Articles Posted in Massachusetts Personal Injury Attorney Ethics

No.  It is you, the client who decides whether or not to settle your case.  Your attorney of course is obligated to counsel you as to whether or not a particular settlement is worth taking.  Chances are your attorney wants to get you the best settlement possible.  Therefore, you should listen and weigh your attorney’s advice on whether to settle the case.  Your attorney is ethically obligated to inform you of all reasonable settlement offers made on your case. 

Deciding whether to accept a settlement or go to trial is a tough decision.  Listen to your attorney’s advice, go with your gut, and make a decision that you feel is right.

Attorneys who negligently perform legal services to their clients run the risk of legal malpractice claims.  If you believe your attorney has committed legal malpractice, you should consult with a Massachusetts legal malpractice attorney immediately.  But it must be remembered that in order to prevail at trial (if your case does not settle there will be a trial), you will need to have an expert  testify in court that your attorney somehow mishandled your case, that you suffered damages as a result of that mishandling, and, that there exists a causal connection between the mishandling and the damages you suffered. 

Many Massachusetts personal injury attorneys have legal malpractice insurance.  At the same time, there are many Massachusetts personal injury attorneys that do not.  It is important for you to know the answer to this question.   Do not be afraid to ask your current attorney, or your prospective attorney this very important question.  He/she will understand your need to know this information.

Lawyers are prohibited from directly soliciting injury victims in Massachusetts.  I am sick and tired of hearing of lawyers who send letters or make calls to injury victims.  It is these lawyers who are the "ambulance chasers" and give personal injury lawyers a bad reputation.  If you have been directly solicited by a personal injury lawyer do not hire that lawyer!  After all, how could you possibly trust such a lawyer? 

I found the following over at the DC Metro Area Personal Injury Law Blog which provides a crisp summary regarding legal malpractice claims:

"Legal malpractice cases are ofen expensive to litigate and difficult to win.  Three conditions must exist in order to prove legal malpractice:

•   An attorney-client relationship existed;

Lawyers make mistakes.  When lawyers make mistakes and their clients are somehow harmed by the mistake, then there may be a remedy for the aggrieved client against the lawyer.  Here is a good explanation of what legal malpractice is, provided by the website of Massachusetts legal malpractice attorney Charles P. Kazarian:

"Legal malpractice is a serious matter involving the breach of a duty owed by a lawyer to a client resulting in demonstrable damage to the client. Lawyers are obliged to conduct themselves with the skill, care and diligence of an ordinary, qualified practitioner in the practice area of a client’s case. In other words, if it causes you harm, below-average performance by your lawyer is generally considered malpractice.

"The mere fact that you lost your case or lost an asset / legal right is not by itself evidence of malpractice. You still have to show that your lawyer violated the duty of care described above and that the violation resulted in a loss. An ordinary, average performance by your lawyer is also not malpractice. The fact that an excellent lawyer would have done a better job does not necessarily mean that your lawyer’s ordinary performance is malpractice, even if you lost."

Oftentimes personal injury attorneys are presented with conflicts of interest.  Let us take the example of an auto accident to illustrate this point.  Suppose for example that an attorney is presented with the situation where both the driver and passenger of the same car are involved in a Massachusetts auto accident, and they both seek to have the same attorney represent them. The attorney in this situation may have a conflict. 

If it turns out that fault for the accident lies with the driver, and not the driver of the other vehicle, the attorney would have to sue the driver (his client) in order to effectively represent the passenger (his other client).  These types of conflicts recur many times when both a passenger and driver involved in a Massachusetts auto accident seek to have the same lawyer represent them both. 

Many, if not most Boston personal injury attorneys, and personal injury attorneys throughout the greater Commonwealth, advertise their services.  Lawyers are allowed to advertise their services, but they must do so within certain ethical guidelines.  One such guideline is the requirement that an attorney’s advertisement not be misleading. 

An example of a misleading personal injury advertisement would run something like this "We collect millions for our clients" or "We promise to get you money for your injuries."  If you come across an advertisement like this, pick a different lawyer.  The lawyer who runs misleading advertisements may also do other things which are misleading and unethical, and you would probably be better served by selecting a different lawyer to represent you.

Tags: ethical attorney advertising and Boston, Ma personal injury attorney

This is a common lament among injury victims.  Many people tell me that they are unhappy, and sometimes downright mad when their personal injury attorney won’t respond to their telephone calls.  In Massachusetts, all attorneys have an ethical duty to keep their clients reasonably informed about the status of a case.  This is a standard that is case specific, but generally means that your personal injury lawyer must keep you reasonably updated about the status of your case.  If your personal injury lawyer won’t call you back, write him a letter indicating that you are going to end the attorney/client relationship if he does not call you back within the next five (5) business days.  This should get his attention.

Returning telephone calls to a client is one of the easiest things to do.  Unfortunately, many attorneys get into ethical hot water for failing to adhere to this ethical rule.

Lawyers negotiate a lot.  Your Massachusetts personal injury lawyer will negotiate on your behalf with the insurance company and with opposing counsel.  But lawyers may only negotiate within certain ethical bounds.  Here is a post provided by the Illinois Legal Malpractice Blog about a new ethics opinion promulgated by the American Bar Association on the topic of negotiation:

The American Bar Association’s Standing Committee on Ethics & Professional Responsibility recently released an opinion, here, focusing on Model Rule 4.1, and more specifically Rule 4.1(a) that addresses lawyers making false statements of material fact. Under Rule 4.1, in the context of negotiation or caucused mediation a lawyer representing a party may not make a false statement of material fact to a third person. However, statements regarding a party’s negotiating goals or its willingness to compromise, as well as statements commonly referred to as "posturing" or "puffing" are ordinarily not considered "false statements of material fact" within the meaning of the Model Rules.

Examples: