Massachusetts Legal Ethics & Malpractice

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Navigate Massachusetts’ system of attorney regulation; this book contains practical advice from the authors regarding Massachusetts Bar Discipline and Legal Malpractice.

Navigate Massachusetts’ system of attorney regulation with this newest practice deskbook from the publishers of Law Journal Press, the American Lawyer and the National Law Journal. The book contains practical advice from the authors regarding Massachusetts Bar Discipline and Legal Malpractice.

This book is comprised of two main parts: Massachusetts Bar Discipline and Legal Malpractice.

Part One, Bar Discipline, details the investigative process and the prosecutorial process. Topics addressed include: Board of Overseers, Response to the Complaint, Diversion Program, Formal Charges, Possible Dispositions, Formal Proceedings, Discovery, Prosecuting the Petition, Review and Appeal and Proceedings Before Court. Also addressed are issues involving temporary suspension, disability inactive status, disbarment by consent, convictions, commissioners, costs and restitution, reinstatement and clearance letters.

Part Two addresses legal malpractice topics, including: Attorney-Client Relationship, Standard of Care and Proximate Cause, Damages, Expert Testimony, Other Claims (e.g., breach of contract, breach of fiduciary duty, negligent misrepresentation, fraud, interference with contractual relations), Defenses, and the Intersection Between Bar Discipline and Legal Malpractice.

Keep current with the law and rules concerning lawyer liability and discipline in Massachusetts, as they continue to develop and change, and as ethics committees constantly issue new opinions and guidelines.* The book contains helpful appendix material: Massachusetts Rules of Professional Conduct; Restatement of the Law Governing Lawyers - Selected Citations; Ex Parte Communications – List of Selected Recent Cases, Rules, and Ethics Opinions in Massachusetts.

Additional Information
SKU MAETH17
Division Name Law Journal Press
Volumes 0
Product Types Books
Brand Law Journal Press
Publication Date December 29, 2016
Jurisdiction Connecticut, Massachusetts
ISBN 978-1-62881-259-6
Page Count 0
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James S. Bolan
James S. Bolan   Mr. Bolan is a partner with Brecher, Wyner, Simons, Fox & Bolan, LLP, an "AV" rated firm with a principal office in Newton, Massachusetts. He represents lawyers and law firms in Board of Bar Overseers and malpractice matters, partnership breakups, departures and law firm litigation. He provides counsel to local, national and transnational lawyers and law firms on professional responsibility, practice and ethics matters, malpractice defense and prevention, and risk management and law firm audits.

 He is the co editor with Justice Kenneth Lawrence and co-author of Ethical Lawyering in Massachusetts (MCLE 1992, 1995, 2000, 2007, 2009), the author and editor of The New Rules of Professional Conduct: The Impact on Ethical Practice in Massachusetts (MCLE 1998), and a contributing author to the Massachusetts Attorney Conduct Manual (Lexis Nexis/Butterworths).

  He was an author and panel member of the MCLE seminar entitled "Handling the Non-Medical Professional Malpractice Case" (1989) and panel member of the seminar entitled "Dealing with the S.O.B. Litigator..." (1990).  He has been a panel chair and member of a number of seminars conducted by MCLE and the Massachusetts Bar Association, including a panel member of the 1995 through 1998 (and Chair of the 1996 and 1997) MBA Annual Meeting Programs on Legal Malpractice.  He is a Fellow of the Massachusetts Bar Foundation, former chair of the Attorneys and Accountants Liability sub committee of the Business Litigation Committee; former member of the Boston Bar Association's Professionalism and Bench and Bar Committees and former member of the Massachusetts Bar Association's Ethics Committee (1992 - 1996).

 He is a founding member (1990) of the national Association of Professional Responsibility Lawyers (APRL), was elected as a Director for a three-year term (1996 - 1998), Treasurer (1998 - 1999), Secretary (1999 - 2000), President-Elect (2000 - 2001) and President (2001 - 2002).

Sara N. Holden
Ms. Holden joined Brecher, Wyner, Simons, Fox & Bolan in 2004 as an associate in the Litigation Department and became a Partner in 2012.  She represents lawyers and law firms in Board of Bar Overseers and malpractice matters, partnership breakups, departures and law firm litigation.  She provides counsel to local, national and transnational lawyers and law firms on risk management, law firm audits, malpractice prevention, and professional responsibility, practice and ethics matters.

Chapter 1: The Investigative Process
1-1 OVERVIEW
1-2 PERSPECTIVE OF THE PLAYERS
1-3 BOARD OF BAR OVERSEERS
1-3:1 Initial Board of Bar Overseers Complaint
1-3:2 Publicity, Public Access and Media Access
1-4 RESPONSE TO THE COMPLAINT
1-4:1 Right Against Self-Incrimination
1-4:2 Effect of the Answer
1-5 CLOSING OR DISMISSAL
1-6 DIVERSION PROGRAM
1-7 FORMAL CHARGES
1-7:1 Bar Counsel’s Recommendation
1-7:2 Transmission of File
1-7:3 Standard of Review
1-7:4 Action by Reviewing Board Member
1-7:5 Deferment
1-7:6 Expunction
1-7:7 Withdrawal of the Complaint
1-7:8 Standing
1-7:9 Public Records Law
Chapter 2: The Prosecution Process
2-1 POSSIBLE DISPOSITIONS
2-1:1 Private Discipline—Admonition
2-1:2 Public Reprimand
2-1:3 Formal Discipline, Including Suspension, Disbarment and Resignation
2-1:3.1 Practice Note
2-1:4 Agreed-To Resolutions
2-2 BEGINNING FORMAL PROCEEDINGS
2-2:1 Redaction of Personal Identifying Data
2-3 DISCOVERY
2-3:1 Interview Under Oath
2-3:2 Discovery Procedure
2-3:3 Subpoena Power
2-3:4 Depositions
2-3:5 Other Pretrial Discovery
2-4 PROSECUTING THE PETITION
2-4:1 Proceedings Before the Hearing Committee or Special Hearing Officer
2-4:2 Relevance and Admissibility of Expert Testimony
2-4:3 Collateral Estoppel
2-5 REVIEW AND APPEAL
2-6 PROCEEDINGS BEFORE THE COURT
2-6:1 Information
2-6:2 Appeal to Full Bench
2-7 TEMPORARY SUSPENSION
2-8 DISABILITY INACTIVE STATUS
2-9 RESIGNATIONS
2-10 RECIPROCAL DISCIPLINE
2-11 DISBARMENT BY CONSENT
2-12 CONVICTIONS
2-13 COMMISSIONERS
2-14 COSTS AND RESTITUTION
2-15 CLIENTS’ SECURITY BOARD
2-16 REINSTATEMENT
2-17 CLEARANCE LETTERS
Chapter 3: Legal Malpractice in Massachusetts
3-1 INTRODUCTION
3-2 ATTORNEY-CLIENT RELATIONSHIP
3-2:1 Who is the Client and How is the Relationship Created?
3-2:2 Express Agreement
3-2:2.1 Written Fee Agreements
3-2:2.2 The Scope of the Engagement
3-2:3 Implied Agreement
3-2:4 Foreseeable Detrimental Reliance
3-2:5 What Non-Clients Might Be Owed A Duty, Nonetheless
3-2:6 Intended Beneficiaries
3-2:6.1 Testamentary Intent
3-2:7 The Law of Spinner and its Limitations
3-2:8 The Effect of Communication on Client/Non-Client Status
3-2:9 Unintended Consequences
3-2:10 What Constitutes Privity
3-2:11 Powers of Attorney Do Not Create Privity
3-3 STANDARD OF CARE AND PROXIMATE CAUSE
3-3:1 Duty to the Client
3-3:2 The Standard of Care – In General
3-3:3 Proximate Cause
3-3:4 Duty to Disclose That Law is “Unsettled”
3-3:5 Extension of Liability via Respondeat Superior or Vicarious Liability
3-3:5.1 Responsibility to Supervise
3-5:5.2 Responsibilities of Subordinate Lawyers
3-3:6 Extension of Liability by Apparent Authority
3-3:7 Partnership By Estoppel
3-3:7.1 Space Sharing
3-3:8 Extension of Liability by Negligent Settlement Advice and Negligent Settlement
3-3:9 Evidence of Negligence – Ethical Violations
3-3:9.1 Failure to Inform a Client of One’s Own Malpractice
3-4 DAMAGES
3-4:1 How Damages are Viewed
3-4:2 Calculation of Damages
3-4:3 Additional Recovery
3-4:4 Contribution
3-5 EXPERT TESTIMONY
3-5:1 Attorney-Client Relationship
3-5:2 Standard of Care
3-5:3 Causation
3-5:4 Damages
3-5:5 Content of Testimony
3-5:6 Interplay of the Ethical Rules: Confidential Information
3-6 OTHER CLAIMS
3-6:1 Breach of Contract
3-6:1.1 Third-Party Beneficiaries
3-6:1.2 Joint Tortfeasors
3-6:2 Breach of Fiduciary Duty
3-6:2.1 Breach of Fiduciary Duty in the Corporate Context
3-6:2.2 Aiding and Abetting Breach of Fiduciary Duty
3-6:3 Negligent Misrepresentation
3-6:4 Fraud
3-6:5 Chapter 93A Claims
3-6:6 Joint/Civil Conspiracy
3-6:6.1 RICO claims
3-6:7 Interference with Contractual Relations
3-6:8 Intentional Infliction of Emotional Distress
3-7 DEFENSES TO CLAIMS
3-7:1 Lack of Attorney-Client Relationship
3-7:2 Termination of Attorney-Client Relationship
3-7:3 Limited Scope of Engagement
3-7:4 Statute of Limitations
3-7:5 Continuing Representation to Toll Statute of Limitations
3-7:6 Contributory Negligence/Comparative Negligence
3-7:7 Intervening/Supervening Acts
3-7:8 In Pari Delicto Acts
3-7:9 Uncollectibility
3-7:10 Mitigation
3-7:11 Judgmental Immunity
3-7:12 Judicial Estoppel
3-7:13 Release
3-7:14 Death of the Lawyer
3-7:15 Assignment of Claims
3-7:16 Vicarious Liability
3-8 THE INTERACTION AND INTERSECTION BETWEEN BAR DISCIPLINE AND LEGAL MALPRACTICE

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