MASSACHUSETTS PREMIER SOCCER LLC v. BURNS LEVINSON LLP (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Massachusetts Premier Soccer LLC, doing business as Global Premier Soccer (GPS), appeals from dismissal on summary judgment of its legal malpractice action against defendant law firm Burns & Levinson LLP (firm) and defendant Perry A. Henderson, Jr., the firm's billing attorney for GPS. In its complaint, GPS alleged in part that the defendants committed malpractice by failing to warn GPS's board of directors of a Federal criminal investigation into immigration visa fraud, which led to a raid on GPS headquarters to the substantial detriment of GPS.³ Determining that the record reflects sufficient disputed issues of material fact regarding malpractice, we vacate the summary judgment on the claims for legal malpractice and remand to the Superior Court for further proceedings.

Discussion. Summary judgment is appropriate where there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Driscoll v. Melrose, 106 Mass. App. Ct. 298, 300 (2025). In deciding a motion for summary judgment, the court may consider the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. Bank of N.Y. Mellon v. Morin, 96 Mass. App. Ct. 503, 506 (2019). We review a grant of summary judgment de novo. Lawless v. Estrella, 99 Mass. App. Ct. 16, 18 (2020). We view the evidence in the light most favorable to the party against whom summary judgment entered and resolve all reasonable inferences in favor of that party. Downey v. Johnson, 104 Mass. App. Ct. 361, 371 (2024).

To prevail on a claim for legal malpractice, GPS was required to establish the existence of an attorney-client relationship, out of which arose a duty to exercise a reasonable degree of care and skill in the performance of the attorney's legal duties, a violation of that duty, and a reasonably foreseeable loss caused by the attorney's negligence. See Correia v. Fagan, 452 Mass. 120, 127 (2008). Here, there is no dispute that the parties had an attorney-client relationship, with the defendants’ providing general corporate advice and services to GPS from 2012 through to the time of the raid in 2019. Although the parties dispute the contours of this relationship -- the defendants claim only “per project” representation and GPS assigns them “outside general counsel” status -- the scope of an attorney-client relationship is a question of fact to be resolved by the factfinder. See Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 522 (1989) (existence and scope of attorney-client relationship is question to be resolved by trier of fact); DeVaux v. American Home Assur. Co., 387 Mass. 814, 818 (1983) (“Where reasonable persons could differ as to the existence of an attorney-client relationship, this issue must be resolved by the trier of fact”).

As attorneys serving as counsel to a corporation, the defendants owed a duty to act according to the interests of the corporation and not in the interests of a nonclient stockholder, director, officer, employee, or other representative of the corporation. See Robertson, 404 Mass. at 524 n.5, citing Evans v. Artek Sys. Corp., 715 F.2d 788, 792 (2d Cir. 1983). See also Evans, supra (corporate attorney, “whether an in-house lawyer or a law firm that serves as counsel to the company,” owes duty to act in accordance with interests of corporate entity itself).

Of necessity, a lawyer's interactions with a corporate client are through its authorized constituents. See Clair v. Clair, 464 Mass. 205, 215-216 (2013), citing Mass. R. Prof. C. 1.13 (a), as appearing in 450 Mass. 1301 (2008). Due to the unique challenges posed by representation of an entity that can only act through individuals who are not themselves clients, ethical rules and comments help delineate the responsibilities of corporate lawyers when they learn that individuals associated with the corporation risk harming it:

“If a lawyer for an organization knows that an officer, employee, or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law.”

Mass. R. Prof. C. 1.13 (b), as amended, 490 Mass. 1306 (2022).

GPS claims that the defendants committed a breach of their duty of care by failing to report what they knew of the Federal investigation to the GPS board. The defendants contend, however, that they had no such duty because (1) the Federal investigation was not related to their representation of GPS and (2) they did not know of a violation of a legal obligation to GPS or a violation of law that might be imputed to GPS. Both of these contentions, however, involve disputed questions of fact.

Whether the Federal investigation into immigration visa fraud related to the defendants’ representation is an inquiry into the scope of the attorney-client relationship, a question of fact. See Robertson, 404 Mass. at 522. The defendants contend that the investigation into immigration fraud was not a matter related to their representation because they did not work or advise on the investigation or on any immigration matter. But this is an exceedingly narrow interpretation of the phrase “related to,” which on its face is quite expansive. See Webster's Third New International Dictionary 1926 (2002) (“related to” means “connected,” “associated,” “being linked by context”).

Here, there was evidence supporting GPS's contention that the defendants served as outside general counsel to GPS, including the longstanding attorney-client relationship over many years, billing records showing a variety of different matters billed under a general corporate code, and testimony that the defendants were the “go-to” lawyers for corporate work. To the extent that the defendants served as general counsel to GPS, it would seem that any issue impacting the core of the business could be considered related to the representation. See 1 Roy D. Simon, Simon's New York Rules of Professional Conduct Annotated § 1.13:14 (2024 ed.) (reviewing identical language to Mass. R. Prof. C. 1.13 (b), and commenting that wide range of conduct is likely to be “related to the representation” for general counsel as opposed to other attorneys handling discrete matters).

Here, billing records, emails, and testimony reflected that the defendants were involved in the legal issues attending a broad range of issues including corporate formation, operations, tax (including tax implications for housing of H2B visa holders), employment, wages, contracts, litigation, and general legal requirements. While other counsel were employed for immigration specific tasks, like filing visa petitions, the defendants were aware of GPS's visa practices, copied on communications with immigration counsel, and kept apprised of the Federal investigation. See 1 Simon, § 1.13:14 (if lawyer finds out information because of representation, then it can be considered related to the representation). In the light most favorable to GPS, a factfinder could conclude that a Federal criminal investigation into visa immigration fraud was a matter related to the defendants’ representation as general counsel to GPS.

Likewise, the extent of the defendants’ knowledge of wrongdoing is a question of fact to be inferred from all the circumstances. See Watermark LLC v. R H Benea Cranberry Co., 497 Mass. 655, 663 (2026) (summary judgment is disfavored where state of mind is at issue). See Mass. R. Prof. C. 1.0 (h), as amended, 490 Mass. 1301 (2022) (“ ‘knows’ denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances”). The defendants contend that, while they may have known that there was some sort of an investigation, they did not have actual knowledge of any violation.

Here, there was evidence that Henderson was aware that Federal immigration officials had been approaching GPS employees, that the CEO's trusted traveler membership had been revoked without explanation, and that another attorney from a “government investigations group” practice had advised the CEO to call him immediately if approached by government agents. Further, when seeking specialized counsel to assist the CEO with his trusted traveler issue, Henderson referred to counsel needed for an “immigration investigation.” These facts could lead a factfinder to conclude that Henderson “knew” of a Federal investigation into immigration fraud involving the CEO of GPS. See Mass. R. Prof. C. 1.13 (b), comment 3 (“knowledge can be inferred from circumstances, and a lawyer cannot ignore the obvious”).

But even if these facts could be regarded as too subtle to assign actual knowledge of wrongdoing, there was evidence that the defendants understood the significance of the investigation and its likely negative impact on GPS. In part of an e-mail message chain forwarded to Henderson by the CEO, the government investigations lawyer stated:

“I have to warn you that ignoring this problem is dangerous. There are symptoms of a serious investigation, and the prudent thing to do is look further. If you ignore the symptoms, and it turns out GPS is under investigation (or becomes a target), the delay may put the company in a materially worse position than if it acts today․

“Go ahead and talk to individual counsel about whether, in that lawyer's opinion, it makes sense to retain individual counsel at this point in time.”

The government investigations lawyer further stated that, if engaged by GPS, his law firm would “brief the [b]oard” and that, because “[a]ny engagement would be on behalf of GPS[,] [they] would therefore need to run strategic decision making to the board or the board equivalent under the operating agreement.” This e-mail message was part of the chain that was forwarded to Henderson.

The CEO followed up on the government investigations lawyer's suggestion to look into lawyers “who handle Federal investigations for individuals,” but as to GPS, he declined to engage the other law firm, instead opting to “sit tight” and wait “until there is more evidence of an investigation that prompts [him] to run this up the flagpole.” This e-mail message was also part of the chain that was forwarded to Henderson.

Thus, in the light most favorable to GPS, the defendants knew that the CEO was declining to inform the board of an investigation that could have dire consequences for GPS, in violation of his fiduciary duty to act in the best interests of the company. See Matter of Barrett, 447 Mass. 453, 464 (2006) (senior executives are considered corporate fiduciaries and owe their company duty of loyalty); Geller v. Allied-Lyons PLC, 42 Mass. App. Ct. 120, 122 (1997) (“officers and directors owe a fiduciary duty to protect the interests of the corporation they serve”). A factfinder could conclude that, in light of the CEO's violation of his fiduciary duty, the defendants’ failure to report the matter to the board was a violation of their own duty to GPS. See Fishman v. Brooks, 396 Mass. 643, 649 (1986) (violation of ethical rule may be some evidence of negligence). Accord. Coastal Orthopaedic Inst., P.C. v. Bongiorno, 61 Mass. App. Ct. 55, 63 n.11 (2004) (violation of disciplinary rule intended to cover situation may be some evidence of attorney's negligence).

As to causation and damages, there was evidence suggesting that, had the defendants reported to the board when it became aware of the investigation, GPS could have avoided the raid by cooperating with Federal authorities. There was further evidence that had the board had notice of the investigation, GPS could have avoided the negative publicity by proactively addressing the issues through public relations efforts, engagement with athletes’ parents and moving away from employing coaches subject to the visa program. Due to the lack of notice, GPS was unable to proactively cooperate, thus risking GPS as a target of the investigation, leading to the raid and attendant negative publicity. Following the raid, GPS had an attrition of players, departure of coaches, and financial losses and lost financial opportunities. In the light most favorable to GPS, the defendants committed a breach of their duty of care that caused reasonably foreseeable damages to GPS. See O'Connor v. Kadrmas, 96 Mass. App. Ct. 273, 283 (2019) (expert opinion, along with facts underlying it, put causation and damages from breach of fiduciary duty at issue and precluded summary judgment). See also Jupin v. Kask, 447 Mass. 141, 146 (2006) (causation and damages ordinarily considered special province of jury).

Conclusion. As the record reflects sufficient disputed issues of material fact on each of the elements of a legal malpractice claim, the summary judgment is vacated on counts 1 and 2, and the matter is remanded for further proceedings consistent with this memorandum and order. On count 3, see note 3, supra, the summary judgment is affirmed.

So ordered.

FOOTNOTES

3.   The complaint parsed the malpractice cause of action into count 1, a negligence claim (failing to warn GPS of the investigation), and count 2, a conflict of interest claim (prioritizing the interests of the CEO, who was a personal friend of Henderson, over GPS). While the motion judge concluded that GPS did not raise specific arguments to defeat summary judgment on the conflict of interest claim, and therefore treated the issue as waived, we view the negligence and conflict of interest claims as intertwined in a single cause of action for malpractice and treat them as such. GPS also claimed that the firm improperly billed for legal work. The motion judge concluded that GPS did not raise specific arguments to defeat summary judgment on this claim, either, and GPS has not directed us to anything showing otherwise. Accordingly, we affirm summary judgment with respect to count 3, the improper billing claim, to the extent it seeks relief going beyond that available on counts 1 and 2.