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. Legal Malpractice can occur from any type of legal work including cases for Car Accidents, Truck Accidents, Bankruptcy and Wrongful Death Cases.

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.

To be found liable for attorney malpractice, it is not 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.

It should be noted that the law does give considerable latitude to attorneys in matters of tactics and judgment in litigation matters. The mere fact that the client fails to obtain the desired result does not necessarily mean that legal malpractice occurred.

The Common Types of Legal Malpractice 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.

You can find more information on the common types of legal malpractice cases at the following links.

a. Excessive Billing 
b. Missing Statute of Limitations 
c. Civil Procedure Violations 
d. Divorce and Malpractice
e. Immigration and Malpractice 
f. Bankruptcy and Malpractice 
g. Malpractice and Failure to file a Homestead 
h. Malpractice and the Consumer Protection Act 93(A) 

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.

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. 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.

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.

Do I have a case?

To win a case for legal malpractice, most plaintiffs must prove the following:

• 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, if you are suing your personal injury attorney for malpractice, we must be able to prove the underlying, or original, case, and that you 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.

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.

Damages in Legal Malpractice Cases

In order to succeed in a legal malpractice case, there must be damages. We must prove that you suffered legal or monetary harm due to the attorney’s negligence.

We must also prove that the damages in the underlying case were collectable. Even if we win against the attorney by proving that s/he was negligent, could you have collected monies against the underlying defendant if your attorney had done everything right? Was there insurance or assets to collect against?

Put another way, we must prove that you would have won your original case but for the attorney’s negligence or breach of duty. For example, if you are suing your personal injury attorney for malpractice, we must be able to prove that your personal injury claim would have been successful, and that you would have been able to collect damages from the original defendant or his insurance company.

Whether or not you have a legal malpractice cases should be made in consultation with an attorney. If you suspect that your attorney has committed legal malpractice, call the attorneys at Burns & Jain.

Severe Sanctions and the Law

Every year quite a few of our fellow Massachusetts attorneys got themselves in serious trouble with the bar. In 2010, more than 100 lawyers received public reprimands, term suspensions, indefinite suspensions, or even disbarment due to professional misconduct. What did our fellow lawyers do to deserve the severe penalties?

We examined all 116 severe Massachusetts BBO discipline cases, analyzing the data by years in practice, fields of practice, severity of punishment, type of violation, severity of punishment, aggravating and mitigating factors, and many more. You can take a look at the conclusions at the links below.

Severe Sanctions Part 1
Severe Sanctions Part 2
Severe Sanctions Part 3
Severe Sanctions Part 4
Severe Sanctions Part 5

BBO Admonitions Study

Legal Malpractice Resources