Articles Posted in Legal Malpractice Issues

The Massachusetts Supreme Judicial Court has reversed a lower court ruling granting summary judgment to a law firm, saying the firm had failed to use all measures to combat an erroneous ruling by a French court. The firm, Dechart, had represented a seafood company, whose fishing boat was severely damaged, while undergoing repairs in Tahiti, which is a French protectorate. The French court had given the company an opportunity to submit additional evidence of its losses incurred, but the law firm failed to make the additional submissions, information which it had in its possession.

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A Massachusetts attorney has been suspended indefinitely as the result of two claims of misconduct, including falsifying information to the FBI and forging real estate documents.  Specifically, in April of 2006 and January of 2007, the attorney met with FBI agents and alleged that his bank had “misdirected” approximately $88,000 from his account.  The attorney furnished several documents to the FBI, which were found to have been fabricated.  The attorney pleaded guilty to criminal charges for this misconduct on October 29, 2007, and was sentenced to two years probation, which he failed to disclose to bar counsel, as required under S.J.C. Rule 4:01, § 12(8) and Mass. R. Prof. Conduct 8.4.

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MSouth Equity Partners, an Atlanta-based private equity investment firm, has sued the legal firm, Alston & Bird LLP (“A&B”), in Fulton County Superior Court in Atlanta, GA, seeking to reclaim more than $7.6 million paid in federal and state taxes.  The plaintiffs allege that lawyers from A&B gave improper legal advice informing the client that the IRS would not challenge a proposed merger between a controlled company and another investment firm as a tax avoidance scheme.

The complaint contained affidavits from (1) the former chair of the tax section of the Atlanta Bar Association and the State Bar of Georgia, and (2) a professor of legal ethics from Mercer University’s Walter F. George School of Law, which asserted that the advice given by A&B, and its failure to recognize or admit the mistake, constituted legal malpractice.

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Judicial Referee and retired Judge, Gary Cassavechia, has imposed a March 21, 2017 deadline for the beneficiaries of the late Geraldine Webber to reach a settlement in a legal malpractice suit with Webber’s former attorney, Gary Holmes.  Continue reading

The South Carolina Supreme Court adopted a new rule regarding the running of the statute of limitations in legal malpractice claims.  In Stokes-Craven Holding Corp. v. Robinson, Op. No. 27572 (S.C. Sup. Ct. May 25, 2016), Plaintiff brought a legal malpractice claim against Attorney  Scott L. Robinson, a partner at Johnson, MacKenzie and Robinson, LLC, related to an unsuccessful automobile fraud case.  The malpractice claim had been filed four (4) months after a final appeal came down. The trial court granted summary judgment to the defendant attorneys because the filing was outside the three-year statute of limitations.

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A Massachusetts attorney has been disbarred for engaging in activities which created conflicts of interest and for misusing client funds. The violations included (1) using client funds to purchase annuities from a company where the attorney was an agent and received a commission on the sale, (2) improperly cashing out existing annuities, which resulted in charges to the ward, (3) charging excessive fees to a guardianship estate, and (4) intentionally misusing over $10,000 of estate funds in another guardianship.

In April, 2016, the attorney submitted an affidavit of resignation admitting to violations of the Massachusetts Rules of Professional Conduct between 2007 and 2014. In June, 2016, the Board of Bar Overseers recommended acceptance of the affidavit and disbarment. The Supreme Judicial Court then adopted the recommendation and entered a judgment of disbarment effective immediately.

In Re John A Aliperta

An attorney who poorly represented a buyer of a residential property in Massachusetts has received an admonition for his conduct. The attorney was admitted to practice in Massachusetts in 1985 and had no disciplinary history. While representing the buyer in the cash sale the attorney acted as representation for the buyer in the sale and the settlement agent.

The sale took place on February 27, 2012. At the time of the sale there was a fence and a shed that belonged to a neighbor that encroached on the property.

During the sale the parties entered into an escrow agreement that stated the buyer’s attorney would hold $2,200 from the sales proceeds in escrow until May 31, 2012. The escrow agreement stated that the funds would be released to the seller upon complete removal of the fence and shed and if the fence and shed were not removed by May 31, 2012 the buyer would be entitled to the funds. On May 31, 2012 the fence and shed were not removed, and the attorney in question did not promptly deliver the escrow funds to the buyer.

Between February 2012 and March 2015 the buyer’s attorney held the funds in his Interest on Lawyers Trust Account, (“IOLTA”) and did not hold the funds in an interest-bearing account. The attorney received several inquiries from the buyer about the escrow funds, but did not make diligent efforts to obtain permission to disburse the funds. Around March 9, 2015 the buyer contacted bar counsel.

Bar counsel then contacted the attorney and the estate administrator, who had no objections to the release of the funds. March 11, 2015 the attorney released the funds to the buyer. The Massachusetts Rules of Professional Responsibility make it clear that failing to act with reasonable diligence and promptness when representing the buyer and disbursing the escrow funds is a violation of Mass. R. Prof. C. 1.3 and 1.15(c). The attorney also violated Mass. R. Prof. C. 1.15(e)(6) by holding the funds in the IOLTA for three years. The attorney received an admonition for his conduct.

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The New Hampshire Supreme Court has affirmed the decision of a lower court, dismissing a legal malpractice claim against a lawyer and her firm, who allegedly failed to secure the execution of a will, just prior the death of the testate. The case is Riso v. Dwyer, Hillsborough northern judicial district, Case No. 2015-0361, decided on March 18, 2016.

Beatrice Riso, the Plaintiff’s mother, was 90 years old when she hired the firm. Sh had five children, but had disinherited two of the children in a prior will, leaving her estate equally to the three remaining children. Her son, Gregory, the Plaintiff was one of the three. In February, 2012, she hired Maureen Dwyer and her firm to redraft the will to exclude the other two sons, whom she thought had deceived her with respect to their intentions if they inherited.

Beatrice and the Plaintiffs met with Dwyer on February 28, giving her the necessary information in order for her to draft the will. Beatrice. Beatrice told the attorney that she wanted to execute the new will by March 2, 2012. She also gave her a letter from her physician stating that she was mentally competent to make decisions. The will was not executed by March 2, and soon after, Beatrice was hospitalized.

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The Massachusetts Board of Bar Overseers (“BBO”) has issued public admonition against an attorney for failing to obtain a former client’s consent before representing a new client in a substantially related matter adverse to the former client.  In Admonition No. 15-23, the attorney had been employed by the law firm for eight years.  During this period, the firm represented the former client’s spouse, seeking modification of a divorce based on allegations of child abuse.  The attorney did not directly represent the spouse, but was consulted on a financial issue in the case.

The attorney left to start his own firm, and several years later, was retained by the former husband to defend new allegations of sex abuse a civil matter filed by his ex-wife. The attorney advised him of his firm’s prior representation of the ex-wife, but forgot that he had been personally consulted on the case, and also failed to obtain the ex-wife’s consent to represent her ex-husband.

The ex-wife informed the attorney of the conflict of interest and requested that he withdraw as counsel, but the attorney refused.  Counsel for the ex-wife then filed a Motion to Disqualify, which the Court granted.

The Massachusetts Supreme Judicial Court (“SJC”) recently entered an order suspending an attorney for violations of the Massachusetts Rules of Professional Conduct.  In the Matter of Priscilla F. Arnott, an attorney was retained by the children of an elderly woman to obtain MassHealth Benefits on her behalf.  After the attorney prepared and submitted an application for benefits, MassHealth requested that she provide additional information within two weeks.  The attorney failed to meet the deadline and the application was denied.  The attorney appealed the denial but still did not provide the requested information.  Therefore, her appeal was denied and the attorney subsequently missed the deadline to vacate the dismissal.

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