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Massachusetts Lawyers Weekly July 21, 1997; Volume 25, No. 46 Cite this Page 25 M.L.W. 2443

Agency and Partnership
Dentists — Wrongful Dissolution — Ch. 93A

Injuries alleged:
Wrongful dissolution; assault and battery; section 93A; partnership accounting

Name of case:
Withheld

Court/case #:
Hampden County Superior Court, No. 95-1395

Tried before judge or jury:
Arbitration

Name of arbitrator:
Bruce D. Clarkin

Amount of award:
Assault and battery, $10,860; good will (patient list), $335,000; release from partnership debt, $280,000; judgment, $84,018

Date:
Modified arbitration award, Aug. 6, 1996; judgment, Oct. 25, 1996

Demand:
Withheld

Highest offer:
$103,000 (including good will)

Attorney for plaintiff:
Hindell S. Grossman, Grossman & Associates, Ltd., Newton

Attorney for defendant:
Withheld

Other useful information:
This case involved the exclusion of one dentist by two other dentists in the context of a professional partnership. The excluded dentist brought suit in Hampden County Superior Court for, among other things, a partnership accounting, assault and battery and wrongful dissolution. The defendants had refused to arbitrate as required by the partnership agreement and one defendant's hostility rose to the level of physical force. The de­fendants filed counterclaims for breach of the partnership agreement.

Three months after commencement of the suit, the defendants agreed to arbitrate. Dur­ing the course of the arbitration, evidence was presented to determine the plaintiff's right to his share of the partnership's good will and the value of such share. Expert testimony was introduced by both parties to establish the value of the plaintiff's one-third interest and testimony was introduced by the partners regarding alleged modifications to the part­nership agreement and their course of dealing. The defendants' highest offer, including good will, was $103,000. The plaintiff was awarded $430,000 including good will, more than four times the defendant's highest offer. In addition, the plaintiff was released from approximately $280,000 of partnership debt.

Evidence was also presented to prove that the plaintiff was physically assaulted by his partner during the winding up period of the partnership. The plaintiff was awarded $10,860 including interest for the assault and battery.

The plaintiff prevailed on all counterclaims. The modified arbitration award was issued on Aug. 6, 1996 and was confirmed by Ham­pden County Superior Court on Oct. 25, 1996. The plaintiff also prevailed on the defendants' appeal to a single justice.

This article was distributed nationally on the Scripps Howard News Service

Second Opinion Program

GROSSMAN & ASSOCIATES, LTD.

I'd like a Second Opinion, Counselor

Asking for second opinions is no longer just for medical patients

With small businesses growing rapidly, many may need to reevaluate the service they have been receiving from their legal advisors. Sure, your company has had the same attorney for 15 years, but is that attorney providing you with the best legal advice? Would another attorney or firm be more suited to the needs of your evolving business? How do you find out?

To help businesses evaluate their legal advice, Grossman & Associates, a Newton-based law firm, has established The Second Opinion Program. With its roots in the medical field, the concept of The Second Opinion Program offers companies a new way to obtain a second, more objective perspective when wrestling with complex legal issues. For a flat fee, Grossman & Associates will confidentially review a business's current legal advice, make any suggestions for change, or deem the advice to be sound. The flat fee amount, determined by the complexity of the legal issue, prevents clients from incurring runaway legal fees.

The Second Opinion^SM Program also allows a business to audition a legal firm without committing to a retainer or paying hourly fees for service. As Hindell Grossman, principal of Grossman & Associates, says, 'Working with us may be a one shot deal... a Second Opinion Program client isn't stuck with us.” After the firm makes their suggestions to the client, the company can take that advice back to their current legal advisor and present it as their own idea, or have Grossman & Associates implement the suggested changes.

The Second Opinion Program, launched in 1998, was developed in part because of Grossman's conversations with banker and accountant colleagues. According to these professionals, many growing businesses fear offending their attorney, or feel bound by their long-term relationship, despite their uncertainty about the quality of the legal advice they are receiving. The Second Opinion Program allows bankers and accountants to help their clients make important legal decisions without offending their current attorney or undermining relationships.

Although the firm works with many companies that are referred by bankers and CPAs, it welcomes business clients from all industries. Grossman points out, “Although the levels of complexity differ, most businesses face similar legal issues.” If Grossman & Associates' Second Opinion' Program continues to grow, these issues will be increasingly reviewed by more than just one set of legal eyes.

For more information about The Second Opinion Program, contact Grossman & Associates at (617) 969-0069.

•• This article was distributed nationally on the Scripps Howard News Service wire.

Boston Business Journal

June 25-July 1, 1999

Old strategy, new spin

Lawyers market ‘second opinion’ concept, sharpen competitive edge

BY JOYCE CRANE
SPECIAL TO THE JOURNAL

The dilemma: It ’s February and the real estate market is heating up. You decide to sell your rental property, so you hire a lawyer and a bro­ker and, within a week, the house is under contractual agreement.

But without warning, everything falls apart. The buyer begs out of the contract and your lawyer advises you to return the deposit because there are a lot of buy­ers out there.

But five months later, the third potential buyer has missed the deadline to get financing, the broker won’t let you have the deposit without a signed release from the buyer, and your house is not sold. Now you're stuck, and you 're wondering if maybe another lawyer could offer a second opinion.

Enter the Newton-based law firm Grossman & Associates, Ltd., partnered by Hindell Grossman, launched and trademarked a second opinion program as a means of marketing her firm.

It ’s a marketing niche designed to get the firm noticed over their Newton-area competitors.

“I thought I knew just about everything that was going on in the legal world, but ‘second opinions’ is a new spin for me,” remarked Hollis Chase, president of Chase & Associates, a marketing firm for lawyers. Yet, there 's no denying the new concept is attracting attention. Through the efforts of their public relations firm, a feature article appeared in a trade publication, and Hindell participated in a radio interview.

“The fact that this law firm is marketing a second opinion would appear to be a new marketing effort of general practice,” said Sally Gaglini, a Boston-based attorney in private practice. “It’s new in the way they’re marketing it, but if you really look at what’s going on, it’s nothing new. Lawyers have been formally asked to do this for years.

“Casual legal advice has been given for some time on the golf course or at the country club,” said Hindell S. Grossman. “Business professionals would turn to (legal) colleagues, but they wouldn’t formally go to another lawyer because they may consider it a boundary infringement.”

Grossman say the program was driven by demand.

Physicians have been offering second opinions since medicine began. Why not lawyers?

Gerald Altman, senior partner of Boston-based law firm Morse and Altman, said: “It's a matter of judgment. If there's a ring of truth to it, then usually, lawyers will agree—although, sometimes, you have a lawyer who is hypno­tized by his own subjective perception, and that's not good. Law is applied to the facts, but a person's point of view and philosophy influence the interpreta­tion. There's no right or wrong sometimes. ”

But is it ethical, and will it eventually raise a stir, if lawyers lose clients to colleagues holding catch basins?

“As it becomes more of an issue, attorneys may become upset about it,” Litant said. “But remember, there are a lot of strict ethical and moral guidelines that attorneys must adhere to that makes it much more difficult for them to take business away from someone else.”

Is Grossman ignoring the ethical questions by marketing themselves in such a manner? Constance Vecchione, acting bar counsel of the Board of Bar Overseers in Boston, sees no issues with a law firm providing a second opinion.

“A client is entitled to get a second opinion from a law firm just as a patient is entitled to get a second opinion from a doctor,” she said.

Robert Rainer, managing partner of Boston-based Rainer and Rainer, a 12-attorney”firm, said he previously ran advertisements in newspapers, on radio and on television, encouraging consumers to seek a second opinion. Accord­ing to Rainer, whose firm specializes in personal injury law, the message said, “If you're not satisfied with the services that your present attorney is providing, you have a right to fire him and hire us.” “We called it `the takeaway case,’ “ Rainer recalled. “It was very effective. The campaign was based on the concept that on any given day, there are more clients that are dissatisfied with their present lawyer than there are new cases.”

Will other firms begin to offer themselves as second opinion law firms? The answer may lie in cyberspace. As technology advances, firms staying abreast of e-commerce issues may attract new business.

“Like any other business,” Litant said, “there are lawyers that keep on the cutting edge in technology. Any individual or business is right to be concerned and to ask questions about how experienced and informed that attorney is in an intellectual area of the law.”

“We realize our program could be viewed as controversial, ” Hindell Grossman said. “Law isn't black and white. We help plan strategy. There isn't always a right and wrong answer.

“It's my job to explore all the options, ” she added. “The law operates on lots of levels and there is room for different perspective.”

The Needham Tab Community Newspaper Company

Thursday, March 1, 2001

Lawyer offers a ‘Second Opinion’

By Kate Singer
Correspondent

If there are hundreds of jokes about how many lawyers there are, there should be some about how confusing it can be to choose an attorney. Not to mention the complicated relationship you have with the person who is supposed to represent you in public and contend with your legal and emotional needs in private. When the relationship turns sour, who do you turn to?

Hindell Grossman, a Newton lawyer who lives in Newton, had been hearing so many complaints about people not getting along with their lawyers, that she decided to do something about it and started the Second Opinion Program.

Grossman had worked in a Boston law firm for 10 years specializing in business, divorce and real estate law. Many third parties—accountants and bankers—had told her time and time again about attorneys not getting back to their clients, clients who, felt they weren’t getting the proper service, or has a personality clash with their lawyer.

“You assume a certain level of expertise [in your attorney] but if you're not getting other things, then you start to get nervous,” said Grossman.

Then in 1999, Grossman left her practice in Boston and started an office in Newton. Grossman & Associates. At a time when many businesses were also setting up camp along the Route 128 corridor, Grossman wanted to be closer to her clients and her family.

The Second Opinion Program was a way for Grossman to advertise herself to prospective clients, but more importantly to offer a new source of informal legal advice from an experi­enced Boston lawyer.

For a flat fee, determined by the complexity of the case, clients who have retained other lawyers, can come to Grossman to ask questions.

“One of the goals is to make the law more approachable and give people more legal options,” said Grossman. “Because walking into the legal world is like walking into a strange place with different rules.”

While most lawyers give out informal advice to friends or family on the golf course, those without a lawyer in the family can be left with many questions about their case and the lawyer-client relationship.

Those who come to her are usually involved in either business or divorce cases. According to Grossman those in divorce cases are more likely than any kind of client to change lawyers during the legal process. Due to the emotional nature of the cases, clients expect a high degree of action and emotional support, especially if children are involved.

In business cases, dissatisfaction usually has to do with whether the lawyer has been too aggressive or not enough. Grossman said because of the wide variety of business cases, clients often get matched with lawyers lacking expertise in a particular field.

Most of what Grossman does is try to facilitate communication between the client and attorney. “I say, treat this like any other kind of consumer transaction. You need to let the attorney know what you're looking for here, and give your lawyer an opportunity to correct the problem.” She often suggests clients set up more meetings or request copies of case documents, if they feel in the dark.

Of course there are a number of ways to argue any case, and Grossman said she is happy to provide the client with an alternate strategy that the client can present to the primary lawyer.

The Second Opinion meetings are also a way clients can audition Grossman— a kind of no-commitment interview. Grossman said about 25 to 30 percent of those she has consulted with under this program have retained her. But she said the program practice doesn't amount to client-stealing. “If it happens fine, but that's not the intend­ed goal. It's intended to enhance the quality of legal services available.”

Grossman hasn't received any negative comments from colleagues about the practice. In fact, when she first published the program, she received a letter from another lawyer applauding the move, for making a wide-spread practice accessible to everyone.

Second opinions do not breach the code of ethics in Massachusetts, according to Constance Vecchione, first assistant bar counsel at the Board of Overseers in Boston. “If these are simply in good faith, assuming there's no impropriety in how they are referred, it's not any more anymore inappropriate than it would be for medical second opinion.”

The Board of Bar Overseers, the branch of the Massachusetts Supreme Judicial Court that licenses lawyers is another, more official channel for voicing complaints about a lawyer's performance.

“Second Opinion is more informal than going to the Board of Bar Overseers. Going to the BBO suggests there's a basis for complaint, and you can really alienate the relationship with your lawyer,” said Grossman.

THE MASSACHUSETTS LAWYER

Section B Massachusetts Lawyers Weekly January 25 1999

Should Lawyers Offer Second Opinions?

One Newton Firm Is Urging Clients Who Already Have A Lawyer To Get A Second Opinion…Is This A Shrewd Move Or 'Stealing' Business?

By Paul D. Boynton

Offering a “second opinion” on a legal matter is nothing new to Massachusetts lawyers, who frequently entertain informal requests for advice from friends and colleagues, be it on the golf course at a cocktail party or in the boardroom.

But one Newton law firm has been raising eyebrows, and even ire, by proactively marketing its “second opinion” service to clients who already have counsel.

Grossman & Associates recently launched what it calls the “Second Opinion Program”— a marketing device targeted at individuals and companies dissatisfied with the legal advice provided by their existing attorneys,

According to the law firm’s principal, Hindell S. Grossman, this is the first such legal service in Massachusetts.

Grossman explained that disgruntled clients, without informing their attorneys, can seek a second opinion from their firm on as much or little the clients chose to divulge concerning a legal problem.

Of course, admits Grossman, some of those second-opinion clients may very well dump their former attorneys and remain with Grossman & Associates.

Hindell Grossman says the Second Opinion Program “enables potential clients to audition us to see who we are, to see if they like us in a non-threatening way.

“They can leave and never talk to us again if they don’t want to, or they can stay if they feel comfortable with the firm,” according to Hindell Grossman. “Hopefully, they’ll come back.”

‘Stealing’ Clients?

Grossman says that her method is akin to “building a better mousetrap, providing a better service to clients. It's competition in the marketplace. If people like [the Second Opinion Program], it'll pick up steam. If lawyers don't like it, that's self-interest [and] protectionism. ”

Grossman says the second-opinion service is driven by serving clients.

“Seldom will different lawyers come up with exactly the same strategy, ” Grossman says. “That's why there's room for second opinions. What's good for the client is the ultimate deter­mination of what 's appropriate. ”

Hindell Grossman observes that “somehow doctors put their ego behind them” when they suggest to patients that they should get a second opinion.

Professionalism Concerns

Some attorneys contend that the Grossman & Associates program does not exactly enhance the profession.

Aggressively marketing second opinions is “not a highly professional way to behave , ” asserts James A. Brink, a long time Boston attorney.

While Brink acknowledges that it is appropriate for clients to obtain second opinions, he predicts that, with “such a high level of intense competition among practitioners, ” a formal program for offering second opinions will “ not be well received. ”

Boston attorney Robert F. Sylvia is also critical of marketing second opinions.

“I find it very distasteful. It cheapens the profession,” Sylvia says. “Marketing is a necessity, all lawyers understand you need to do it, but there needs to be boundaries.”

Sylvia says he doesn't “see a need for what amounts to a veiled client theft.”

J. Charles Mokriski, chairman of the Boston Bar Association's Professional Ethics Committee, says inviting people to “second-guess ” lawyers may be viewed by some attorneys as “unseemly. ”

But not all lawyers are critical of the Grossman & Associates effort.

Watertown attorney Michael C. Fee enthusiastically endorses the concept of formalized second opinions as “good, creative marketing.”

It's “old school” to criticize creative advertising, Fee claims.

“ Clients, if dissatisfied, are always free to talk with someone else. No lawyer says `I can't second-guess my brother's opinion,’ says Fee.

But Donald J. Hubbard, a Boston attorney, suggests a second-opinion service can create problems caused by ill feelings among lawyers.

“Assuming clients come to you, after you've rendered a [second] opinion, you may have practical problems [such as in litigation] dealing with attorneys that have lost clients to you,” Hubbard says. Grossman, however, is undaunted by such criticism.

“It's necessary to be innovative,” Grossman stresses, “because the law [profession] seems to lag behind other service-providers in terms of reaching out to meet the needs of its clientele.”

Hindell Grossman claims she does not set out to simply contradict legal advice of other attorneys.

“Our goal is not to completely reverse what the other attorney says, and give contrary advice just to make the other attorney look bad,” she says. “We might end up validating what [the client's] first attorney says.”

A second-opinion client who doesn't want to terminate an existing relationship with an attorney can simply take Grossman’s legal advice back to the original attorney without divulging the source of the information.

Legal advice, Hindell Grossman observes, “has to feel right, and if doesn't feel right then the benefit is getting a second opinion, just like you would in the medical profession if you were ill.”

Grossman says she hatched the Second Opinion Program after hearing remarks over the years from banking clients and CPAs with whom they work that various individuals were dissatisfied with their legal representation, but were uncertain whether to fire their lawyers.

The couple determined that “it would be nice for [the banker or accountant] if they had a way of suggesting to their borrower or to their client, 'Go get a second opinion from somebody else,’ says Hindell Grossman, a litigator. “[Clients should] gather all the information and make the best, most informed decision possible.”

Grossman charges a fixed fee for rendering a second opinion. The fee depends on the complexity of the legal problem, according to Hindell Grossman.

Rules of Ethics

Grossman says that the program does not run afoul of the Rules of Professional Conduct.

Constance V. Vecchione, assistant bar counsel of the Board of Bar Overseers, observes that “no ethics rule in Massachusetts prohibits interfering with an attorney-client relationship. ”

Nonetheless, Vecchione notes that any written solicitation of prospective clients concerning second opinions is regulated by the ethics rule on solicitation (Rule 7.3).

BBA Ethics Committee Chairman Mokriski agrees that “no concrete [ethics] rule says it's wrong” to market a second opinion service. Indeed, “clients have the right to chose attorneys as they see fit, and any [ethics] rule entrenching on that is viewed skeptically,” he says.

However, Mokriski says marketing second opinions potentially implicates two ethics rules.

Attorneys should be “careful not to say they’d get a better result” than current counsel, according to Mokriski, because such a claim may violate Rule 7.1(c), which prohibits comparing a lawyer’s services unless the comparison can be factually substantiated.

Rule 1.1, which requires competent representation of a client, could be triggered if an attorney is only given “truncated information of the overall legal problem,” Mokriski comments.

Malpractice Exposure

Grossman readily acknowledges the potential pitfall of receiving only partial information from a client seeking a second opinion. But she sees the issue in terms of potential malpractice, not as implicating any ethics rule.

Hindell Grossman says the firm's “philosophy is to make law more approachable. ”

The Second Opinion Program, she says, is partly inspired by their desire to “demystify ” the profession.

Resentment toward lawyers occurs, because they operate in such an unnatural context with people they're supposed to be helping. It's hard to get a direction from a lawyer if he's obsessed with being sued.

Hubbard says lawyers who actively target dissatisfied clients practically invite malpractice or ethics claims.

“Many of those people may have legitimate complaints with former counsel, but many may not,” he says.

“Any attorney implementing such a marketing device must be very cautious in handling these clients [because they may] open themselves up to malpractice claims or BBO complaints from people who are simply malcontents.”