Articles Posted in Legal Malpractice Issues

The Massachusetts Supreme Judicial Court (“SJC”) recently held that the simultaneous representation of business competitors by attorneys in different offices of the same law firm does not constitute a per se conflict of interest.  In Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner LLP, the client hired a law firm’s Boston office to secure patents for his screwless eyeglass invention.  After successfully obtaining the patents, the client discovered that the law firm’s Washington, D.C. office represented a competitor seeking a patent for its own screwless eyeglass technology.

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The Supreme Judicial Court (“SJC”) recently approved a three month suspension of a Massachusetts attorney for violating several Rules of Professional Conduct. In the Matter of Timothy M. Mauser, a husband and wife hired an attorney to review their bankruptcy proceedings, after they discovered certain tax liens had not been discharged.

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The Supreme Judicial Court (“SJC”) recently accepted the resignation of a Massachusetts attorney, who misappropriated proceeds from the sale of real estate.  In the matter of John H. Wyman, an attorney was hired to probate a will, which stated that real estate owned by the decedent was to be devised to a Florida charity. The charity informed the attorney that it wished to sell the property and use the proceeds to further its charitable mission.

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The Supreme Judicial Court recently suspended a Boston, Massachusetts attorney for violating legal ethics rules. In the matter of Orlando Dimambro, a brother and sister hired an attorney to represent them in a negligence claim against an electric company, after a manhole cover exploded underneath their car, injuring them.

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The Supreme Judicial Court has recently disbarred a Boston, Massachusetts. In the matter of Kirk Y. Griffin, an attorney admitted to using client funds for personal expenses over a period of eight years. After learning of the attorney’s conduct, the Massachusetts Board of Bar Overseers (“BBO”) initiated an investigation and then filed a petition for discipline against the attorney.

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The Massachusetts Court of Appeals, located in Boston, has affirmed a judgment dismissing a legal malpractice claim against a Massachusetts attorney. In Resnick v Baker, a client hired an attorney to represent him in a property dispute. The attorney obtained a favorable result for the client, but failed to timely file a motion seeking payment of the client’s attorney’s fees. The judge granted the opposition’s motion to strike the request for fees.

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The Massachusetts Court of Appeals, located in Boston, affirmed the dismissal of a legal malpractice action brought against a Massachusetts attorney.  In Canha v. Gubellini, a client hired an attorney to represent her in a legal malpractice action against her former lawyer.

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The Massachusetts Court of Appeals, located in Boston, affirmed summary judgment in favor of an attorney in a legal malpractice case.  In Scanlon v. Dukess, a real estate investor sold a property in Brockton, Massachusetts and sought to purchase a replacement property in order to defer capital gains tax on the sale, which is permitted by federal statute 26 U.S.C. § 1031 and is known as a ‘1031 exchange’.

Under that statute, the investor had to identify to the IRS possible replacements within 45 days of the sale of the Brockton property and then complete the purchase within 180 days.  The investor listed three properties, but only one in Taunton, which was leased by a drugstore, qualified for a 1031 exchange.

After the 45 days had passed, the investor consulted his long time attorney about the purchase of the Taunton property.  The attorney advised him that he would have to assume the existing lease, but failed to inform him that the lease did not contain a condemnation clause, which would prevent the drugstore from sharing in the proceeds of an eminent domain taking.  The investor purchased the property on the final day of the 180 day period.

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The Massachusetts Appeals Court, which is located in Boston, has affirmed the dismissal of a legal malpractice action and summary judgment of a related quantum meruit claim. A woman provided care to her stepfather during the last years of his life. She had hoped that she and her children would be named sole or principal beneficiaries of her stepfather’s estate. However, when he died she was not compensated for her services.

The woman then sued the attorney who served as administrator of the estate for legal malpractice alleging that he negligently failed to name her as primary beneficiary. She also sought payment from her stepfather’s estate for the value of her services. The attorney moved to dismiss both counts on the basis that the woman failed to state a claim upon which relief could be granted. The court allowed the attorney’s motion, but permitted the woman to amend her complaint to re-plead her quantum meruit count. She amended her complaint and the attorney successfully moved for summary judgment. The woman appealed from the summary judgment ruling only.

The appeals court found that, although she had included arguments in her appellate brief with respect to the dismissal of her malpractice count, she had waived her appellate rights for failing to include these issues in her notice of appeal. Nevertheless, the court held that the dismissal was proper because she could not prove that an attorney-client relationship existed between her and the attorney.

The appeals court also affirmed the summary judgment for the attorney on the quantum meruit count. In order to recover under that theory, there must be an underlying agreement between the parties. The court held that woman’s hope and expectation that she would be compensated did not contractually obligate the stepfather to pay her. Therefore, summary judgment was appropriate.

Decision: Cheney v. Flood
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