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Smaland Beach Assoc., Inc. v. Genova & another Opinion Summary: Smaland, together with third-party defendants, appealed from a Superior Court judge's order disqualifying their attorney from representing them in a real property dispute against the Genovas. The judge disqualified the attorney based on his conclusion that the attorney was a necessary witness because his clients had raised an advice of counsel defense and he had assisted various witnesses in submitting errata sheets that substantively changed their deposition testimony. The court concluded that the judge failed to engage a sufficiently searching review of this fact-intensive issue. Consequently, the court vacated the order and remanded the case for a further hearing. The court also considered the scope of disqualification orders under Mass. R. Prof. C. 3.7(a), and to clarify the proper use of errata sheets in altering deposition testimony under Mass. R. Civ. P. 30(e).
SMALAND BEACH ASSOCIATION, INC. vs. Arthur F. GENOVA & another [FN1]; Allan Bartlett & others, [FN2]
third-party defendants.
SJC-10859.
October 4, 2011. - January 5, 2012.
Attorney at Law, Disqualification, Attorney as witness. Witness, Attorney as witness. Practice, Civil, Disqualification
of judge, Deposition.

CIVIL ACTION commenced in the Superior Court Department on January 20, 2005. Motions for disqualification of
counsel and for reconsideration were heard by Richard J. Chin, J., and a proceeding for interlocutory review was heard
in the Appeals Court by Janis M. Berry, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Lee P. Alfieri for Smaland Beach Association, Inc., & othersthe.

Robert Kraus for the defendants.

Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.

CORDY, J.

Smaland Beach Association, Inc. (Smaland), together with the third-party defendants Allan Bartlett, Louise Johnson,
Mark Johnson, Russell Johnson, William Smith, and Carol Mahoney, all of whom are directors, officers, or members
of Smaland, appeal from a Superior Court judge's order disqualifying their attorney, Lee Alfieri, from representing
them in a real property dispute against Arthur and Patricia Genova (Genovas). [FN3] The judge disqualified Alfieri
based on his conclusion that Alfieri was a necessary witness because his clients had raised an advice of counsel
defense and he had assisted various witnesses in submitting errata sheets that substantively changed their deposition
testimony. We conclude that the judge failed to engage a sufficiently searching review of this fact-intensive issue.
Consequently, we vacate the order and remand the case for a further hearing. We also take this occasion to consider the
scope of disqualification orders under Mass. R. Prof. C. 3.7(a), 426 Mass. 1396 (1998), and to clarify the proper use of
errata sheets in altering deposition testimony under Mass. R. Civ. P. 30(e), 365 Mass. 780 (1974).

1. Background. The details of the underlying substantive dispute are not material here, although we summarize them briefly for context. In 1971, the owners of various lots in a subdivision around Island Pond in Plymouth formally incorporated Smaland to maintain a beach and related recreational facilities for its members. Smaland commenced this action in 2005 against the Genovas, two of its members whose property shares a common boundary with a beach lot owned by Smaland. [FN4] The complaint sought to ascertain the boundaries of the Genovas' front property line and asserted claims of encroachment onto the Smaland lot, trespass and unlawful cutting of trees, tortious interference with Smaland members' use of a boat ramp and boat dock, and prescriptive easement over the Genovas' property. The Genovas asserted counterclaims against Smaland to quiet title to the disputed areas, remove certain items from their property, and establish adverse possession of an area near and beneath their cottage. The Genovas also brought third

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Massachusetts Law