Shuttered Burns & Levinson escapes lingering malpractice suit

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A Superior Court judge has granted a defense motion for judgment on the pleadings in a legal malpractice case against Burns & Levinson and one of the shuttered Boston firm’s partners.

The suit involved claims that former B&L partner Josef B. Volman breached a duty of care, breached his fiduciary duty, and operated under a conflict of interest when he was engaged by Orbian Corp. to review a proposed executive agreement between the company and Orbian’s longtime general counsel, James Houston.

According to Orbian, Volman’s failure to advise the company to include a morality clause or other language conditioning its obligation to pay compensation under the terms of the Houston contract came back to bite it when the GC was later terminated for alleged workplace misconduct involving complaints of harassment and bullying.

In January, Orbian sued B&L in U.S. District Court. The parties later stipulated to a dismissal after agreeing there was no federal jurisdiction, and Orbian refiled the case in Suffolk Superior Court in March.

On Sept. 26, Business Litigation Session Judge Christopher K. Barry-Smith granted the defendants’ motion for judgment on the pleadings in Orbian Corporation Ltd. v. Burns & Levinson.

The judge concluded Orbian’s engagement of Volman was limited and did not encompass his review of those sections of the proposed Houston contract that would have included conditions on the company’s future obligation to compensate its GC.

“Because the request from Houston and [Orbian Chairman Thomas] Dunn, both sophisticated parties, only concerned Schedule 1 [of the contract], Volman’s representation was limited to the review of that schedule,” Barry-Smith wrote. “Orbian cites no Massachusetts authority suggesting otherwise, and Massachusetts case law indicates that courts should be reticent to require that attorneys go beyond the scope of a limited representation. The fact that Orbian, in hindsight, wishes that a morality clause had been included does not mean that Volman’s performance was deficient or caused Orbian harm.”

Both Orbian’s attorney, Scott P. Lopez of Lawson & Weitzen in Boston, and defense counsel Christopher R. Blazejewski of Sherin & Lodgen in Boston declined to comment.

But Susan E. Cohen, a professional liability attorney at Peabody & Arnold in Boston, says she reads Orbian as a “classic case” of limited representation.

“Almost every claim of legal malpractice is a tort claim with the four elements of duty, breach, cause and damage,” Cohen says. “Here, the court focused on the duty piece and found that the acts complained about were not within the scope of the attorney’s duty. If there’s no duty, you don’t go any further. In every attorney malpractice case, the question is not just about whether you had an attorney-client relationship; that’s a basic level. But more specifically, [the inquiry] needs to be what did the client ask the attorney to do and what did the attorney agree to do.”

Boston legal malpractice attorney Roshan D. Jain says he was surprised that the case was dismissed on a motion for judgment on the pleadings.

“The part of the decision that makes a lot of sense to me is that the scope of the representation was limited,” Jain says. “The judge got that right, though it’s a little surprising to me that the plaintiff wasn’t at least allowed to probe the conflict issue [further] in litigation.”

According to Jain, a contrary ruling by Barry-Smith on the terms of Volman’s engagement would have sent a confusing message to practitioners.

“The issue for any defendant’s lawyer in any legal malpractice case would be, ‘Well, how do I limit the scope of my representation so that I don’t become responsible for everything under the sun that could go wrong when I advise a client?’” Jain says. “The court set out an important limitation in its decision.”

Burns & Levinson dissolved on Nov. 1, 2024. Volman, who had been a member of the firm’s corporate practice group, had left in May 2024 to join Blank Rome in Boston.

According to court records, Orbian had been a client for more than 15 years up until the law firm’s dissolution. The relationship allegedly was the result of a longtime friendship between Volman and Houston.

Sometime around March 2020, at the behest of Houston, Volman drafted a “restated participation agreement” that placed Houston in line to receive a payout equal to 4 percent of the value of the company.

In its lawsuit, Orbian alleged that B&L and Volman in a series of “covert and severely unethical negotiations” helped Houston push through a “one-sided” RPA at the expense of Orbian.

Orbian later terminated Houston for cause, triggering litigation between the company and its former GC in which Orbian sought to get out from under the alleged one-sided contract. In its complaint, Orbian alleged it incurred significant legal fees in the litigation, which ultimately ended with Orbian paying Houston in accordance with the terms of the RPA.

In addition to concluding that Volman performed his duties within the terms of his limited representation, Barry-Smith questioned whether Volman had a duty to recommend the inclusion of a morality clause even if he had been asked to review the entire RPA.

“The RPA concerned Houston’s payment for his equitable ownership interest in Orbian, where he had worked for thirteen years, during which he accumulated that ownership interest,” the judge wrote. “Given the nature and purpose of the RPA — which concerned when Houston would be paid for his ownership interest, not whether he was entitled to it, nothing in the complaint suggests that such clauses are typically part of contracts like the RPA.”

The judge further cited the absence of any allegation that Volman was aware of the alleged behavior by Houston that later resulted in his termination.

“Most significantly, the communications among Volman, Houston, and Dunn indicated that Houston and Dunn, sophisticated parties with a longstanding relationship, were happy with the agreement as it stood, and Volman’s task did not include recommending substantive changes to the RPA, which the inclusion of a morality clause would constitute,” the judge wrote.

Finally, Barry-Smith rejected Orbian’s contention that the pleadings supported a plausible claim that Volman incurred liability because he represented both Orbian and Houston simultaneously. In that regard, Orbian pointed to an email in which Houston told Volman that he and Dunn were not “expecting too many ‘comments’ or suggestions” concerning the RPA.

“Given all the communications alleged in the complaint, Houston’s independent suggestion that Volman should limit the intensity of his review does not generate a conflict of interest for Volman that can serve as the basis for Orbian’s allegation that he breached his duty to Orbian,” Barry-Smith wrote. “Accepting that a lawyer’s provision of conflicted advice may serve as the basis for a claim for professional negligence, the allegations in Orbian’s complaint do not support such a duty.”