author: Najam, Judge.

text:
    Anthony ECTOR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 49A02-1710-CR-2422
    Court of Appeals of Indiana.
    Filed October 18, 2018
    Attorney for Appellant: Ellen M. O'Connor, Marion County Public Defender Agency, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Henry A. Flores, Jr., Deputy Attorney General, Indianapolis, Indiana
   Najam, Judge.

Statement of the Case

[1] Anthony Ector appeals his convictions, following a jury trial, for dealing in cocaine, as a Level 2 felony; dealing in marijuana, as a Level 5 felony; possession of a narcotic drug, as a Level 5 felony; and for being a habitual offender. Ector raises a single issue for our review, namely, whether the trial court erred under Article 1, Section 11 of the Indiana Constitution when it admitted evidence that had been seized pursuant to a warrantless search of a vehicle, which was parked in the driveway of a residence that officers had a warrant to search and in which residence the officers had found Ector along with substantial amounts of contraband.

[2] We affirm.

Facts and Procedural History

[3] On April 1, 2016, Indianapolis Metropolitan Police Department ("IMPD") officers executed a search warrant at a "trap house" in Indianapolis. A "trap house" is a house used "to sell narcotics," and, "if anyone stays there, it's[ ]on an infrequent basis" such that there are not "a lot of personal items there that could be traced back to an individual." Tr. Vol. II at 17. Officers would not "expect somebody to live" in such a house. Id. Although no one was known to live in the house being searched, the house nonetheless had bars over the windows, barricaded doors, and security cameras around the exterior. The search warrant specifically permitted officers to seize any keys found inside the residence for the purposes of "aid[ing] in the identification of the individuals involved in the trafficking of controlled substances at the residence ... or which may provide evidence of the connection of such individuals to the residence ...." Ex. Vol. I at 59-60.

[4] Upon entering the residence, officers observed Ector standing near a staircase and holding an AK-47 assault rifle. A nearby officer "pointed [his rifle] at Mr. Ector, clicked off the safety, and advised him [to] please drop the gun." Tr. Vol. III at 32. Ector threw his firearm toward a nearby couch and fled into another room. Officers pursued and apprehended him. Officers also detained two other individuals inside the residence: Kevin Rent and Charles Polk.

[5] Inside the residence, officers seized the following items:

• a Glock 22 handgun with an extended magazine;
• three bags containing cocaine with an aggregate weight of 146.6 grams (about one-third of one pound);
• a duffel bag and a trash bag containing marijuana with an aggregate weight of approximately 6,733 grams (just shy of fifteen pounds);
• four scales, several small plastic baggies, and items with narcotics and heroin residue on them;
• approximately $2,000 on Ector and Rent, mostly in twenty dollar bills;
• a bottle of sleeping-aid pills used to cut heroin;
• Polk's resume;
• a photograph of Ector and Polk together;
• Rent's debit card; and
• keys found in the dining room.

[6] Outside the residence were two vehicles parked in the driveway of the residence: a Chevrolet Trailblazer and a Toyota Camry. On his person, Rent had keys to the Trailblazer and also to the front door of the house. Officers contacted the Bureau of Motor Vehicles ("BMV") to identify the owner of the vehicle based on the registration plate number. The BMV informed the officers that Rent owned the Trailblazer.

[7] Officers asked the three men who owned the keys that had been found in the dining room, but no one claimed the keys. Officers discovered that the keys opened the Toyota Camry in the driveway. A check of the Camry's registration plate number with the BMV revealed that it was registered to Anna Smith, Ector's mother.

[8] One of the officers on the scene, Detective Jeremy Gates, had observed the Camry at the house on at least two prior occasions while he was conducting surveillance on the house prior to having obtained the warrant. When none of the three men claimed the Camry's keys, Detective Gates concluded that the Camry was subject to forfeiture, opened the Camry, and conducted an inventory search of it. Inside, officers observed a "small bud" of marijuana on "the floorboard right next to the front door." Tr. Vol. III at 75. Officers then searched the vehicle and discovered the following:

• $4,500 in cash;
• financial documents addressed to Ector;
• a ledger; and
• a key underneath the back seat.

In discovering the key inside the Camry, the searching officer had to "lift up" the back seat; no "tool[ ] or any sort of strength" was required to "pull [the seat] up." Tr. Vol. II at 56. Officers then tried the key on the front door of the house. The key unlocked the front door.

[9] Thereafter, the State filed numerous charges against Ector. Ector filed a motion to suppress the evidence seized from the Camry under Article 1, Section 11 of the Indiana Constitution, which the trial court denied. At his ensuing jury trial, Ector renewed his Article 1, Section 11 objection to the admission of the evidence seized from the Camry, but the court overruled his objection.

[10] Ector's theory in defense of the charges was that he was a casual visitor at the residence, and, in effect, he was simply at the wrong place at the wrong time when the search warrant was executed. The jury rejected his defense and, following the jury's verdict, the trial court entered judgment of conviction against Ector for dealing in cocaine, as a Level 2 felony; dealing in marijuana, as a Level 5 felony; possession of a narcotic drug, as a Level 5 felony; and for being a habitual offender. The court then sentenced Ector to an aggregate term of thirty years in the Department of Correction. This appeal ensued.

Discussion and Decision

Standard of Review and Article 1, Section 11

[11] Ector's argument that the State violated his " Article 1, Section 11 rights" raises a "question[ ] of law we review de novo ."

Redfield v. State , 78 N.E.3d 1104, 1106 (Ind. Ct. App. 2017) (quotation marks omitted), trans. denied . "[A]s a general matter[,] determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal," while "findings of historical fact" underlying those determinations are reviewed "only for clear error." Ornelas v. United States , 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ; see McIlquham v. State , 10 N.E.3d 506, 511 (Ind. 2014) (applying that standard under Ind. Const. art. 1, § 11 ). "In other words, we review whether reasonable suspicion or probable cause exists under a standard similar to other sufficiency issues-whether, without reweighing the evidence, there is substantial evidence of probative value that supports the trial court's decision." Redfield , 78 N.E.3d at 1106 (quotation marks omitted).

[12] Regarding Article 1, Section 11, our Supreme Court has explained as follows:

In recent years, this Court has expressed that "[t]he legality of a governmental search under the Indiana Constitution turns on an evaluation of the reasonableness of the police conduct under the totality of the circumstances." Litchfield v. State , 824 N.E.2d 356, 359 (Ind. 2005) (citing Moran [v. State] , 644 N.E.2d [536, 539 (Ind. 1994) ] ). To determine whether a residential entry violated Article 1, Section 11, we apply a "totality-of-the-circumstances test to evaluate the reasonableness of the officer's actions." Duran v. State , 930 N.E.2d 10, 17 (Ind. 2010). A more elaborate explanation and methodology for evaluating such reasonableness is provided in Litchfield :
In sum, although we recognize there may well be other relevant considerations under the circumstances, we have explained reasonableness of a search or seizure as turning on a balance of: 1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of the search or seizure imposes on the citizen's ordinary activities, and 3) the extent of law enforcement needs.
824 N.E.2d at 361.

Lacey v. State , 946 N.E.2d 548, 550 (Ind. 2011) (some citations omitted).

[13] Ector contends on appeal that his Article 1, Section 11 rights were violated in two respects. First, he argues that the State's purported need to inventory the Camry was merely a pretext to engage in an unlawful evidentiary search. Second, he argues that, regardless of whether the inventory search was pretextual, the search was unconstitutional under the three Litchfield factors. We address each of Ector's arguments in turn.

Inventory Search

[14] The parties first dispute whether the seizure of the evidence from within the Camry was lawful under the inventory-search exception to the warrant requirement of Article 1, Section 11. "A valid inventory search is an exception to the warrant requirement." Whitley v. State , 47 N.E.3d 640, 645, 649 (Ind. Ct. App. 2015), trans. denied . "Police are permitted to conduct a warrantless search of a lawfully impounded vehicle if the search is designed to produce an inventory of the vehicles contents." Id. The rationale for an inventory search is three-fold: (1) protection of private property in police custody; (2) protection of police against claims of lost or stolen property; and (3) protection of police from possible danger." Id.

[15] "[T]he test of constitutionality in inventory cases is reasonableness." Id. at 645. As we have explained:

In determining the reasonableness of an inventory search, we examine all the facts and circumstances of the case. We consider the propriety of the impoundment giving rise to the search and the scope of the inventory search itself. The search must be conducted pursuant to and in conformity with standard police procedures. Evidence of established local policy and procedure is required "to ensure that the inventory is not a pretext for a general rummaging in order to discover incriminating evidence."

Id.

[16] As such, "proper impoundment is the 'threshold question' to [a] valid inventory search." Wilford v. State , 50 N.E.3d 371, 374 (Ind. 2016). As our Supreme Court has further explained:

Impoundment is reasonable if it is authorized either by statute or the police's discretionary community-caretaking function. Impoundment pursuant to a statute is necessarily reasonable because the Legislature has deemed that citizens' privacy interests in their cars yield to State interests in those circumstances, making police inventorying a necessary collateral administrative function. Discretionary impoundment, by contrast, is an exercise of the police community-caretaking function in order to protect the car and community from hazards. Discretionary impoundments, too, may be reasonable-but ... they are vulnerable to constitutional reasonableness challenges because of their potential for misuse as pretext for warrantless investigative searches under the guise of inventory. Unless the impoundment is proper, then, an inventory search is per se unreasonable and any contraband found during the search is inadmissible "poisoned fruit."

Id. (citations omitted).

[17] Ector first contends that the decision to impound the Camry was improper because the "decision was made to place a forfeiture hold on the Camry before the police had sufficient evidence" to do so. Appellant's Br. at 20. Specifically, he asserts that the State "needed to further investigate whether the car could ... be forfeited" by "taking the house key from the car and inserting it into the lock." Id. at 18, 20. In other words, Ector contends that the nexus required under Indiana Code Section 34-24-1-1(a)(1) (2018) was not established until after the key found in the car was shown to unlock the residence.

[18] We cannot agree. The key discovered within the Camry had no bearing on the officers' decision to impound the Camry, which decision had been made prior to opening the Camry, searching it, and finding the house key. Rather, the impoundment decision was based on the arrests of those at the residence, that the residence was not a manufacturing setting, and the reasonable likelihood that the Camry had been used in the transportation of contraband.

[19] Indiana Code Section 34-24-1-1(a)(1) permits an officer to seize for purposes of forfeiture any vehicle that is "used ... by the person ... in possession of [it] to transport or in any manner facilitate the transportation of" a controlled substance. Such a seizure is permissible where, as here, "the seizure is incident to a lawful[ ]arrest." I.C. § 34-24-1-2(a)(1)(A) ; see also Serrano v. State , 946 N.E.2d 1139, 1142-43 (Ind. 2011) ("to sustain a forfeiture the State must demonstrate" a "nexus" between "the property sought" and "one of the enumerated offenses under the statute"). And IMPD policy likewise permits a vehicle to be towed and impounded if that vehicle was "operated by [a] person under custodial arrest for any charge." Ex. Vol. I. at 29.

[20] There is no dispute that Ector, Rent, and Polk were under lawful arrest when officers decided to impound the Camry. And the decision to impound the Camry was reasonable in light of the facts before the officers at the scene. Their decision was supported by the substantial amounts of contraband and firearms found within what was otherwise an apparently abandoned trap house. Further, the Trailblazer, the only other vehicle at the residence, belonged to Rent, while the Camry was registered to a third party not present at the residence, whom officers later learned to be Ector's mother. And Detective Gates had twice previously observed the Camry at the residence. In light of the facts before the officers, we agree with the State on appeal that "[t]he only reasonable conclusion is that the vehicles on the scene were used to transport, and/or facilitate the transport, the drugs to the trap house for purposes of dealing." Appellee's Br. at 17. Accordingly, the decision to impound the Camry was reasonable and, thus, constitutional.

[21] Nonetheless, Ector also contends that the officers' search of the Camry "violated IMPD policy" because it was "excessive in scope and unreasonable." Appellant's Br. at 20. In support of that position, Ector notes that IMPD's policy on inventory searches states that such searches "should not be motivated by an officer's desire to investigate and seize evidence of a criminal act," and that the policy requires opening locked areas of the vehicle only "[i]f a key is available." Ex. Vol. I at 32. Ector then asserts that the search here, which involved lifting up the back seat to reveal the house key, was excessive under IMPD's policy.

[22] We cannot agree that the searching officer's lifting of the back seat was excessive under IMPD's policy. The policy language does not prohibit any such act, nor does the policy limit an inventory search to a visual search only. Further, the searching officer testified to the trial court at the suppression hearing that "it's a common practice ... to search the entire vehicle," which included "underneath the rear seat ...." Tr. Vol. II at 55-56. Thus, the evidence is sufficient to support the trial court's judgment on this issue. See Redfield , 78 N.E.3d at 1106.

Article 1, Section 11 Factors

[23] The parties also dispute whether the search of the Camry was lawful under the three Article 1, Section 11 factors noted above. Again, those factors are (1) the degree of concern, suspicion, or knowledge that a violation has occurred, (2) the degree of intrusion the method of the search or seizure imposes on the citizen's ordinary activities, and (3) the extent of law enforcement needs. E.g. , Litchfield , 824 N.E.2d at 361.

[24] In support of his position on this issue, Ector asserts that the degree of concern, suspicion, or knowledge that a violation had occurred "was low and the intrusion was great when the car was impounded and the house key was used to further the investigation into Anthony Ector's role in the trap house ...." Appellant's Br. at 25 (citations to the record omitted). And while Ector then concedes that "the police had a clear need for evidence from the Camry," he asserts that "it was unreasonable to perform a pretextual search lacking in probable cause in lieu of obtaining consent or a warrant." Id.

[25] We cannot agree with Ector's assessment. Rather, we agree with the State that the Article 1, Section 11 factors weigh heavily in the State's favor. As the State summarizes on appeal, the degree of suspicion here was high:

[Ector] and his two co-defendants were found in a trap house with barred windows and video surveillance. When police entered the house, [Ector] was attempting to protect the 146 grams of cocaine[ ] and almost 15 pounds of marijuana with a stolen AK-47. Det. Gates testified that[,] based on his training and experience, the "vehicles were utilized to transport, or were financed directly through the sales of[,] narcotics." There were only two cars in the driveway and three individuals inside. Further, Det. Gates[ ] indicated that[,] while conducting surveillance on the house, he [had] observed the Camry at the trap house on multiple occasions.

Appellee's Br. at 24-25 (citations to the record omitted).

[26] Further, any intrusion into Ector's privacy in the search of his mother's vehicle was minimal, and nothing about the manner or timing of the search intruded on Ector's ordinary activities. And the needs of law enforcement also weigh in the State's favor. Again, the officers were justified in taking the Camry into their custody for forfeiture, and, thus, they had an established need to inventory the Camry pursuant to that forfeiture. In sum, the search of the Camry was reasonable under Article 1, Section 11.

[27] Accordingly, we cannot say that the trial court's admission of the evidence seized from the Camry violated Ector's rights under Article 1, Section 11, and we affirm Ector's convictions.

[28] Affirmed.

Bailey, J., and May, J., concur.

      We held oral argument in the Lincoln Amphitheatre in Lincoln State Park in Spencer County on September 10, 2018.

      In Ector's briefs on appeal, he provides citations to the record in support of his assertions of facts only at the end of paragraphs rather than at the end of sentences. This practice impedes our review as it provides lengthy citation ranges and does not clearly correlate a specific citation to a specific assertion.

      Our pagination of the Exhibits Volume is based on the .pdf pagination.

      It is not clear from the record on appeal when officers learned that Smith was Ector's mother, but it appears to have been sometime after the search and seizure of the Camry.

      Although the State later filed a complaint for forfeiture of the cash found on Ector, the State's complaint did not seek to have the Camry forfeited.

      Ector's written motion to suppress was based on both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Appellant's App. Vol. II at 77. However, at the suppression hearing, he clarified that his motion was "under the Indiana Constitution." Tr. Vol. II at 96.

      In his objection at trial, Ector expressly "concede[d] that [the search of the Camry was] permitted under the [F]ourth [A]mendment ...." Id. at 242.

      Insofar as Ector suggests on appeal that his Fourth Amendment rights were also violated, he has not preserved that issue for our review. Similarly, in his brief on appeal Ector argues that the seizure of the key to the Camry from inside the residence was not within the scope of the warrant. Ector did not raise that argument in the trial court. See Tr. Vol. II at 242-49. Accordingly, we do not consider that purported issue. Finally, we also do not consider Ector's standing under Article 1, Section 11. While Ector argues in his brief that he had standing to object to the admission of evidence seized from his mother's Camry, the State does not argue otherwise in its brief on appeal.

      Insofar as Ector suggests in his brief that he is appealing from the denial of his motion to suppress, Ector is incorrect. The evidence was presented to a jury, and Ector objected to the admission of the evidence at trial. "Thus, he is appealing from that admission, not from the prior denial of his motion to suppress." Redfield v. State , 78 N.E.3d 1104, 1106 n.3 (Ind. Ct. App. 2017), trans. denied . Further, insofar as the parties' briefs suggest that our review is for an abuse of discretion, which is "our typical standard of review for challenges to the admission of evidence," id. , the parties again are incorrect. "[T]he issues in this appeal are constitutional questions and, as such, we review them de novo ." Id.

      We need not consider the State's alternative argument on appeal that, because officers immediately observed marijuana on the floor of the car upon opening the car door, the officers had probable cause to conduct a warrantless search of the entire vehicle regardless of the language of the IMPD policy.


source: Caselaw Access Project

author: GANTS, C.J.

license: Public Domain

text:
    Jay PATEL & another v. Leo MARTIN & others.
    SJC-12500
    Supreme Judicial Court of Massachusetts, Norfolk.
    Argued September 6, 2018. Decided November 28, 2018.
    Peter S. Brooks, Boston (Gregory M. Boucher, Boston, also present), for the defendants.
    David V. Lawler, Hyannis, for the plaintiffs.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

      Dipika, Inc.

      Seymour H. Marcus, also known as Sy H. Marcus; and Ellen Rea Marcus, as trustee of the Grossman Munroe Trust. Leo Martin and Seymour Marcus are alleged to have acted on behalf of the Grossman Munroe Trust, but only Ellen Rea Marcus was a trustee.

   GANTS, C.J.

The primary issue on appeal is whether a party in a civil case has the right to an immediate appeal from a discovery order under the doctrine of present execution. The defendants here argue that, after the motion judge ordered the disclosure of communications that they contend are protected from disclosure by the attorney-client privilege, they will be irremediably harmed if they cannot immediately appeal from that order. We conclude that a party has no such right of interlocutory appeal.

In so holding, we note that a party nevertheless retains two other avenues to seek immediate appellate review of an interlocutory order: by requesting the trial court judge to report the decision to the Appeals Court under Mass. R. Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996); or by petitioning for redress from a single justice of the Appeals Court under G. L. c. 231, § 118, first par.

Although the appeal is not properly before us under the doctrine of present execution, we exercise our discretion under our superintendence authority to reach the merits and conclude that we must remand the matter to the motion judge for further factual findings.

Background. We summarize the facts as alleged in the complaint and that are undisputed in the record. In September 2012, Ellen Rea Marcus, as trustee of the Grossman Munroe Trust (trustee), executed a purchase and sale agreement with the Masonic Temple Association of Quincy, Inc. (Masons), for the purchase of the Masonic Temple in Quincy (property). Pursuant to a rider to the purchase and sale agreement, the agreement could not be assigned by the trustee without the prior written consent of the Masons. In a separate agreement executed in April 2013, the trustee assigned the rights to the property under the purchase and sale agreement to Jay Patel in return for $100,000; Patel intended to develop a hotel on the property. On September 30, 2013, before the sale of the property closed, a fire caused severe damage to the property. Shortly thereafter, the Masons claimed that they had never consented to the assignment, refused to recognize it, and received over $6 million from an insurance claim arising from the fire. In December 2015, Patel and his "hotel-operating company," Dipika, Inc. (collectively, developer plaintiffs), brought a civil action in the Superior Court against the trustee, Seymour H. Marcus, and Leo Martin (collectively, trust defendants), claiming that they suffered economic damages from the trustee's failure to obtain the required consent for the assignment of the property.

During the course of discovery, the developer plaintiffs noticed the deposition of David Levin, the attorney who represented the Masons with respect to the sale of the property and who had also routinely represented the trust defendants on real estate legal matters for over twenty years. The trust defendants moved for a protective order to bar Levin from disclosing his confidential attorney-client communications with them, claiming that Levin represented them as well as the Masons in the real estate transaction concerning the property, even though Levin took the position that he had represented only the Masons.

After an evidentiary hearing, the motion judge found that there was an attorney-client relationship between Levin and the trust defendants after the fire regarding insurance claims and third-party claims arising from the fire, but that, with respect to the purchase and sale of the property, Levin represented the Masons, not the trust defendants. He therefore ruled that communications between Levin and the trust defendants before the fire were not protected by the attorney-client privilege.

The trust defendants filed a notice of appeal in the Superior Court seeking review by an Appeals Court panel under the doctrine of present execution and, "in an abundance of caution," also brought a petition in the Appeals Court pursuant to G. L. c. 231, § 118, first par., seeking interlocutory relief from a single justice of the Appeals Court. The single justice stayed action on the § 118 petition until a panel of the Appeals Court decided whether it had jurisdiction of the appeal under the doctrine of present execution to resolve the discovery dispute arising from the claim of attorney-client privilege. We transferred the appeal to this court on our own motion.

Discussion. 1. Appellate review of interlocutory orders. When a final judgment enters in a civil case in the Superior Court under Mass. R. Civ. P. 54, as amended, 382 Mass. 829 (1981), a party aggrieved has the right to appeal from the judgment to a panel of the Appeals Court. See G. L. c. 231, § 113. As part of that appeal, a party may claim that a judge erred in the entry of various types of interlocutory orders that were issued during the course of the civil case. If a party wishes to seek appellate review of an interlocutory discovery order before the entry of final judgment, however, the party generally has only two alternatives. First, the party may ask the judge under Mass. R. Civ. P. 64 (a) to report the interlocutory finding or order to the Appeals Court, and the judge may do so where he or she concludes that the finding or order "so affects the merits of the controversy that the matter ought to be determined by the [A]ppeals [C]ourt before any further proceedings in the trial court." Mass. R. Civ. P. 64 (a). Second, the party has the right to petition for relief under G. L. c. 231, § 118, first par., from a single justice of the Appeals Court, who may, in his or her discretion, grant the relief. The single justice also has the authority to transfer the petition to a panel of the Appeals Court, where it will be treated as a full interlocutory appeal. See McMenimen v. Passatempo, 452 Mass. 178, 187, 892 N.E.2d 287 (2008), citing CUNA Mut. Ins. Soc'y v. Attorney Gen., 380 Mass. 539, 540, 404 N.E.2d 1219 (1980). But a party has no right under § 118, first par., to bring the petition directly to a panel or to seek review of the single justice's ruling by the panel. See McMenimen, supra at 189-190, 892 N.E.2d 287 ; Corbett v. Kargman, 369 Mass. 971, 971-972, 343 N.E.2d 408 (1976).

However, in narrowly limited circumstances, where "an interlocutory order will interfere with rights in a way that cannot be remedied on appeal" from a final judgment, and where the order is "collateral to the underlying dispute in the case" and therefore will not be decided at trial, a party may obtain full appellate review of an interlocutory order under our doctrine of present execution. Maddocks v. Ricker, 403 Mass. 592, 596, 598, 531 N.E.2d 583 (1988). See Marcus v. Newton, 462 Mass. 148, 151-152, 967 N.E.2d 140 (2012) ; Borman v. Borman, 378 Mass. 775, 779-780, 393 N.E.2d 847 (1979). The doctrine is intended to be invoked narrowly to avoid piecemeal appeals from interlocutory decisions that will delay the resolution of the trial court case, increase the over-all cost of the litigation, and burden our appellate courts. See Borman, supra at 779, 393 N.E.2d 847. See also Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981).

Our doctrine of present execution is similar to the Federal "collateral order doctrine," which permits full appellate review of a small class of collateral interlocutory decisions "that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action." Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009), quoting Swint v. Chambers County Comm'n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). But, as we note later, the application of the Federal collateral order doctrine has at times varied from our application of the doctrine of present execution. See note 4, infra.

In civil cases, we have granted "the right to an immediate appeal under the doctrine of present execution where protection from the burden of litigation and trial is precisely the right to which [a party] asserts an entitlement." Estate of Moulton v. Puopolo, 467 Mass. 478, 485, 5 N.E.3d 908 (2014). Thus, for example, we allow immediate appeals from an order denying a motion to dismiss by a government official who claims absolute or qualified immunity, because the purpose of such immunity is to protect public officials from the burden of litigation itself. Duarte v. Healy, 405 Mass. 43, 44 n.2, 537 N.E.2d 1230 (1989). If the motion to dismiss were denied in error, the official would have to defend the litigation, which is precisely what the immunity is designed to prevent; even if the erroneous order were ultimately reversed after trial, the right to immunity from suit would still have been "lost forever." Brum v. Dartmouth, 428 Mass. 684, 688, 704 N.E.2d 1147 (1999). Similarly, the doctrine has been applied to allow an immediate appeal from the denial of a motion to dismiss under the "anti-SLAPP" statute, G. L. c. 231, § 59H, which was enacted to protect those exercising their rights of petition and speech from lawsuits intended to chill their exercise of those rights by the threat of costly and time-consuming litigation. See Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141, 157-158, 75 N.E.3d 21 (2017) ; Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161, 691 N.E.2d 935 (1998). The interests of defendants under the anti-SLAPP statute cannot be adequately vindicated on appeal from a final judgment, because they will already have suffered the burdens of litigation arising from their exercise of protected rights. See Fabre v. Walton, 436 Mass. 517, 521, 781 N.E.2d 780 (2002).

We have also allowed immediate appeal from an interlocutory order disqualifying a party's counsel in a civil case under the doctrine of present execution. We concluded that an order depriving a party of his or her choice of counsel, if error, cannot realistically be remedied on appeal from a final judgment. Maddocks, 403 Mass. at 600, 531 N.E.2d 583. Even if the appellate court were to determine that the judge erred in disqualifying the attorney, "[i]n practice, ... it is unlikely that an appellate court would reverse a judgment and require a new trial in the absence of a demonstration, almost impossible to make, that any erroneous disqualification order significantly prejudiced the rights of the client." Id.

We have not, however, generally allowed interlocutory discovery orders to be immediately appealable under the doctrine of present execution. See Cronin v. Strayer, 392 Mass. 525, 527, 467 N.E.2d 143 (1984). The United States Supreme Court has also not generally allowed such appeals under the collateral order doctrine. Mohawk Indus., Inc., 558 U.S. at 108, 130 S.Ct. 599, quoting Firestone Tire & Rubber Co., 449 U.S. at 377, 101 S.Ct. 669 ("we have generally denied review of pretrial discovery orders").

The trust defendants contend that the judge's partial denial of their motion for a protective order regarding their communications with Levin deprives them of their right to protect privileged attorney-client communications from disclosure to third parties, and that this right cannot be adequately vindicated on appeal after final judgment because the confidentiality of those privileged communications, once disclosed, cannot be restored. They also contend that the subject of the interlocutory appeal -- the existence of an attorney-client relationship regarding the property transaction between Levin and the trust defendants before the fire -- is collateral to the merits of the controversy, which concerns the assignment of the purchase and sale agreement to Patel.

In response, the developer plaintiffs argue that a partial denial of a motion for protective order is ultimately a discovery order, and that litigation should not generally be interrupted by allowing piecemeal appeals from such orders. They contend that the trust defendants may challenge the order on appeal after final judgment and, if the order is determined to be error, they can seek a remedy of a new trial where the attorney-client communications that were disclosed, and all information derived from those disclosures, are excluded from evidence.

The trust defendants make fair points, but the developer plaintiffs have the better argument. The trust defendants are correct that the existence of an attorney-client relationship between Levin and the trust defendants regarding the sale of the property is an issue that is collateral to any issue that will be decided at trial. They are also correct about the importance of protecting the confidentiality of privileged attorney-client communications in order to encourage "full and frank communication between attorneys and their clients." Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). And we recognize that, if those communications are indeed privileged and are disclosed in discovery, a successful postjudgment appeal cannot change the fact that communications that the trust defendants intended to be confidential will have been disclosed to the developer plaintiffs.

But we agree with the developer plaintiffs that, although a successful postjudgment appeal cannot entirely eliminate the harm that arises from an order allowing third parties to learn the content of privileged communications, the trust defendants do have a viable postjudgment remedy. Unlike an order disqualifying a party's counsel, the consequences of an adverse discovery order can be ascertained, the prejudice identified, and the error remedied by barring the use of any evidence derived from the protected communications at a new trial or other subsequent proceeding. See Borman, 378 Mass. at 782, 393 N.E.2d 847 ("review [of order to testify at depositions] after a definitive determination of rights and liabilities would not be futile"). See also Mohawk Indus., Inc., 558 U.S. at 109, 130 S.Ct. 599 ("vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence" is adequate remedy to erroneous disclosure of privileged material). In short, an appellate court on postjudgment appeal cannot prevent privileged communications from having been disclosed to the developer plaintiffs, but it can protect the trust defendants from the harm arising from those communications having been used against them at trial. If the trust defendants were prejudiced at trial by the admission of evidence derived from the privileged communications revealed pursuant to the order, an appellate court may grant them a new trial, where no evidence derived from those communications will be admitted.

Notably, the trust defendants here are claiming a right of immediate appeal from a discovery order, which commonly involves claims of denial of rights or invasions of privilege. See Borman, 378 Mass. at 784, 393 N.E.2d 847 (orders compelling witness testimony "are among the most common of everyday incidents to the process of disposing of cases, and objections on the ground of privilege ... are frequently raised" [citation omitted] ). Discovery orders may direct a witness to testify at a deposition about information that a witness claims would be self-incriminating, see id. at 781-782, 393 N.E.2d 847, or that a witness claims is protected by various privileges other than the attorney-client privilege, such as the spousal privilege or the psychotherapist-patient privilege. Discovery issues regarding the scope of the attorney-client privilege -- and its application to documents sought in discovery -- may arise whenever a party produces a privilege log identifying documents that the party refuses to disclose because they purportedly contain protected attorney-client communications or attorney work product. Whenever a judge orders disclosure in any of these discovery disputes, the aggrieved party can claim that its rights cannot be fully vindicated on appeal, because otherwise protected communications or documents will be revealed that the party was entitled to keep confidential. But if that intrinsic harm were to suffice to make all such discovery orders appealable under the doctrine of present execution, we would be inviting "the inundation of appellate dockets with what have heretofore been regarded as nonappealable matters" (citation omitted), Cronin, 392 Mass. at 529, 467 N.E.2d 143, with the resulting delays and increased litigation costs that come with piecemeal interlocutory appeals. Where a postjudgment appeal offers a viable, albeit imperfect, remedy, we will not grant a right to interlocutory appeal from a discovery order simply because it involves an issue of privilege. We thus conclude that orders requiring the disclosure of privileged material, such as the order in this case, are not categorically irremediable, and therefore are not appealable under the doctrine of present execution. We note that our analysis is consistent with that of other courts. The Supreme Court was confronted with this same question, interpreting the Federal collateral order doctrine, in Mohawk Indus., Inc., 558 U.S. at 103, 130 S.Ct. 599. Explaining that the Court "routinely require[s] litigants to wait until after final judgment to vindicate valuable rights, including rights central to our adversarial system," id. at 108-109, 130 S.Ct. 599, the Court noted that an erroneous privilege disclosure order is akin to other common errors that may take place throughout the life of a case. The Court concluded that such errors may be remedied in the same way as other erroneous evidentiary rulings: by reversing the judgment and remanding for further proceedings in which the protected material and its fruits are inadmissible in evidence. Id. For those reasons, interlocutory appeals from attorney-client privilege disclosure orders under 28 U.S.C. § 1291 are not permitted as of right under the Federal collateral order doctrine. Id. at 114, 130 S.Ct. 599. Numerous State appellate courts have reached the same conclusion as a matter of State law. See, e.g., Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 258-259, 520 A.2d 605 (1987) ; Expedia, Inc. v. Columbus, 305 Ga. App. 450, 453, 699 S.E.2d 600 (2010) ; Abrams v. Cades, Schutte, Fleming & Wright, 88 Haw. 319, 325, 966 P.2d 631 (1998).

Ultimately, the doctrine of present execution represents a balancing act that weighs the harm to cost-effective litigation arising from piecemeal interlocutory appeals against the harm that a litigant may suffer from a trial court order that is irremediable on postjudgment appeal. We conclude that the sheer volume of potential appeals that would be permitted by including privilege-related discovery orders within the doctrine of present execution, and the inevitable adverse impact on judicial efficiency, outweighs the intrinsic harm that potentially might be suffered by an aggrieved party who is denied an immediate right to appeal.

In reaching this balance, we note that denying a litigant the right to a full interlocutory appeal under the doctrine of present execution does not bar a litigant from moving or petitioning for immediate appellate review of an interlocutory order. Where a party believes that the legal questions at issue regarding a discovery order are so significant or novel that they warrant interlocutory appeal, the party may generally request the Superior Court judge to report the decision to the Appeals Court under Mass. R. Civ. P. 64. Or the party may petition a single justice of the Appeals Court under G. L. c. 231, § 118, first par., and seek redress from the single justice, as the trust defendants did here, or ask the single justice to refer the petition to a full panel of the Appeals Court. And where a party or nonparty feels so strongly about the injustice of an order compelling discovery that it is willing to suffer the sanctions that might arise from disobeying the order, the party or witness can obtain full appellate review of the order as a matter of right by refusing to comply with the order and appealing from the resulting order of dismissal or contempt. See Cronin, 392 Mass. at 528, 467 N.E.2d 143, citing Matter of Roche, 381 Mass. 624, 625 n.1, 411 N.E.2d 466 (1980). We are satisfied that this collection of alternative remedies will adequately protect the rights of litigants who are egregiously harmed by interlocutory discovery orders.

2. Partial denial of motion for protective order based on trust defendants' claim of attorney-client privilege. Having concluded that the trust defendants are not entitled under the doctrine of present execution to appeal from the partial denial of their motion for a protective order, based on their claim that they had an attorney-client relationship with Levin regarding the sale of the property before the fire, we have two options. We can exercise our discretion under our superintendence authority to reach the merits of this appeal, where the issue "has been briefed fully by the parties ... [and] raises a significant issue" regarding attorney-client relationships and the doctrine of privilege, "and addressing it would be in the public interest." Marcus, 462 Mass. at 153, 967 N.E.2d 140. Or we can dismiss the appeal, and allow the single justice of the Appeals Court to decide the G. L. c. 231, § 118, first par., petition that he stayed pending resolution of the appeal. We exercise the first option, and after considering the trust defendants' argument, we conclude that the motion judge's order cannot stand based on the limited findings that he made. We therefore vacate his order and remand the matter to the motion judge for further factual findings and reconsideration of the motion in light of those additional findings. We express no view as to how the motion should ultimately be decided. After the judge makes those findings and issues a new order, the aggrieved party may avail itself of the options we have identified for interlocutory appellate review -- i.e., requesting the judge to report his ruling to a panel of the Appeals Court or filing a petition under § 118, first par. -- but, for reasons we have already explained, will not be entitled to an interlocutory appeal under the doctrine of present execution.

a. Standard of review. A judge's ultimate conclusion as to whether an attorney-client relationship existed is a mixed question of law and fact, which we review de novo. See McCarthy v. Slade Assocs., Inc., 463 Mass. 181, 190, 972 N.E.2d 1037 (2012), quoting Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 303, 901 N.E.2d 1185 (2009) ("Mixed questions of law and fact, such as whether there has been a waiver, generally receive de novo review"); 2 P.R. Rice, Attorney-Client Privilege in the United States § 11.38, at 1253-1255 (2017) (most questions concerning issues of attorney-client privilege involve "a mixture of law and fact"). In doing so, we accept a judge's findings of fact "unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge ... the credibility of the witnesses." Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1408 (1996).

b. Summary of the evidence and the judge's findings. It was undisputed that Levin represented the Masons, as the sellers of the property, in connection with the purchase and sale agreement, and that he was identified as their attorney of record on the agreement that was signed in September 2012. The question before the judge was whether Levin had also established an attorney-client relationship with the trust defendants, who were the buyers in this transaction. Levin testified that he had not; the trust defendants testified that he had.

Levin acknowledged that he had represented the trust defendants in a large number of matters, including real estate matters, for over twenty years, and that he did over ninety per cent of the trust defendants' legal work. He testified that, in the spring of 2012, when he learned that the trust defendants were seeking to make an offer on the property, he was representing the trust defendants in a number of other real estate transactions. In Levin's electronic mail messages with the trust defendants, he discussed the purchase and sale agreement in conjunction with other pending matters. The trust defendants and Levin agreed that, because he was representing the Masons as the sellers, the trust defendants would identify Miriam Marcus as their attorney of record in the agreement. Levin admitted that he never communicated with Miriam Marcus, and instead communicated directly with the trust defendants because he knew that Martin always negotiated real estate transactions personally. Levin sent draft documents to the trust defendants for review, prepared a power of attorney form for Martin so that he could sign the purchase and sale agreement on behalf of the Grossman Munroe Trust, and acknowledged having "many conversations" with Martin concerning the transaction after the agreement was signed in September 2012, particularly about deadlines in the agreement and seeking an extension to perform due diligence obligations. Levin also testified that he discussed with the trust defendants their concerns about financing, construction, and permits related to the division of condominium units on the property; those issues were incorporated into a rider to the purchase and sale agreement. Levin billed the Masons and the trust defendants each one-half of his fee in connection with the purchase and sale transaction. The bill sent to the trust defendants listed the Masonic Temple transaction with other pending real estate matters on which he represented the trust defendants.

Throughout his testimony, Levin contended that he never provided particularized legal advice or assistance to the trust defendants in connection with the sale of the property, but did provide advice "affect[ing] both sides" at group meetings regarding various issues. Levin characterized his role in the matter as a simple one: the parties had discussed agreed-upon terms, and he worked to memorialize them into a working purchase and sale agreement. He made himself available to answer questions from the defendants, but he described these communications as "direction, not [advice]." Levin testified that he explicitly told the trust defendants that he would not be able to represent them in the purchase and sale transaction.

The trust defendants disputed Levin's testimony. Seymour Marcus testified that Levin had explicitly told him that Levin was going to represent both sides, and that Levin had represented opposing parties to a transaction with them before, in the context of lenders and borrowers and also buyers and sellers. Marcus stated that Levin offered particularized legal advice in meetings -- without the Masons present -- on permitting and construction issues regarding the property and on what "[his] liabilities are to the Masons." He said that Levin instructed them to list Miriam Marcus as their attorney solely as a formality.

Martin testified that he never executed a real estate transaction without representation, and virtually always used Levin to negotiate agreements and draft documents. Martin contradicted Levin's testimony that Levin merely wrote the terms that the parties had agreed upon, claiming that Levin proposed amendments to the purchase and sale agreement and made suggestions and comments throughout the negotiation process. Martin also testified that Levin never told the trust defendants that he would be unable to represent them. Rather, Martin testified, Levin made clear that he was representing both sides, and asked the trust defendants to list Miriam Marcus as their attorney only to avoid the appearance of impropriety.

At the close of the evidentiary hearing, the judge announced his findings and subsequent order. Because it was undisputed that the trust defendants approached Levin for legal advice -- and indeed received such advice -- regarding their exposure to insurer claims and other liability after the fire, the judge first found that there was an attorney-client relationship between Levin and the trust defendants after the fire. With respect to the matters involving the purchase and sale agreement before the fire, the judge found that the Masons and the trust defendants shared a common interest in the sale, transfer, and development of the property, but not a common interest in the sense "that their interests were aligned with regard to this transaction." He noted:

"[A] purchase and sale agreement generally is designed to protect the rights and enforce the obligations of a buyer and seller, which almost by definition are antagonistic one to the other. And in a transaction of this complexity, it seems impossible that a single attorney could represent both sides in a very complex and sophisticated real estate transaction."

The judge continued:

"I accept the testimony as I've heard it that there was a longstanding relationship between Mr. Levin and Mr. Marcus and his various ventures that extended perhaps up to [twenty-five] years and involved countless real estate transactions ... where Mr. Levin served essentially as in-house counsel for Mr. Marcus and his various holdings. And I acknowledge that ... any communications [with Levin] as to all of those real estate transactions in the past would fall under the attorney-client umbrella that Mr. Levin had with Mr. Marcus and his entities. That does not mean in this particular transaction, however, that ... Mr. Levin necessarily represented Mr. Marcus and Mr. Martin.
"A party asserting a privilege has the burden of proving that the privilege exists. I don't find in this case that the [trust defendants have] proved to my satisfaction that Mr. Levin acted as the attorney for Mr. Marcus and Mr. Martin with regard to the negotiations leading to the signing of a [purchase and sale agreement] or with regard to negotiations leading to an extension of that [purchase and sale agreement]."

The judge thus found that there was no attorney-client relationship between the trust defendants and Levin with respect to the purchase and sale transaction before the fire.

c. Analysis. On appeal, the trust defendants do not contend that there was an express contract whereby Levin agreed to represent them with respect to the Masonic Temple purchase and sale transaction. Rather, they argue that the attorney-client relationship was implied as a matter of law by the conduct of the parties, particularly based on their reasonable belief that Levin was representing them. An attorney-client relationship may be impliedly formed "when (1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney's professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance.... In appropriate cases the third element may be established by proof of detrimental reliance, when the person seeking legal services reasonably relies on the attorney to provide them and the attorney, aware of such reliance, does nothing to negate it" (citation omitted). DeVaux v. American Home Assur. Co., 387 Mass. 814, 817-818, 444 N.E.2d 355 (1983).

The judge's findings raise issues both of law and of fact, none of which can be resolved without remand to the motion judge for further findings. The issue of law is that the judge, after finding that the interests of the buyer and seller in this purchase and sale transaction were "antagonistic"

to each other, stated that "in a transaction of this complexity, it seems impossible that a single attorney could represent both sides in a very complex and sophisticated real estate transaction." It is not clear from the record precisely what the judge meant by this statement, especially where the judge found that Levin represented both the trust defendants and the Masons after the fire, when their interests remained adverse.

It is not ethically impossible for an attorney to represent clients with adverse interests. Under Mass. R. Prof. C. 1.7 (a), as amended, 430 Mass. 1301 (1999) -- the version of rule 1.7 in effect at the time of this transaction -- an attorney could represent clients with directly adverse interests, even in complex real estate transactions, where the attorney reasonably believed that his or her representation of each client would not adversely affect the relationship with the other client and each affected client consented after consultation. But even where an attorney would have violated this rule by jointly representing clients with adverse interests without consent, the attorney still would have had a separate attorney-client relationship with each client. See RFF Family Partnership, LP v. Burns & Levinson, LLP, 465 Mass. 702, 721, 991 N.E.2d 1066 (2013). And where there is an attorney-client relationship, even one that an attorney ethically should not have entered into without consent because of a conflicting representation, the client is entitled to protect confidential communications with the attorney. See id., quoting In re Teleglobe Communications Corp., 493 F.3d 345, 369 (3d Cir. 2007) ("even where a law firm actually violates Mass. R. Prof. C. 1.7 [a] by representing two clients with adverse interests without the consent of each client, 'counsel's failure to avoid a conflict of interest should not deprive the client of the privilege' ").

Where we cannot be sure what the motion judge meant by his finding that it seems "impossible" for Levin, who was already representing the Masons with respect to the sale of its property, also to represent the trust defendants with respect to that transaction, we believe it prudent to remand the matter to the judge for clarifying findings on this issue. It is unclear what role, if any, that finding played in his ultimate determination that Levin did not enter into an attorney-client relationship with the trust defendants until after the fire.

We must also remand for further findings because we cannot evaluate whether the judge's findings were clearly erroneous without credibility findings regarding the conflicting testimony of Levin and the trust defendants. For example, the judge did not resolve contradictory testimony as to whether Levin explicitly told the trust defendants that he could not represent them because he was simultaneously representing the Masons, which bears on the trust defendants' claim of detrimental reliance. The judge found only that the trust defendants had failed to satisfy their burden of proving that they had an attorney-client relationship with Levin regarding the negotiation of the purchase and sale agreement and its extension, but he did not explain why.

Importantly, the judge did not address the undisputed fact that Levin billed both the Masons and the trust defendants for his legal work regarding this transaction, splitting his fee equally between them. Where, as here, an attorney bills an existing client for legal services, and where the client pays for those services, it is reasonable to infer that they had an attorney-client relationship with regard to those services. See Williams v. Ely, 423 Mass. 467, 476, 668 N.E.2d 799 (1996) ("It seems clear that [the client] would not have contributed toward payment of [the law firm's] bills if they had received no legal advice from the firm"). An attorney's billing for legal services and a client's payment of the bill for such services may not be dispositive of the existence of an attorney-client relationship, but a finding of no attorney-client relationship with respect to legal services that were billed and paid warrants an explanation. See Matter of Stern, 425 Mass. 708, 712-713, 682 N.E.2d 867 (1997) (trustee acted as legal advisor and attorney-client relationship was formed where, inter alia, trustee was paid fees specifically to act as attorney); Droz v. Karl, 736 F.Supp.2d 520, 524-525 (N.D.N.Y. 2010) (while not dispositive, payment of fee to attorney is "indicator[ ] of an attorney-client relationship").

As to this issue, we note that an attorney-client relationship may impliedly be formed when an attorney provides "advice or assistance" (emphasis added). DeVaux, 387 Mass. at 817-818, 444 N.E.2d 355. Where "advice" has been defined as "[g]uidance offered," see Black's Law Dictionary 65 (10th ed. 2014), we may interpret "assistance" here to mean "services rendered." See 1 P.R. Rice, Attorney-Client Privilege in the United States, supra at § 7.10, at 1273-1277 ("Legal assistance requires the involvement of the judgment of a lawyer in his capacity as a lawyer," and it "requires an attorney to render the type of services that his education and certification to practice qualify him to render for compensation" [quotation omitted] ); Sheinkopf v. Stone, 927 F.2d 1259, 1266 (1st Cir. 1991) (describing attorney's obtaining of party's check and having that party sign various documents as "assistance ... rendered," and distinguishing "legal advice" from actual, concrete transactions). The question whether Levin provided "assistance" to the trust defendants that created an attorney-client relationship is related to, but distinct from, the question whether he provided them with legal "advice." The motion judge may wish to consider this issue on remand.

Conclusion. The order of the Superior Court judge partially denying the trust defendants' motion for a protective order is vacated, and the matter is remanded for further findings consistent with this opinion and for reconsideration of the motion in light of those findings.

So ordered.

      The phrase "doctrine of present execution" appears to derive from Vincent v. Plecker, 319 Mass. 560, 564 n.2, 67 N.E.2d 145 (1946), where this court, in deciding whether an order was appealable as a "final decree," noted, "Though part of a single controversy remains undetermined, if the decree is to be executed presently, so that appeal would be futile unless the decree could be vacated by the prompt entry of an appeal in the full court, the decree is a final one." We first used the phrase "doctrine of present execution" in Borman v. Borman, 378 Mass. 775, 780, 393 N.E.2d 847 (1979).

      The United States Supreme Court has concluded under its collateral order doctrine that an order disqualifying counsel in a civil case is not immediately appealable. Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 440, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985). In response to the argument that a disqualification order will effectively be unreviewable on appeal from a final judgment because of the difficulty in showing that the party suffered prejudice, the Court declared that "the difficulties in proving prejudice ... go more to the issue of the showing required to reverse a final judgment than to whether a disqualification order should be subject to immediate appeal." Id. at 438, 105 S.Ct. 2757. "Absent a requirement of prejudice, the propriety of the trial court's disqualification order can be reviewed as effectively on appeal of a final judgment as on an interlocutory appeal." Id.

      The trust defendants note that we stated in Preventive Med. Assocs., Inc. v. Commonwealth, 465 Mass. 810, 823, 992 N.E.2d 257 (2013), that the harm to a party from the disclosure of privileged attorney-client communications to an adversary "could be irreparable." We recognized the potential for irreparable harm in that case in the context of requiring judicial supervision of the protocol used by the Commonwealth to search the electronic mail (e-mail) messages of a criminal defendant -- which were seized pursuant to a search warrant -- where the e-mail messages may contain privileged attorney-client communications, not in the context of deciding whether to allow an immediate appeal from a discovery order in a civil case under the doctrine of present execution. See id. We recognize here that there is intrinsic irreparable harm where a judge erroneously orders the disclosure of privileged communications, but conclude that this intrinsic harm alone does not suffice to require a right to interlocutory appeal under the doctrine of present execution where there is a viable postjudgment remedy for the use of this privileged information against the party at trial.

      We recognize that, as here, an attorney who denies the existence of an attorney-client relationship with the moving party regarding the subject matter of the litigation is not going to refuse to testify and risk a contempt finding. But we decline to grant a right of interlocutory appeal to a party in a civil proceeding simply because that avenue of appeal is not available. We do not address whether a right of interlocutory appeal would be appropriate in these circumstances if the appeal concerned a privilege issue in a criminal or grand jury proceeding. Cf. Matter of a R.I. Grand Jury Subpoena, 414 Mass. 104, 110, 605 N.E.2d 840 (1993) ; Matter of a Grand Jury Subpoena, 411 Mass. 489, 494, 583 N.E.2d 241 (1992).

      The Masons later sued the trust defendants, and Levin testified that he only stepped aside from representing the trust defendants after that lawsuit commenced.

      Subsequent to the transaction at issue in this case, our rules of professional responsibility were amended. Under the current Mass. R. Prof. C. 1.7, as appearing in 471 Mass. 1335 (2015), an attorney may represent clients with directly adverse interests where the attorney reasonably believes that he or she will be able to provide competent and diligent representation to each affected client, the representation is not otherwise prohibited by law, the representation does not involve the assertion of a claim by one client against another in the same litigation or proceeding, and each affected client gives informed written consent.


author: MASSING, J.

text:
    COMMONWEALTH v. Karen BRUNO-O'LEARY.
    No. 16-P-1508
    Appeals Court of Massachusetts, Plymouth..
    Argued March 2, 2018 Decided September 19, 2018
    Pamela Lindmark, Newton, for the defendant.
    Johanna S. Black, Assistant District Attorney, for the Commonwealth.
    Present: Wolohojian, Massing, & Englander, JJ.
   MASSING, J.

A Superior Court judge revoked the defendant Karen Bruno-O'Leary's probation and imposed a previously suspended two-year term of imprisonment because she failed to make restitution payments. Although the judge disbelieved the defendant's testimony that she could not afford the payments, he did not sufficiently consider her financial resources and obligations before deciding to find her in violation. Without such findings, the record does not support the judge's conclusion that the defendant wilfully refused to pay restitution. Because we are left with a definite and firm conviction that an error has been made, we vacate the finding of violation and the revocation order.

Background. The defendant's imprisonment came more than seven years after a protracted period of probation that began on January 29, 2009, when she pleaded guilty to an indictment charging a single count of larceny over $250. The plea judge sentenced her to a suspended house of correction term of two and one-half years, with a five-year probationary period, and ordered the defendant to pay $98,000 in restitution: $10,000 to be paid the next day, and the remainder to be paid in accordance with a schedule to be determined by the probation department.

The probation department issued the defendant several violation notices over the course of her probationary period, primarily for failure to make restitution payments, but also for technical violations and new criminal behavior. It soon became apparent that the defendant's ability to make restitution payments was an issue. At a probation violation hearing held on March 21, 2012, the plea judge suspended the defendant's restitution obligation based on her indigency and ordered the probation department to interview the defendant every four months to assess her ability to pay. On June 26, 2013, the probation department reported to a second judge -- the judge who would ultimately impose the suspended sentence, referred to hereinafter as "the judge" -- that the defendant remained indigent. The judge continued the case for further review of the defendant's financial status.

On December 16, 2013, the probation department issued another violation notice, this time alleging failure to pay restitution of $89,000. On January 10, 2014, with the end of the defendant's original five-year probationary period approaching, a third judge found the defendant in violation and extended her probation for one year, to January 29, 2015. Five months later, the defendant filed a motion to reconsider her restitution obligation. At a hearing held on July 14, 2014, the plea judge extended the defendant's probation for another year, until January 29, 2016, and once again ordered the probation department to review the defendant's finances every four months to determine her ability to pay. The plea judge further ordered that "probation be terminated on [January 29, 2016,] upon successful completion of probation even if there is a balance left in restitution amount."

The probation department filed yet another violation notice on September 11, 2014. The judge found the defendant in violation on April 2, 2015, and ordered her to be held without bail pending sentencing. On July 6, 2015, the judge ordered the defendant to be released and issued a new order of probation: he extended the defendant's probation for a third time, until July 6, 2018; ordered her to pay $300 per month in restitution starting August 5, 2015; and ordered her to submit an affidavit detailing her assets and personal property by that date. The defendant provided the affidavit and made a partial restitution payment in August, 2015, a full payment in September, a partial payment in October, and no payments thereafter. The probation department issued another violation notice on December 14, 2015, for failure to make restitution payments.

At the final probation revocation hearing held on March 25, 2016, the defendant stated that she could no longer afford the $300 monthly restitution payments because her financial situation changed drastically in August, 2015. Her testimony, supplemented by a revised affidavit submitted at the hearing, showed that she and her two children received total monthly Social Security disability benefits of $2,087; she also received $324 per month in food stamps. She was unemployed and actively searching for work, which her felony conviction made difficult. She had enrolled in an online medical transcription certificate program so she could work from home. Her husband, who had been receiving workers' compensation payments since September, 2015, had lost his job in January, 2016. Neither the defendant nor her husband had any retirement savings, bank accounts, or stocks. The family used a car that they borrowed from the defendant's mother-in-law.

As to expenses, the family rented a three-bedroom house for $1,695 per month. In order to pay the $1,600 heating oil bill for the winter, they had not paid the electric bill and owed $1,400. The defendant and her husband paid $105 per month for two cellular telephones (cell phones) and cell phone service. The defendant recalled that during the last restitution hearing, when the judge set the amount at $300 per month, the judge said "that the monthly restitution payment could be adjusted if [she] was unable to make the set monthly payments."

After hearing the defendant's testimony, the judge said that he simply did not believe her. "She was told that if [there are] issues with payment, ... come back in. And she never did.... I don't believe her; okay? I just don't. She's had her chances, multiple chances. And she has just simply decided that she's going to do what she wants to do." The judge found the defendant in violation and revoked bail. At defense counsel's request, the judge agreed to delay final disposition for one week (until April 1, 2016) to allow counsel to brief the legal issues concerning the revocation of the defendant's probation in light of her professed inability to pay.

At the April 1, 2016, hearing, the judge entertained the defendant's motion to reconsider his determination that she had violated the terms of her probation. The judge reiterated his finding that "her violation of probation is willful," and that he had "grave doubts about her credibility." For example, the judge noted that the defendant's winter heating bills would not have affected her ability to make restitution payments in October or November. Concluding that the defendant "made very little effort over the past seven years to make this good," the judge revoked the defendant's probation and ordered the defendant committed to serve the balance of her suspended sentence.

Discussion. In probation revocation proceedings, the Commonwealth bears the burden of proving, by a preponderance of the evidence, that the probationer violated the terms and conditions of her probation. See Commonwealth v. Holmgren, 421 Mass. 224, 226, 656 N.E.2d 577 (1995). When the alleged violation is the failure to make payments imposed as a term or condition of probation, the Commonwealth must show that the violation was wilful. See Commonwealth v. Henry, 475 Mass. 117, 121-122, 55 N.E.3d 943 (2016) ; Commonwealth v. Canadyan, 458 Mass. 574, 579, 944 N.E.2d 93 (2010) ; Commonwealth v. Pereira, 93 Mass. App. Ct. 146, 152 & n.7, 99 N.E.3d 835 (2018).

Inability to pay negates wilfulness. "A defendant can be found in violation of a probationary condition only where the violation was wilful, and the failure to make a restitution payment that the probationer is unable to pay is not a wilful violation of probation." Henry, 475 Mass. at 121, 55 N.E.3d 943. See Bearden v. Georgia, 461 U.S. 660, 669 n.10, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) ("[B]asic fairness forbids the revocation of probation when the probationer is without fault in his failure to pay [a] fine"). Furthermore, the defendant's mere ability to pay restitution is not enough. Unless a defendant can pay restitution "without causing substantial financial hardship" to herself and her dependents, failure to pay restitution is not wilful. Henry, supra at 127, 55 N.E.3d 943. Conversely, "violation of a probation condition involving the payment of money is wilful where the probationer has not shown an inability to pay or that the nonpayment was without fault or otherwise justified." Pereira, 93 Mass. App. Ct. at 152 n.7, 99 N.E.3d 835. See Henry, supra at 124 n.6, 55 N.E.3d 943, quoting Bearden, supra at 668, 103 S.Ct. 2064 ("If the probationer has willfully refused to pay the fine or restitution when he has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection"); Commonwealth v. Gomes, 407 Mass. 206, 213, 552 N.E.2d 101 (1990) ("No constitutional difficulty is posed by the incarceration of a defendant who refuses or neglects to pay a fine").

When a judge is considering an order of restitution as a component of a criminal sentence, and the defendant asserts an inability to pay, the defendant bears the burden of establishing her lack of means by a preponderance of the evidence:

"Where a defendant claims that he or she is unable to pay the full amount of the victim's economic loss, the defendant bears the burden of proving an inability to pay. See Commonwealth v. Porter, 462 Mass. 724, 732-733 [971 N.E.2d 291] (2012) (defendant bears burden of persuasion regarding indigency, in part because '[a] criminal defendant is the party in possession of all material facts regarding her own wealth and is asserting a negative'). Cf. United States v. Fuentes, 107 F.3d 1515, 1532 (11th Cir. 1997) (regarding restitution, 'the defendant
must establish her financial resources and needs by a preponderance of the evidence')."

Henry, 475 Mass. at 121, 55 N.E.3d 943. We have indicated that the probationer also bears the burden of proving inability to pay as a defense in probation violation proceedings. See Pereira, 93 Mass. App. Ct. at 152 n.7, 99 N.E.3d 835.

The defendant contends that the judge erred in determining that she failed to show an inability to pay and therefore wilfully violated the restitution order. "On appeal, we are bound by a judge's findings of fact that are supported by the evidence, including all inferences that may reasonably be drawn from the evidence." Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165, 183, 987 N.E.2d 1247 (2013), quoting Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 420, 837 N.E.2d 1121 (2005). "The credibility of witnesses, particularly, is a preserve of the trial judge upon which an appellate court treads with great reluctance." Springgate v. School Comm. of Mattapoisett, 11 Mass. App. Ct. 304, 310, 415 N.E.2d 888 (1981). "But it is not forbidden territory. There are exceptional cases 'where such findings have been changed in whole or in part on appeal, because plainly wrong.' " Id., quoting Spiegel v. Beacon Participations, Inc., 297 Mass. 398, 407-408, 8 N.E.2d 895 (1937). "A finding is clearly erroneous [and thus not supported by evidence] when there is no evidence to support it, or when, 'although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.' " In re Care & Protection of Olga, 57 Mass. App. Ct. 821, 824, 786 N.E.2d 1233 (2003), quoting Custody of Eleanor, 414 Mass. 795, 799, 610 N.E.2d 938 (1993). This is such a case.

The evidence was uncontested that the defendant was not employed and that Social Security disability benefits and food stamps were her only sources of income. She was also, together with her unemployed husband, supporting two children. The judge inferred that her failure to pay must have been wilful because she chose to make partial payments in some months and made no payments in others, without informing the probation department that she could no longer afford to make the payments. However, the judge did not have the benefit of the Henry decision, which was issued approximately four months after the hearings in this case, and his findings "do not indicate that the judge sufficiently considered, as required, the matter of 'the financial resources of the defendant, including income and net assets, and the defendant's financial obligations, including the amount necessary to meet minimum basic human needs such as food, shelter, and clothing for the defendant and ... her dependents.' " Commonwealth v. Vallejo, 480 Mass. 1001, 1002, 100 N.E.3d 323 (2018), quoting Henry, 475 Mass. at 126, 55 N.E.3d 943.

Indeed, the record suggests the opposite. The judge appeared to consider whether the defendant had the mere ability to pay, noting that she had the money to pay for other necessities such as heating and a cell phone. Yet the question is not whether the defendant is able to pay restitution, but whether she can do so "without causing substantial financial hardship" to herself or her dependents. Henry, supra at 127, 55 N.E.3d 943. The judge, without the guidance of Henry, did not consider the defendant's ability to pay under this standard.

The defendant exercised poor judgment by failing to heed the judge's admonition that she "come back in" if she found herself unable to afford the court-ordered restitution payments. However, the judge did not make it a condition of the defendant's probation that she provide updates on her financial status. See id. at 126, 55 N.E.3d 943 ("The defendant may be required to report to his or her probation officer any change in the defendant's ability to pay"). And her failure to do so does not support the judge's conclusion that she could afford to make the payments. See Commonwealth v. Jones, 9 Mass. App. Ct. 83, 90-91, 399 N.E.2d 1081 (1980), quoting McDonough v. Vozzela, 247 Mass. 552, 558, 142 N.E. 831 (1924), and Carmichael v. Carmichael, 324 Mass. 118, 121, 85 N.E.2d 229 (1949) ("[I]t is well settled that '[m]ere disbelief of testimony is not proof of facts of an opposite nature or tendency,' and that 'such disbelief [will] not be [the] equivalent of proof to the contrary' "). While the judge was free to reject the defendant's testimony on credibility grounds, lacking a full consideration of the Henry factors, the record does not afford a reasonable basis for finding that the defendant wilfully violated the terms of probation.

"To be sure, the defendant bore the burden of persuasion, but the judge's findings were inadequate to support the conclusion that the defendant had an ability to pay restitution." Vallejo, 480 Mass. at 1002, 100 N.E.3d 323. Accordingly, the finding of a violation must be vacated. In view of the fact that the defendant has fully served her sentence, however, there is no occasion to remand the case for further proceedings. In addition, we note that the defendant's original five-year probationary period was extended three times for her inability to pay restitution. These extensions were ordered prior to the issuance of the Henry decision, in which the court declared "that a judge may not extend the length of probation where a probationer violated an order of restitution due solely to an inability to pay." Henry, 475 Mass. at 124, 55 N.E.3d 943. Any further extension of her probation would be impermissible.

Conclusion. The order of March 25, 2016, finding the defendant in violation of the terms of her probation, and the order of April 1, 2016, revoking probation, are vacated. An entry shall be made on the Superior Court docket that the defendant is discharged and her probation is terminated.

So ordered.

      The defendant has served the maximum sentence for her conviction. The appeal is not moot, however, because the revocation of probation may have collateral consequences. See Commonwealth v. Wilcox, 446 Mass. 61, 61 n.1, 841 N.E.2d 1240 (2006) ; Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703-704, 341 N.E.2d 902 (1976).

      The indictment alleged that the defendant "on diverse dates on or between August 31, 2006 through November 20, 2007, ... pursuant to a single scheme, did steal or with intent to defraud obtain by a false pretense, or did unlawfully, and with intent to steal or embezzle, convert, or secrete with intent to convert, the property of Summer Hill Condominium Owners the value of such property exceeding two hundred and fifty dollars," in violation of G. L. c. 266, § 30. The record before us is silent about the nature of the crime. Based on the restitution order, we infer that it involved a substantial sum.

      From the record before us, it does not appear that the defendant was ever held in violation based on allegations of criminal conduct, or that she was convicted of any additional crimes.

      The September 11, 2014, notice was based on a complaint for credit card fraud dated April 30, 2014. Although the record does not reveal the basis for the judge's finding of a violation, the judge later commented, "I revoked the bail because I wanted her to understand the significance of what she was doing and what the consequences were.... She has to know what the consequences of the failing to -- you know, to abide by the order are."

      All three extensions, and the final probation revocation hearing, occurred prior to the issuance of Commonwealth v. Henry, 475 Mass. 117, 55 N.E.3d 943 (2016). As discussed infra, Henry articulated the legal standard for determining a defendant's ability to pay restitution, id. at 126-127, 55 N.E.3d 943, and established that extending the length of probation merely because the probationer is unable to pay restitution is improper. Id. at 124, 55 N.E.3d 943.

      During the revocation hearings, defense counsel alerted the judge that the original sentence of two and one-half years in a house of correction exceeded the maximum sentence to a house of correction permitted by G. L. c. 266, § 30. The judge entered a corrected sentence of two years.

      In Pereira, 93 Mass. App. Ct. at 151, 99 N.E.3d 835, unlike the case before us, the defendant "offered no actual evidence of her inability to make the payments."

      Of course, before ordering restitution payments, "the judge should 'consider whether the defendant is financially able to pay the amount ordered.' " Henry, 475 Mass. at 120, 55 N.E.3d 943, quoting Commonwealth v. Nawn, 394 Mass. 1, 7, 474 N.E.2d 545 (1985). "To allow a judge to impose a restitution amount that the defendant cannot afford to pay simply dooms the defendant to noncompliance." Henry, supra at 122, 55 N.E.3d 943. The record before us does not include a transcript of the July, 2015, hearing during which the judge revised the terms of the defendant's probation to include restitution payments of $300 per month, and the defendant does not assert that the order was wrongly imposed.

      The judge erred when, during the April 1, 2016, hearing, he asked to see the defendant's cell phone, noted that he knew its value to be $600 because he had the same one, and drew a negative inference about her credibility on that basis. "It is ... plainly accepted that the judge is not to use from the bench, under the guise of judicial knowledge, that which he knows only as an individual observer outside of court." Duarte, petitioner, 331 Mass. 747, 749, 122 N.E.2d 890 (1954), quoting Wigmore on Evidence § 2569 (3d ed. 1940). Moreover, the judge did not provide the defendant with an opportunity to explain why, as a mother of two young children, she may have needed a reliable cell phone.

      In An Act Relative to Criminal Justice Reform, St. 2018, c. 69, the Legislature amended several statutes regarding criminal defendants' indigency and ability to seek waiver of certain fees by inserting the "substantial financial hardship to the individual, the individual's immediate family or the individual's dependents" standard derived from Henry. See id. at §§ 35-36, 100, 105, 112, 129, 133, 135, 149-151, 158, 163-165, 181-182, 184, 208-209, 211, 213.