FUSS & O'NEILL, INC. v. CANNABURG CULTIVATION COOPERATIVE LLC & Others; SEAN MORRISON, Third-Party

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

24-P-1159

FUSS & O'NEILL, INC.

vs.

CANNABURG CULTIVATION COOPERATIVE LLC & others;1 SEAN MORRISON,
third-party defendant.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The third-party defendant, Sean Morrison, and defendant

Cannaburg Cultivation Cooperative LLC (Cannaburg) (collectively,

the appellants) appeal from a Superior Court judge's order

disqualifying Attorney Katherine Bierwas (Attorney Bierwas) from

representing either Morrison or Cannaburg in a dispute with

Robert Bujold and 310 Broad Street II, LLC (310 Broad Street).

The appellants claim that the judge abused her discretion in

concluding that Attorney Bierwas had violated Massachusetts

Rules of Professional Conduct 1.7's prohibition against the

simultaneous representation of adverse parties. We affirm.

1 310 Broad Street II, LLC, and Robert J. Bujold.
Background. We summarize the relevant facts arising from a

dispute between the two members of Cannaburg, Morrison and

Bujold. Bujold formed Cannaburg in 2018 as a Limited Liability

Company ("LLC") and served as the sole member-manager. In 2019,

Bujold agreed to give Morrison a fifty-percent interest in

Cannaburg in exchange for $100,000.

a. The Fuss & O'Neill, Inc., action. In September 2019,

Morrison, on behalf of Cannaburg, executed a contract with Fuss

& O'Neill, Inc., an architectural and engineering corporation to

convert 310 Broad Street2 into a cannabis cultivation facility

for Cannaburg. On May 11, 2020, Fuss & O'Neill, Inc., initiated

the underlying suit, alleging that it performed the requested

work, but Cannaburg committed a breach of its contractual

obligations by failing to pay for the work. The amended

complaint asserted claims against Cannaburg, Bujold, and 310

Broad Street. Bujold hired Attorney Christopher Ray to

represent Cannaburg, 310 Broad Street, and Bujold himself. In

addition to filing an answer to the amended complaint,

Cannaburg, 310 Broad Street, and Bujold asserted third-party

impleader claims against Morrison including breach of contract,

fraud in the inducement, right of contribution as defendants,

2 Bujold is the sole owner of 310 Broad Street, and 310
Broad Street owns real property located at 310 Broad Street in
Fitchburg.

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breach of fiduciary duties to Bujold, and breach of fiduciary

duties to Cannaburg.

Morrison, represented by Attorney Bierwas, filed an answer

to the third-party complaint, including counterclaims by

Morrison, in his individual capacity, against 310 Broad Street

and Bujold, and cross claims by Cannaburg against 310 Broad

Street and Bujold. These claims included a derivative claim

asserted by Morrison on behalf of Cannaburg, alleging that

Bujold breached his fiduciary duties to Cannaburg.

On December 3, 2020, Bujold and Morrison executed a

"Standstill Agreement" giving Morrison control of Cannaburg.

The standstill agreement provided, inter alia, that "Morrison is

the sole voting member of Cannaburg, with sole authority to act

on its behalf."3 On June 10, 2022, the claims by Fuss & O'Neill,

Inc., were dismissed by a "Stipulation of Voluntary Dismissal."

b. Ongoing dispute between Bujold and Morrison. The

remaining dispute -- including the impleader action by Bujold,

Cannaburg, and 310 Broad Street as third-party plaintiffs

against Morrison, Morrison's counterclaims individually against

Bujold and 310 Broad Street, and the crossclaims by Cannaburg

3 Following the standstill agreement, Attorney Bierwas filed
"Morrison's Surreply in Opposition to Bujold's Reply to His
Emergency Motion to Disqualify Katherine Bierwas as Counsel" and
"Opposition of Morrison and Cannaburg to Bujold's Emergency
Motion to Disqualify Katherine Bierwas as Morrison and
Cannaburg's Counsel" on behalf of both Morrison and Cannaburg.

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against 310 Broad Street and Bujold -- was scheduled to begin

trial on March 11, 2024. On February 9, 2024, attorneys from

Kenney & Sams filed appearances on behalf of Bujold and 310

Broad Street, and Attorney Ray withdrew his appearance for

Bujold, 310 Broad Street, and Cannaburg. The new attorneys

moved to continue the March trial date.

On May 23, 2024, the first day of trial, Bujold and 310

Broad Street filed and served an "emergency motion to disqualify

[Attorney] Bierwas as counsel to any defendant due to a non-

waivable conflict of interest." The motion alleged that

Morrison and Cannaburg were both clients of Attorney Bierwas and

that they had "directly adverse" interests in violation of

Mass. R. Prof. C. 1.7(a)(1), as amended, 490 Mass. 1303 (2022).

Bujold and 310 Broad Street claimed that they had just obtained

newly discovered evidence showing that Morrison breached his

fiduciary duty to Cannaburg by pursuing a competing opportunity

to grow and sell cannabis in Fitchburg.

c. Hearing on disqualification. On the same day that

Attorney Bierwas was served the motion seeking to disqualify

her, and after an opportunity to speak to her client, the judge

required initial arguments from the parties but scheduled

another date for further hearing. The parties submitted briefs

on the disqualification issue and on June 26, 2024, the judge

heard further oral arguments from the parties but took no formal

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evidence. Neither party requested an evidentiary hearing. On

July 19, 2024, the judge allowed the motion to disqualify

Attorney Bierwas. The judge, in her comprehensive decision and

order on Bujold's and 310 Broad Street's emergency motion to

disqualify Attorney Bierwas, considered Morrison's position as a

member-manager of Cannaburg and determined that the allegations

of his breach of fiduciary duty were sufficient to render

Morrison's interests directly adverse to the interests of

Cannaburg.

On August 15, 2024, the appellants filed a notice of

appeal, and on the same day filed an "Emergency Motion to Stay

All Proceedings Pending the Outcome of the Appeal of the Order

Disqualifying Morrison and Cannaburg's Counsel of Record." On

August 28, 2024, the judge issued a revised order staying the

case pending appeal. The only issue on appeal before us is the

disqualification of Attorney Bierwas.

Discussion. The appellants allege that the judge abused

her discretion by failing to hold an evidentiary hearing before

ruling on the motion to disqualify, and by failing to make

evidence-based findings regarding "the nature of Cannaburg's

interests or how the proceedings would be tainted by [her]

continued participation." The appellants further contend that

there is no concurrent conflict of interest between Cannaburg

and Morrison where the existence of the LLC is a mere formality,

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and thus the order allowing the motion to disqualify must be

vacated or reversed. The appellants lastly argue that the judge

abused her discretion by failing to consider that

disqualification was sought as an improper tactic. The

arguments are unavailing.

"We review an order disqualifying counsel for abuse of

discretion." Bryan Corp. v. Abrano, 474 Mass. 504, 509 (2016),

citing Smaland Beach Ass'n v. Genova, 461 Mass. 214, 220 (2012).

Our consideration of the motion is informed by the principle

that courts "should not lightly interrupt the relationship

between a lawyer and her client." Adoption of Erica, 426 Mass.

55, 58 (1997). Nonetheless, the right to representation of an

attorney of one's choosing "is not absolute, and must, in some

circumstances, yield to other considerations" (citation

omitted). Bryan Corp., 474 Mass. at 509. We must also "be

alert that the Canons of Ethics are not brandished for tactical

advantage." Steinert v. Steinert, 73 Mass. App. Ct. 287, 288

(2008), quoting Serody v. Serody, 19 Mass. App. Ct. 411, 414

(1985).

a. Evidentiary hearing. The appellants first allege that

the judge abused her discretion by disqualifying Attorney

Bierwas without holding an evidentiary hearing. We disagree.

"Before a judge concludes that the representation of a

[client] is 'adverse' to the interests of a former client . . .

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the record must be clear that there is a substantial risk of

material and adverse effect on the interests of the present or a

former client." Adoption of Erica, 426 Mass. at 65. However,

Rule 9A(c)(1) of the Rules of the Superior Court (2023) provides

for a hearing on a motion only "[i]f the court believes that a

hearing is necessary or helpful to a disposition of the motion."

Rule 9A(c)(2) of the Rules of the Superior Court requires a

party requesting a hearing to "set forth any statute or rule of

court which, in the judgement of the submitting party, requires

a hearing on the motion, as well as any reason why the court

should hold a hearing."

Here, neither party requested an evidentiary hearing, nor

are the material facts disputed. Indeed, it is uncontroverted

that inter alia, Attorney Bierwas represented both Morrison and

Cannaburg, that Morrison submitted an application for a special

permit to operate a cannabis cultivation facility, and that

Morrison is a member-manager of Cannaburg and owes the company

fiduciary duties. Furthermore, the judge was familiar with the

parties and their claims due to the filing of myriad motions and

through pretrial proceedings. On this record, where the judge

had extensive knowledge of the parties, issues, and necessary

documentary evidence, there was no requirement to hold an

evidentiary hearing. See Rule 9A(c)(2) of the Rules of the

Superior Court. See also Adoption of Erica, 426 Mass. at 57-58

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(no evidentiary hearing held, vacated on other grounds).

Moreover, even on appeal, the appellants cite to no

Massachusetts authority providing that an evidentiary hearing is

required to disqualify an attorney. See Rule 9A(c)(2) of the

Rules of the Superior Court. Thus, we discern no abuse of

discretion.

b. Evidence-based findings. Next, the appellants claim

that the judge was obligated to make formal evidence-based

findings regarding the nature of Cannaburg's interests and how

the proceedings would be tainted by Attorney Bierwas's

participation in the proceedings. This claim is likewise

unavailing.

"Charges of conflict of interest . . . warrant searching

review before a disqualification order can be sustained."

Adoption of Erica, 426 Mass. at 63. Although "the exact

parameters of what is required have not been spelled out," it is

clear that a judge must closely examine the interests of the

potentially adverse clients and determine if the matters are

substantially related. See Slade v. Ormsby, 69 Mass. App. Ct.

542, 546-547 & n.11 (2007).

Here, contrary to the appellants' assertions, the judge

made rulings with detailed and extensive reasoning based on

undisputed facts in her "Decision and Order on Defendants Robert

J. Bujold's and 310 Broad Street II, LLC's Emergency Motion to

8
Disqualify Katherine Bierwas as Counsel." The judge noted that

Cannaburg is a closely held LLC which imposes duties of loyalty

and good faith on the member-managers. She recognized that in

his capacity as manager of Cannaburg, Bujold asserted a claim

based on Morrison's alleged breach of the fiduciary duty that

Morrison owed to Cannaburg as a member and manager, and thus

Morrison's interests were directly adverse to Cannaburg with

respect to that claim. The judge further determined that the

conflict was not waivable and that in light of the newly

discovered evidence of Morrison's competing venture the claim

involves serious charges of wrongdoing by those in control of

the organization.

Finally, in her detailed decision and order, the judge

evaluated how Attorney Bierwas's dual representation could taint

the proceedings and considered the nature of Cannaburg's

interests based on undisputed facts. Indeed, the decision and

order shows that the judge made a "searching review" before

disqualification. Adoption of Erica, 426 Mass. at 63-64. In

short, the judge provided sufficiently detailed findings, which

revealed a close examination of the parties' interests and a

proper exercise of her discretion.

c. Concurrent conflict of interest. The appellants next

argue that there is no concurrent conflict of interest between

Cannaburg and Morrison where the existence of the LLC is a mere

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formality, and thus the order allowing the motion to disqualify

must be vacated or reversed. We disagree.

The appellants claim that Cannaburg's interests are not

directly adverse to Morrison's because Cannaburg is simply a

nominal party with no independent interest in the outcome of the

litigation distinct from Bujold's and Morrison's respective

interests. More specifically, the appellants assert that both

Morrison and Bujold own a fifty-percent interest in Cannaburg,

both asserted claims against each other in connection with the

enterprise, and both have been in control of Cannaburg. Thus,

they contend, Cannaburg's interests are "in the realm of

'fictional' in the circumstances of this particular case." For

the reasons stated below, this argument is unpersuasive.

Without deciding whether Morrison did in fact breach his

fiduciary duty, the allegations brought against him would

constitute a breach of fiduciary duty owed to both Cannaburg and

Bujold.4 Rule 1.7 prohibits a lawyer from representing a client

if the representation is "directly adverse to another client."

Mass. R. Prof. C. 1.7 (a) (1), as amended, 490 Mass. 1303

4 The appellants initially argued that the manner in which
each parties' claims were characterized, either direct or
derivative, controlled the analysis, but they later acknowledged
that the distinction is not controlling. See Schaeffer v.
Cohen, Rosenthal, Price, Mirkin, Jennings & Berg, P.C., 405
Mass. 506, 511 (1989) (shareholder and corporation interests
conflicting in derivative action).

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(2022). Representation is "directly adverse" within the meaning

of rule 1.7 (a) (1) when a lawyer "act[s] as an advocate in one

matter against a person the lawyer represents in some other

matter, even when the matters are wholly unrelated." Mass. R.

Prof. C. 1.7 comment 6 as amended, 490 Mass. 1303 (2022). Where

a client is a corporation, "the rules are clear that where a

lawyer represents an organizational client his or her loyalty is

owed to the organization, and not the constituents through whom

the organization acts." Bryan Corp., 474 Mass. at 512, citing

Mass. R. Prof. C. 1.13 (f), as appearing in 450 Mass. 1301

(2008). Indeed, an LLC, even when closely held, possesses

interests distinct from those of its member-managers. See

Pointer v. Castellani, 455 Mass. 537, 557 (2009). Moreover,

directors owe fiduciary duties to the LLC and other managers.

Accordingly, when allegations involve self-dealing, our case law

is clear that the LLC has an interest distinct from the member-

managers. See Allison v. Eriksson, 479 Mass. 626, 636 (2018);

Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 529

(1997) ("corporate directors and officers are bound by their

duty of loyalty to subordinate their self-interests to the well

being of the corporation").

Here, Bujold alleges that Morrison participated in self-

dealing, failed to honor his financial obligations, and pursued

business ventures in direct competition to Cannaburg. In this

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context, as the judge correctly noted, Cannaburg's interests are

distinct from Bujold and Morrison's interests and directly

adverse to Morrison's "with regard to the breach of fiduciary

duty claim." The judge further noted that Morrison's alleged

conduct of pursuing a competing opportunity placed his personal

interests in direct competition with Cannaburg's. Finally, the

judge noted that Rule 1.7 contemplates a lawyer's duty to the

organization and the member-managers of that organization. In

this light, Attorney Bierwas had a duty to Cannaburg the

organization, which was superior to any duty to Morrison. See,

e.g., Bryan Corp., 474 Mass. at 512, citing Mass. R. Prof. C.

1.13 (f), as appearing in 450 Mass. 1301 (2008) ("Indeed, the

rules are clear that where a lawyer represents an organizational

client his or her loyalty is owed to the organization, and not

the constituents through whom the organization acts"). The

judge then determined that the conflict is not waivable because

Cannaburg and Morrison are on opposite sides of the third-party

claim. Thus, by considering the relationships between the

parties and how Attorney Bierwas's dual representation would

taint the proceedings, the judge did not abuse her discretion.

Furthermore, there is a significant risk that Attorney

Bierwas would be materially limited by her competing

responsibilities to Morrison and Cannaburg. Rule 1.7 (a) (2)

prohibits dual representation when "there is a significant risk

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that the representation of one or more clients will be

materially limited by the lawyer's responsibilities to another

client, a former client or a third person or by a personal

interest of the lawyer." Mass. R. Prof. C. 1.7 (a) (2), as

amended, 490 Mass. 1303 (2022). See Clair v. Clair, 464 Mass.

205, 215-216 (2013) (attorneys serving as counsel to corporation

must act according to the interests of corporation);

Mass. R. Prof. C. 1.13 comment 14, as amended, 490 Mass. 1306

(2022) ("if the [derivative] claim involves serious charges of

wrongdoing by those in control of the organization, a conflict

may arise between the lawyer's duty to the organization and the

lawyer's relationship with the board").

Here, Attorney Bierwas has a duty to act in the interests

of Cannaburg and ensure the directors are acting in the

interests of the company, while she also has a competing

interest in defending her client, Morrison, from claims that he

was breaching his duties to Cannaburg. Thus, as the judge below

points out, Attorney Bierwas's claim that Cannaburg has no

viable action against Morrison is the very reason Rule 1.7

exists. The judge, in the decision and order, concluded that

Attorney Bierwas, through her duty to Morrison, is (or would be)

ignoring significant charges of potential harm to Cannaburg.

Therefore, there is a "significant risk" that Attorney Bierwas's

representation of Cannaburg will be "materially limited" by her

13
representation of Morrison because she has an interest in not

pursuing a claim against her other client. See

Mass. R. Prof. C. 1.7 (a)(2), as amended, 490 Mass. 1303 (2022).

Accordingly, the judge did not abuse her discretion when

disqualifying Attorney Bierwas from representing both Cannaburg

and Morrison.

d. Tactical use of disqualification. Finally, the

appellants contend that the judge abused her discretion by

failing to consider or address the possibility that the motion

to disqualify was a tactical maneuver. Because the judge did

consider and dismissed this possibility, we disagree.

Where "it is opposing counsel who seeks disqualification,

we must be alert that the Canons of Ethics are not brandished

for tactical advantage" (quotation and citation omitted).

Steinert, 73 Mass. App. Ct. at 288. Judges have discretion to

discourage disqualification when a party had ample notice of the

conflict and delayed until the eve of trial to express their

objection. See Masiello v. Perini Corp., 394 Mass. 842, 850

(1985).

In this case, the judge considered and weighed the concern

that Bujold's and 310 Broad Street's counsel filed their

appearance late in the matter and that they had recently

obtained new evidence suggesting that Morrison was directly

competing with Cannaburg. Furthermore, contrary to the

14
appellants' assertions, the judge did consider whether the move

to disqualify Attorney Bierwas was tactical and determined that

it was not. In this regard, the judge ultimately ruled that

"[g]iven the relatively recent appearance of counsel for Bujold

and [310] Broad Street in the case and the late revelation of

the extent of Morrison's allegedly competing business

activities, the court concludes that the motion to disqualify

[Attorney] Bierwas should not be denied because of its timing."

Therefore, we cannot say that the judge abused her discretion.

Order affirmed.

By the Court (Meade, Neyman &
Walsh, JJ.5),

Clerk

Entered: January 8, 2026.

5 The panelists are listed in order of seniority.

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