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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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