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  1. #1

    Unhappy Attorney Filed My Case Too Late

    My question involves malpractice by a lawyer in the state of: MA

    In Sept of 2005 i retained an attorney to file a lawsuit against the Trustees of my late Fathers estate. They deeded a house to my stepmother that was supposed to be mine.
    i provided this attorney with supporting documentation and paid him a large retainer. These documents were generated in May of 2003. In Dec of 2006 he filed the lawsuit.
    After 4 years and many hearings, depositions and 2 summary judgment motions, all at my expense, the case was dismissed on Statute of Limitations!
    If my attorney had filed the case at any time before May of 2006, this would NOT have been an issue.
    Can i sue him for malpractice for not filing in a timely manner and causing me to lose my case before it was even heard?

  2. #2
    Join Date
    Jan 2006
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    Default Re: Is My Attorney Guilty of Malpractice

    maybe but obviously we do not have all of the facts. What did your attorney say when s/he told you you lost because of the SOL? Was there an explanation why it was not filed previously?

  3. #3

    Default Re: Is My Attorney Guilty of Malpractice

    Quote Quoting jk
    View Post
    maybe but obviously we do not have all of the facts. What did your attorney say when s/he told you you lost because of the SOL? Was there an explanation why it was not filed previously?
    he said:"These things take time."

  4. #4
    Join Date
    Jan 2006
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    Default Re: Is My Attorney Guilty of Malpractice

    I would look into a malpractice action then. Obviously they take time but since the law allows you only so much time to act, you have to take action prior to that time.

  5. #5

    Default Re: Is My Attorney Guilty of Malpractice

    Thank you.

    Also i previously contacted and retained this same attorney in 2001 initally. At that time i had no money to pay him but he did tell me in 2001 that "Trust C" was not formed as specified by my Father in his Will. Would that be considered a breach then so that when i returned to him in 2005 he should not have taken the case because the first breech occured in 2001, giving me only until 2004 to file, which i did not do?

  6. #6
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    Jan 2006
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    Default Re: Is My Attorney Guilty of Malpractice

    offhand I do not know when the SOL began to run. Sometimes it is upon the event but sometimes, it is upon the discovery of the event by the injured party or when they should have reasonable discovered the event.

    the transfer is the event of concern, not the realization the trust was not properly formed. While they could be one and the same, I do not know that by what you state here. If the trust was created 12 years ago but the house transfer was only a year ago (just numbers for explanation) the sol concerning the improper transfer of the house would start a year ago. Unless the creation of the trust itself and not some action taken by the trust injured you, then that would be the start of the clock for whatever injury you sustained due to the creation of the trust itself.

  7. #7

    Default Re: Is My Attorney Guilty of Malpractice

    The Trust was formed in 1987 when my Father died.
    i learned in May of 2004 that the house was in fact deeded to my stepmother in 1994, by means of a letter written by a real estate friend of mine in May of 2003. She received an abreviated abstract of title on the property in May of 2003, but did not give it to me until May of 2004. However, the 16 pages generated and sent to the real estate friend bore the May 2003 date on the bottom. i told my attorney that i learned this info in May 2004, true, but he should have noticed the May 2003 date on the document and filed immediately, no.? Then i would have been covered either way, right?
    The fact he waited 14 months to file is why i ultimately lost the case...and a considerible amount of money.

  8. #8
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    Mar 2009
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    Default Re: Is My Attorney Guilty of Malpractice

    I would file a complaint with the state bar. I would also be looking for a malpractice attorney. The attorney knew or should have known of the SOL problems. I can't imagine the complaint was all that complicated. This alone is the issue, the merits of the case are not.

    I am very surprised that it took 4 years of litigation to arrive at an SOL dismissal. That should have been the first defense raised by the defendant(s) prior to an answer.

  9. #9
    Join Date
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    Default Re: Is My Attorney Guilty of Malpractice

    If the litigation went on for four years before the court ruled on the statute of limitations, it is reasonable to infer that there was some complexity to the issue - that's usually something a court is able to rule on early in the litigation. But if the case was in the lawyer's hands well before the statute of limitations ran, it's usually not that difficult to make the case that he knew or should have known the deadline for filing the case and, thus, that he's potentially liable if he files late. If the only reason your lawyer would have known, though, that the limitations period started a year earlier than the date you told him about was that a document in a stack of papers included an earlier date, that may not be culpable - and if it's "so obvious", raises the question of why you didn't bring it to your lawyer's attention.

    I suggest seeking out a lawyer in your state who handles legal malpractice cases to have the case reviewed.

  10. #10

    Default Re: Is My Attorney Guilty of Malpractice

    Thank you.
    It wasnt a "stack of papers", but only 1 16 page document with this date on the bottom of all the pages.
    i just did not notice this date and think that the attorney should have noticed it and asked me about the date.
    i did not receive this document until 2004, true, but i think the attorney still should have files ASAP...just in case.
    If he had, the SOL would not have come into play. It took him 14 months to file, which turned out to be 6 months too late.
    If he had filed right away there would not be this problem.
    This documrnt was acquired by a real estate friend of mine in May of 2003 from the clerk of court in the state where the house is and i did not see her from May 2003 when she wrote the letter to get the document until May of 2004 when she handed it to me. Then i went to the attorney in 05 when i had the money to pay him.

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