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Legal Malpractice FAQs

What is attorney malpractice?
What are the most common cases?
What is a breach of duty of loyalty?
Does my prior lawyer have insurance?
Do I have a case?
How long do I have to file a malpractice case in Massachusetts?
What will it cost for an opinion as to whether I have a case?
Are legal malpractice cases taken on a contingent basis? 
Will we need an expert? Two? 
How can I get my file from the lawyer?

What is attorney malpractice?

In general, attorney malpractice occurs when an attorney breaches his or her duty to a client to perform legal services according to the minimum standard of professional care imposed by law, resulting in damage to the client.

Negligence, breach of contract, breach of fiduciary duty, fraud, and violations of the Chapter 93A, the Massachusetts Consumer Protection Act, are some of the theories we use when bringing claims against lawyers for malpractice. Legal malpractice in most cases requires the existence of an attorney client relationship, either by express agreement or by implication.

A formal attorney-client relationship is not required, nor is it necessary that the attorney was performing legal services for compensation. When a client retains an attorney, an attorney-client relationship is created with the retained attorney, and any attorney who is a partner or employee of the retained attorney. The law gives considerable latitude to attorneys in matters of tactics and judgment, in litigation matters, however: the mere fact that the client fails to obtain the desired result does not necessarily mean that legal malpractice occurred.

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Legal Malpractice Pages and Results

What are the most common cases?

Some of the most common ways a lawyer might damage a client is through pure neglect such as missing the statute of limitations (not filing a lawsuit on time), letting a case be dismissed for failing to prosecute (missing discovery deadlines, violating the Rules of Civil Procedure), failing to supplement discovery, failing to designate experts, failing to designate proper witnesses, etc. A client might also be damaged through a lawyer’s conflict of interest or breach of fiduciary duty (responsibility by law). Conflicts can arise when a lawyer puts his or her interests above a client’s or puts a client’s interest above a different client’s interest. The most common instances of this are when a lawyer enters into a business agreement with a client, a landlord tenant relationship with a client, or a real estate venture with a client.

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What is a breach of duty of loyalty?

An attorney owes his or her client a fiduciary duty of the highest character. That duty includes a duty of loyalty, meaning that an attorney may not accept employment from another client or act in a manner that is against the interests of a current client without client consent, even as to an unrelated matter, and even if the current client is not a named party in the matter in which the adversity occurs. An attorney is required to maintain client confidences at every peril to him or herself, unless the client secret involves the intention to commit a future crime or fraud, or the client intends to commit perjury. An attorney is also required in civil litigation matters to promptly communicate all settlement offers to his client that are received from insurance companies or other parties to the case. Other conduct may amount to a breach of fiduciary duty, depending on the circumstances.

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Does my prior lawyer have insurance?

It may come as a surprise, but a large number of attorneys in Massachusetts do not have legal malpractice insurance. There is no requirement by the Board of Bar Overseers that attorneys have insurance.

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Do I have a case?

To win a case for legal malpractice, more likely than not the plaintiff must prove the following things:

  • the existence of an attorney-client relationship
  • that the defendant attorney had a duty to use reasonable care
  • that the defendant attorney was negligent in fulfilling this duty
  • that the defendant attorney’s breach of duty caused you damage
  • that we can prove the damages
  • that the damages were collectable

For example, in a personal injury cases, we must always be able to prove the underlying, or original, case, and that the client would have been able to collect damages from the original defendant or his insurance company.

The analysis of whether or not you have a meritorious malpractice or breach of fiduciary duty case against an attorney is often complex, sometimes requiring consultation with qualified experts, and should be made in consultation with an attorney. If you suspect that your attorney has committed legal malpractice, you can contact Attorney Neil Burns.

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How long do I have to file a malpractice case in Massachusetts?

Generally, three years from the day of the malpractice or the day you learned of the malpractice. The answer to this question in a particular case can only be made in consultation with a licensed Massachusetts attorney, who would be consulted immediately after you first suspect that legal malpractice or other misconduct has been committed. If you suspect that your attorney might have committed malpractice, the most reasonable approach is to consult with Attorney Neil Burns immediately and without delay, or you may find that an otherwise good case becomes time barred. Never assume that the time has expired; similarly, never assume that you have more time. The calculation of the time to sue in attorney malpractice cases is often complex, and should always be made by qualified counsel, following a careful review of the particular facts, circumstances, and documents in each case.

Your case is important to us. If you are interested in obtaining information pertaining to your particular potential claim, please contact us online, call us directly at 617-227-7423 or toll free at 866-264-7423, or fax us at 617-227-0691.

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What will it cost for an opinion as to whether I have a case?

There is no fee for calling us up and discussing your case. Sometimes we need additional information, which you can email (to neilburns@neilburnslaw.com) or fax (to 617-227-0691) so that we can determine if we can help. There is no charge for this as we are evaluating your case to determine if we can represent you on a contingent basis.

However, there are many cases with require significant time, and consultation with an expert, to determine if you have a case. In those cases, we will work out a retainer agreement, in writing, as to the cost and the time involved.

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Are legal malpractice cases taken on a contingent basis?

Yes. Most of the legal malpractice cases we take are on a contingent basis. As such, we enter into a written fee agreement in which we get paid a percentage of the recovery at the end. There would be no bill other than to pay that percentage of the recovery and costs, at the end of the case.

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Will we need an expert? Two?

Yes. To prove that your former attorney acted in a way that was below the standard of care for attorneys, we will need an expert to testify as to what the standard of care is, and how the attorney deviated from it. While this may cost money, it is not too difficult to find an attorney willing to testify because the malpractice should be obvious. Whether we will we need a second expert, however, depends on the case. For example, in a personal injury case, we may be able to use certified medical reports and records. In a construction case, we may need to retain an expert contractor or builder to prove those damages.

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How can I get my file from the lawyer?

Many clients have sufficient portions of their file. Many don’t. If you don’t, we simply write a letter requesting the file and attach an original letter from you to the attorney, asking for the file. You are entitled to it. When attorneys don’t have file, lose the file or refuse to produce the file, we can often resurrect a file and go from there; for example, the opposing attorney, insurance company or physicians often have much of the necessary documents.

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