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Legal Malpractice and the Massachusetts Consumer Protection Law, Chapter 93A Update

Our clients understand that not all legal malpractice cases are a violation of the Consumer Protection Statute.  For example, when a lawyer makes a mistake, such as neglecting to file suit before the statute of limitations runs, it may be negligence and it may be a valid case, but it is not necessarily “unfair and deceptive.”  If the lawyer acknowledges his or her mistake, informs the client that they must retain new counsel, and cooperates by providing the file, we have a negligence legal malpractice case.  The case is not likely a violation of Massachusetts General Laws, Chapter 93A for unfair and deceptive practices.

Suppose, however, the lawyer was negligent but then misleads the client.  Suppose she informs, over and over, verbally and in writing, that the case is ongoing even though she knows the statute of limitations has already passed.  That is more likely a violation of 93A.

For more on the law, see our website.  For some recent examples of Chapter 93A violations in legal malpractice cases, read on:

93A Violation for Excessive Billing

If your attorney charged an excessive retainer that was not refundable and then threatening to withdraw from a case at a critical moment without more fees, that could be considered a violation of the Consumer Protection Law.  In the case Karasavas v. Gargano, 87 Mass. App. Ct. 1125, June 1, 2015, Karasavas filed a legal malpractice case and 93A claim against his former criminal attorney.  In the underlying criminal case, the client Karasavas paid the attorney a $120,000 fee.  The attorney secured a “continued without a finding” decision on behalf of Karasavas.  Thus, no trial occurred.  After the criminal case was concluded, Karasavas proceeded with the malpractice and 93A claim against his former attorney.  A jury found in favor of the plaintiff/former client, Karasavas, for the amount of $90,000.  The judge conducted a supplementary proceeding, which is typical.  In that hearing the judge found that there was a violation of 93A and ordered treble damages of $270,000 plus attorney fees.  The Appeals Court found that the trial judge made “detailed findings of fact that support his conclusion that Gargano [the criminal attorney] acted willfully and knowingly” in violation of Chapter 93A.  Further, the Appeals Court found that “[Attorney] Gargano’s appeal is frivolous” and ordered additional attorney fees for Karasavas’ attorney in the appeal.

93A Violation for Failing to Comply with Civil Rules of Procedure

Mr. Macpherson, a Boston Police Officer was involved in a fight with a State Trooper and was seriously injured.  He retained Attorney Peter Marano.  Unfortunately, notwithstanding Mr. Marano’s assertions that Macpherson had a good case and he would get a “big verdict,” Attorney Marano did not secure any verdict.  In fact, he was so negligent, Macpherson’s case was dismissed.  Why?  Mr. Marano did not comply with the Rules of Civil Procedure.  Mr. Marano did not respond to a document request; did not respond to a motion to produce the documents; improperly responded to interrogatories; and, did not respond to a motion to dismiss the case and as a result Mr. Macpherson’s case was dismissed by the Court.

To add insult to injury, and in violation of the 93A, Attorney Marano mislead Macpherson as to why the case was dismissed.  Macpherson filed suit against his former attorney and, after a jury trial, won a $750,000 verdict.  Attorney Marano was then found in violation of Chapter 93A:  the Court found that Attorney Marano “did not know the rudiments of” the Rules of Civil Procedure, that he “was blowing smoke” misrepresenting himself and his experience to the client, and that he was “hopelessly incompetent.”  The malpractice judge ordered compensatory damages and punitive damages.  Unfortunately, it appears that Attorney Marano had no, or insufficient, malpractice insurance and when he filed for bankruptcy protection under Chapter 7, the debt to Mr. Macpherson was discharged.  See In Re:  Peter T. Marano, US. Bankruptcy Court Adversary Proceeding No. 16-01145 (June 14, 2017).

Burns & Jain Malpractice Attorneys

Call the lawyers at Burns & Jain.  We have won many cases of malpractice for excessive billing and for lawyers failing to comply with the Rules or Civil Procedure.  We offer a free consultation so call 617-227-7423 now!