Labor & Employment Law Daily Wrap Up, TORT CLAIMS—Mass. Sup. Ct.: Former appellate court attorney partially revives claims against jealous, hostile colleagues, (May 30, 2025)

By Todd Harrison, J.D.

One colleague confided to another staff attorney that the campaign against the attorney “had taken on a life of its own.”

Partially reversing a lower court’s dismissal of the intentional interference with advantageous relations claim brought by a former appellate court staff attorney against three of his superiors, the Massachusetts Supreme Court found that the allegations plausibly suggested that two of the three defendants had acted with “actual malice” and, by extension, also acted with “bad faith” or “malice” as necessary to overcome their claim of common-law immunity. The third defendant, the appeals court administrator who terminated the attorney based on the information provided by the other two defendants, may have practiced poor management skills, but her conduct did not rise to the level of actual malice, and thus the court affirmed her motion to dismiss (Bresler v. Muster , No. SJC-13576 (Mass. Sup. Ct. May 29, 2025)).

The attorney began his employment with the appeals court in January 2019. Prior to that, he was a former trial and appellate prosecutor and legal educator.

Hostility. Shortly after the attorney’s arrival, a fellow staff attorney began displaying hostility towards him. Others perceived this behavior as being motivated by jealousy of the attorney’s background as a legal writer and teacher. When it was announced that the attorney would teach a legal writing seminar for the social law library, the colleague was overheard as saying the attorney was “trying to take over.”

In July 2019, the hostile colleague was promoted to deputy chief staff attorney. Thereafter, she began conveying criticisms of the attorney’s writing to judges and other staff members.

Positive evaluation. One month prior to his colleague’s promotion, the attorney had received a positive written evaluation from the chief staff attorney. When his colleague was promoted, he expressed his concern to the chief staff attorney about the personal hostility. He was assured that the deputy chief would have no say in evaluating his performance.

Probation extended. In October 2019, four days before the attorney’s probationary period was set to expire, he was summoned to a meeting with the deputy chief and chief staff attorney. He was told his writing was “deficient” and his probationary period would be extended by six months. In January 2020, he was told his annual pay increase would be withheld during his probationary period.

Negative evaluations. The attorney received an unfavorable oral evaluation in February 2020 from the chief staff attorney while the deputy chief was present. In June 2020, he received a negative written evaluation, again while the deputy chief was present.

Termination. In November 2020, the appeals court administrator placed the attorney on administrative leave and sent him a letter outlining 13 allegations against him, supplied by the chief staff attorney and deputy chief. His efforts to respond to the allegations fell on deaf ears and he was terminated the following month. Afterward, the chief staff attorney confided to another staff attorney that the campaign against the attorney “had taken on a life of its own.”

Lawsuit. Subsequently, the attorney filed this lawsuit, asserting a claim for intentional interference with advantageous relations against the chief staff attorney, the deputy chief, and the appeals court administrator. The three moved to dismiss. A superior court judge granted the motion as to the chief staff attorney and the appeals court administrator, finding the attorney did not plausibly allege actual malice or overcome the presumption that they had acted with honest and sufficient motives. However, the judge denied the motion as to the deputy chief. Both the attorney and the deputy chief appealed.

Actual malice. Where, as here, an employee alleges that individual officers of his employer interfered with his employment relationship, he must show that “actual malice” was the controlling factor in the alleged interference. Actual malice is defined as “a spiteful, malignant purpose, unrelated to the legitimate corporate interest.”

In this instance, the only element in dispute was whether the defendants acted with actual malice. The attorney contended that his allegations made a sufficient showing as to all three defendants. The defendants disagreed. The court examined the allegations as to each defendant in turn.

Deputy chief. Beginning with the deputy chief, the court found it was reasonably inferable that she had acted with a spiteful, malignant purpose unrelated to any legitimate interest of the appeals court—namely to alienate the attorney from his superiors and peers out of resentment for his personal success.

This improper motive was sufficiently supported by allegations that: (1) other staff attorneys believed she was jealous of the attorney; (2) she had accused the attorney of attempting to “take over”; (3) she solicited criticism of the attorney from others; (4) she belittled his writing to others; (5) discouraged attendance at his seminars; (6) a union steward reported that she was “brutal” in her review of the attorney’s performance; (7) his performance evaluations declined sharply when she became deputy attorney; and (8) she provided at least some of the false or trivial allegations the appeals court administrator relied on in reaching her termination decision.

Chief staff attorney. Next, the court considered whether the chief staff attorney had demonstrated actual malice. The court concluded that she had.

Although the chief staff attorney had initially provided the attorney with a glowing evaluation, there was a “marked and troubling shift” in her conduct following the deputy chief’s promotion, observed the court. Specifically, the chief staff attorney: (1) reneged on her promise to protect the attorney from the deputy chief by assigning her to supervise his editing and allowing her to attend his performance meetings; (2) issued three negative evaluations, the first of which came just months after the initial positive evaluation; (3) extended his probationary period; (4) failed to act after a union steward complained that the attorney was being bullied by the deputy chief and was being subjected to impossible scrutiny; (5) reversed course on her prior praise of the attorney’s teaching at the social law library and directing him to stop; (6) assigning substantive work to less experienced attorneys; (7) omitting numerous positive evaluations of the attorney’s work from his reviews; (8) holding him to a stricter standard than others who committed similar errors; and (9) participating in the submission of false or trivial allegations to the appeals court administrator to justify the attorney’s termination.

Appeals court administrator. As to the appeals court administrator, the court found that the attorney fell short in establishing that actual malice was the controlling factor behind her conduct.

A supervisor’s termination of an employee and a failure to explain the reasons behind that determination may reflect poor management but it does not, without more, establish actual malice, explained the court.

Here, the allegation that the court administrator failed to investigate the charges prepared by high-level managers suggested mismanagement, not malice, said the court, noting that she lacked independent knowledge of the underlying events. Ultimately, the court found her conduct distinguishable from that of the deputy chief and chief staff attorney, and the complaint did not state a viable claim as to the appeals court administrator.

Immunity. Finally, the defendants asserted that the attorney’s claims were barred by common-law immunity. The attorney countered that none were entitled to such immunity because each acted in bad faith and with malice.

Because the attorney alleged facts plausibly suggesting that actual malice was the controlling factor in the actions of the deputy chief and chief staff attorney, neither were entitled to common-law immunity, said the court. Conversely, the allegations concerning the appeals court administrator were too attenuated to plausibly suggest that she acted with actual malice, and while her conduct may have reflected poor judgment or negligence, it did rise to the level of bad faith or malice. As such, the attorney could not overcome the presumption of common-law immunity as applied to the appeals court administrator. Accordingly, the court affirmed the lower court’s order as to the deputy chief and the appeals court administrator and reversed as to the chief staff attorney.

The case is No. SJC-13576.

Judge: Georges, S. Jr.

Attorneys: Kenneth Bresler, pro se. Aaron R. White (Boyle, Shaughnessy & Campo) for Lynn Muster.

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