It is not mandatory in Massachusetts for lawyers to have insurance for mistakes they may make that cause damages to their clients. This is unfortunate, and causes a great deal of harm. Legal malpractice insurance is not particularly expensive, relative to other forms of insurance, and it is hard to understand why any professional would undertake serious, important client matters without having the ability to compensate the client for making serious mistakes. From the client's point of view, given the choice of hiring two equally competent attorneys to handle any important, high-stakes case, where one of them has legal malpractice insurance and the other does not, is there any doubt who should be hired?
This blog illustrates a problem of attorney theft (defalcation) that I have discussed in a prior blog post, CPK in the news: comment on lawyer overcharging claim. Many potential clients contact our office believing they have the ultimate legal malpractice case because their former attorney did something so egregious, so clearly wrong (for example, defalcation), that they are "undoubtedly entitled" to recover damages from the attorney. They are sometimes wrong, but creative lawyering can save the day. The following is an example:
Regular readers of this blog post know that I am a proponent of clear communication, early and often, between lawyer and client, particularly as to the scope of the engagement and the expected fee structure, and I have written about the fact that, except in contingent fee cases, the ethical rules governing lawyers in Massachusetts have never before required that a fee agreement be in writing.
When we talk about legal malpractice, we are usually referring to negligence, which in layman's terms means mistake, as in 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?
This blog illustrates an example of legal malpractice in the personal injury context. Many attorneys practicing personal injury law are quite skilled at obtaining recoveries from private insurance companies for motor vehicle accidents or slip-and-falls. These are what we might call ordinary general liability cases. Even in these ordinary cases, there are many legal issues that could affect the outcome. However, when a general liability tort claim is brought against a government/public entity, knowledge of an additional set of statutes, regulations and common law precedent will be required. When lawyers disregard or are ignorant of these special requirements, dire results can ensue for the client, such that his otherwise meritorious claim for the recovery of damages against a governmental/public entity is lost.
Divorce is a field of law about which this office receives numerous malpractice inquiries. Since the goal of legal malpractice is the recovery of monetary damages to put a person in the position s/he would have been in but for his/her attorney's malpractice, some facets of divorce law do not lend themselves readily to a legal malpractice damages analysis. An example is child custody. Certainly emotional harm can result when a parent receives an adverse custody decision due to his/her divorce attorney's malpractice, but what sum would make the injured parent whole? Time with one's child is priceless and is difficult to quantify in monetary terms.