Lawyer/Employee Who Secretly Modifies Severance Agreement Before It Is Signed by Employer Loses His Case

by Lee Gesmer on July 6, 2005

A word to the wise ain’t necessary, it’s the stupid ones who need the advice.
-Bill Cosby


 

What Were They Thinking? It fascinates me when lawyers do exceptionally stupid things. One would think that the successful completion of four years of college and three years of law school (not to mention years of experience watching clients do unwise things) would inoculate lawyers against the most foolish forms of human behavior. But, of course, experience shows otherwise. Even experienced lawyers are as likely to be rendered stupid by fear, greed, hatred and jealously, and to act on those emotions, as any other highly educated person.

A recently reported Massachusetts Superior Court case informs on this point. Although this case provides an interesting legal treatment of a contract issue (indeed, so interesting that the case was featured on the front page of Massachusetts Lawyers Weekly), it’s primary appeal is morbid curiosity. What was he thinking?

An attorney in good standing in Massachusetts (who will remain unnamed), was employed as Director of Procurement for Navisite. To make a somewhat long story short, his employment was terminated by Navisite in early 2002. After some back and forth over the terms of his severance, Navisite agreed to give the attorney two weeks severance pay ($5,300) and to pay his first month of COBRA benefits.

The lawyer, however, had other plans. After receiving this agreement from Navisite, he modified the boilerplate release language to provide:

“You will be paid eight hundred and fifty thousand dollars for wages earned, if not paid in full within seven days you will be paid three times this amount along with all your expenses and legal fees, all the officers and directors will be personally liable as well. ” [sic passim]

This language was added in such a way as not to attract Navisite’s attention to the alteration, and was signed and returned to Navisite without any mention of the change.

Navisite’s HR director briefly reviewed the document, didn’t spot the change, and signed the agreement.

Predictably, it was all downhill from there. After receiving the two weeks severance and the one month of COBRA benefits the lawyer made demand for $850,000 on Navisite and Navisite sued to rescind the agreement. The lawyer relied on the Massachusetts doctrine that “in the absence of fraud, one who signs a written agreement is bound by its terms whether he reads and understands it or not or whether he can read or not.” However, a Massachusetts Superior Court Judge had no trouble finding multiple grounds for rescinding the agreement (no meeting of the minds, unilateral mistake, unconscionably), and ordered the attorney to return to Navisite the severance payment he had received

This result was as predictable as rain in November in Boston. One hopes his attorney did not take this case on contingent fee.

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