Massachusetts Lawyers who shared $4M verdict at odds in suit over compensation

By Kris Olson

BridgeTower Media Newswires

BOSTON, MA - Two lawyers whose aggressive tactics helped secure - and then forfeit - a $4 million verdict on behalf of a Boston rape victim are now pitted against one another in litigation stemming from the breakup of their business relationship.

On May 9, onetime colleagues Krzysztof G. Sobczak and David J. Hoey were in Middlesex Superior Court where Newton attorney James S. Bolan argued successfully on Hoey's behalf to have the case impounded and stayed while the dispute is sent to arbitration.

Acknowledging that it was an "unusual request," Bolan argued that disclosing the contents of Sobczak's complaint would deprive Hoey the benefit of two decades of discoveries while developing a "very unique practice" in nursing home litigation, a subject on which Hoey is "renowned countrywide" and has conducted multiple CLE programs.

Bolan added that his request had recently taken on greater urgency, explaining that Sobczak had seemingly responded to Hoey's motion to impound with filings in four unrelated cases in which Hoey had moved to terminate Sobczak's appearance. In opposing those motions, Sobczak had attached copies of his complaint against Hoey, which had the effect of disseminating the sensitive document to at least four sets of defense counsel.

"It does sound like the cat may be out of the bag," Judge Thomas P. Billings remarked.

"We'll take half a cat at the moment," Bolan replied.

Of particular concern, Bolan said, were the approximate values that the firm put on particular open cases - information that opposing counsel could use as a hammer in settlement negotiations.

As for the proprietary strategic information, Bolan went so far as to call its disclosure potentially the "death knell" of Hoey's practice.

"Twenty years down the drain," he said.

But to Sobczak, such considerations are beside the point. His claims allege breach of contract, Wage Act violations and interference with business relationships.

Contrary to Bolan's suggestion that he was an independent contractor, Sobczak said he was introduced regularly as Hoey's "associate" and had served as the firm's director of litigation.

"I was, as far as the public was concerned, an employee of the firm," he said.

Sobczak is seeking, among other things, a declaratory judgment as to the percentage of the firm's fees to which he would be entitled when cases that were still pending upon his departure settle, he said.

Theirs is a business dispute, Sobczak argued; thus, the confidentiality agreement should not apply.

"This is not about training or trial techniques," he said. "This is about unpaid wages and an employer-employee dispute."

Ultimately, Billings stayed the case pending arbitration, charging the arbitrator with first determining whether, under the agreement, the claims were properly before her.

Hoey and Sobczak's professional split came less than a year after Superior Court Judge Paul D. Wilson decided "with great regret" that justice required him to set aside a $4 million verdict that the pair had helped secure on behalf of rape victim Kira Wahlstrom against the owner of a garage in Boston's Theatre District and its management company.

Hoey had "complied with the letter, but not the spirit" of his ruling, which refused to allow into evidence a statement obtained by an investigator who interviewed the rapist in prison as well as transcripts of their conversations, Wilson said.

In his opening statement, Hoey referenced the rapist having been asked whether additional security guards, lighting or cameras in the garage would have discouraged him. Hoey then added: "But that is all I am allowed to tell you about that right now."

That statement was "pernicious in two ways," Wilson said, suggesting that the rapist had answered the question in the affirmative and that the judge was keeping relevant evidence from the jury.

Hoey also disregarded Wilson's order regarding references to the depth of the defendants' pockets. Instead of raising the issue of admissibility at sidebar, as the judge had requested, Hoey told the jury that, after the rape, the hotel and garage had been sold for $143 million, Wilson said.

Sobczak's transgression involved video evidence of another rape that had occurred in the same parking garage 12 days earlier.

Wilson sustained a defense objection to the video's admissibility, "and that should have been the end of the matter," the judge wrote.

Instead, Sobczak not only tried to describe the content of the video over the judge's insistence that he stop but also mischaracterized the video's contents, Wilson said.

In hindsight, whatever curative instructions he had given were inadequate, Wilson concluded "with great regret."

Published: Tue, May 30, 2017

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