Burns & Jain is pleased to announce that Boston Attorney, Neil Burns, has again been selected as a Massachusetts Superlawyer for advocating on behalf of victims of legal malpractice. The magazine, which was published on October 13, 2020, listed only four (4) Superlawyers representing plaintiffs in legal malpractice. After 35 years of practicing in personal injury and professional liability law in Massachusetts, Attorney Burns had the following to say:
On March 30 2020 the Massachusetts Supreme Judicial Court issued an Order In Re: COVID 19(Coronavirus) Pandemic regarding serving documents, changing the Rules of Civil Procedure. That is, Rule 5 (b) which requires that service of pleadings and other papers upon an attorney” be by US Mail, has been changed by the Court. This Rule requiring delivery by mail has been suspended until further notice. Attorneys are now instructed to serve pleadings via email.
Notwithstanding more than thirty years of practicing legal malpractice law in Massachusetts, I have yet to hear the insurance trial attorneys use the defense of the Coronavirus. Will this be changing soon? Perhaps.
In a case that came down from the Massachusetts Appeals Court this week (July 31, 2019), it was held that “garden variety oversight” by defense counsel was not grounds to allow additional time to file an appeal.
In the case, Edward R. Pierce v. Hansen Engineering and Machinery, 18—1355, Massachusetts Appeals Court (2019), the plaintiff, Mr. Pierce was injured on the job. He alleged that the he was maneuvering a pallet jack from a truck onto a loading dock, with 800 pounds of freight on it, over a dock plate (which lies between a truck and the loading dock) and that the dock plate was defective causing him to fall, necessitating hip surgery and that he is unable to return to work.
We get many calls from folks who claim that their divorce lawyer, usually at the last minute, convinced them to settle; wherefore, they sign and later claim that they had to forgo claims they now see as a valuable asset. Frequently it’s because their Massachusetts divorce attorney failed to undertake complete discovery and then, when the trial was imminent, strongly encouraged the client to settle for the best deal they cold get, given the weak case. But not always.
What is conflict of interest in the context of legal malpractice? In a recent decision that came down from Judge Hoffman, of the Federal Bankruptcy Court in Boston, it was determined that a large Boston law firm operated under a conflict of interest when representing both the fitness chain and the principal investor in the operation.
Yes. Does it matter how much was involved? No. Does it matter if it was only a few weeks? No.
While it may seem obvious from the way we phrased the questions, it wasn’t so obvious to an attorney in Massachusetts, according to a recent case handed down by the Massachusetts Supreme Judicial Court. In fact, for what should have been a simple albeit small matter, an attorney was sanctioned for violating the Massachusetts Rules of Professional Conduct. Read more
The general answer is no. In a case that came before the Massachusetts Appeals Court, the following seems to be the history of the case:
Malpractice in Underlying Case
Mr. Perreault’s wife died from cancer and he retained at attorney to determine if he had a case for wrongful death against the tobacco company. Although there was a sufficient medical report linking the death to the cigarettes, the attorney failed to advise Mr. Perreault to file suit and failed to explain why; he simply neglected the case.
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.
Some instances of conflict of interest for attorneys are obvious. Your former divorce attorney can’t represent your former spouse in a subsequent action regarding child support. Your business attorney can’t represent your competitor in a case you bring against the competitor. Your real estate attorney can’t represent your neighbor in a conflict over boundary issues.