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With the emergence of the novel COVID-19 pandemic, there will likely also be a surge of legal malpractice claims in the future according to insurance broker Ames & Gough; the survey results of its 10th annual survey of lawyer’s professional liability claims indicates that the number of legal malpractice claims are only going to continue to rise, especially due to the pandemic. And, “[i]f the past is any indication of the future, the COVID-19 pandemic may result in an increased number of legal malpractice claims, like the aftermath of the 2008 Great Recession. Indeed, historically, economic pressure have led to a greater number of claims against lawyers as clients look to ‘point fingers’ for commercial or other setbacks—whether warranted or not.”[1] I.e., clients will inevitably point fingers at their attorneys when things do not go as planned.

Courts across the nation and lawyers alike are facing unprecedented decisions about how to continue to serve justice as the COVID-19 pandemic continues.[2] It follows that this is certainly a time of immense uncertainty for the legal profession because, “As lawyers, we find comfort in the written word. We look to statutes and court cases for guidance. We look to Westlaw and the published work of our fellow lawyers to help us advise clients on the law and best practices. However, with the speed of the new COVID-19 laws, new regulations and changing guidance on almost a daily basis, it has been a struggle to see the correct path to proceed forward.”[3] So—how are attorneys supposed to navigate this uncertain time, and eventually a post-pandemic future with little-to-no precedent to adhere to?

Firms must be mindful of risk management: keep close track of all matters that are handled during COVID-19, pay attention to deadlines, and keep an open and transparent line of communication with clients. In communicating with clients, admit what you do not know—clients will be looking for answers that lawyers don’t necessarily have, “when providing advice, inform clients that courts may eventually weigh in, and those rulings are impossible to predict in advance.”[4]

Additionally, firms must invest in technology in order to navigate this uncertain climate, because this will aid in reducing the likelihood of a malpractice suit (think virtual appearances, zoom meetings, and staying on top of other developments).[5] Taking the time and effort to adjust to these new challenges that COVID-19 has resulted in is of the utmost importance in the legal profession because, “Unfamiliar territory is inherently difficult to navigate, and without adequate forethought and extra care, it can become a breeding ground for costly errors.”[6]

[1] Alanna Clair and Shari Klevens, Minimizing the Risk of Legal Malpractice Claims Amid a Pandemic, JDSUPRA (Jun. 10, 2020), https://www.jdsupra.com/legalnews/minimizing-the-risk-of-legal-98557/.

[2] Mary McQueen, president of the National Center for State Courts, on serving justice during COVID-19, 2020 WL 1847604.

[3] Setting the Standard of Care in Advising Businesses on How to Reopen Safely in a COVID-19 World, COVID-19 (Coronavirus) 300:800.

[4] Aaron H. Wallace, Esq., 5 Legal Malpractice Danger Zones for FL Lawyers During COVID-19, Florida Lawyers Mutual Insurance Company (May 26, 2020), https://flmic.com/2020/05/26/5-legal-malpractice-danger-zones-for-fl-lawyers-during-covid-19/.

[5] See Claire, supra note 1.

[6] Wallace, supra note 3.

The novel COVID-19 pandemic has affected lives all across the globe, and it is likely that the outbreak has also affected your relationship with your attorney, whether you realize it or not. Since March 10, 2020, Massachusetts has been in a state of emergency, allowing the State Administration to more efficiently and flexibly respond to the Coronavirus and limit its spread. 

Due to such restrictions, your attorney is more than likely “WFH” (working from home), and you may be wondering what duties your attorney owes to you, the client, during this time of immense uncertainty. 

The transition from 9-5 office life to 9-5 WFH life is no easy task, especially considering the many distractions we all encounter when WFH—be it kids, pets, chores, or even a pestering significant other. At the same time, does this mean it would be justifiable for your attorney to bill for the additional time it takes them to complete the work on your case due to the distractions that are inherent in WFH? According to the Massachusetts Rules of Professional Conduct Rule 1.5(a), a lawyer is prohibited from charging clearly excessive fees. In a recent announcement by the Massachusetts Board of Bar Overseers, the organization notes that charging a client for extra time spent on a task due to WFH issues would be unfair and would likely result in a violation of Rule 1.5(a) because, “The client presumably agreed to pay your hourly rate based on the level of efficiency at which you customarily perform work at your office.” 

What is a “clearly excessive fee” pursuant to 1.5(a)? For instance, just because a lawyer’s fees are higher than expected or more than other lawyers would charge for the same services does not mean that the fee is clearly excessive. Rather, there are eight factors set out in Rule 1.5(a) that help determine whether fees are clearly excessive:

(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) The fee customarily charged in the particular locality for similar legal services;

(4) The amount involved and the results obtained;

(5) The time limitations imposed by the client or by the circumstances;

(6) The nature and length of the professional relationship with the client;

(7) The experience, reputation, and ability of the lawyer or lawyers performing the services;

(8) Whether the fee is fixed or contingent. 

Therefore, to determine whether a fee was clearly excessive, all of the factors listed in Rule 1.5(a) must be weighed. Ultimately, although a lawyer’s fee for their services may be higher than expected, a lawyer simply cannot charge any fee that the client has openly agreed to pay. Additionally, even if a lawyer acts diligently and in good faith on their client’s matter, charges for their services still may be clearly excessive. 

For instance, in Matter of Fordham, an experienced trial attorney was retained to defend prosecution of drunk driving and other related charges, despite the fact that he openly admitted to having never represented a client in a drunk driving case or any other criminal matter. Matter of Fordham, 668 N.E.2d 816, 819 (Mass. 1996). The bills at the end of the representation totaled $50,022.25, representing a total of 227 hours of billed time. Id. at 819. The Bar Counsel found that all of the work said to have been done was actually done and that the attorney had acted conscientiously, diligently, and in good faith in representing the client and in the billing. Id. In overturning the bar counsels’ decision, the court relied on expert testimony that the amount of time spent on this case was clearly excessive—the number of hours spent was several times the amount of time any of the witnesses ever spent on a similar case. Id. at 822. Furthermore, the court noted that even though the client had entered into the fee agreement with “open eyes” because he hired the attorney despite being made aware that he’d never defended an OUI charge before, and the fee agreement was fully disclosed, the question is not whether the fee is accepted as valid or agreed to by the client—the question is whether the fee is clearly excessive. Id. at 824. Ultimately, discipline may be imposed for billing for excessive hours that were spent diligently and in good faith. Id.

What follows is a brief history of an attorney’s liability to nonclients in the Commonwealth of Massachusetts.

Generally, an attorney owes a duty of care only to clients, but an attorney may owe a duty to nonclients who the attorney knows will rely on services rendered. For instance, In Williams v. Ely, the plaintiffs relied on the advice of the attorney regarding disclaimers and Federal gift tax liability in relation to their contingent remainder interests in their family trusts. Williams v. Ely, 668 N.E.2d 799, 803 (Mass. 1996). Each plaintiff had contingent remainder interests in two family trusts, and one sibling sought the advice of the defendant as to whether they would be liable for any federal estate or gift tax if they disclaimed their contingent interests under the family trust. Id. at 799. The firm advised the client unequivocally that the disclaimer would give rise to no Federal gift tax liability. Id. As it turns out, the plaintiffs did have a Federal gift tax liability because of their disclaimers. Id. at 803. “These liabilities, the judge found, were incurred because the plaintiffs had relied on the advice of Gaston Snow that their disclaimers would not generate Federal gift tax liability and because Gaston Snow had failed to advise them, either in 1975 or shortly thereafter, to file gift tax returns and thereby start the running of the statute of limitations on any gift tax liability arguably flowing from the disclaimers.” Id. The key phrase here is that the plaintiffs incurred liability because of their reliance on the advice of their attorney. Id. The firm was negligent in failing to advise the plaintiffs as to the unsettled state of the law as it pertained to the matter, and their failure to advise them of their tax liability. Id. Although only one sibling directly sought the advice of the defendant, the firm told the sibling who actually sought the advice to advise his other siblings of the problem. Id. at 805-06. Therefore, an attorney may owe a duty to nonclients who the attorney knows will rely on the services rendered. Id. at 805.

On the other hand, a court will not impose a duty of reasonable care to nonclients if such duty would potentially conflict with the duty the attorney owes to his/her client and would create a conflict of interest. As an example, in Lamare v. Basbanes, counsel for father in a divorce action and sexual abuse proceedings owed no duty of care to mother or children, and thus could not be held liable for alleged negligence after father abducted the children. Lamare v. Basbanes, 636 N.E.2d 218 (Mass. 1994). To impose a duty in this case where there were obvious conflicting interests would have been inconsistent with our adversarial system. Id. at 219. Additionally, it is unnecessary that the nonclient in question be in an adversarial role to the attorney’s client, only that a potential for conflict exists. Bartle v. Berry, 953 N.E.2d 243, 249 (Mass. App. 2011). Rule 1.7 of the Model Rules of Professional Conduct, Comment [1], drives this point home, “Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client.” If the attorney in Basbanes had owed a duty to mother and child, father would likely feel betrayed and this would undoubtedly damage the client-lawyer relationship. There is no question that an attorney owes a duty of undivided loyalty to his/her client, which is the reason courts are reluctant to impose liability on lawyers in favor of non-clients, except where there is no apparent conflict and the non-client reasonably relied on the advice given by the attorney. Pollock v. Marshall, 391 Mass. 543, 555, 462 N.E.2d 312 (1984)

In legal malpractice cases, the narrow exception for gross or obvious errors is limited to circumstances in which an attorney failed to perform an obvious, usually ministerial task, such as missing a filing deadline. In this type of situation, expert testimony is not required because laymen have a common knowledge that is requisite to understand whether or not a lawyer has failed to complete a ministerial task.

In Nystrom v. Campbell, the plaintiff sued her former attorney for legal malpractice, pertaining to the defendant’s representation of the plaintiff in her divorce. Nystrom v. Campbell, 124 N.E.3d 709 (Mass. App. 2019), review denied, 127 N.E.3d 272 (Mass. 2019). The plaintiff asserted that her former attorney made several mistakes in her representation—during the trial, at trial, and after trial. Id. The plaintiff did not survive summary judgment because she failed to provide expert testimony to show that her attorney failed to meet the proper standard of care. Id.

Here, expert testimony was necessary because laymen are not in a position to determine the requirements of professional conduct, especially regarding the defendant’s actions/inaction during various phases of the trial. For instance, the plaintiff alleges legal malpractice in the context of cross-examination at trial; juries do not have independent knowledge as to the proper level of care required during cross-examination, and therefore, testimony from a qualified legal expert is required. 

The plaintiff argued that the defendant’s acts and omissions were so gross and obvious that the jury could determine negligence even in the absence of expert testimony. This assertion failed because juries do not possess the common knowledge to recognize negligence in legal malpractice matters during complicated phases of trial; rather, this is the job for an expert. Here, expert testimony was required to inform the jury as to the intricacies of the lawyer’s duty to their client during cross-examination at trial; this is simply not common knowledge amongst laymen and therefore is not the proper case for the narrow exception for gross and obvious errors which do not require expert testimony. 

On the other hand, certain issues in a legal malpractice claim do not require expert testimony. In a legal malpractice action, expert testimony as to questions of law should be precluded because they are not the proper subject for expert testimony—expert testimony on how a jurist would have decided an issue is improper and inadmissible. For instance, in Greenspun v. Boghossian, The plaintiff brought a legal malpractice claim against the defendant’s after his former wife bought out his interest in the former marital residence for one-half of its value, claiming that his attorney failed to properly incorporate into an antenuptial agreement an agreed-upon provision that would have entitled his wife to only a small fraction of the home’s value. Greenspun v. Boghossian, 126 N.E.3d 99, 101 (Mass. App. 2019). After the plaintiff and his former wife decided to marry back in the summer of 2008, they collaboratively drafted an agreement on Google doc’s as to their premarital assets and debts, and their mutual property and financial obligations going forward. Id. “The Google doc contained a section titled “Real Estate Bought for Cash,” which provided that “[i]f one partner’s savings are used to purchase real estate with no mortgage, the other partner will accrue a 2.5 percent ownership interest in the real estate every year after the purchase, assuming the marriage is intact, up to a maximum ownership interest of 50 percent.” Id. Around that same time, the plaintiff retained the defendant attorneys to draft an antenuptial agreement based on the Google doc, and he emphasized that one of the most important terms in the Google doc was the section entitled “Real Estate Bought for Cash.” Id. During the process, the plaintiff reviewed the drafts and gave his feedback, but ultimately the plaintiff relied on the defendant to create an agreement that implemented the terms in the Google doc and protected his interests. Id. at 102.

The plaintiff brought a legal malpractice case against the defendants after his former wife bought out her interest in their former marital home because if the Google doc provision had applied, his former wife’s interest in the house would have only been 7.5 percent instead of fifty percent. Id. at 102-03. “To prevail on a claim of negligence by an attorney, a client must demonstrate that the attorney failed to exercise reasonable care and skill in handling the matter for which the attorney was retained …; that the client has incurred a loss; and that the attorney’s negligence is the proximate cause of the loss.” Id. Specifically at issue here is the causation element—the causation element requires a plaintiff to prove that he probably would have obtained a better result had the attorney exercised adequate skill and care. Id. at 104. The question as to whether what the outcome would have been had the attorney acted reasonably is often referred to as a “trial within a trial” where the new trier of fact would decide whether the attorney was negligent and what the outcome of the underlying litigation would have been if the attorney was not negligent. Id. at 104. 

Ultimately, the court concluded that the motion judge erred in ruling that the plaintiff was required to present expert evidence on the issue of causation in the form of an opinion that the antenuptial agreement would have been determined valid if drafted in accordance with provisions set forth in the Google doc. Id. at 106. All the plaintiff needed to show was that if the antenuptial agreement would have been drafted in accordance with the Google doc, and if it was valid, that there was a connection between the variance from the plaintiff’s express wishes and the loss that resulted from the former wife’s buyout of the former family home. This was enough to move past the summary judgment phase, for all the plaintiff needed to demonstrate was that the attorney did not obey his lawful requests, and as a result, the plaintiff suffered a loss, for which the defendant attorney is responsible for.

In Jenkins v. Bakst, the plaintiff brought a legal malpractice suit against his attorney.
Jenkins v. Bakst, 130 N.E.3d 199 (Mass. App. 2019). The plaintiff alleged that the defendant was
negligent in negotiating the stock buy-back clause in the plaintiff’s employment agreement with
his employer. Id. The plaintiff wanted the defendant to negotiate a fair market valuation for the
stock buy-back clause in his employment agreement. Id. at 205. However, the defendant and the
attorney on behalf of the employer could not agree to this form of valuation for the stock buy-
back clause. Id. at 203. Rather, the parties agreed on an alternative valuation method. Id. The
plaintiff himself never negotiated the market value formula that he desired. Id. at 205.

The court affirmed summary judgement for the defendant. Id. at 206. The court noted that
an attorney is not the guarantor of a particular result in negotiations, and the failure to reach a
particular result is not malpractice. Id. at 204. Notably, the plaintiff conceded that he signed and
read the employment agreement prior to signing it, and he initialed the pages that contained the
defendant’s alternative valuation method. Id. at 203. The defendant also testified that he
explained his alternative valuation method to the plaintiff prior to the negotiation with his
employer; while the plaintiff testified that he could not remember his conversations with the
defendant prior to the negotiation. Id. Therefore, the plaintiff could not confirm or deny the
defendant’s testimony that he explained the alternative valuation method to the plaintiff prior to
negotiation with his employer. Id. Importantly, the court explains that the case would be different
if the plaintiff had claimed that the defendant had misled him as to the meaning of the
employment agreement, or if he concealed the language or the meaning of the agreement from
him. Id. at 204.

Here, the attorney did not commit malpractice just because he did not achieve the client’s
desired result. Before reaching a different result, the attorney did inform the client as to an
alternative valuation method for the stock buy-back clause that he had used in other similar
negotiations on behalf of other clients. The attorney here complied with Rule 1.4(a)(2) of the
ABA Model Rules of Professional Conduct. The consultation between the attorney and client
was reasonable, as the discussion occurred before negotiations, as opposed to the attorney
negotiating the deal and then explaining the alternative method after the deal was already
drafted. Additionally, the plaintiff here read and signed the employment agreement, as well as
initialed the page that contained the alternative valuation method—this is evidence of the
attorney’s compliance with MR 1.4(a)(3). The client signed the agreement, and notably initialed
the page with the alternative valuation method that he complained of. The client was reasonably
informed about the status of the matter, as evidenced by his signature and initials he signed on
the negotiation agreement.

Summary judgement was appropriate in this legal malpractice case because there was no
evidence to support that the attorney breached his duty to his client. In fact, the plaintiff could
not dispute that the defendant attorney explained the alternative valuation method to him—the
plaintiff simply could not remember.

This is a real situation, for which I have masked the identity of the parties, and slightly altered the facts to make the teaching point effectively. The client, Alice was operating her car in her home town near Boston, heading northbound.  She came to a full stop at a red light, waiting to make a left turn. Directly behind Alice was a car operated by Barry, which also had come to a full stop. While Alice and Barry were waiting for the light to change, a speeding southbound car operated by Chris went through the red light, jumped the median strip and crashed into Barry’s car, causing it to spin into Alice’s car, causing substantial injury to Alice.  Alice hired a lawyer, Durwood, to recover compensation for her injuries.

Durwood wrote up and had Mary sign a contingent fee agreement that described the purpose of the representation as “recovery of bodily injury damages from all responsible parties”. Durwood then sued both Barry and Chris, who together comprised “all responsible parties”. Durwood knew full well that Barry had not been negligent, and that it was highly unlikely that anybody but Chris would be found liable to Alice. However, just before the case came to trial, and without first consulting with Alice or seeking her permission, Durwood decided to drop the case against Chris, and focus the entire thrust of the trial against Barry. His rationale for doing so (that he did not disclose in advance to Alice), was that Barry had a $100,000 auto liability insurance policy, Chris only had a $15,000 policy, and that accordingly Durwood did not want to  give the jury a chance to allocate all the damages against the underinsured Chris.

The jury was asked only if Barry was negligent. They answered no, and thus Alice received nothing for the injuries Chris caused her to suffer. Durwood’s judgment might have made some sense if Barry had done something, anything unreasonable at the intersection on the day of the accident. However, all that can be said of Barry is that he was stopped, waiting for the light, at a reasonably safe distance behind Alice. Moreover, Durwood committed an ethical violation in this (Massachusetts) case, by abandoning a valid claim of his client. Rule 1.2(c) of the Massachusetts Rules of Professional Conduct states: A lawyer may limit the objectives of the representation if the client consents after consultation. Durwood never sought or received Alice’s consent to limit her stated objective of recovery against all responsible parties. Durwood’s idea was foolish, but if he had bothered to explain it to Alice in advance and had she agreed, there would be no problem, and no legal malpractice case.

Get It In Writing: Managing Lawyer-Client Expectations

If you have a good general understanding of how your car works, and you have done some repair work yourself, taking your car to be repaired is less daunting than it is for those of us who do not know the difference between a starter and an alternator. The less you know, the more you can be taken advantage of. The best car mechanics are good listeners, thoughtfully use considerable skill and experience to evaluate the problem, explain the problem in understandable terms without overly relying on technical jargon, give a reasonable estimate of the repair costs, keep you informed, and do the work competently and on time. The very best ones look for ways to save you money without sacrificing value. Why should your experience with your lawyer be any different?

After nearly four decades of evaluating thousands of legal malpractice claims, I have the vantage point of knowing that a great many lawyers, even many of those who are great trial lawyers and communicate ideas brilliantly to juries and judges, do not seem to communicate that well with their own clients. It is amazing to me that lawyers as a class still tend to avoid written communication with clients, especially with the ease of doing so now so enhanced by the use of email. The average client, particularly the one that reads crime novels and watches lawyer-fiction on television, has a fragmented and often deeply inaccurate idea of what the lawyer-client relationship should be in real life, and thus may come to the relationship with assumptions and unspoken expectations. The lawyer who does not explore the potential for this sort of early misunderstanding with new clients is making a mistake, in my opinion. Such mistakes can be avoided by having early, written communications between lawyer and client that clearly define the scope of the engagement, and also set both sides’ expectations in a relationship that may go on for months or years to come.

With some exceptions, no. Usually, the first element of a successful legal malpractice claim is proof that there was an attorney-client relationship between the lawyer and the victim of the lawyer’s bad advice. Historically, courts in most states have been reluctant to extend a lawyer’s duty of care to non-clients.

One typical fact pattern on which such cases can arise could go something like this: Mr. Jones, resident in Boston and a widower, decides he wants his favorite niece, Molly, to inherit his summer home on Cape Cod. Mr. Jones has two adult children, Sam and Dave to whom he wants to leave all of his other very substantial assets. Unambiguously and emphatically, he tells Molly, Sam, and Dave of his plans for each of them. Molly will get the summer home, Sam and Dave will get everything else. Several years later, still of sound mind, Mr. Jones hires a lawyer, Smith, to draw up a simple will, and Smith does so. Several years later, Mr. Jones dies. To everyone’s surprise, and Molly’s dismay, the will Smith wrote as executed by Jones leaves everything, including the summer house, to Sam and Dave. Molly got nothing.

Molly wants to Sue Smith. Clearly, her uncle wanted her to have the summer house, and only some error by Smith prevented her from receiving that result. Even if that is true, under current Massachusetts law, Molly’s case will be thrown out at an early stage. Courts do not want to impose conflicting duties on lawyers. If estate planning lawyers had to simultaneously consider the interests of both a testator and a beneficiary, courts feel that would result in an unworkable conflict of interest. In the example I have given, what if Jones had simply changed his mind? In order to induce Smith to adhere to his sole allegiance to Jones, courts do not want Smith to have to fear a future lawsuit by Molly. Thus the rule is created that deprives Molly of all such rights.

There are some exceptions to the rule against allowing non-clients to sue a lawyer. One is when the non-client is the executor/administrator of the estate, and the claim is that the malpractice of the lawyer diminished the value of the estate as a whole. In that case, the executor/administrator is seen as having identical interests with the former actual client (Jones). Contrast that with the potentially adverse interests between the frustrated beneficiary (Molly) and the testator, that would result in imposition of an unworkably conflicting set of duties owed by the lawyer.

There are a number of exceptions to the rule against malpractice suits by non-clients that will be the subject of a later post. Readers who want to learn more about the reasoning behind the rule are invited to read the case of Symmons v. O’Keeffe, 419 Mass. 288, 300, 644 N.E.2d 631 (1995).

As always, this blog is for informational purposes only. If you think you have a case, do not rely upon anything I have written, but instead call me or any other competent lawyer to discuss the specific facts of your case, and the law that might apply to your situation.

how to recover stolen funds from your lawyer

When we talk about legal malpractice, we usually refer to negligence, which in layman’s terms means a mistake or an unforeseen event. In the legal sense, a mistake represents a lack of proper care or attention that has the unintended consequence of hurting the victim of the negligence, and it has to be proved that the average qualified practitioner would not have made such a mistake. But what happens when a client is victimized not by a mistake, but by a lawyer’s intentionally wrongful behavior?

Unfortunately, it sometimes happens that a lawyer violates his fiduciary duty to his client by intentionally depriving the client of funds. Once the client finds out, it is often too late, as the lawyer has squandered the funds, is being disbarred, and is facing a criminal prosecution and the end of his career. The money is gone. Even if the lawyer has insurance, his insurance policy does not provide coverage for defalcation, the fancy word for stealing a client’s money. See, e.g., the sad story of Morris Goldings, a once pre-eminent Boston lawyer whose storied practice in the latter stages of his long career devolved into a sordid wholesale theft of many of his client’s funds, in the neighborhood of $17,000,000, giving new meaning to the  term “golden years”.

Fortunately, Massachusetts and many other enlightened states have established a system, funded by the bar dues lawyers pay to be licensed to practice, that compensates the victims of defalcation. In Massachusetts, this system is operated by the Clients’ Security Board (CSB) and overseen by the Massachusetts Supreme Judicial Court.

In Massachusetts the CSB has an excellent track record of compensating the victims of lawyer defalcation, often at 100 cents on the dollar. I am proud to practice law in a state that looks after people when their trust has been abused by a lawyer licensed by that state. Even better for the public good, an attorney cannot charge a fee for helping a client through the CSB process, as the Court has mandated that in so doing, the lawyer is performing an act of public service.

It would be a mistake to think the CSB is there to handle fee disputes. Fee overcharge cases still must be handled through normal litigation channels. CSB’s funds are preserved solely for the victims of defalcation, not fee disputes. Also, the CSB in most, if not all, states requires as a condition precedent to paying claims that the defalcating lawyer has died, has been disbarred/suspended from practice, or has resigned. The claimant will also be required to demonstrate that there is no other means of recovering compensation, such as litigation against the law partners of the defalcating lawyer.

As always, when in doubt about just what your situation entails, call a lawyer with experience in this area.

Legal Malpractice Emotional Harm

When an attorney commits legal malpractice causing harm to his/her client, the client naturally feels upset.  Many clients desire recovery of damages for their emotional distress as part of their legal malpractice action against their former attorney.  Unfortunately, Massachusetts courts generally do not permit the recovery of emotional distress damages in legal malpractice claims, and instead limit recoveries to loss of money or property.

One exception to this general rule is exemplified in the case of Wagenmann v. Adams, 829 F.2d 196 (1st Cir. 1987).  In broad strokes, Wagenmann, a person with no psychiatric issues, was involuntarily committed to a mental hospital due to his attorney’s nonfeasance.  Wagenmann was freed due only to the efforts of a court-appointed psychiatrist who examined him, found him mentally sound, and took it upon himself to contact a judge to secure Wagenmann’s release.  On this shocking fact pattern the federal First Circuit Court of Appeals upheld a recovery for emotional distress damages to compensate Wagenmann for his attorney’s malpractice (note: Wagenmann suffered no property loss whatsoever).  But again, Wagenmann outlines the rare exception to the general rule that emotional distress damages may not be legally available to legal malpractice plaintiffs.

What is the reason for this prohibition?  First is the concept of legal foreseeability.  Courts will award emotional distress damages outside the legal malpractice context where it is foreseeable that a defendant’s actions would cause the plaintiff emotional distress.  In the legal malpractice arena, courts have ruled that emotional distress is not a foreseeable consequence of an attorney’s mishandling a legal matter.  Foreseeability is the reason that Massachusetts state courts, like the federal Court of Appeals deciding Wagenmann, do not allow emotional distress damages in legal malpractice cases.  Massachusetts state courts hold that only economic damages are foreseeable from an attorney’s negligence.  See Iacono v. Boncore, 16 Mass.L.Rptr. 681, *2 (Mass. Super. Ct. June 18, 2003) (unpublished decision).  Another explanation is that permitting dissatisfied clients to sue their attorneys for emotional distress would open floodgates of litigation.  Finally, it is thought that the excessive litigation would have a chilling effect on attorneys’ willingness to be zealous advocates for their clients.  For further examination of these rationales, see Alex B. Long, Lawyers Intentionally Inflicting Emotional Distress, 42 SETON HALL L. REV. 55, 76-77 (2012). It is Attorney Kazarian’s view that these rationales are unpersuasive, and that the test of foreseeability should govern. Who could doubt that lawyer negligence that leads to, say, foreclosure of a family home does not foreseeably cause emotional harm?

The bottom line here is that it is normal to feel emotionally troubled by an attorney’s malpractice, but do not expect a court to award compensation for it. While there are non-binding trial court decisions, and scant suggestions to the contrary in appellate rulings, the general rule is against recovery of emotional harm damages.