Devine-Millimet - Recent Court Decisions in Legal Malpractice & Professionalism

Recent Court Decisions in Legal Malpractice & Professionalism

  • Wednesday, April 6, 2016

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No Duty Owed To Prospective Beneficiary to Ensure That A Will Is Executed Promptly

New Hampshire

The client expressed a desire to change beneficiaries in her will but died before the revised will was executed. The New Hampshire Supreme Court applied the rule of Sisson v. Jankowski, 148 NH 503 (2002) and held that the lawyer owed no duty to the prospective beneficiary to ensure prompt execution because that would subject the lawyer to a conflict between the beneficiary’s need for speedy execution and the client’s need to have adequate time to consider such changes. The Court refused to distinguish Sisson because this client had expressed the desire to execute the will by a date certain. 

Riso v. Dwyer, 2016 WL 1069068 (March 18, 2016).

Statements Directing Personal Injury Plaintiff to Another Law Firm Are Actionable.


Lawyers brought suit against the uncle of an accident victim, a lawyer himself, alleging that he made unspecified statements to the victim which caused her to transfer her claim to new counsel and thereby earn himself a referral fee. The lawyers had previously represented the victim on another case and they were retained by the victim’s family before she regained consciousness after the accident. The United States District Court for Massachusetts refused to dismiss claims for intentional interference with advantageous business relations and slander.

Kahalas v. Schiller, 2016 WL 659680 (February 18, 2016).

Bankruptcy Appellate Panel Upholds Sanctions Against Law Firm and Lawyer for “multiplication of proceedings.”


The Bankruptcy Appellate Panel of the First Circuit upheld a ruling of the Bankruptcy Court sanctioning a lawyer and her law firm under 28 USCA §1927 for unreasonably and vexatiously multiplying proceedings by filing a motion for relief from stay and then ignoring efforts of other counsel seeking an out-of-court resolution. The lawyer in question precipitously withdrew the motion on the eve of the hearing while opposing counsel was on an airplane en route to the court. The panel noted that a finding of subjective bad faith is not required under §1927 and that, while Rule 11 sanctions focus on documents, §1927 focuses on patterns of conduct. 

MJS Las Croabas Properties, Inc. v. FDIC, 545 B.R. 401 (February 17, 2016).

No Actionable Conflict Of Interest For a Law Firm Pursuing Competing Patents.


Lawyers in two offices of the same law firm represented business competitors each seeking patents for similar inventions directed at the same market. The Supreme Judicial Court upheld dismissal of a malpractice suit brought by one of the firm’s clients. While the “subject matter conflict” was not disclosed and consent was not secured, the court noted that there was no allegation that the claims in the patent applications were altered or narrowed, that client confidences were disclosed or used to either client’s advantage or that either patent application was delayed.

Maling v. Finnegan, 473 Mass. 336 (December 23, 2015).

Joseph G. Mattson

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Marrielle Van Rossum

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