927 F.

2d 1259
59 USLW 2587, Fed. Sec. L. Rep. P 95,865,
20 Fed.R.Serv.3d 32

Warren B. SHEINKOPF, Plaintiff, Appellant,

v.
John K.P. STONE III, etc., Defendant, Appellee.
No. 90-1838.

United States Court of Appeals,

First Circuit.
Heard Jan. 10, 1991.
Decided March 7, 1991.

Alexander H. Pratt, Jr., with whom Peabody & Arnold, Boston, Mass.,
was on brief, for plaintiff, appellant.
James R. DeGiacomo, with whom Susan J. Baronoff and Roche, Carens &
DeGiacomo, Boston, Mass., were on brief, for defendant, appellee.
Before TORRUELLA and SELYA, Circuit Judges, and POLLAK * ,
Senior District Judge.
SELYA, Circuit Judge.

This case requires us to consider whether an entrepreneurial attorney, who

unwisely conducts personal business from his law office, thereby implicates his
partners, leaving them (and their law firm) liable for investments gone sour.
Because the record will not support a finding that an attorney-client relationship
came into being, and there does not seem to be any other legal basis for a claim
against the remaining partners or the firm, we affirm the entry of a summary
judgment terminating the suit.

I. BACKGROUND
2

The seeds from which this Venus flytrap sprouted were planted in 1987 when
the Omni Group (Omni), a joint venture, was formed to develop real estate in

Massachusetts and New Hampshire. Plaintiff-appellant Warren B. Sheinkopf

was invited to join the venture by David Saltiel, then a partner in the Boston
law firm of Nutter, McLennen & Fish (Nutter). Although more copious details
of the transaction will emerge during our subsequent discussion of the issues, it
suffices to say for now that Saltiel was an organizer of, and principal in, Omni;
that Sheinkopf enlisted; and that, when Omni's projects encountered dire
financial straits, Saltiel entered personal bankruptcy. Faced not only with the
loss of his original investment but also with incremental liability as a guarantor
of several mortgages, Sheinkopf dove toward the deepest pocket in sight.
Invoking federal question jurisdiction, 28 U.S.C. Sec. 1331, he brought suit in
the United States District Court for the District of Massachusetts against
appellee John K.P. Stone III, individually and as a representative of the Nutter
partnership, 741 F.Supp. 323.1
3

Appellant's amended verified complaint contained seven counts, including

claims arising under various federal and state securities laws2 ; claims for aiding
and abetting; and state-law claims for breach of fiduciary duty and fraud. The
exact structure of the complaint is less important for our purposes than its
unifying theme; six of the seven counts were premised on the theory that Nutter
was vicariously liable for Saltiel's actions with regard to appellant's investment
in Omni. Each of these six counts ended with the identical averment: "The
partners of [Nutter] are liable for such acts and omissions by Saltiel, who was
acting as one of its partners." Hence, irrespective of other distinctions anent the
theories of liability asserted, all six counts depended upon Sheinkopf's ability to
prove that Saltiel, acting as a member of the Nutter firm, either in the course of
an attorney-client relationship or on Nutter's behalf and with its authority
(actual or apparent), committed the acts and omissions of which Sheinkopf
complained. The lone exception was count IV, which alleged Nutter's direct
liability under the securities laws as a "controlling person" of Omni.

The district court wrote a thoughtful rescript, granting defendant's motion for
summary judgment across the board. The court found insufficient record
evidence to support the claim of an attorney-client relationship between Saltiel
and Sheinkopf. Since Sheinkopf had no other links to Nutter, the court found
for the defendant as a matter of law. No separate discussion of count IV was
attempted.

II. THE JURISPRUDENCE OF RULE 56

5

We begin our odyssey by revisiting sundry aspects of Fed.R.Civ.P. 56 which

touch upon this appeal.

6A. The Rule 56(c) Standard.

7

Summary judgment is appropriate when "there is no genuine issue as to any

material fact and ... the moving party is entitled to a judgment as a matter of
law." Fed.R.Civ.P. 56(c). Once the movant avers "an absence of evidence to
support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317,
325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986), the latter must adduce
specific facts establishing the existence of at least one issue that is both
"genuine" and "material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Local 48, United Brotherhood of
Carpenters v. United Brotherhood of Carpenters, 920 F.2d 1047, 1050 (1st
Cir.1990); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). The
mere existence of a factual dispute, of course, is not enough to defeat summary
judgment. The evidence relied upon must be "significantly probative" of
specific facts, Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11, which are
"material" in the sense that the dispute over them necessarily "affect[s] the
outcome of the suit." Id. at 248, 106 S.Ct. at 2510. In other words, the party
opposing summary judgment must demonstrate that there are bona fide factual
issues which "need to be resolved before the related legal issues can be
decided." Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st
Cir.1989); see also Local 48, 920 F.2d at 1050-51.

This court's review of summary judgment is plenary. Garside, 895 F.2d at 48.
In conducting our tamisage, we, like the district court, must view the
evidentiary record in the light most hospitable to the nonmovant and must
indulge all reasonable inferences in his favor. See, e.g., Mack, 871 F.2d at 181.
We need not, however, give credence to "mere allegations," or draw inferences
where they are implausible or not supported by "specific facts." See Anderson,
477 U.S. at 249, 106 S.Ct. at 2510. By the same token, we cannot accept, in
lieu of documented facts, conclusory assertions, Local 48, 920 F.2d at 1051, or
wholly anticipatory "promise[s] to produce admissible evidence at trial,"
Garside, 895 F.2d at 49.

9B. The Standard for Obviating or Creating Fact Questions.

10

Affidavits are the most conventional means of documenting facts for purposes
of advancing, or opposing, summary judgment. See Kelly v. United States, 924
F.2d 355, 358 (1st Cir.1991); Fed.R.Civ.P. 56(c), (e)-(g). In this instance,
defendant's Rule 56 motion was supported by two affidavits from David
Saltiel.3 Plaintiff's opposition, however, relied not upon one or more affidavits
but upon the amended complaint, verified under oath by Sheinkopf.

11

There is some uncertainty as to whether, or when, a verified complaint can

serve in lieu of an affidavit for purposes of opposing a summary judgment
motion. See 6-Pt. 2, J.W. Moore & J.C. Wicker, Moore's Federal Practice p
56.22 at 56-741 (suggesting that cases where a verified pleading will suffice
are "rare"). This court has not heretofore had occasion to pass explicitly on the
matter. We think the better rule is that a verified complaint ought to be treated
as the functional equivalent of an affidavit to the extent that it satisfies the
standards explicated in Rule 56(e) (in summary judgment milieu, affidavits
"shall be made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein"). Accord Lodge Hall Music,
Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 80 (5th Cir.1987); Lew v. Kona
Hosp., 754 F.2d 1420, 1423 (9th Cir.1985).

12

Applying this rule, we find that parts of Sheinkopf's verified complaint should
be considered. The conclusory allegations do not pass muster, and hence, must
be disregarded. See, e.g., Fowler v. Southern Bell Tel. & Tel. Co., 343 F.2d
150, 154 (5th Cir.1965). On the other hand, the factual averments of the
complaint, to the extent demonstrated to come within Sheinkopf's personal
knowledge, were fully tantamount to a counter-affidavit, and hence, worthy of
consideration. Because the record contains nothing of evidentiary significance
beyond the Saltiel affidavits and the fact-specific segments of Sheinkopf's
verified complaint, our decision must be premised on this limited factual
record.

C. The Rule 56(f) Standard.

13
14

If a summary judgment opponent regards an adversary's motion as premature

because needed discovery is incomplete, Rule 56(f) provides a means of relief.
The rule states:

15
Should
it appear from the affidavits of a party opposing the motion that the party
cannot for reasons stated present by affidavit facts essential to justify the party's
opposition, the court may refuse the application for judgment or may order a
continuance to permit affidavits to be obtained or depositions to be taken or
discovery to be had or may make such other order as is just.
16

Fed.R.Civ.P. 56(f).

17

In this case, on the very day that he responded to the motion for summary
judgment, the appellant served a request for admissions pursuant to

Fed.R.Civ.P. 36. The Rule 36 request was concerned exclusively with a very
narrow point: the existence and extent of bills rendered by Nutter to certain
limited partnerships affiliated with, or somehow related to, Omni. At that time,
the appellant also filed a conditional Rule 56(f) motion, buttressed by an
affidavit, asking additional time for a specific purpose: receipt of the appellee's
answers to the request for admissions or, if a dispute ensued, time to obtain the
same information through other discovery devices. We think it is quite
important to note that the Rule 56(f) motion was conditional. Sheinkopf asked
for the extra time only "if the Court deems the matters covered by the Request
to be material." The district court granted summary judgment before appellee
responded to the request, never formally ruling on the Rule 56(f) motion. The
court can, therefore, be assumed, impliedly, to have denied the motion, viewing
the existence and extent of such invoices as immaterial.
18

Sheinkopf's Rule 56(f) motion need not occupy us for long; it suffers from a
procedural virus which leaves it too fragile to carry any weight in this court.
The appellant did not assign the failure to grant his Rule 56(f) motion (or any
other preclusion of pretrial discovery, for that matter) as an error on appeal. He
did not brief the topic in this court. Indeed, the circumstances surrounding the
Rule 56(f) motion only surfaced at oral argument, under questioning by the
panel. That was too little and too late. Under our settled practice, the point was
waived. See Anderson v. Beatrice Foods Co., 900 F.2d 388, 397 (1st Cir.)
(order denying rehearing) ("an appellant's brief on appeal fixes 'the scope of
issues appealed' so that an appellant cannot resurrect an omitted claim 'merely
by referring to it in a reply brief or at oral argument' ") (quoting Pignons S.A.
de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir.1983)), cert. denied, --U.S. ----, 111 S.Ct. 233, 112 L.Ed.2d 193 (1990); see also Local 48, 920 F.2d at
1055 n. 8 (to preserve issue for appeal, party must brief it and supply
"developed argumentation"). We must, therefore, take the record as it stands.

19

At any rate, the district court's action seems fully supportable. For one thing,
the grant or denial of a Rule 56(f) continuance always rests in the trial court's
sound discretion. Hebert v. Wicklund, 744 F.2d 218, 222 (1st Cir.1984).
Although a district court should generally apply the rule with some liberality,
id., the court has no duty to give a litigant more than the litigant seeks.
Sheinkopf's motion was tentative and conditional. We see no abuse of
discretion in the court's acceptance of the movant's stated invitation or its
eschewal of a motion made under so strong an aura of ambivalence.

20

For another thing, the party seeking additional time for discovery under Rule
56(f) must show that the facts sought "will, if obtained, suffice to engender an
issue both genuine and material." Paterson-Leitch Co. v. Massachusetts

Municipal Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir.1988). Whether or
not Nutter rendered bills for legal services to limited partnerships within Omni's
sphere of influence was not relevant to, or probative of, the existence of an
attorney-client relationship between Saltiel and Sheinkopf, and thus, was
immaterial in respect to all counts other than count IV. See Robertson v. Snow,
404 Mass. 515, 536 N.E.2d 344, 348 ("An attorney for a corporation does not
simply by virtue of that capacity become the attorney for ... its officers,
directors or shareholders."), cert. denied, --- U.S. ----, 110 S.Ct. 242, 107
L.Ed.2d 192 (1989) (quoting 1 R.E. Mallen & J.M. Smith, Legal Malpractice
Sec. 7.6 (3d ed. 1989)). Accordingly, there was no reason to grant the Rule
56(f) motion in connection with those claims.
21

A slightly different analysis is called for in connection with count IV.

Certainly, the fact that Nutter may have performed legal services for, and
billed, entities related to Omni, might have some arguable relevance to the issue
of whether Nutter could be considered a "controlling person" as alleged in
count IV. Yet, even if one assumes for purposes of count IV that Nutter did
render such services and was paid for them, summary judgment on that claim
would still be proper. See infra Part V. Because the admissions sought would
not "affect the outcome" on count IV, they were not "material." Anderson, 477
U.S. at 248, 106 S.Ct. at 2510.

III. THE ATTORNEY-CLIENT RELATIONSHIP

22

Having cleared away the procedural bramble, we turn now to the

appropriateness of brevis disposition on all counts other than count IV. We
begin by examining the record to see if it will sustain the claimed attorneyclient relationship between Sheinkopf and Saltiel.

23

Appellant has never asserted that there was an express agreement to provide
legal services between him and Saltiel. Rather, he contends that the facts
documented in his verified complaint were sufficient to prove the existence of
an implied attorney-client relationship. Accepting the parties' shared view that
Massachusetts law governs the issue, see Moores v. Greenberg, 834 F.2d 1105,
1107 n. 2 (1st Cir.1987) (when the parties agree on what substantive law
controls, a federal court "ordinarily should" honor the agreement), the legal
benchmark is clear. In the absence of an express contract to provide legal
services:

24 attorney-client relationship may be implied "when (1) a person seeks advice or

An
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."
25

DeVaux v. American Home Assur. Co., 387 Mass. 814, 444 N.E.2d 355, 357
(1983) (quoting Kurtenbach v. TeKippe, 260 N.W.2d 53, 56 (Iowa 1977)). We
proceed to apply this tripartite test to the properly documented facts, viewing
the record, as Rule 56 demands, in the light most congenial to appellant.

A. The Facts. 4
26

Beginning in or about January 1987, appellant's long-time friend, Saltiel, then a

Nutter partner, told him about the Omni joint venture. Appellant knew that
Saltiel had organized many successful real estate deals. After a few informal
conversations, once in a restaurant and other times over the telephone, appellant
agreed to invest $100,000 in the joint venture. He told Saltiel that he wanted no
personal liability for Omni's debts. Saltiel acquiesced, saying that he would
"protect" Sheinkopf. On March 6, 1987, appellant gave Saltiel his check.
Several months later, at Saltiel's request, appellant signed the signature page of
the Omni Joint Venture Agreement (J/V Agreement) without having seen its
text. Between August 1987 (when he executed the J/V Agreement) and
September 1988 (when he withdrew from the venture by signing a document
prepared by Saltiel), appellant guaranteed several loans made by lending
institutions to Omni. In each instance, as in making his original investment and
signing the J/V Agreement, Saltiel requested the action and appellant claims to
have relied on Saltiel in taking it. Without meaningful description of specific
words or phrases beyond what we have mentioned, appellant characterizes
Saltiel's "advice" as "legal" in nature.

27

Although the above constitutes Sheinkopf's version of what occurred in the

center ring, he also alleged, and personally verified, other "facts" which he
contends are material in connection with the Rule 56 motion. These include the
following: Saltiel told Sheinkopf that "other clients of [Nutter]" were included
amongst the joint venture participants; many of Saltiel's dealings with appellant
were transacted from Saltiel's office at Nutter; Saltiel's law-office secretary
typed and/or delivered certain documents and relayed various messages; and
Nutter's address was listed as Omni's principal place of business in the J/V
Agreement. In addition, Sheinkopf swore that Saltiel neither advised him to
seek independent legal counsel nor disclaimed that he (Saltiel) was giving legal
advice to Sheinkopf in connection with the Omni deal.

28

Other facts are also worthy of mention. There was no evidence of any
preexisting attorney-client relationship; Sheinkopf regularly used another
Boston law firm and Saltiel knew as much. Furthermore, the record is barren of
any evidence that appellant explicitly requested legal advice from Saltiel. It is
equally devoid of any direct indication that Saltiel ever considered appellant to
be his, or a Nutter, client (or treated him as such). Lastly, neither Nutter nor
Saltiel ever billed Sheinkopf for legal services.

B. Discussion.
29
30

These facts--whatever else they may prove--do not fit within the DeVaux
integument. There is simply no plausible basis for implying an agreement to
give legal advice or assistance. Phrased in the alternative idiom of DeVaux, the
tendered proof is inadequate to support a finding that Sheinkopf "reasonably
relie[d] on the attorney [Saltiel] to provide" legal services or that "the attorney,
aware of such reliance, d[id] nothing to negate it." DeVaux, 444 N.E.2d at 357.
On this chiaroscuro record, no reasonable factfinder could conclude either that
appellant's purported reliance on Saltiel for "legal" as opposed to "investment"
advice was reasonable or that Saltiel should have been aware that Sheinkopf
would so rely.

31

Human beings routinely wear a multitude of hats. The fact that a person is a
lawyer, or a physician, or a plumber, or a lion-tamer, does not mean that every
relationship he undertakes is, or can reasonably be perceived as being, in his
professional capacity. Lawyers/physicians/plumbers/lion-tamers sometimes act
as husbands, or wives, or fathers, or daughters, or sports fans, or investors, or
businessmen. The list is nearly infinite. To imply an attorney-client
relationship, therefore, the law requires more than an individual's subjective,
unspoken belief that the person with whom he is dealing, who happens to be a
lawyer, has become his lawyer. If any such belief is to form a foundation for
the implication of a relationship of trust and confidence, it must be objectively
reasonable under the totality of the circumstances. We agree with the court
below that this threshold was not crossed in the instant case. A reasonable
businessman in Sheinkopf's shoes might have assumed that Saltiel had become
his real estate guru, his business partner, his investment adviser, or even his
fugleman--but no reasonable businessman would have assumed, on these facts,
that Saltiel had become his attorney.

32

Appellant's assertion that such a relationship came into being rests on little
more than his subjective belief, bolstered only by his recollection of a general
conversation, unanchored in time or place, concerning his desire to avoid
personal liability in the Omni venture and Saltiel's assurance that he would

"protect" appellant. We find nothing in such an exchange, however construed,

suggesting that Saltiel (himself an investor in, and organizer of, Omni) thereby
became appellant's attorney or agreed to furnish legal advice. At the very most,
the comment was ambiguous, consistent with the role of either a legal or an
investment adviser. Ambiguity of this sort is not enough, see, e.g., Clauson v.
Smith, 823 F.2d 660, 663 (1st Cir.1987) ("reliance [cannot] be implied out of
desultory palaver"), especially for a party who has the burden of proving the
reasonableness of his reliance. See Robertson, 536 N.E.2d at 351; see also
Ralston Dry-Wall Co. v. United States Gypsum Co., 926 F.2d 99, 101-102 (1st
Cir.1991) (to defeat summary judgment in suit on misrepresentation, plaintiff
had to adduce facts to show it was justified in relying on the alleged
misrepresentation); see generally Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st
Cir.1990) (in opposing summary judgment, nonmovant, on issues where he
bears the burden of proof, must demonstrate "that specific facts sufficient to
create an authentic dispute exist"); accord Celotex, 477 U.S. at 324, 106 S.Ct.
at 2553; Garside, 895 F.2d at 48. In our view, Sheinkopf's recital of so
amorphous an assurance on so uncertain an occasion does not amount to
testimony from which a jury could plausibly find that either reasonable reliance
or an implied attorney-client relationship had been proven by preponderant
evidence.
33

By the same token, the assistance Saltiel subsequently rendered--obtaining

appellant's check and having him sign various documents--fell equally, if not
more appropriately, within Saltiel's professional competence as a promoter or
investment adviser. It could scarcely have been reasonable for appellant,
himself a successful entrepreneur, to give Saltiel a hefty check, blindly sign the
signature page of the J/V Agreement, proceed to execute a series of loan
guarantees patently inconsistent with any limitation of personal liability, and
assume, nonetheless, that Saltiel had tacitly agreed to act as his attorney, and
was doing so. In short, appellant's assertion that he reasonably relied on Saltiel
for legal advice does not flow rationally from the evidence of what he, an
experienced businessman, did with regard to investing in Omni. Cf. Robertson,
536 N.E.2d at 349 (evidence did not support finding of reasonable reliance on
attorneys' implied misrepresentation).

34

The plaintiff's proof was wanting in another respect as well. Even if a putative
client "reasonably relies on the attorney to provide [legal services]," an
attorney-client relationship cannot be implied unless "the attorney, aware of
such reliance, does nothing to negate it." DeVaux, 444 N.E.2d at 357 (emphasis
supplied). We have searched the record in an effort to find a shred of evidence
that a lawyer in Saltiel's position, knowing what he knew, might have been
aware that Sheinkopf was looking to him for legal advice. We have discovered

none. Everything that Saltiel knew pointed in precisely the opposite direction.
There was no history of a preexisting attorney-client relationship; no fee
arrangement in place (or even discussed); no retainer paid; no particularized
discussions of the legal ramifications of the deal. Sheinkopf was regularly
represented by other counsel.5 Throughout, Sheinkopf said nothing which,
fairly construed, indicated either that he was relying on Saltiel's legal acumen
or that he considered himself to be Saltiel's client. In sum, the arrangement
between the two men reflected none of the earmarks of an attorney-client
relationship.
35

Appellant argues that public policy, and in particular the concern of preserving
the integrity of the legal profession, favors an expansive view of the attorneyclient relationship whenever a lawyer mixes personal business with his
professional practice. In this regard, appellant leans heavily upon
Massachusetts Disciplinary Rule 5-104(A).6 But such reliance begs the
question. Although Rule 5-104(A) is praiseworthy in concept and sound in
principle, it is inapposite here. By its terms, the rule presupposes an existing
attorney-client relationship; and, as we have just explained, there is no
probative evidence of such a relationship involving Sheinkopf and Saltiel.7
Thus, we have no principled choice but to reject appellant's attempt to bootstrap
himself into the lee of the disciplinary rule.

36

What is more, notwithstanding the hortatory language of Rule 5-104(A),

Massachusetts courts have neither taken a particularly expansive view of the
attorney-client relationship nor strained to manufacture professional ties in the
absence of hard evidence or compelling inference. In Dolan v. Hickey, 385
Mass. 234, 431 N.E.2d 229 (1982), the Massachusetts Supreme Judicial Court
(SJC) decided that a lawyer who drafted documents in a transaction in which
the mortgagors knew that he was representing other interests and who, after the
mortgagors had executed those documents, was retained by them to draft a real
estate trust, was not the mortgagors' attorney at the time the mortgage was
executed (and thus did not have a fiduciary duty to disclose his interest in the
transaction or to advise the mortgagors to seek independent counsel). "The
possibility that the [mortgagors] nevertheless trusted [the attorney], and relied
on his expertise in permitting him to draft the documents, does not establish a
relationship of confidence." Dolan, 431 N.E.2d at 230.

37

In Robertson, no attorney-client relationship was implied between the law firm

representing a corporation in a corporate restructuring and the plaintiff, a
former corporate officer who claimed that the firm had been negligent with
regard to his expectation of continued employment in the reorganized company.
There, the undisputed facts showed that the plaintiff had a preexisting attorney-

client relationship with the lawyers (he had previously retained the firm to
handle various matters, including the drafting of his will, which remained in the
firm's custody), Robertson, 536 N.E.2d at 349; that he sincerely believed the
law firm was representing his interests in the restructuring, id. ; that he had
specifically raised the issue of whether he would be employed in the new
corporation at a meeting with the lawyers, id. at 347; and that he had requested
and received from them a sample employment agreement. Id. Still and all, the
SJC found this evidence insufficient:
38 spite of several written and many oral communications between the plaintiff and
In
the other participants, the plaintiff introduced no evidence of a specific reference to
[the firm] as his personal counsel. His claim is essentially, therefore, that he thought
that [the firm] represented him but that he failed to communicate his thought to
anyone.
39

Id. at 349. Citing uncontroverted testimony that plaintiff never explicitly

requested the firm to represent him in the matter, never discussed the sample
employment agreement with any of the attorneys, and was not invoiced for any
legal services--the firm's services in connection with the reorganization were
billed in their entirety to the corporation under a contract that made no
stipulation for representation of officers--the SJC concluded that there was
"little basis to imply the existence of an attorney-client relationship." Id. at 351.

40

A ready analogy suggests itself. Here, the uncontroverted testimony shows that
Sheinkopf never explicitly requested Saltiel or Nutter to represent him, never
sought any legal advice from them, and was never billed for services. To
paraphrase Robertson, his claim is, essentially, that he thought Saltiel
represented him but that he failed to communicate his thought to anyone, Saltiel
included, until well after the balloon went up. Moreover, Sheinkopf's claim is
much weaker than the claims previously rejected by the SJC in Dolan and
Robertson, inasmuch as Nutter, unlike the defendants in those cases, never
represented the plaintiff in any prior or subsequent matter. Bearing in mind that
"[i]n assessing detrimental reliance vel non, the test is one of objective
reasonableness under the circumstances," Henry v. Connolly, 910 F.2d 1000,
1003 (1st Cir.1990), we do not think that, whatever the nature of Sheinkopf's
subjective expectations about Saltiel's advice, a jury could supportably
conclude that reliance was reasonable.

41

The exhortation that Saltiel had an obligation to disclaim that he was acting as
appellant's attorney in the Omni deal or to advise him to seek independent legal
counsel does little to change the picture. Under the DeVaux test, an attorney is
required to negate reliance on his advice only if he is aware of the putative

client's reasonable reliance. See DeVaux, 444 N.E.2d at 357. In this instance,
Sheinkopf's professed reliance was not only unreasonable, but
uncommunicated; Saltiel was not actually aware that appellant was relying on
him for legal advice. And the sockdolager, of course, is the absence of an
objectively reasonable basis for implying any such awareness.
42

Finally, this is not the type of situation where a viable claim might lie that the
attorney should be held liable for the "foreseeable reliance" of a nonclient. See,
e.g., Page v. Frazier, 388 Mass. 55, 445 N.E.2d 148 (1983); Craig v. Everett M.
Brooks Co., 351 Mass. 497, 222 N.E.2d 752 (1967). Under Massachusetts law,
the doctrine of foreseeable reliance is limited to instances "where the defendant
knew that the plaintiff would rely on his services." Page, 445 N.E.2d at 154
(quoting Rae v. Air-Speed, Inc., 386 Mass. 187, 435 N.E.2d 628, 631 (1982)).
As we have already indicated, there is no probative evidence showing that
Saltiel knew or should have known that Sheinkopf was relying on him for legal
counsel. Indeed, fully conscious that Sheinkopf was regularly represented in
business transactions by another law firm, a reasonably prudent attorney in
Saltiel's position would logically have assumed, given the lack of any contrary
indication, that appellant was receiving legal advice about the joint venture
from that firm.8

43

There is little point in flogging a moribund mare. Although usually applied in a

different context, the established tenet that "contracts depend on objective
manifestations of consent and not on uncommunicated subjective expectations,"
see Mathewson Corp. v. Allied Marine Indus., Inc., 827 F.2d 850, 853 (1st
Cir.1987); RCI Northeast Services Div. v. Boston Edison Co., 822 F.2d 199,
204 (1st Cir.1987), is clearly pertinent here. In the absence of any objective
evidence that Saltiel undertook to act as Sheinkopf's attorney, or had agreed to
do so, a contract to furnish legal services cannot be implied. The district court
did not err in granting summary judgment on this basis.

IV. OTHER SOURCES OF AUTHORITY

44

It is theoretically possible that, even in the absence of an attorney-client

relationship, a law firm could be liable for a partner's actions in spheres beyond
the practice of law if the firm authorized those actions to be taken on its behalf.
In this case, Sheinkopf contends that he succeeded in raising a jury question
about Nutter's culpability for Saltiel's misconduct, whether or not that
misconduct occurred within the attorney-client framework. We do not agree.

45

Under Massachusetts law, uninvolved partners are only liable to third persons
for the wrongful acts or omissions of an involved partner "acting in the

ordinary course of the business of the partnership, or with the authority of his
co-partners." Mass.Gen.L. ch. 108A, Secs. 13, 15; see also Jurgens v. Abraham,
616 F.Supp. 1381, 1387 n. 10 (D.Mass.1985). Based on the summary judgment
record, Nutter's only business--if one may call a profession by so esurient an
appellation--is the practice of law. The lack of a cognizable attorney-client
relationship makes it crystal clear that Saltiel's alleged misconduct did not
transpire "in the ordinary course" of Nutter's business. Hence, any remaining
argument for vicarious liability must rise or fall on the presence of apparent
authority.9
46

We think the record is clear enough that, in recruiting Sheinkopf into Omni and
dealing with him thereafter, Saltiel acted without the appearance of Nutter's
authorization. Under Massachusetts law, apparent authority "results from
conduct by the principal which causes a third person reasonably to believe that
a particular [actor] ... has authority ... to make representations as his agent."
Hudson v. Massachusetts Property Ins. Underwriting Ass'n, 386 Mass. 450, 436
N.E.2d 155, 159 (1982). It is a "fundamental rule that apparent authority cannot
be established by the putative agent's own words or conduct, but only by the
principal." Sheldon v. First Fed. Savings & Loan Ass'n, 566 F.2d 805, 808 (1st
Cir.1977); accord McGarity v. Craighill, Rendleman, Ingle & Blythe, P.A., 349
S.E.2d 311, 313 (N.C.1986) ("The scope of an agent's apparent authority is
determined not by the agent's own representations but by the manifestations of
authority which the principal accords to him."), rev. denied, 319 N.C. 105, 353
S.E.2d 112 (1987). Whatever Saltiel himself may have done, or omitted to do,
in his campaign to enlist and retain Sheinkopf as an Omni member, there is
nothing in the record that would support an inference that Saltiel was acting
within the scope of his apparent authority as a Nutter partner. As a law firm,
Nutter was not in the business of soliciting investments; there is no suggestion
that Saltiel's acts in regard to Omni could have benefitted the law firm in any
significant way; and, as we have already observed, there is no evidence that any
other member of the firm knew or should have known that Saltiel had solicited
Sheinkopf to put his hard-earned eggs in Omni's tatterdemalion basket.

47

At bottom, appellant's argument rests on the smattering of facts summarized

supra p. 1265, e.g., Saltiel's use of his Nutter office, secretary, and stationery in
dealing with Sheinkopf, to make out a jury question on apparent authority. But
those few items cannot carry so much freight. See Kanavos v. Hancock Bank &
Trust Co., 14 Mass.App.Ct. 326, 439 N.E.2d 311, 315 ("Trappings of office,
e.g., office and furnishings, private secretary, ... do not without other evidence
provide a basis for finding apparent authority."), rev. denied, 387 Mass. 1103,
440 N.E.2d 1177 (1982); see also Sheldon, 566 F.2d at 808-09. There is no
evidence that these amenities were provided to Saltiel for anything other than

the practice of law. That Saltiel also made use of them in his personal business
activities is hardly extraordinary, nor is it even remotely sufficient to cloak his
ultracrepidarian activities with Nutter's apparent authority.10
48

We need not paint the lily. On this record, appellant could not reasonably have
believed, based on any words or deeds of Nutter, that Saltiel was acting as its
agent in respect to the investment.

V. THE "CONTROLLING PERSON" QUESTION

49

Sheinkopf's remaining count is premised on the theory that Nutter can be held
liable as a "controlling person" under section 20(a) of the Securities Exchange
Act of 1934, 15 U.S.C. 78t, section 15 of the Securities Act of 1933, 15 U.S.C.
77o, and/or the analogous provision of the Massachusetts Uniform Securities
Act, Mass.Gen.Laws ch. 110A, Sec. 410(b). In the securities context, control
means "the possession, direct or indirect, of the power to direct or to cause the
direction of the management and policies of [an entity], whether through the
ownership of voting securities, by contract, or otherwise." 17 C.F.R. Sec.
230.405 (1990). An attorney can, in certain circumstances, be a "controlling
person." See, e.g., Seidel v. Public Service Co., 616 F.Supp. 1342, 1361-62
(D.N.H.1985). For Nutter to be liable on this basis, however, there must be
"significantly probative" evidence, Anderson, 477 U.S. at 249-50, 106 S.Ct. at
2510-11, that the firm exercised, directly or indirectly, meaningful hegemony
over the Omni joint venture through Saltiel or otherwise. The evidence of
record is insufficient to clear this hurdle.

50

Appellant's initial approach to "controlling person" liability is an obvious dead

end. Although appellant's submitted proof might well be adequate to establish
that Saltiel himself was a controlling person of Omni, there are no facts in the
record that would justify a reasoned inference that Saltiel, in exercising such
control, did so for or on behalf of Nutter.11 To the extent that Saltiel controlled
Omni, it was in his personal capacity as an organizer and/or promoter of the
joint venture, not in his professional capacity as an attorney and Nutter partner.
See supra Parts III(B), (C).

51

Appellant's second approach also leads down a blind alley. While he does not
assert that Nutter partners other than Saltiel were directly involved with Omni
as principals, he says that, as lawyers, they had pervasive influence. In Seidel,
the court found the plaintiff to have survived the minimal scrutiny required
under Fed.R.Civ.P. 12(b)(6) where the complaint alleged that two law firms
had participated in the preparation, review, supervision, and dissemination of
offering documents containing material omissions and misstatements, which

documents named the firms and bore the imprimatur of their expertise, and
where, presumably, the issuer would have been amenable to following the
firms' advice. Seidel, 616 F.Supp. at 1361-62. Appellant's attempt to implicate
Nutter in a similar way is doomed by the inadequacy of the evidence which
accompanies the attempt. We explain briefly.
52

In his verified complaint, appellant alleged "[u]pon information and belief,"

that the "offering documents" he received regarding the Omni joint venture
"were prepared by, or with the substantial assistance and knowledge of, Saltiel
or others at Nutter...." (Emphasis supplied). He identified the "offering
documents" as comprising a projection sheet, appraisal report, and development
proposal for a project in Nantucket, Massachusetts, and a business plan for a
development in Laconia, New Hampshire. These averments do not help his
cause. A verified complaint may be treated as an affidavit only to the extent
that it comports with the requirements of Rule 56(e). See supra Part II(B). It is
apodictic that an "affidavit ... made upon information and belief ... does not
comply with Rule 56(e)." Automatic Radio Mfg., Inc. v. Hazeltine Research,
Inc., 339 U.S. 827, 831, 70 S.Ct. 894, 896, 94 L.Ed. 1312 (1949); see also
Chandler v. Coughlin, 763 F.2d 110, 114 (2d Cir.1985); Hurd v. Williams, 755
F.2d 306, 308 (3d Cir.1985); Chan Wing Cheung v. Hamilton, 298 F.2d 459,
460 (1st Cir.1962). Thus, appellant's statement with regard to Nutter's purported
role in the preparation of the offering documents amounts to nothing more that
a mere allegation, not entitled to credence or weight in the summary judgment
calculus.

53

What remains in the calculus is Saltiel's affidavit vouchsafing that "[n]o one at
the firm assisted in preparing the so-called 'offering documents'...." This
statement has not been rebutted or effectively impugned. In the absence of
refutation or any probative evidence specifically showing the participation of
other attorneys at Nutter in the preparation of the offering documents, the
inescapable inference is that Saltiel was the only Nutter-based individual
involved in drafting or publishing those papers.12 Accordingly, summary
judgment was warranted on count IV.

VI. CONCLUSION
54

On the evidence of record, appellant failed to show either the existence of an

attorney-client relationship or any other sound basis for vicarious liability on
Nutter's part. Appellant likewise failed to establish that Nutter was a
"controlling person" in respect to the joint venture.

55

We need go no further.13 Though there may be reason enough for disapproving

how Saltiel conducted his business affairs and for admonishing attorneys about
the necessity of keeping personal entrepreneurial activities well separated from
professional responsibilities, there are no grounds, on the factual record here,
for holding Nutter, as a firm, legally liable for the investment advice given by
its former partner. The judgment below must therefore be
56

Affirmed.

Of the Eastern District of Pennsylvania, sitting by designation

Although Stone was the nominal defendant, the suit was in effect against the
law firm. We shall, therefore, refer to the firm as if it, rather than Stone, were
the defendant and appellee

Among other statutes and regulations, the complaint cited sections 10(b) and
20(a) of the Securities Exchange Act of 1934 (and Rule 10b-5 thereunder),
sections 12(2) and 15 of the Securities Act of 1933, and comparable provisions
of the Massachusetts Uniform Securities Act, Mass.Gen.L. ch. 110A, Sec.
410(a)(2), (b)

In the court below, the plaintiff moved to strike certain portions of Saltiel's
main affidavit on the ground that those portions set forth legal and factual
conclusions rather than "such facts as would be admissible in evidence."
Fed.R.Civ.P. 56(e). The district judge, finding the motion to "verge on the
frivolous," rejected it. Though plaintiff has resurrected the issue on appeal, we
find no need to dwell upon the point; because the disputed portions have no
bearing on our findings here, we simply ignore them. Accord William J. Kelly
Co. v. Reconstruction Finance Corp., 172 F.2d 865, 867 (1st Cir.1949); 6-Pt. 2,
J.W. Moore & J.C. Wicker, Moore's Federal Practice p 56.22 at 56-748 to 56749 ("[I]f [an] affidavit contains relevant material facts, although these are
intermingled with conclusions of law, the court may disregard the conclusions
of law and consider the rest of the affidavit.")

Many of the "facts" recited in this summary were directly contradicted in

Saltiel's affidavits and/or hotly disputed by Nutter. Nevertheless, consistent
with our view of the summary judgment standard, see supra Part II(A), we
accept the plaintiff's account as true for purposes of this appeal

Saltiel stated in his affidavit that to his knowledge "[Sheinkopf] and his
business have for many years been represented by Peabody & Arnold, his
present counsel's firm." Sheinkopf has not challenged the truth of this statement

The rule provides:

A lawyer shall not enter into a business transaction with a client if they have
differing interests therein and if the client expects the lawyer to exercise his
professional judgment therein for the protection of the client, unless the client
has consented after full disclosure.
SJC Rule 3:07 (Canons of Ethics and Disciplinary Rules Regulating the
Practice of Law), DR 5-104(A).

The cases cited by appellant in support of his policy argument are equally
inapposite. Thus, for example, in Phillips v. Carson, 240 Kan. 462, 731 P.2d
820 (1987), the plaintiff had been the attorney's client for several years before
the transaction in question took place. Id., 731 P.2d at 826. In re Makowski, 73
N.J. 265, 374 A.2d 458 (1977), is cut from similar cloth; there, the lawyer had
also done prior legal work for the complainant. Id., 374 A.2d at 459-60

In this regard, we flatly reject appellant's assertion that the burden was on
Saltiel to state outright that he was not acting as Sheinkopf's attorney. Though
the SJC did say in DeVaux that "an attorney has a duty to prevent any mistaken
reliance on his silence," 444 N.E.2d at 359 n. 12, this duty to speak is
undoubtedly premised upon the correlative principle that even mistaken
reliance must be reasonable, or at least foreseeable. As we have already
indicated, appellant's alleged reliance, as a matter of law, did not satisfy these
criteria

While actual authority is a theoretical possibility in a case like this one, there is
not an iota of evidence here that Nutter's other partners knew of Saltiel's role in
snagging Sheinkopf as an Omni investor and guiding his actions thereafter,
much less that they authorized Saltiel to act in that vein. There was no actual
authority

10

We thus find the situation at hand readily distinguishable from DeVaux, where
the SJC held it to be for the jury whether, within the ordinary course of lawoffice business, "the attorney had placed his secretary in a position where
prospective clients might reasonably believe that she had the authority to
establish an attorney-client relationship." DeVaux, 444 N.E.2d at 358. Saltiel,
as a Nutter partner, undeniably had authority, both actual and apparent, to
establish attorney-client relationships on the law firm's behalf. But, he did not
do so in this instance. See supra Part III. Beyond that point, DeVaux is not
particularly instructive on the issue of a firm member's apparent authority
outside the ordinary course of the firm's business. At any rate, we are satisfied,
for the reasons discussed in the text, that no showing of apparent authority
sufficient to bind the firm in such non-law-related ventures has been advanced

here. See, e.g., McGarity, 349 S.E.2d at 313-14 (law firm did not confer
apparent authority on attorney to solicit investment funds); Douglas Reservoirs
Water Users Ass'n v. Maurer & Garst, 398 P.2d 74, 76-77 (Wyo.1965)
(summary judgment affirmed in favor of law firm where partner allegedly
misappropriated check to purchase bond); Rouse v. Pollard, 130 N.J.Eq. 204,
21 A.2d 801, 804 (Err. & App.1941) (law firm not liable for partner's
misapplication of funds given him by client for investment)
11

To be sure, appellant makes much of Saltiel's use of his Nutter office,

telephone, secretary, and other firm facilities in his Omni dealings. But, it is not
uncommon for persons, lawyers included, to use their employer's facilities to
carry on dealings not related to, or within the scope of, their employment. In our
judgment, such actions, when undertaken by a partner in a law firm with regard
to his proprietary business interests, fall shy of supporting either an inference
that the law firm "controlled" those interests or an inference that the person
involved was functioning qua law partner in the course of his involvement

12

To be sure, Saltiel's affidavit also stated that "[o]ne or more attorneys at the
firm assisted in drafting the Omni Joint Venture Agreement...." The J/V
Agreement, however, was considerably different than the "offering documents"
alleged by Sheinkopf to have contained material misstatements and omissions.
A showing that Nutter drafted the J/V Agreement, received legal fees therefor,
and allowed its office address to be inserted therein, without more, simply does
not warrant a finding that Nutter was a culpable participant in, or a controlling
person of, Omni

13

Having no occasion to reach appellee's array of alternative grounds in support

of the judgment below, we leave for another day, without opinion, the knotty
question of whether, and under what circumstances, a joint venture interest
may, or may not, be a "security" for the purposes of liability under the
securities laws. Compare, e.g., Williamson v. Tucker, 645 F.2d 404, 424-25
(5th Cir.) (holding that joint venture interest was a security where
circumstances showed that investor lacked the ability "to exercise meaningful
partnership powers"), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d
212 (1981), with, e.g., Goodwin v. Elkins & Co., 730 F.2d 99, 103-08 (3d Cir.)
(adopting bright-line rule that no general partnership formed pursuant to the
Uniform Partnership Act is a security), cert. denied, 469 U.S. 831, 105 S.Ct.
118, 83 L.Ed.2d 61 (1984). See also Matek v. Murat, 862 F.2d 720, 730-32 (9th
Cir.1988) (offering yet a third view)