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.
The Office of the Bar Counsel reports to the Massachusetts Supreme Judicial Court. Since 1974, The Board of Bard Overseers hears attorney discipline cases prosecuted by the Office of the Bar Counsel. The Bar Counsel’s findings in their report to the SJC for 2016, if reviewed carefully, provides important insight for legal malpractice attorneys, and the victims of legal malpractice, in Massachusetts.
Massachusetts Supreme Judicial Court had the ultimate authority regarding discipline for attorneys in Massachusetts. Cases against attorneys, since 1974, are heard by The Board of Bar Overseers and prosecuted by the Office of the Bar Counsel. The 2016 Report to the SJC Bar Counsel provides us with insight as to who the serious cases were against.
What are the things you need to careful of when filing a legal malpractice claim? One thing the Massachusetts Appeals Court made clear (again) is that you are waiving your attorney client privilege as against the attorney you are now suing for malpractice.
Many victims of legal malpractice can file claims with the Massachusetts Clients’ Security Board of the Supreme Judicial Court. Established by the SJC in 1974, the CSB awards 100% of clients losses as a result of attorney fraud; attorneys that actually steal, or “misappropriate” their clients monies. Note, this does not include victims of malpractice in which clients monies have not been misappropriated.
The Massachusetts Security Board announced in its 2014 report awards to victims of Massachusetts’ attorneys’ theft. The number of awards was significantly higher in 2014, with a total of 114, than 2013 when there were only 69. On the other hand, the actual awarded monies, $1.3 million, were only about half of the previous year’s awards of $2.8 million. Read more