Massachusetts Legal Malpractice
I have been representing victims of attorney malpractice since the late 1980s. Our approach to effectively prosecuting a legal malpractice claim is to first fully evaluate the initial case. We meet with the client, secure the original file, evaluate the case, and discuss the case and the ramifications for filing a claim with our clients. Most attorneys work very hard to represent their clients’ legal interests, but when they fall short, the client deserves to have his or her case evaluated by another attorney who will aggressively prosecute the case.
In general, attorney malpractice occurs when a lawyer breaches his or her duty to a client in the performance of legal services. The duty owed is the minimum standard of professional care imposed by law. The cases range from simple breach of duty cases, such as failing to file a lawsuit before the statute of limitations expires, to complicated federal bankruptcy malpractice cases to litigation cases that were mishandled. Many cases involve an attorney’s breach of fiduciary duty. Some cases we prosecute are because the attorney simply dropped the ball somewhere in the middle of representation; often, they mislead the client into thinking the case is “pending” when, in fact, it was lost because of attorney negligence.
Legal Malpractice – Need to Prove Damages
There must also be damages – you must have suffered legal, or monetary, harm that we can prove. Another critical point is collectability: even if we win against the attorney by proving that s/he was negligent, could you have collected monies against the underlying defendant if he had done everything right? Was there insurance or assets to collect against?
We frequently send a Massachusetts General Laws, Chapter 93A, letter to the offending attorney. This is an aggressive approach, but one we have found useful. The law says the attorney has 30 days to respond. When they do, either on their own, through counsel, or by their insurance company, we have the opportunity see what defenses they have. We have new facts, and perhaps documents that aid to our evaluation of the claim.
Our evaluation must be thorough. We need to be ready because the insurance defense attorneys that typically defend these cases have vast resources. They often begin their defense with a motion to dismiss the claim even before discovery! The following are some of defenses they have used: lack of privity of contract (they were not your lawyer); premature (the case is ongoing elsewhere, or could be); statute of limitations (you knew or should have known about the case more than three years from the date you brought suit against them); and release (you released the other party). As a result of our pre-filing scrutiny, we rarely loose on these motions. On the other hand, we cannot accept many cases because of these potential defenses.
Legal Malpractice and Insurance
One of the biggest problems we encounter is lack of insurance. In Massachusetts, attorneys are not required to have malpractice insurance. Even if they do have insurance, they are not required to disclose it to us. Further, they often refuse to forward our claim letters to their insurance carriers. In those cases, if there is no insurance, even when we win large judgments, if the attorney has no insurance or assets (or has hidden assets), it is very difficult to collect any money for our clients.
Many claims we bring on behalf of clients are actually counterclaims against lawyers who have initiated the legal process by bringing suit against our client for fees. Sometimes there was a misunderstanding. Sometimes, we discover malpractice which we can use as a valid claim against the attorney. Many of these cases are resolved without significant litigation after we bring our client’s claims to the case.
We are proud to have restored many folks’ confidence in the legal system by resolving their claims, settling their lawsuits, or winning judgments at trial.