An attorney who represents you in a legal matter or who has provided counsel or advice to you, even without a formal retainer agreement, has an ethical obligation to act within the rules of ethics and the law and to handle your case competently.
Attorneys are held to a standard of care where their conduct is judged by how a reasonably competent attorney handling a case under similar circumstances would have acted. For example, a reasonably competent attorney would have filed a viable lawsuit within the statute of limitations or risk having the claim forever barred.
So, can you sue an unethical attorney in Massachusetts, and what steps must you take to do so?
Examples of Unethical Conduct
There are numerous examples of unethical conduct that can be the grounds for a legal malpractice claim in Massachusetts:
- Financial misconduct—attorneys have a fiduciary duty to clients to act within their clients’ best interests. That duty is breached when client funds are mishandled, such as when an attorney uses funds in their attorney’s trust account that belongs to the client to pay for the attorney’s own expenses or benefit.
- Improper or over billing – it is a not uncommon practice where attorneys will charge for services not performed, overcharge for routine services, bill at a rate that partners charge when performed by an associate or paralegal, or for luxury activities like first-class travel, spa treatments, or extravagant meals.
- Failure to disclose a conflict of interest—a conflict of interest occurs when an attorney may be unable to provide unbiased representation because of a current or past relationship with a party who is opposing the client in a lawsuit or transaction. The attorney can ask the client to consent to representation, but only if the attorney can reasonably act unbiassed in the case.
- Breach of attorney-client confidentiality—conversations with a client are confidential under the law and may only be disclosed under certain exceptions or if the client agrees to reveal them. By discussing a client’s case or conversations in a public setting or by using a client’s confidential information to benefit himself or another party, the attorney breaches his duty of confidentiality. This duty continues even after the attorney-client relationship is terminated.
- Lack of diligence—an attorney has an obligation to do the necessary research and to investigate a claim adequately. He also must show up for court-mandated appearances and file the required documents on time in a case or risk dismissal of the claim or adverse rulings that seriously jeopardize the claim.
- Poor communication—there is no excuse for ignoring a client or failing to advise a client of significant court rulings, appearances, and settlement offers. Attorneys also need to get consent from clients on strategic decisions that affect the case.
- Dishonesty—fabricating evidence, destroying or concealing evidence, and lying to a client about the case’s status are serious ethical violations. This can also include misrepresenting facts to a judge, knowingly having a client lie under oath, or forging documents. An attorney faces serious disciplinary action by the state bar for such conduct.
Steps to Take in Suing an Unethical Attorney
An attorney’s unethical conduct that causes you damage, such as the dismissal of an actionable claim or an unfavorable outcome that would have been different had the attorney acted ethically, may be grounds for a legal malpractice claim. However, not all unethical practices are grounds for malpractice.
First, you must demonstrate that you suffered a loss, or that, but for the attorney’s unethical conduct, the outcome of your case would have been favorable to you. A complex case where liability is unclear or damages speculative may not survive court scrutiny. Your legal malpractice attorney must show that the underlying claim had merit and that you suffered quantifiable and probable damages. This can require your attorney to litigate the underlying claim and present witnesses, documents, and proof that not only did your claim have merit, but that your losses are real and not speculative.
A case where the facts are disputed, witnesses are unreliable, key documents cannot be located, or where it is not possible to demonstrate that the unethical conduct was the cause of your losses, will likely not be grounds for legal malpractice. Also, merely because your attorney was a poor communicator or overbilled you for some services may be an insufficient basis for a malpractice case.
If you can show that your attorney acted unethically and that you lost your case or received an unsatisfactory result, then consult an experienced legal malpractice attorney who will conduct a thorough investigation.
Retain a Legal Malpractice Attorney from Burns and Jain
Clients deserve legal representation from attorneys who act ethically and solely in their best interests. Let a legal malpractice attorney from Burns and Jain examine the conduct of your attorney as well as your underlying claim to determine if you do have an actionable malpractice claim.