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Lawyers as Litigants in Boston

Yesterday brought two appellate opinions from Boston-based courts -- one federal, one state -- in which lawyers participated not as advocates, but as litigants. One, from the state's highest court, the Supreme Judicial Court, addressed the applicability of an anti-SLAPP statute to the lawyer's attempts to recover his legal fees. The other, from the 1st U.S. Circuit Court of Appeals, involved a divorcing lawyer's attempt to keep his ex-wife from getting a stake in his retirement plans.

The SJC decision, Wenger v. Aceto, involved a case that pit the lawyer, Gregory J. Aceto, against his former client, a physician. When the client's check to Aceto bounced and the client failed to accept delivery of Aceto's formal demand for payment, the lawyer asked a local court to issue a criminal complaint against the client for larceny by check. The request was denied, but it got the attention of the client, who sued his former lawyer for malicious prosecution and abuse of process. The lawyer filed a motion to dismiss based on the state's anti-SLAPP law -- the "strategic litigation against public participation" law that is intended to protect the right to petition the courts. The SJC granted the lawyer's motion to dismiss (although it allowed the client's consumer protection claim to continue). "Although we may dislike or disfavor an attorney's choice to seek a criminal complaint against a former client in an attempt to collect payment for past services," Justice John M. Greaney wrote for the SJC, "we cannot deny any citizen the constitutional right to petition the courts to seek legal redress."

In the case decided by the 1st Circuit, Geiger v. Foley Hoag LLP Retirement Plan, Foley Hoag commercial litigator David R. Geiger went to federal court on the heels of a contentious state court divorce that assigned his ex-wife an interest in his three retirement plans. He filed suit under ERISA seeking to enjoin the plans' administrator from making the transfer to his ex-wife. She intervened and was successful in having the case dismissed. On appeal, the 1st Circuit affirmed the dismissal, concluding that Geiger, who represented himself, failed to protect his pension rights in the state court proceeding, "on the mistaken belief that the federal courts had exclusive jurisdiction."

For lawyers as litigants, that's one win, one loss.

Posted by Robert J. Ambrogi on March 28, 2008 at 12:27 PM | Permalink | Comments (1)

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