity Residential Props. Trust, 440 Mass. 511, 516 (2003). 

Here, however, there was no evidence offered in support of the 

motion. The defendant did not file an affidavit or other 

documentary evidence, and, although a hearing was held, neither

party nor any other witness testified. The only support the 

defendant offered was a brief and conclusory statement by his 

attorney at the hearing that "there [are] some issues between 

[the defendant] and that particular child in this case, and so 

that . . . is going to be . . . extremely relevant as to 

parenting schedule, custody, in this case." We are left to 

wonder, as was the judge below, what those issues could be, how 
5

they could become relevant in the present case, or, indeed, what 

information plaintiff's counsel possessed about them. See 

Wessell v. Mink Brook Assocs., 87 Mass. App. Ct. 747, 752 (2015) 

("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"). The defendant did not provide an 

answer to those questions in any of his filings or in his 

statements before the judge.3,4 Indeed, counsel for the 

defendant went as far as to say that "[she] doesn't know what 

was communicated between the parties and their former counsel."5 

As "courts should not lightly interrupt the relationship between 

a lawyer and [a] client,"6 (quotation and citation omitted),

Steinert, 73 Mass. App. Ct. at 288, the defendant fell well 

short of meeting his burden of establishing the requirements 

3 The defendant did not submit a brief in opposition to this 

appeal.

4 We note that the defendant never asserted that any 

communications between himself and the child were confidential. 

See Wessell, 87 Mass. App. Ct. at 752.

5 Plaintiff's counsel, in his affidavit, asserted that "no 

confidential information or secrets were obtained by me in [the 

adoption] proceedings."

6 The plaintiff stated in her affidavit that counsel had 

represented her in other matters and that she was satisfied with 

his representation and wished him to represent her in these 

proceedings as well.
6

necessary to disqualify the plaintiff's counsel. Without more, 

we agree with the plaintiff that the judge abused his discretion 

by granting the scantly supported motion.7,8

Order disqualifying

plaintiff's counsel

reversed.

By the Court (Desmond, Shin & 

Singh, JJ.9),

Assistant Clerk

Entered: June 13, 2024.

7 We have said in a past case that "[i]t is not for this 

court to make the initial fact-finding inquiry into whether the 

disqualification order was proper," Slade, 69 Mass. App. Ct. at 

547-548, and remanded the case for further findings. In that 

case, the record contained considerably more evidence that 

suggested disqualification was possibly appropriate. See id. at 

543-544. The defendant in this case has presented no evidence 

in support of his motion, and, accordingly, we consider that 

remedy unsuitable here.

8 The plaintiff has requested appellate attorney's fees but 

provided no basis therefor. Accordingly, we decline to order

attorney's fees. See Mass. R. A. P. 16 (a) (9) (A), as

appearing in 481 Mass. 1628 (2019) ("The argument shall contain 

. . . the contentions of the appellant . . . and the reasons 

therefor").

9 The panelists are listed in order of seniority.