JEREMY PARADISE v. JOHN POMERANCE & Others.

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

25-P-489

JEREMY PARADISE

vs.

JOHN POMERANCE & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Jeremy Paradise, appeals from a Superior

Court judgment dismissing his six-count complaint against the

defendant attorneys and their law firm, based on their role in

establishing a trust for which he was the grantor. Jeremy

alleged that although he intended to have ultimate control of

the trust, the defendants caused the trust instrument to be

changed to give control to his brother, Andrew Paradise, and

that Jeremy signed the final draft of that document without

knowing of the change.2

1Kurt Steinkrauss, Alison Glover, Michael Gardener, and
Mintz, Levin, Cohn, Ferris, Glovsky, & Popeo, P.C.

2To avoid confusion, we refer to the brothers by their
first names. No disrespect is intended.
On cross-motions for summary judgment, a judge ruled that,

even accepting arguendo Jeremy's position that the defendants

represented him, Jeremy's claims failed. She concluded that

Jeremy could not establish the reasonable reliance on an alleged

misrepresentation by the defendants that was necessary to

Jeremy's first three claims (fraudulent inducement, and

intentional and negligent misrepresentation). She further

concluded that he could not establish the causation element

necessary to all six of his claims (the above three plus

violations of G. L. c. 93A, malpractice, and breach of fiduciary

duty). We affirm the dismissal of the first three claims but,

concluding that genuine issues of material fact remain as to the

latter three, we vacate their dismissal and remand for further

proceedings.

Background. We recite the undisputed facts necessary to an

understanding of the issues before us; where matters are

disputed, we refer to them as a party's assertions rather than

as facts. In December 2018, the brothers reached an

understanding to move some of Jeremy's shares of stock in

Andrew's business (Skillz, Inc.) into a trust to benefit

Jeremy's unborn son. The "key terms" included making Jeremy the

"lead trustee," with authority to manage some parts of the

trust, and making Andrew "the other trustee in charge of

2
managing it." Andrew forwarded the e-mail message stating these

terms to the defendant John Pomerance, an attorney at the

defendant law firm Mintz, Levin, Cohn, Ferris, Glovsky, & Popeo,

P.C. (Mintz). Jeremy asserts that Pomerance and Mintz had

performed legal work for him over the preceding five years.

Pomerance in turn forwarded the message to another Mintz

attorney, the defendant Kurt Steinkrauss. Jeremy was copied on

these messages.

Jeremy asserts that he understood he was setting up a trust

that he would control, and that Mintz would represent him and

act in his interests in doing so. Andrew had privately told

Pomerance, however, that he (Andrew) intended to control the

trust. Mintz and the other defendants assert that they

represented only Andrew, and never Jeremy, in connection with

establishing Jeremy's trust, as well as another trust for

Andrew.3

Jeremy asserts that, in a February 2019 telephone call

between himself, Steinkrauss, and Andrew, Steinkrauss advised

that Jeremy could control his trust by appointing a colleague or

3 Andrew asserted that he and Jeremy had a "deal," as a part
of which Andrew would be in charge of Jeremy's trust, and would
facilitate Jeremy obtaining $1 million from the sale of Skillz
stock, if Jeremy agreed to put his Skillz stock in a trust
controlled by Andrew.

3
friend to be the "trust protector," whom Jeremy could remove if

that person was not acting as Jeremy wanted. Jeremy asserts

that Steinkrauss advised that both Jeremy's and Andrew's trusts

should be formed in Delaware and that the brothers should retain

Delaware counsel for that purpose, but that Steinkrauss would

"supervise everything." The brothers approached a Delaware law

firm, Gordon, Fournaris & Mammarella, P.A. (GFM), and engaged

GFM to draft both trusts. A GFM attorney sent Jeremy an outline

stating, in part, that he typically drafted his trusts to give

the grantor (here, Jeremy) the power to remove the trust

protector.4 Jeremy asserts that he read the outline. The GFM

attorney also told Steinkrauss that Steinkrauss would be copied

on all correspondence so that he could review it.

In March 2019, GFM sent the brothers and Steinkrauss the

drafts of the trusts. The draft of Jeremy's trust gave Jeremy

the authority to remove and replace the trust protector, with

Andrew to have that authority if Jeremy were no longer living or

competent. Hereafter we refer to this arrangement as putting

Jeremy in "first position" and Andrew in "second position."

Jeremy asserts that he read the draft but could not understand

4 The outline explained that the trust protector typically
was given the power, among others, to remove and replace the
trustee, as well as any advisers on investment direction or on
distribution.

4
it. A few days later, Andrew spoke to Steinkrauss by telephone

and asked that Mintz convey to GFM Andrew's instruction to put

him, rather than Jeremy, in first position in Jeremy's trust.

The defendant attorney Alison Glover at Mintz conveyed a request

for that change to GFM.

GFM made this and other changes and sent redlined and clean

versions of the draft (as well as a new draft of Andrew's trust)

back to Glover, who in turn sent them to the brothers and

Steinkrauss. A GFM attorney later testified that, at the time

Glover requested the change and the changed drafts were sent, he

did not believe anyone at GFM had discussed the change with

Jeremy, but his understanding was that Mintz represented Jeremy

and that Jeremy had approved the change. The GFM attorney

further testified that if he had known at the time of Mintz's

position that it did not represent Jeremy, but that Mintz was

communicating to Jeremy without GFM's knowledge, "very likely, I

would have followed up directly with Jeremy regarding the

changes."

The redlined change that put Andrew (identified as "[t]he

Grantor's Brother") in first position and Jeremy (identified as

"[t]he Grantor") in second position appeared on page thirty-five

of the fifty-six-page draft. We think it fair to say the change

itself was clearly visible to a reasonable person looking at

5
that page, although understanding the significance of the change

would require familiarity with other provisions of the trust.

Glover's cover e-mail message to the brothers contained "[a] few

questions" but did not ask about, mention, or otherwise call

attention to the change putting Andrew in first position and

Jeremy in second position. Jeremy asserts that he understood

the message as summarizing all of the changes to his trust.

Jeremy did not read the redlined or clean drafts.5

In April 2019, GFM sent the trust documents to Jeremy and

Andrew for execution, copying Steinkrauss, Glover, and others on

the cover message. Steinkrauss replied to GFM, copying Andrew

and all other recipients except Jeremy, asking GFM to confirm

that Andrew would have sole control of his trust and that Andrew

and Jeremy would have "joint control" of Jeremy's trust. The

parties dispute the reason for Steinkrauss's omitting Jeremy

from this message; the defendants assert that he did so "because

Mintz represented Andrew and not Jeremy."

GFM replied to Steinkrauss that in both trusts, Andrew

alone had the authority to remove and replace the trust

5 We do not overlook that Andrew sent Jeremy a text message
asking if he had looked at the documents, to which Jeremy
replied that he would "sign whenever you tell me they are ready"
and that "I'm just going to trust your edits." This exchange,
if relevant at all to Jeremy's claims against the defendants, is
not fatal to them.

6
protector, and GFM asked to be notified if this should be

changed. Steinkrauss replied: "Andrew is fine the way it is.

They will sign today." Although Andrew was copied on those

messages, Jeremy was not.

Steinkrauss and Pomerance arranged for Jeremy to sign the

trust document at Mintz's offices, and Jeremy signed it without

having read the final draft. Jeremy asserts that, at the time

he signed it, he was unaware of the change putting Andrew in

first position to remove the trust protector. He further

asserts that he would neither have signed, nor have subsequently

transferred over three million shares of stock into the trust,

had he known "Mintz was not representing him or his interests."6

On the parties' cross motions for summary judgment, the

judge accepted for purposes of the motion Jeremy's position that

the defendants represented him during the establishment of his

trust and that they violated their professional obligations to

him. Even so, she ruled, Jeremy could not prove, for purposes

of his misrepresentation-based claims (fraudulent inducement,

and intentional and negligent misrepresentation), that his

The trust is irrevocable. As of June 2021, it had a net
6

asset value of over $35.9 million. Jeremy petitioned the
Delaware Chancery Court for reformation of the trust, but,
following a two-day trial, judgment entered for the respondents.
In the present action, Jeremy's damages claim includes more than
$5.3 million in legal fees he assertedly incurred in connection
with the Delaware case.

7
reliance on any misrepresentations by the defendants was

reasonable. Rather, she concluded, Jeremy alone was responsible

for the consequences of his failure to read the drafts putting

Andrew in first position. The judge further ruled that, for

purposes of those three claims and his additional claims for

violations of G. L. c. 93A, malpractice, and breach of fiduciary

duty, Jeremy could not prove that the defendants' conduct was

what caused him to sign the trust document without being aware

that Andrew had been put in first position. From the resulting

judgment of dismissal, Jeremy appealed.

Discussion. "The standard of review of a grant of summary

judgment is whether, viewing the evidence in the light most

favorable to the nonmoving party, all material facts have been

established and the moving party is entitled to a judgment as a

matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass.

117, 120 (1991). We draw all reasonable inferences in favor of

the nonmoving party. See Sullivan v. Liberty Mut. Ins. Co., 444

Mass. 34, 38 (2005). The defendants may also obtain summary

judgment by demonstrating that Jeremy, who would have the burden

of proof at trial, has no reasonable expectation of proving an

essential element of his case. See Kourouvacilis v. General

Motors Corp., 410 Mass. 706, 716 (1991).

8
Importantly, for the purposes of this appeal only, the

defendants assume (as did the judge) that they acted as Jeremy's

attorneys, and they argue that Jeremy nevertheless cannot

prevail. We proceed on the same assumption, and we therefore

need not discuss Jeremy's arguments that such an attorney-client

relationship existed. We turn directly to the grounds for the

judge's ruling.

1. Reasonable reliance. Jeremy's first three claims have

in common the element that a plaintiff's reliance on a

defendant's allegedly false statement must have been reasonable.

This is true of Jeremy's claims for fraud in the inducement, see

Commerce Bank & Trust Co. v. Hayeck, 46 Mass. App. Ct. 687, 692

(1999); intentional misrepresentation, see Masingill v. EMC

Corp., 449 Mass. 532, 540 (2007); and negligent

misrepresentation, see Marram v. Kobrick Offshore Fund, Ltd.,

442 Mass. 43, 59 (2004).7 Yet it is unreasonable to rely on

alleged misrepresentations about the contents of a document if

one had an opportunity to read the document and a cursory

reading would have revealed its true content. See Collins v.

Huculak, 57 Mass. App. Ct. 387, 391-393 & n.7 (2003). "One who

7 The judge did not conclude, and the defendants do not
assert on appeal, that such reasonable reliance is an element of
Jeremy's other three claims (violation of chapter 93A,
malpractice, and breach of fiduciary duty).

9
signs a writing that is designed to serve as a legal document

. . . is presumed to know its contents." Hull v. Attleboro Sav.

Bank, 33 Mass. App. Ct. 18, 24 (1992).

Based on these principles, the judge ruled that Jeremy's

three misrepresentation-based claims failed because it was

unreasonable for him to have relied on any alleged

misrepresentations by the defendants that he was in first

position. This was because the defendants had sent him a

redlined draft and later a clean execution copy that showed he

was not in first position, and that he had every opportunity to

read. On appeal, Jeremy does not seriously dispute that,

putting aside whatever heightened duties the defendants may have

had to him as his (assumed) attorneys, his misrepresentation-

based claims are not viable. Jeremy thus acknowledges that

"[t]he existence of an attorney-client relationship is . . .

critical" to his claims.

To be sure, Jeremy points out that, although a party's

failure to read or understand a document before signing it does

not free him from its obligations, this rule is subject to an

exception for fraud. See Miller v. Cotter, 448 Mass. 671, 680

(2007); Sharon v. Newton, 437 Mass. 99, 103 (2002); Lee v.

Allied Sports Assocs., Inc., 349 Mass. 544, 550–551 (1965). But

those decisions do not expand the concept of fraud to impose a

10
heightened duty to disclose the contents of a document to a

party who is perfectly capable of reading it. The decisions

thus do not strengthen Jeremy's misrepresentation-based claims.8

Any such heightened duty of disclosure must, at least on this

record, be based on the defendants' having been Jeremy's

attorneys or having led him to believe that they were.9

While Jeremy focuses on the defendants' asserted failure to

sufficiently inform him of the trust terms, his brief also

includes scattered assertions that the defendants failed to

inform him that they did not represent him or misled him into

thinking that they did. Jeremy makes these assertions, however,

primarily in support of his claims that an express or implied

8 Nor do those decisions, or cases such as Commerce Bank &
Trust Co., 46 Mass. App. Ct. at 463 (party bound by document he
voluntarily signed without reading), assist the defendants.
What Jeremy seeks here is not to be relieved of his obligations
under the document he signed, but an award of damages against
those he asserts caused him to sign the document in violation of
their duties to him.

9 Jeremy also cites decisions recognizing that, in special
circumstances of reasonable reliance by insureds, heightened
duties may be imposed on insurance brokers or agents. See
Campione v. Wilson, 422 Mass. 185, 195-196 (1996); Martinonis v.
Utica Nat'l Ins. Group, 65 Mass. App. Ct. 418, 421 (2006). But
Jeremy cites no authority applying those cases outside of the
insurance context, nor does he explain how any special
circumstances here would create a heightened duty different from
that created by an attorney-client relationship. Because we
conclude infra that Jeremy may pursue his malpractice claim, we
need not discuss the special circumstances argument further.
Moreover, it appears not to have been made to the judge.

11
attorney-client relationship existed and that the defendants

breached their professional duties to him. They might also be

asserted under the rubric of his chapter 93A claim. Because we

conclude infra that Jeremy may pursue those claims, and because

he does not explain what, if anything, the assertions add to his

misrepresentation-based claims, we affirm the judge's ruling

dismissing those latter claims (counts 1-3).

2. Causation; duty. The judge concluded that Jeremy's

remaining claims failed because, as a matter of law, it was

Jeremy's own failure to read the document before signing that

caused his alleged injuries -- not the defendants' failure to do

more to ensure that he knew the content of the document. The

judge relied primarily on a Federal court decision recognizing

that, under New York law,

"when the only allegation of legal malpractice is a failure
to advise a plaintiff-client of the consequences of a
contractual provision, without more, there is no
malpractice liability where the agreement reveal[s] on its
face what the client claim[s] he was not told because in
such cases, the malpractice claim is flatly contradicted by
documentary evidence" (quotations and citations omitted;
emphasis added).

Preferred Fragrance, Inc. vs. Buchanan Ingersoll & Rooney PC,

U.S. Dist. Ct., No. 15 CIV. 1293 BMC (E.D.N.Y. Oct. 18, 2015)

(Preferred Fragrance). In other words, where the clients

claimed to have been "harmed by [their attorney's] failure to

adequately explain a provision" of a document they were to sign,

12
yet "the provision spoke for itself," the attorney had no

"cognizable duty to do more." Id. Although the judge here

framed her conclusion as going to causation, Preferred Fragrance

frames the issue as involving an attorney's duty, and that

rubric is more helpful here.10

We need not decide whether Preferred Fragrance's statement

of New York law is also the law of Massachusetts, because the

court's description of the limits on an attorney's duty to

ensure the client's understanding of a legal document contains a

key qualifying phrase: "without more." Preferred Fragrance,

supra. Indeed, the court recognized that the result might be

different if, for example, there was evidence the attorney

"knew, or had reason to know, that [the client] would balk" at

the particular provision at issue.11 Id. There is such evidence

here.

10The judge based her causation analysis on Hager vs.
Vertrue, Inc., U.S. Dist. Ct., No. CIV.A. 09-11245-GAO (D. Mass.
Sept. 28, 2011). That decision, however, did not involve any
claim against an attorney, nor did it discuss whether an
attorney has a heightened duty to ensure a client's knowledge of
a document despite the client's failure to read it.

11For the same reason, the defendants can draw no support
from EVIP Canada, Inc. vs. Schnader Harrison Segal & Lewis LLP,
U.S. Dist. Ct., No. 18-CV-11456 (LJL) (S.D.N.Y. Mar. 15, 2021).
In that case, the plaintiff clients "did not advise [the
defendant attorneys] at the outset of their need for" the
particular provision at issue. Id.

13
That evidence, some of it subject to genuine dispute,

includes the following:12 (1) Steinkrauss knew from the initial

e-mail messages that Jeremy wanted to have at least some control

of his trust; (2) Andrew privately told Steinkrauss's colleague

Pomerance that Andrew intended to control Jeremy's trust;

(3) Steinkrauss told Jeremy he could control his trust by

retaining the authority to remove and replace the trust

protector; (4) Steinkrauss told Jeremy that Delaware counsel

should draft the trust but that he (Steinkrauss) would supervise

everything; (5) Jeremy could reasonably expect that GFM would

draft the trust to give him authority over the trust protector,

and GFM initially did so; (6) Andrew then asked Steinkrauss to

convey to GFM that the trust should be changed to put Andrew

rather than Jeremy in first position, and Steinkrauss through

his colleague Glover conveyed this message to GFM, which made

the change; (8) Glover sent Jeremy a fifty-six-page redlined

draft, showing this particular change on page thirty-five, but

did not otherwise call it to his attention, and Jeremy did not

read the draft; (9) Steinkrauss intentionally removed Jeremy

(but not Andrew) from an e-mail message chain seeking GFM's

confirmation of who would control Jeremy's trust; (10) GFM

12We pass over the evidence Jeremy cites as supporting his
belief that the defendants had represented him in the past and
represented him in connection with the formation of his trust.

14
replied that Andrew would do so and asked if that should be

changed, to which Steinkrauss replied that Andrew was "fine"

with having such control but said nothing about his (assumed)

client Jeremy's position; (11) Steinkrauss and Pomerance

arranged for Jeremy to sign the trust document at Mintz's

office, which Jeremy did without reading the final draft; and

(12) Jeremy would not have signed it or transferred over three

million shares of stock into the trust had he known Mintz was

not representing him.

Viewing this evidence in the light most favorable to Jeremy

as the nonmoving party, and drawing all reasonable inferences in

his favor, a jury could find that the defendants knew it was

important to Jeremy to have control of his trust and that he was

relying on them to assist him; they told him that he could have

control and that they would supervise everything; but then they

assisted in having the control shifted to Andrew, without

affirmatively ensuring that Jeremy knew of and agreed to the

change; and they took the affirmative step of cutting Jeremy out

of the e-mail conversation in which they sought and received

confirmation of their client Andrew's final role.

"The relation of attorney and client is highly fiduciary in

its nature. . . . The attorney owes his client a duty of full

and fair disclosure of facts material to the client's

15
interests." Hendrickson v. Sears, 365 Mass. 83, 90 (1974). See

Blake v. Hendrickson, 40 Mass. App. Ct. 579, 582 (1996)

(attorney is client's agent); Gagnon v. Coombs, 39 Mass. App.

Ct. 144, 156 (1995) (agent has fiduciary duty to use reasonable

efforts to give principal information which agent has notice

principal would desire to have).

Again assuming arguendo that the defendants were Jeremy's

attorneys, then, where they had reason to know that Jeremy

wanted his trust drafted to give him control, and that he was

relying on their skill as attorneys to help him achieve his

objective, it is a question of fact whether they made reasonable

efforts to do so, or to ensure he knew that the final draft did

not achieve that objective before he signed it. An attorney's

duty to a client may often include presenting the client with a

document for signature that the attorney has participated in

drafting, or reviewing, to ensure it serves the client's

interests. When the attorney is on notice that a particular

provision of the document is or may be contrary to the client's

wishes or interests, we are unwilling to conclude as a matter of

law that the attorney's duty is discharged by merely presenting

the client with a lengthy redlined draft and leaving it to the

client to read the document and ask about the redlined changes.

That level of disclosure may suffice in an arm's-length

16
relationship between parties of comparable sophistication, but

"[t]he attorney and client do not deal with each other at arm's

length." Berman v. Coakley, 243 Mass. 348, 354 (1923).

"Unflinching fidelity to their genuine interests is the duty of

every attorney to [that attorney's] clients." Id.

We decline to hold it unforeseeable as a matter of law that

a client, rather than reading and understanding every page of

every document the attorney presents for signature, might

instead rely on the attorney to call attention to its important

features.13 This element of foreseeability is why we do not

adopt the judge's causation-based approach, or the defendants'

causation argument on appeal. "[P]roximate cause of an injury

depends not on factual causation, but rather on whether the

injury to the plaintiff was a foreseeable result of the

defendant's negligent conduct." Kent v. Commonwealth, 437 Mass.

312, 320 (2002). "The definition or scope of proximate cause

13The defendants cite a decision assertedly holding that
such reliance on an attorney is unreasonable as a matter of law
for purposes of claims against the attorney. See Smith v.
Jenkins, 718 F. Supp. 2d 155, 163, 167 (D. Mass. 2010). Smith
holds no such thing. Although certain defendants in that case
successfully argued that the plaintiff could not avoid
responsibility for knowing the contents of a document by arguing
that she "trusted the lawyer," id. at 163, the defendants making
that argument did not include the lawyer in question, and the
claims dismissed on that ground were claims of fraud against
others, not malpractice or breach of fiduciary duty claims
against the lawyer. See id. at 158 n.1, 160 & n.5, 166-167.

17
(or foreseeable result) is in turn based on considerations of

policy and pragmatic judgment" (quotation and citation omitted).

Id. We do not accept as the policy of this Commonwealth, or as

a sound, pragmatic judgment, that attorneys can never foresee

that their clients will not read documents carefully and,

therefore, that an attorney's failure to expressly draw a

client's attention to particular provisions affecting the

client's expressed interests can never be a proximate cause of

an injury that follows from the client's signing the document

without reading it.14

To the extent that Jeremy also bore some responsibility for

reading the documents, a finder of fact would ordinarily have to

sort out the relative fault of the parties. "Comparative fault

appropriately applies to a client's claim of malpractice by a

lawyer." Clark v. Rowe, 428 Mass. 339, 345 (1998). The

The defendants advance a separate causation argument:
14

that even if Jeremy had known that Andrew was in first position,
Jeremy would have signed the trust document. But this is a
disputed fact, notwithstanding the defendants' argument that
Jeremy "did not have any intent" regarding control of the trust
and "would have signed anything put in front of him to receive
$1,000,000 from Andrew," as Andrew asserted was their "deal" at
the time. We acknowledge that the Delaware court (1) viewed as
"counterfactual" Jeremy's assertion that controlling his trust
was important to him, and (2) found "[t]he strongest inference
[to be] that Jeremy had no clear intent" as to the trust
protector issue at the time he signed the document. But the
defendants conceded at oral argument before us that the Delaware
court's determinations on those points are not entitled to issue
preclusive effect in this litigation.

18
responsibility for the client's knowledge and understanding may

be shared between the attorney and the client, to an extent that

in some cases will present questions of fact.15 If the

defendants here were indeed Jeremy's attorneys, then this may be

one of those cases.

Ruling as we do, we need not address the judge's

alternative reasoning and the defendants' argument based on the

asserted issue preclusive effect of three conclusions reached by

the Delaware court. In brief, those conclusions, even if fatal

to Jeremy's fraud theory, have no bearing on whether the

defendants had, and violated, heightened duties to ensure

Jeremy's knowledge of what he was signing.

We therefore vacate so much of the judgment as dismissed

Jeremy's malpractice claim (count 5). As for the breach of

fiduciary duty claim (count 6), the judge viewed it as

duplicative of the malpractice claim, and dismissed it on the

15The defendants miss the point in arguing, on the
comparative negligence issue, that "a client who doesn't read a
document he signs is necessarily more negligent than a lawyer
who doesn't remind the client of each provision in it before the
client signs it." This case is not about the defendants'
failure to remind Jeremy of "each provision" in the trust
document. It is about (1) their failure to do more to ensure he
knew of a particular provision that was important to him, and
(2) their act of affirmatively removing him from an e-mail
message chain that would have clarified to him -- as the
defendants saw fit to do with their client Andrew -- exactly who
would be in control of his trust.

19
same ground, lack of causation, that we have now concluded was

error. We therefore vacate the dismissal of the fiduciary duty

claim, and we note that "[i]ntentional breaches of fiduciary

duties" may stand "apart from a claim of malpractice."16 Clark,

428 Mass. at 345. See G. Jacobs & K. Laurence, Professional

Malpractice § 17.1 (2007) (explaining that legal malpractice and

breach of fiduciary duty claims are not necessarily

duplicative). Whether comparative negligence is relevant in a

fiduciary duty case, as it is in a legal malpractice case, was

left unresolved in Clark, 428 Mass. at 345-346. It has not been

briefed here, and we express no view on it.

Finally, because the chapter 93A claim (count 4) was

dismissed on the same causation ground as the malpractice and

fiduciary duty claims, we vacate the dismissal of the chapter

93A claim as well. Legal malpractice and breach of fiduciary

duty may fall "within at least the penumbra of some common-law,

statutory, or other established concept of unfairness," one that

16In Van Brode Group, Inc. v. Bowditch & Dewey, 36 Mass.
App. Ct. 509 (1994), the court held that on the particular facts
of that case, and where "instructions to the jury on the legal
malpractice count in effect covered the subject matter of the
fiduciary duty count, albeit in a slightly different analytical
framework," the plaintiff "was not prejudiced by the striking of
the fiduciary duty count." Id. at 516, 517. The two counts
could be viewed as essentially duplicative "on the evidence
presented." Id. at 517 n.10. The decision nowhere suggests
that they are always duplicative.

20
"is immoral, unethical, oppressive, or unscrupulous," and would

"cause[] substantial injury to consumers" (citation omitted).17

PMP Assocs., Inc. v. Globe Newspaper Co., 366 Mass. 593, 596

(1975).

Conclusion. So much of the judgment as dismissed counts 4

(violation of G. L. c. 93A), 5 (malpractice), and 6 (breach of

fiduciary duty) is vacated, and the case is remanded for further

17 As for the malpractice claim, we note that "[a] negligent
act standing by itself does not give rise to a claim under
c. 93A. There must in addition be evidence that the negligence
was or resulted in an unfair and deceptive act or practice."
Squeri v. McCarrick, 32 Mass. App. Ct. 203, 207 (1992). See
Meyer v. Wagner, 429 Mass. 410, 423-424 (1999) (judge properly
rejected client's chapter 93A claim against attorney where
client failed to prove conduct going beyond professional
negligence and amounting to unfair or deceptive acts); Poly v.
Moylan, 423 Mass. 141, 151 (1996), cert. denied sub nom. Poly v.
Cargill, 519 U.S. 1114 (1997) (same). Here Jeremy asserts that
the defendants lulled or misled him into thinking that they
represented him, and took an affirmative step that made him less
likely to discover that Andrew would be in control of his trust.
There appear on this record to be genuine disputes of fact on
these issues. The judge here agreed that "Mintz could and
should have done a much better job clearly delineating the scope
of its representation and whom it represented in connection with
the formation of the trusts." That said, we do not attempt to
delineate the precise scope of the chapter 93A claim that Jeremy
may pursue on remand, as the issue has not been briefed on
appeal.

21
proceedings on those claims. The judgment is otherwise

affirmed.

So ordered.

By the Court (Sacks,
Hodgens & Toone, JJ.18),

Clerk

Entered: April 10, 2026.

18 The panelists are listed in order of seniority.

22