The Massachusetts Clients’ Security Board announced that it had awarded over $2,000,000 to clients that had been defrauded out of their money by 33 lawyers committing legal malpractice in Massachusetts. A program run under the Massachusetts Bar Counsel since 1975, the CSB receives 12.49% of attorneys’ annual registration fees to fund reimbursements. The Board is made up of seven lawyers appointed by the Massachusetts Supreme Judicial Court; they receive no compensation for their work, however, there are investigators and staff who work full time for the Board.
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In a case of first impression for Boston legal malpractice lawyers, the Superior Court entered summary judgment in favor of estate planning attorneys. Sherman et. al. v. Shub et al., dated June 15, 2011 and written by Peter M. Lauriat, Justice of the Superior Court, is a Massachusetts legal malpractice case regarding damages.
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In a Massachusetts legal malpractice post verdict ruling that was decided by Superior Court Judge John C. Cratsley of the Suffolk Superior Court held that a verdict of $81,250 against Attorney Dane M. Shulman would not be reduced by the one third contingent fee notwithstanding the fact that had Attorney Shulman won the underlying case, the client would have had the reduction because of the fee agreement.
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We represent victims of legal malpractice in Massachusetts. Generally, our client alleges that his or her attorney was negligent when the attorney was handling the clients’ case. When the attorney has professional negligence insurance, the insurance company, upon notice of the claim, steps in and provides counsel and, in the event of a settlement or judgment, indemnifies, or pays, on the claim. On the other hand, in a recent case when an attorney and his former firm had a fee dispute, they tried to invoke the malpractice insurance policy, saying that “an act or omission in the performance of legal services” invoked the insurance, both to pay for the defense and to indemnify, or pay, any judgment. Federal Judge Ponsor, sitting in Springfield, however, found that the dispute was a business dispute, and not a negligence issue. The Court, however, in Clermont v. Continental Casualty Co. v. Freedman, DeRosa & Rondeau LLP, found that it was a “business decision”.
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A Massachusetts judge awarded double damages under Massachusetts General Laws, Chapter 93A, in favor of our client who was a victim of legal malpractice. In this case, our client was a double victim. He injured his neck in a Massachusetts motor vehicle accident in 2004 for which another party was at fault, however, after filing a lawsuit, his attorney failed to follow the Massachusetts Rules of Civil Procedure and his case was dismissed in 2009. Our office served Attorney David Driscoll with a 93A Demand letter on March 20, 2010. The attorney failed to respond, in violation of the law, and we had to file suit.
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The Boston personal injury lawyers at the Law Office of Neil Burns studied all 57 Massachusetts Board of Bar Overseers public admonitions from 2008-2010, looking for trends. The more severe penalties for Massachusetts lawyers – suspension and disbarment – can only be imposed after review by the Massachusetts Supreme Judicial Court. They are reserved for the most serious violations. We will review Massachusetts disbarment and suspension in a subsequent article. The most severe punishment that the BBO can mete out is the admonition. As we’ll see, lawyers can rack up an admonition for a frighteningly wide range of behaviors – even sometimes when acting in good faith.
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Traditionally, victims of legal malpractice cannot get money damages for emotional distress. You are entitled to the damages you would have received had your lawyer not been negligent, the extent of the damages you can receive; the “reasonable and foreseeable losses” of the underlying case. See Fishman v. Brooks 396 Mass 643 (1986). That is, notwithstanding the stress you undergo after you find out your lawyer was negligent; you do not have any extra damages. There are, of course, possible exceptions to this rule. If the result of the malpractice was incarceration, false imprisonment, or being confined to a mental hospital as a result of the legal malpractice, there can be money damages against an attorney for emotional distress. For the full case, see Wagenmann v. Adams 829 F. 2d 196 (1987), in an extremely well written, and, frankly, entertaining decision, by Judge Selya, of the First Circuit.
 
In Massachusetts, to prove intentional infliction of emotional distress, we must show three things:

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A case having authority in Massachusetts was recently decided by the 1st U.S. Circuit Court of Appeals, sitting in Boston. All Massachusetts attorney fee agreements must be reasonable, the Court said. Further, Court held that this includes contingent fee agreements. Massachusetts attorneys cannot charge too much for their services in light of the actual work performed. The Boston attorneys at the Law Office of Neil Burns are always up front regarding costs and fees, and they respect the fact that it is your money that fuels and drives your case.
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