Professional Liability and Errors and Omissions
Since the Firm’s founding, Posternak attorneys have been defense counsel of choice for complex legal malpractice litigation. Posternak attorneys have argued many of the most significant appellate decisions in Massachusetts in the field of legal malpractice and have been responsible for much of the favorable law that has developed.
In addition to our defense of actions against attorneys, we are familiar with all coverage issues arising out of attorney malpractice policies and have, in fact, drafted a number of the provisions and exclusions currently in use. Consequently, we have acted as coverage counsel in many cases. In appropriate circumstances, we have litigated declaratory judgment actions on behalf of the carrier.
Our defense of accountants has included cases arising from audit and non-audit engagements for corporations and individuals. We also have defended environmental services firms, engineers and architects against claims arising from various services they provide.
Posternak also handles many kinds of errors and omissions claims, including actions against real estate brokers, environmental consultants, psychologists, psychiatrists, home inspectors, housing authorities and educational institutions. These cases have included personal injury, wrongful death, toxic torts, commercial products, civil rights, lead paint poisoning, property damage, negligent security and other substantive areas. The firm also represents professionals before boards of registration regarding disciplinary investigations and proceedings.
Representative cases - professional liability/legal malpractice
- As a result of our advocacy, the Appeals Court ruled that attorneys who represent parties in challenges before local courts are protected by the anti-SLAPP (strategic lawsuit against public participation) statute in Massachusetts and may be entitled to attorneys’ fees incurred in defending claims against them which violate the statute.
- In connection with our representation of an attorney client, the Appeals Court held that a disappointed heir could only prove a testamentary interest contrary to the terms of a will by “clear and convincing” evidence and that the trial court could determine whether that standard was met, as a matter of law.
- The Appeals Court ruled that an attorney for a general partnership does not owe a duty to the individual partners, in a case in which we represented the defendant attorney.
- We handled the successful appeal in the seminal Massachusetts Supreme Judicial Court that established that a legal malpractice plaintiff has the burden of proving that he or she would have won the underlying case, that any judgment would have been collectable, the existence of a causal relationship between any malpractice and the alleged damages, and that mere negligence in handling legal matters does not constitute a Chapter 93A violation.
- The United States Court of Appeals for the First Circuit held, in another case in which we represented the defendant attorney, that an inherent conflict of interest exists between the original mortgagee and the subsequent purchaser of the mortgage, which prevents the recognition of any attorney-client duty owed by the attorney for the original mortgagee to the purchaser of the mortgage and loan.
- In another case we argued, the Supreme Judicial Court held that innocent partners may be liable vicariously only if the wrongdoing partner acted either with the apparent authority of the partnership or to benefit it.
- Another case we handled established that a bankruptcy attorney did not owe a duty of care to the parent corporation of a debtor corporation he represented, which the attorney advised should file for bankruptcy.
- We argued the appellate decision that established, in Massachusetts, the principle that an attorney is not liable for every mistake that may occur in his or her practice and cannot be held responsible for the damage that may result from such mistakes.
- We similarly argued the case in which the Appeals Court held that in matters beyond the knowledge of lay persons, expert testimony is required to establish both the standard of care owed by an attorney in any given set of circumstances and the attorney’s departure from the standard.
- We also handled the case from which the law of attorney malpractice in Massachusetts has developed. In that case, the Supreme Judicial Court held that an attorney couldn’t be liable to a non-client for negligence in circumstances where the attorney is also under an independent and potentially conflicting duty to his client.
Representative cases - other professional liability
- We defended an accounting firm against claims it had mischaracterized, as personal income, millions of dollars of corporate expenses relating to inter-connected businesses involving a well-known local singing group.
- We have defended several environmental consulting firms against claims alleging errors and omissions in site assessments and remediations. For example, we defended a consulting firm that had allegedly failed properly to identify and to quantify the presence of hazardous materials at a former landfill.
- We defended a claim against an educational institution, alleging discrimination and a failure properly to educate a child, arising out of the school’s claimed failure to properly diagnose the student’s learning disabilities.
- We handled a case brought by adoptive parents against social workers and other agencies and professionals, alleging negligent failure to advise of the abusive sexual tendencies of the adoptive children.
Representative cases - errors and omissions
- Filing of an amicus curiae brief on behalf of several housing authorities concerning the protective scope of the Tort Claims Act.
- Coordination of the defense and ultimate settlement of a construction site death case involving over a dozen defendants.
- A verdict for the defense in a wrongful death action arising out of an apartment building fire.
- A defense verdict for a public housing authority in a negligent security case involving an alleged sexual assault in a tenant’s apartment.
- Negotiation of a favorable pre-trial settlement of a child sledding death claim based on a creative legal argument under the Recreational Use Statute.
- Defense of government officials and municipalities and agencies against civil rights claims.
Representative cases – disciplinary proceedings
- Represented hundreds of licensed psychologists and licensed social workers against complaints of professional misconduct by former clients.
- Successfully defended and achieved advantageous settlements for Massachusetts Licensed Site Professionals (LSPs), before the LSP Board; we have persuaded the LSP Board to dismiss third party complaints against our LSP clients.