Family law attorney balks at turning over notes, gets favorable ruling

Martha R. Bagley swears she does not get up on her “high horse” often.

But the subpoena the Topsfield, Massachusetts, attorney received on May 2 from a fellow member of the family law bar struck her as beyond the pale.

The subpoena ordered her to hand over her “entire file” relating to her representation of the now-late John P. Vasiliou, for whom she was appointed as counsel in June 2021 after he became the subject of a guardianship petition.

The subpoena specifically demanded Bagley’s “notes,” which is the type of work product that she had learned in law school she would never need to turn over, she says.

“One of the reasons we use yellow legal paper is so we can grab our notes out of the file,” she says.

The demand was even more surprising, Bagley says, because her appointment postdated the two versions of Vasiliou’s will that his children are now warring over.

Now, she has gotten a measure of vindication, with Probate & Family Court Judge Edward F. Donnelly Jr. ruling that while she otherwise needed to produce the contents of the case file, she could remove “documents which constitute opinion work product and record her ‘mental impressions, conclusions, opinions or legal theories.’”

Donnelly’s decision references the U.S. Supreme Court’s 1947 decision that gave rise to the work product doctrine, Hickman v. Taylor. Donnelly added that the Supreme Judicial Court has described the purpose of the doctrine as enhancing “the vitality of an adversary system of litigation by insulating counsel’s work from intrusions, inferences, or borrowings by other parties.”

Moreover, Massachusetts Rule of Civil Procedure 26(b)(3) requires that the party seeking discovery demonstrate that they have a “substantial need of the materials … and that he is unable without due hardship to obtain the substantial equivalent of the materials by other means,” Donnelly noted.

Bagley says to the extent she has information relevant to resolving the will dispute, she remains willing to be deposed.

The attorney issuing the subpoena, Marlee S. Cowan of Rubin & Rudman in Boston, declined to comment, citing the ongoing litigation.

But her motion to compel — filed as a last resort — indicates that she believed that once she got the attorney appointed as the special personal representative for the estate, John D. Welch, to sign an authorization waiving the attorney-client privilege on behalf of the estate, she was all set. Cowan thought such a waiver would put Bagley in the clear to produce documents and communications that would otherwise be privileged.

Cowan’s motion also evinces some frustration over the difficulty she had getting Bagley to respond to the subpoena, which was initially served by email on May 2.

She notes that her office placed three calls to Bagley’s office in July and August. Each time, Bagley’s receptionist promised a return call, but Cowan never received one.

Cowan finally got a response after emailing her a “courtesy copy” of the subpoena on Aug. 14, but only to hear that Bagley had no intention of providing the documents.

“Out of professional courtesy to Attorney Bagley, it was preferred to not bring this issue to the Court’s attention,” Cowan writes.

She adds that before filing the motion to compel, she gave Bagley one last chance to voluntarily provide the requested documents in early September.

Her clients, Vasiliou’s children Tasia and Peter, “have been forced to expend a great deal of time and money chasing down the requested documents in order to adequately defend and prosecute the pending matters, to no avail,” she writes.

Subpoenas for attorneys’ files in the context of a will contest — and contested prenuptial and postnuptial agreements, too — are routine, says Boston family law attorney Regina M. Hurley of Verrill.

“And if a waiver of the privilege is present, as it was here, compliance is likewise routine,” she adds.

The theory is that, if the goal of the probate litigation is to honor Vasiliou’s wishes, one can gain valuable insight into those wishes by getting copies of notes related to conversations with him while he was still alive, Hurley says.

A subpoenaed attorney does not have the option of ignoring the subpoena because they believe a portion of their file to be protected by some form of privilege, Hurley adds.

“If a subpoenaed attorney objects to the subpoena, they need to follow the rules: file an objection and try to work it out with the subpoenaing attorney, and if that isn’t possible, allow the court to rule on it,” Hurley says. “They shouldn’t force a motion to compel.”

Indeed, some attorneys might even disagree with the aspect of Donnelly’s decision that shielded Bagley’s work product containing her “mental impressions, conclusions and opinions,” since the file had been compiled prior to the litigation over the will, according to Hurley.

Bagley now acknowledges that she perhaps made a tactical misstep by not requesting a protective order. But otherwise, she’s glad she did not have to appeal Donnelly’s decision, as she had been prepared to do.

Kris Olson is a reporter with Massachusetts Lawyers Weekly.