The Accountant/Attorney Liability Reporter: April/May 2005

Inside this Issue

The Massachusetts Superior Court Protects an Attorney Work Product from Production

In McMillan v. Westport Insurance Corporation, CA No. 03-6107H Middlesex County Superior Court (J. Botsford) (December 16, 2004), a Massachusetts Superior Court Judge refused to require the lawyer who defended a law firm insured by Westport Insurance Corporation (“Westport”) to produce that part of his file containing his work product in a lawsuit against the insurer for bad faith settlement practices. The plaintiff settled the underlying legal malpractice case for $370,000, which was what remained of a $500,000 declining limits insurance policy that Westport had issued to the law firm. As part of the settlement, the insured law firm assigned to the plaintiff all rights or claims they have or may have against the insurer for the insurer’s failure to settle promptly after liability and damages were reasonably clear. The plaintiff sued the insurer for unfair claim settlement practices.

Terminating the Employment Relationship . . . Carefully

By Cheryl A. Waterhouse, Esq.

Termination of an employee is an adverse employment action that often triggers a claim against the employer by the former employee. The employer may have a legitimate business reason for the termination, such as an economic downturn, restructuring or performance issues, but that may not, and often does not, stop a dejected or indignant former employee from asserting a claim. This article discusses briefly the types of claims that can be alleged against employers, examples of the adverse impacts such claims can have on an employer and suggestions for minimizing and attempting to avoid these types of claims.

Employer Found to Violate the Whistleblower Provision of the Sarbanes-Oxley Act of 2002

In the first Massachusetts case to test section 806 of the Sarbanes-Oxley Act of 2002 (the “Act” or “SOX”), codified in 18 U.S.C. § 1514A, an Administrative Law Judge found that an employer violated the Act’s whistleblower protection provision.

A Massachusetts Superior Court Awards G.L.c.93A Liability and Multiple Damages in a Legal Malpractice Case

In Correll v. Partlow, Suffolk Superior Court Civil Action No. 02-04485, March 14, 2005 (Judge Charles R. Johnson) Correll, a resident of Colorado, cracked a tooth while eating at a hotel restaurant during a business trip to Boston in 1992. In March, 1994, Correll retained Partlow on a contingency fee basis to represent him in a suit against the hotel and restaurant. In February, 1995, Partlow began an action in Suffolk Superior Court but failed to arrange for service of the complaint. The complaint was ultimately dismissed, but Partlow did nothing to revive the case and did not inform Correll of the dismissal.

Contingency Fees: An Examination of Attorney No. 1 v. Attorney No. 2

The Supreme Judicial Court recently addressed whether an attorney retained under a contingency fee agreement and discharged by the client before the case is resolved is entitled to recover a fair portion of the contingency fee obtained by successor counsel. In Attorney No. 1 v. Attorney No. 2, 442 Mass. 692 (2004), the SJC ruled that a discharged attorney may be entitled to share in the contingency fee based on the particular facts the situation. Further, the court held that the party responsible for paying the fee – successor counsel or the client – would also depend on the circumstances of each case.

The New Hampshire Supreme Court Addresses the Elements of a Legal Malpractice Claim

In Carbone v. Tierney, 864 A.2d 308 (N.H.2004) the Supreme Court of New Hampshire (the “Supreme Court”) addressed the elements of a legal malpractice claim in the context of failed litigation. Significantly, it considered whether (1) expert testimony was required for a plaintiff to prevail; (2) the plaintiff must prove the judgment in the underlying case was collectible; and (3) attorney’s fees should be deducted if the recovery could have been subject to a contingent fee.

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