Minkina v. Frankl

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13-P-1480 Appeals Court

NATALY MINKINA vs. LAURIE A. FRANKL & others.1

No. 13-P-1480.

Suffolk. May 12, 2014. - September 15, 2014.

Present: Cypher, Kafker, & Hanlon, JJ.

Attorney at Law, Malpractice, Withdrawal. Anti-Discrimination
Law, Arbitration, Employment. Arbitration. Practice,
Civil, Notice of appeal, Amendment of complaint, Costs.

Civil action commenced in the Superior Court Department on
May 11, 2009.

A motion to strike expert testimony was heard by Edward P.
Leibensperger, J.; a motion for leave to file a second amended
complaint was considered by Janet L. Sanders, J.; and the case
was heard by Peter M. Lauriat, J., on a motion for summary
judgment.

Richard L. Neumeier for the plaintiff.
Kevin G. Powers (Robert S. Mantell with him) for the
defendants.

KAFKER, J. Nataly Minkina contends that her former

counsel, Laurie A. Frankl, Jonathan J. Margolis, and Rodgers,

1
Jonathan J. Margolis and Rodgers, Powers & Schwartz, LLP.
 2

Powers and Schwartz, LLP (hereinafter, collectively, RPS),

committed legal malpractice during their representation of her

in an employment discrimination action. More particularly, she

claims that RPS mishandled its opposition to a motion to compel

arbitration by failing to recognize that the reasoning in a

then-controlling decision of this court, Mugnano-Bornstein v.

Crowell, 42 Mass. App. Ct. 347 (1997) (Mugnano-Bornstein), would

be rejected by the Supreme Judicial Court in a later decision,

Warfield v. Beth Israel Deaconess Med. Center, Inc., 454 Mass.

390 (2009) (Warfield). Minkina also contends that RPS breached

its fiduciary duty to her when it withdrew from her

representation after she criticized the performance of Frankl

and other lawyers in the firm and accused at least Frankl of

unprofessional conduct. In addition, Minkina contends that the

judge abused his discretion in denying her second motion to

amend her complaint. For the reasons stated below, we affirm

the decision of the Superior Court judge rejecting the

malpractice and breach of fiduciary duty claims and allowing the

defendants' motion for summary judgment. We also conclude that

the denial of the second motion to amend the complaint was not

an abuse of discretion.

Background. In 2002, the plaintiff, Nataly Minkina, was

hired as a physician by the Affiliate Physicians Group of Beth

Israel Deaconess Medical Center (APG). At that time, she
 3

executed an employment agreement that contained an arbitration

clause. The clause provided:

"In the event that any dispute arising out of or relating
to this Agreement, including without limitation any dispute
regarding the validity, breach or termination of this
Agreement, should occur, the parties shall for a period of
thirty (30) days meet and negotiate in good faith to
resolve the dispute. Any dispute that is not resolved by
the parties within thirty (30) days shall be finally
settled by arbitration. . . . The parties irrevocably
waive any right to redress any such dispute other than by
such arbitration."
In 2003, Minkina, who was then represented by counsel other

than RSP, filed charges of discrimination pursuant to G. L.

c. 151B against APG with the Massachusetts Commission Against

Discrimination (MCAD). In September, 2004, APG terminated her

employment. In November, 2004, predecessor counsel removed

Minkina's MCAD action to the Superior Court. In January, 2005,

APG filed its answer to Minkina's complaint, moved to dismiss

one count of the complaint, and commenced discovery. After

APG's motion to dismiss was denied and Minkina responded to

APG's first request for discovery, APG moved in June, 2005, to

compel arbitration of the employment discrimination claims. By

this time, Minkina had retained RPS to represent her.

In its memorandum in support of its motion to compel

arbitration, APG argued that the arbitration clause in Minkina's

employment agreement was broad, not narrow, and that the Appeals

Court decision in Mugnano-Bornstein, supra, and the Supreme
 4

Judicial Court decision in Drywall Sys., Inc. v. ZVI Constr.

Co., 435 Mass. 664, 666-667 (2002) (Drywall Sys., Inc.), were

controlling precedents requiring the arbitration of Minkina's

discrimination claims. In Mugnano-Bornstein, supra at 353, this

court required the arbitration of G. L. c. 151B claims based on

an arbitration clause governing "any controversy concerning

. . . termination of employment," and in Drywall Sys., Inc.,

supra at 667, the Supreme Judicial Court required arbitration of

claims under G. L. c. 93A based on an arbitration clause

governing "[a]ny controversy or claim . . . arising out of or

related to this [s]ubcontract."

RPS did not argue that the arbitration clause at issue was

narrower than the ones referenced in Mugnano-Bornstein and the

other cases cited by APG and therefore not broad enough to

encompass the discrimination claims. Rather, RPS contended that

(1) the arbitration provision was unenforceable as it contained

unconscionable prospective waivers of punitive damages and

attorney's fees, (2) APG had waived its right to demand

arbitration by engaging in discovery and filing a motion to

dismiss, (3) APG failed to meet the terms of the "Dispute

Resolution" procedures set forth in the employment agreement,

and (4) the arbitration clause did not apply to Minkina's claims

against a necessary party, APG's president.
 5

In 2006, a judge in the Superior Court found Minkina's

G. L. c. 151B claim arbitrable. The judge relied on the "strong

presumption of arbitrability" that attaches to broad arbitration

clauses; the breadth of the language of the arbitration clause

at issue here, which "encompasses not only claims based on the

contract itself, but also . . . disputes arising out of the

contractual relationship"; and the rule that "[s]tatutory claims

[including discrimination claims] also may be contractually

limited to the arbitral forum," as held by the Supreme Judicial

Court in Drywall Sys., Inc., and the Appeals Court in Mugnano-

Bornstein. The judge rejected the particular arguments made by

RPS, although she concluded that attorney's fees were

recoverable.

According to Minkina, on May 19, 2006, defendant Laurie

Frankl had informed her that APG would be responsible for the

payment of all arbitration fees, but four days later Frankl told

Minkina that she was incorrect and that Minkina would be

responsible for splitting the arbitration fees, requiring her to

pay approximately $30,000. Thereafter, Minkina wrote to the

partners of RPS via electronic mail message (e-mail) "to

complain of gross negligence and unprofessionalism by an

attorney of your firm." In the e-mail, Minkina further stated

that Frankl had "damaged my case and cost me thousands of

dollars," and was "more concerned about complying with APG['s]
 6

attorney['s] demands than helping my case." Minkina also

complained about the performance of other lawyers in the firm.

She concluded the e-mail by stating, "I do not plan to choose

another firm to represent me" and requested a meeting with RPS's

partners and that she be given replacement counsel, as she could

not "tolerate [the] careless attitude" of her current attorney.

That same day, RPS informed Minkina via e-mail that "it is clear

that you have lost faith in us as your counsel. Accordingly, we

shall withdraw from representing you. We shall, however, give

you time to find new counsel." By June 9, Minkina had retained

new counsel.

In July, 2006, Minkina filed a complaint with the Office of

Bar Counsel (OBC) contending that RPS violated the Massachusetts

Rules of Professional Conduct when it advised her regarding the

allocation of arbitration fees and when it withdrew its

representation. As set forth in a letter to Minkina, an

assistant bar counsel at the OBC concluded that "it was not

unreasonable for [RPS] to determine that [Minkina's] allegations

[regarding Frankl's legal advice] placed them in a position of

conflict of interest and, as a result, that they were required

to withdraw . . . or, at the least, permitted to withdraw." The

assistant bar counsel further stated that the advice regarding

the arbitration fees might nonetheless be the basis of a

malpractice claim. A member of the Board of Bar Overseers
 7

denied a motion to reconsider the decision on withdrawal, and

the Supreme Judicial Court declined an appeal of the decision.

In March, 2009, the arbitrator found that APG had engaged

in unlawful employment practices, and awarded Minkina

approximately $266,000 in damages, fees, and costs. The

arbitrator concluded that punitive damages were not recoverable

-- and that he would not have awarded them even if they were.

Minkina did not move to vacate or modify the award.

In May, 2009, Minkina filed a malpractice action against

RPS, and in July, 2009, she filed a first amended complaint. In

her first amended complaint, Minkina alleged that RPS, in filing

Minkina's opposition to APG's motion to compel arbitration,

"neglected to raise important arguments that might have

succeeded if raised, namely that an improper termination of

Minkina's employment negates the validity of the employment

contract's arbitration clause." In addition, she alleged that

RPS had withdrawn its representation prior to the arbitration

and had improperly advised her regarding the subject of

arbitration fees. Although eventually the arbitrator concluded

that the arbitration fees were to be paid by APG, Minkina had

been required to split the cost of the arbitration with APG, at

least for a period of time.

On July 27, 2009, the Supreme Judicial Court issued its

opinion in Warfield, 454 Mass. 390. There, the court held that
 8

for statutory discrimination claims under G. L. c. 151B to be

arbitrable, they must be specifically referenced in the

arbitration clause. Id. at 398. The court expressly overruled

the Appeals Court's analysis in Mugnano-Bornstein, which had

rejected such a requirement. Warfield, supra at 397 & n.11.

More than two years later, in December, 2011, Minkina

retained an expert, Samuel Estreicher, a New York University

School of Law professor and director of the Center for Labor &

Employment Law, who opined that "competent employment counsel

would have made and pressed the argument that the arbitration

clause in [Minkina's] employment agreement with defendants in

the [APG] [c]ase was a narrow one and did not authorize

arbitration of employment discrimination and other statutory

employment claims." He further opined that "[w]ell before the

issuance of the Massachusetts Supreme Judicial Court's decision

in Warfield . . . competent counsel would have understood that

the Mugnano-Bornstein [decision,] . . . on which the trial court

in the [APG] [c]ase heavily relied, was plainly distinguishable,

as the arbitration clause in that case referred to employment

disputes and was not limited to claims arising under the

employment agreement, as was true of Minkina's arbitration

agreement . . . ." He concluded: "Had Dr. Minkina been able to

obtain a jury trial in this case, she would likely have obtained

a significantly larger award than she in fact obtained from the
 9

arbitrator. Because of the potential availability of punitive

damages, and other factors, competent defense counsel, fearing

such a prospect, would likely have settled the case at a level

in excess of the award she received from the arbitrator." The

assertion that Minkina would likely have obtained a greater

recovery in court or through a settlement was struck by a judge

in the Superior Court as speculative.

RPS moved for summary judgment on all claims on June 29,

2012. On July 2, 2012, Minkina moved for leave to file a second

amended complaint to add a G. L. c. 93A claim, contending that

Frankl committed deceptive acts when she told Minkina that an

American Arbitration Association case manager had informed

Frankl that Minkina's employment agreement was individually

negotiated and therefore the arbitration costs would be split

between the parties. RPS opposed the motion on multiple

grounds, including that RPS would be prejudiced by the three-

year delay in filing the second amended complaint, given RPS's

recent summary judgment motion and the close of discovery. The

motion to amend was denied in July, 2012, for the reasons stated

in RPS's opposition. On April 9, 2013, an order entered

allowing RPS's motion for summary judgment. The motion judge

concluded that the law existing at the time of the motion to

compel arbitration, particularly Mugnano-Bornstein, supra,

supported the enforcement of arbitration clauses, even where the
 10

clause did not explicitly mention G. L. c. 151B discrimination

claims, and that Minkina's assertion that she would have

received greater damages in court than in arbitration was too

speculative to support a claim for legal malpractice. The judge

also rejected the breach of fiduciary duty claim arising out of

RPS's discontinuance of its representation, ruling that

"Minkina's strong criticism of Frankl's performance, and her

assertion that Frankl was unprofessional and may have committed

legal malpractice, amounted to a breakdown of the attorney-

client relationship sufficient to justify RPS's withdrawal."2

Judgment entered on April 10, 2013, dismissing the

complaint against the defendants "with costs." RPS served its

motion for $5,949.12 in costs on April 23, 2013. On or about

April 25, 2013, Minkina filed her notice of appeal of both the

memorandum of decision and order on summary judgment (entered

April 9, 2013), and the judgment (entered April 10, 2013). On

August 1, 2013, the judge allowed the motion for costs, and

awarded RPS $5,257.21.

Discussion. 1. Notice of appeal and jurisdiction. As an

initial matter, RPS contends that this court lacks jurisdiction

to hear this appeal because Minkina's April 25, 2013, notice of

appeal of the memorandum of decision and order on judgment

2
The judge also rejected other claims not relevant to this
appeal.
 11

(entered April 9, 2013) as well as the judgment (entered April

10, 2013) was rendered premature and a nullity by RPS's motion

for costs, which it contends was a motion pursuant to

Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974). See Mass.R.A.P.

4(a), as amended, 430 Mass. 1603 (1999) ("A notice of appeal

filed before the disposition of [a rule 59 motion] shall have no

effect"). We disagree. The April 10, 2013, judgment provided

for costs. Compare Lopes v. Peabody, 426 Mass. 1001, 1002

(1997) (where costs apparently were not requested and original

judgment failed to assess costs, motion for costs filed nearly

five months late treated as untimely pursuant to rule 59[e]).

As an award of costs had been provided for in the judgment,

RPS's subsequent motion "for allowance of costs in the amount of

$5,949.12" was directed only at the amount of costs. By

appealing the judgment, which expressly included costs, Minkina

preserved her right to appeal any particular award of costs.

RPS's motion did not seek to alter or amend the judgment, which

already provided for costs; rather, it sought to provide the

court with the "information necessary for the computation of

[the costs] already awarded." Liquor Liab. Joint Underwriting

Assn. of Mass. v. Hermitage Ins. Co., 419 Mass. 316, 325 n.7

(1995). It therefore "does not involve a matter of such

substance that consideration under rule 59(e) would be

required." Ibid.
 12

2. Malpractice claim. Summary judgment is appropriate

where there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. See

Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). "To

prevail on a claim of negligence by an attorney, a client must

demonstrate that the attorney failed to exercise reasonable care

and skill in handling the matter for which the attorney was

retained . . . ; that the client has incurred a loss; and that

the attorney's negligence is the proximate cause of the loss

. . . ." Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 500

(2010), quoting from Colucci v. Rosen, Goldberg, Slavet,

Levenson & Wekstein, P.C., 25 Mass. App. Ct. 107, 111 (1987).

On appeal, Minkina argues that RPS committed malpractice by not

recognizing that Mugnano-Bornstein was distinguishable or

incorrectly decided, and that if RPS had avoided arbitration,

she would have been awarded more damages in a judicial forum,

where punitive damages were available.

We conclude that it is not malpractice to fail to advocate

for or anticipate a substantial change in law requiring the

overruling of a controlling precedent. See Davis v. Damrell,

119 Cal. App. 3d 883, 888 (1981) (failure to anticipate "180

degrees shift in law cannot serve as the basis for professional

negligence" [citation omitted]); Kaufman v. Stephen Cahen, P.A.,

507 So. 2d 1152, 1153 (Fla. Dist. Ct. App. 1987) ("[A]n
 13

attorney's failure to accurately predict changes on an unsettled

point of law is not actionable"); Howard v. Sweeney, 27 Ohio

App. 3d 41, 43-44 (1985) ("Counsel's failure to predict a

subsequent change in a settled point of law cannot serve as a

foundation for professional negligence"); 4 Mallen & Smith,

Legal Malpractice § 33.5, at 656-657 & n.5 (2014) ("The rule is

that an attorney is not liable for an error in judgment

concerning a proposition of law that is debatable, uncertain,

unsettled, or tactical"). At the time of the motion to compel

arbitration, the Appeals Court decision in Mugnano-Bornstein, 42

Mass. App. Ct. at 352, requiring the arbitration of G. L.

c. 151B claims based on an arbitration clause governing any

controversy arising out of the termination of employment, and

the Supreme Judicial Court decision in Drywall Sys., Inc., 435

Mass. at 667, requiring the arbitration of G. L. c. 93A claims

based on an arbitration provision governing "[a]ny controversy

or claim . . . arising out of or related to this [s]ubcontract,"

were two of the closest controlling cases. Both cases referred

to the respective arbitration clauses, whether it be

controversies arising out of or related to employment or an

agreement, as "broad." Both cases discussed the "presumption of

arbitrability in the sense that [a]n order to arbitrate the

particular grievance should not be denied unless it may be said

with positive assurance that the arbitration clause is not
 14

susceptible of an interpretation that covers the asserted

dispute. Doubts should be resolved in favor of coverage . . . .

Such a presumption is particularly applicable where the clause

is . . . broad." Drywall Sys., Inc., supra at 666 (citations

and quotations omitted). See Mugnano-Bornstein, supra at 351

("[D]oubts regarding arbitrability should be resolved in favor

of coverage unless it may be said with positive assurance that

the arbitration clause is not susceptible of an interpretation

that covers the asserted dispute") (quotations omitted). Both

cases also required the arbitration of statutory claims even

though the claims had not been specifically referenced in the

arbitration clause at issue, and both courts expressly rejected

the requirement of specific reference to statutory claims in the

arbitration clause itself. See Drywall Sys., Inc., supra

(interpreting "[a]ny controversy or claim" arising out of or

relative to contract to be specific enough to include statutory

claims); Mugnano-Bornstein, supra at 353 ("[W]e are not aware of

any rule that requires an arbitration agreement to contain a

list of the specific claims or causes of action which are

subject to arbitration in order to be enforceable. Indeed, such

a requirement would be unreasonable and impractical").

In Warfield, 454 Mass. at 398-400, the Supreme Judicial

Court changed the standards for arbitrating G. L. c. 151B

claims, expressly overruling aspects of the Mugnano-Bornstein
 15

decision. The court held that "[c]onsistent with the public

policy against workplace discrimination reflected in G. L.

c. 151B, we conclude that an employment contract containing an

agreement by the employee to limit or waive any of the rights or

remedies conferred by G. L. c. 151B is enforceable only if such

an agreement is stated in clear and unmistakable terms," and

that "parties seeking to provide for arbitration of statutory

discrimination claims must, at a minimum, state clearly and

specifically that such claims are covered by the contract's

arbitration clause." Warfield, supra at 398, 400.

In Warfield, the Supreme Judicial Court considered this

court's decision in Mugnano-Bornstein, noting that the Appeals

Court there stated "that the comprehensive scope of the

arbitration clause created a presumption of arbitrability, [and]

concluded that the clause covered the plaintiff's claims because

they arose out of her employment and later termination from her

job[,]. . . .[and that] Federal courts have similarly construed

comparable language in arbitration clauses of employment

agreements." Warfield, 454 Mass. at 397 n.11. The Supreme

Judicial Court then concluded that in "applying Massachusetts

rules of contract interpretation to discrimination claims," it

would "not adopt Mugnano-Bornstein's analysis." Ibid.

The case before us is not one where counsel simply failed

to distinguish a readily distinguishable case. Mugnano-
 16

Bornstein was not merely distinguished by the Supreme Judicial

Court in Warfield. Critical parts of Mugnano-Bornstein were

directly overruled, particularly Mugnano-Bornstein's rejection

of the requirement of a specific reference to discrimination

claims in an arbitration clause for such discrimination claims

to be arbitrable.3 Prior to the decision in Warfield, Mugnano-

Bornstein was an established Massachusetts precedent that had

been cited by the Supreme Judicial Court multiple times,

including in Drywall Sys., Inc., 435 Mass. at 667, a decision

whose reasoning appeared to further confirm the validity of the

approach adopted in Mugnano-Bornstein. Contrary to the position

maintained by Minkina, it was not an obviously incorrect

statement of the law.4

3
The distinction emphasized by Minkina's expert -- that
Mugnano-Bornstein referred to claims arising out of the
termination of employment as opposed to claims arising out of
the termination of an employment agreement -- was relevant but
not determinative for the court in Warfield. As the court
stated, "More to the point we discuss in this opinion, there is
nothing in the arbitration clause or elsewhere in the agreement
stating that any claims of employment discrimination by Warfield
are subject to arbitration." Warfield, supra at 402. This
required the court to overrule and not just distinguish Mugnano-
Bornstein.
4
We also note that RPS did not simply fail to file an
opposition or otherwise fold or concede. Compare Global NAPs,
Inc. v. Awiszus, 457 Mass. at 499 (failure to file timely notice
of appeal). Rather, RPS vigorously fought the motion to compel
arbitration and raised numerous arguments, including one that
preserved Minkina's right to recover attorney's fees. Instead
of making a frontal assault on established precedent, RPS
reasonably proposed alternative arguments designed to achieve
 17

Our analysis of this issue is not affected by Minkina's

argument, fully developed for the first time on appeal, that RPS

should be held to a higher standard of care than the average

qualified practitioner because RPS represents itself to be "The

Employment Lawyers.com" and specializes in employment law. Cf.

Fishman v. Brooks, 396 Mass. 643, 646 (1986) ("An attorney who

has not held himself out as a specialist owes his client a duty

to exercise the degree of care and skill of the average

qualified practitioner"). Even if we were to accept this

argument, despite its insufficient factual and legal development

in the trial court, and consider the standard of care here to be

that of a reasonably competent employment law specialist, our

analysis would be the same.5 Neither a reasonably competent

lawyer nor a reasonably competent employment law specialist

commits malpractice by failing to anticipate or advocate for the

overruling of an established employment law precedent.

the same objective. See 4 Mallen & Smith, Legal Malpractice
§ 33.5, at 656-657 (reasonable tactical decisions not
malpractice). Although RPS did not make the successful argument
ultimately adopted in Warfield, malpractice law recognizes that
"[s]ome allowance must always be made for the imperfection of
human judgment." Colucci v. Rosen, Goldberg, Slavet, Levenson &
Wekstein, P.C., 25 Mass. App. Ct. at 111, quoting from Stevens
v. Walker & Dexter, 55 Ill. 151, 153 (1870).
5
Minkina's counsel has presented this court with no
Massachusetts cases applying a legal specialist standard and
recognizes that "[t]he duty of a lawyer specialist has not been
expressly addressed by Massachusetts appellate courts."
 18

We also reject Minkina's assertion that she would have

received a greater recovery had the case proceeded in court

rather than in arbitration. The portion of her expert's

affidavit to this effect was properly struck as speculative.

"An expert should not be permitted to give an opinion that is

based on conjecture or speculation from an insufficient

evidentiary foundation." Van Brode Group, Inc. v. Bowditch &

Dewey, 36 Mass. App. Ct. 509, 520 (1994). The expert's

affidavit here contained no statistics or other information on

comparable recovery or settlement in court versus recovery or

settlement in arbitration. Compare Fishman v. Brooks, supra at

647. See Van Brode Group, Inc., supra (no error in excluding

expert valuation testimony that was not based on sufficient

data). See generally 4 Mallen & Smith, Legal Malpractice

§ 37.24, at 1685. Minkina successfully recovered over $266,000

in damages, costs, and fees. The arbitrator carefully ruled on

the elements of G. L. c. 151B compensatory damages that a court

would consider, including those for emotional distress, and

awarded legal fees employing the lodestar method also employed

by courts. See, e.g., Borne v. Haverhill Golf & Country Club,

Inc., 58 Mass. App. Ct. 306, 319-320, 324 (2003) (in

discrimination action under G. L. c. 151B, plaintiffs were

awarded compensatory damages, including emotional distress

damages, and attorney's fees calculated according to lodestar
 19

method); Smith v. Bell Atlantic, 63 Mass. App. Ct. 702, 723-725

(2005) (same). Minkina made no attempt to vacate or appeal the

arbitrator's decision.

The mere possibility of recovery of punitive damages in

court, but not arbitration, is not sufficient in and of itself

to satisfy a malpractice plaintiff's burden of showing that he

or she would have made a greater recovery in a particular case.

Indeed, in dicta, the arbitrator here stated that "Minkina

prevailed on the basis of a burden-shifting analysis, not

because there was clear evidence of the type of outrageous

conduct which would justify an award of punitive damages."

3. Breach of fiduciary duty. We also discern no error in

the judge's decision allowing summary judgment on Minkina's

claim that RPS breached its fiduciary duty when it discontinued

its representation. According to the Massachusetts Rules of

Professional Conduct, "a lawyer may withdraw from representing a

client if withdrawal can be accomplished without material

adverse effect on the interests of the client, or if . . . the

representation . . . has been rendered unreasonably difficult by

the client . . . [or] other good cause for withdrawal exists."

Mass.R.Prof.C. 1.16(b)(5), (6), 426 Mass. 1435 (1998). As this

court has previously held, a breakdown in the attorney-client

relationship serves as good cause for withdrawal. See Phelps

Steel, Inc. v. Von Deak, 24 Mass. App. Ct. 592, 594 (1987).
 20

When there is no longer a basis for trust and confidence, it is

not a violation of the code of professional responsibility to

discontinue the representation. See ibid. See also Salem

Realty Co. v. Matera, 10 Mass. App. Ct. 571, 575 (1980).

Indeed, it may even be necessary to do so for "the integrity of

the bar." Phelps Steel, Inc. v. Von Deak, supra.

As demonstrated by the e-mail Minkina sent to the partners

of RPS, the attorney-client relationship had broken down here.

She had accused her primary counsel at the small firm handling

her case of gross negligence that had cost her thousands of

dollars. She accused this same lawyer of being more concerned

with defense counsel interests than Minkina's own interests.

She complained about the performance, or lack thereof, of other

counsel in the firm as well. She undisputedly did not trust or

have confidence in her principal lawyer or the other lawyers who

had assisted her in the litigation. As the OBC found, this

breakdown in the relationship justified the withdrawal of the

representation. We agree.

4. Denial of leave to file second amended complaint.

Minkina also contends that it was an abuse of discretion to deny

her leave to file her second amended complaint on July 2, 2012.

The second amended complaint was filed three years after the

first amended complaint. Discovery had closed in February,

2012, and a judge had issued an order in April, 2012, allowing a
 21

third extension but warning that no "further [extensions] should

be anticipated." A summary judgment motion was also pending.

In addition, as evidenced by the numerous changes in direction

discussed above, the legal theory supporting the malpractice

action in the instant case appeared to be continually evolving.

In these circumstances, we discern no abuse of discretion in

denying the motion for leave to file a second amended complaint.

See Mathis v. Massachusetts Elec. Co., 409 Mass. 256, 264-265

(1991) ("[U]nexcused delay in seeking to amend is a valid basis

for denial of a motion to amend"); DiVenuti v. Reardon, 37 Mass.

App. Ct. 73, 77 (1994) ("Among the good reasons . . . for which

a motion to amend may be denied are that no justification for

the lateness of the motion is apparent [beyond counsel for the

moving party having had a late-dawning idea] and that one or

more of the nonmoving parties would be caught off balance by the

proffered amendment").6

Judgment affirmed.

6
The defendants' request for attorney's fees on appeal is
denied.