Does a Judicial Error Cause a New and Independent Case Reliving Your Attorney of Legal Malpractice Liability in Massachusetts?

Perhaps but maybe not!  We have encountered the following scenario several times recently:  we send a 93A Demand letter to an attorney who has clearly lost rights or monies for their former client and the response, from the insurance defense trial lawyers is that it was the judge’s mistake, and, therefore, reliving the defendant attorney of any responsibility.  Let’s note that usually this is just smoke and mirrors by the insurance folks.  However, it is a great defense if it has some legs, because you can’t subpoena the judge to a deposition or trial, and the appeal period has likely run.

But, in a case that came down from the Supreme Judicial Court, Kiribati Seafood v. Dechert, 47 Mass. 111 (2017) the Court head that when the judicial error was foreseeable by the attorney, and the attorney neglects or fails to take measures to protect his or her client, the Court’s error becomes a “concurring cause” and the attorney can be held responsible.

Kiribati involved a “complex” set of facts and involved fishing boat repairs and litigation over the same in Tahiti and the Appeals Court of Papeete.  That Court ordered documents to be produced and the Kiribati company sued their law firm, Dechert, in Massachusetts when the documents were allegedly not produced.

When Judicial Error was Not the Cause of the Client’s Harm

There are four criteria that the Court said a defendant attorney must satisfy to prove that his or her negligence was not the cause of the client’s harm:  1.  It must has occurred after the original negligence; 2 it cannot be the consequence of the attorney’s negligence; 3. It caused a result that would not have followed from the original negligence; and, 4. The negligence was not reasonably foreseeable.  If the defendant attorney can establish ALL of the above four (4) criteria then the judicial error will be found to be a “new and independent cause” of the harm to the client.

When Judicial Error was Foreseeable by the Attorney, It Becomes an Intervening Cause

However, when the defendant lawyer could have foreseen the judicial error, then the intervening cause becomes the cause and the defendant attorney can be found responsible for the client’s damages.

It is important to note that the Supreme Judicial Court did not adopt a rule that all judicial negligence excuses the attorney’s negligence.  The SJC ruled that attorneys must take “reasonable and prudent” steps in response to judicial errors, especially when the judicial error could have been anticipated.

Back in the day, when the law was that the person who had the “last clear chance” to avoid the accident could be held responsible, the courts had clear insight as to how the facts of a case should be submitted to the jury.  It’s axiomatic, now anyway, that if an attorney can prevent a judicial error, or assist in correcting it once made, that an attorney who fails to do so had the last clear chance to protect his or her client.

Call Burns & Jain for a Massachusetts Legal Malpractice Consultation

The attorneys at Burns & Jain have decades of experience representing victims of legal malpractice in Massachusetts.  We are not licensed in Tahiti, but we are aggressive in representing our clients interests against the insurance defense trial lawyers.  Call us for a free consultation.