ADVICE TO CLIENTS

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 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 relationshipis 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.

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 a statute of limitation (not filing a lawsuit on time), letting a case be dismissed for want of prosecution (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.

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 other parties to the case. Other conduct may amount to a breach of fiduciary duty, depending on the circumstances.

Do I have a case?

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

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

In personal injury cases, we must always be able to prove the underlying, or original, case.

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 by qualified experts, and should be made in consultation with an attorney. If you suspect that your attorney has committed legal malpractice, you should immediately contact Attorney Neil Burns.

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.

The most reasonable approach is that if you suspect that your attorney might have committed malpractice to consult with Attorney Neil Burns immediately and without delay, or you may find an otherwise good case is now time barred. Never assume that the time has expired or that you have more time. The calculation of the time to sue in attorney malpractice cases is always 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 go to the Contact Us section of this website, 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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