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  1. #11
    Join Date
    Jan 2006
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    38,867

    Default Re: Statute of Limitations for a Legal Malpractice Case

    Quote Quoting Starr12
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    Yes, I realize this, but my brother, as a beneficiary, never asked or “directed” me to do anything as trustee, nor did I neglect any responsibilities. He simply wanted to be trustee himself, so his only “order” was to force me to resign and appoint him as sole trustee. They needed a reason to justify this, so they invented a list of things I was supposed to do as trustee, none of which are mentioned in the trust document, and none of which I was instructed to do by my T & E attorney back in 2006.
    Then it should be an easy win.


    And not all duties will be found in the trust document or even based on a beneficiaries request. The law of the germane state generally imposed duties as well. Additionally there is an overall duty to maintain and preserve the trust assets in a manner to best serve the purpose of the trust.

  2. #12

    Default Re: Statute of Limitations for a Legal Malpractice Case

    Quote Quoting jk
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    Then it should be an easy win.


    And not all duties will be found in the trust document or even based on a beneficiaries request. The law of the germane state generally imposed duties as well. Additionally there is an overall duty to maintain and preserve the trust assets in a manner to best serve the purpose of the trust.
    The trust always ran smoothly. There were never any issues or problems.

    I’m still trying to figure out when the claimed malpractice begins...

  3. #13
    Join Date
    Oct 2014
    Posts
    7,612

    Default Re: Statute of Limitations for a Legal Malpractice Case

    Quote Quoting Starr12
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    My question relates to legal practice in the state of: Massachusetts
    The legal action began as a threat, and I wasn’t sued until last year, although with a new attorney. I’m considering suing over what feels like a blatant conflict of interest violation.
    What is that "blatant conflict of interest" to which you refer? You said that the sibling used a different lawyer for the lawsuit. So what did the lawyer that you and your sibling hired to draft the trust do that was the conflict of interest? The threat to sue? If it was merely the threat to sue, how were you damaged by that threat? Without damages, you have nothing for which to sue.

    Also it is very important to know the following: who was the person setting up the trust? You paid for the attorney, but was it to get your parent(s) to set up a trust with you and your sibling as beneficiaries? This matters because it is important to identify who the actual clients were in setting up the trust. Just because you and your sibling paid for it does not necessarily make you the clients. And analyzing conflict of interest situations requires determining whether you were at any time a client of the lawyer and then how the lawyer is potentially acting adversely to your interests as a client.


    Quote Quoting Starr12
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    I’m still trying to figure out when the claimed malpractice begins...
    So far you have not described an actual instance of malpractice. But the time starts to run at the later of when the act of malpractice occurred or when you discovered (or should have discovered) the injury from the alleged malpractice.

  4. #14

    Default Re: Statute of Limitations for a Legal Malpractice Case

    Quote Quoting Taxing Matters
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    What is that "blatant conflict of interest" to which you refer? You said that the sibling used a different lawyer for the lawsuit. So what did the lawyer that you and your sibling hired to draft the trust do that was the conflict of interest? The threat to sue? If it was merely the threat to sue, how were you damaged by that threat? Without damages, you have nothing for which to sue.

    Also it is very important to know the following: who was the person setting up the trust? You paid for the attorney, but was it to get your parent(s) to set up a trust with you and your sibling as beneficiaries? This matters because it is important to identify who the actual clients were in setting up the trust. Just because you and your sibling paid for it does not necessarily make you the clients. And analyzing conflict of interest situations requires determining whether you were at any time a client of the lawyer and then how the lawyer is potentially acting adversely to your interests as a client.
    The lawyer set up the trust for me and my brother. It’s a nominee trust, and we are the two beneficiaries. We hired the lawyer, and it was clear he represented both of us.

    The conflict of interest, as I see it, is how he told me one set of facts about the handling of the trust and trustee responsibilities as my lawyer, and then claimed a second, contradictory set of facts about the trust when he went after me on behalf of my brother.

    I’ve spent thousands of dollars on legal fees, first to try to address these false claims, and then to fight this lawsuit. (Re: the lawsuit, even though he brought in a new lawyer, they’re still using strategy devised by the first lawyer, a/k/a my former lawyer). Isn’t that considered damages?

  5. #15
    Join Date
    Mar 2013
    Posts
    17,474

    Default Re: Statute of Limitations for a Legal Malpractice Case

    What does your current lawyer say about all this?

  6. #16

    Default Re: Statute of Limitations for a Legal Malpractice Case

    Quote Quoting adjusterjack
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    What does your current lawyer say about all this?
    They agree that the lawyer had a conflict, and will call the lawyer as a witness at trial, but they consider pursuing a legal malpractice case a separate matter, and it’s an area of practice they don’t do.

  7. #17
    Join Date
    Oct 2016
    Posts
    3,542

    Default Re: Statute of Limitations for a Legal Malpractice Case

    Did you as them for a referral to a lawyer that does handle such cases?

  8. #18
    Join Date
    Jul 2018
    Posts
    1,960

    Default Re: Statute of Limitations for a Legal Malpractice Case

    Quote Quoting Starr12
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    A sibling and I hired a lawyer over ten years ago to set up a Trust, and the sibling started taking legal action against me in 2015 with this same lawyer over an issue involving the same Trust. The legal action began as a threat, and I wasn’t sued until last year, although with a new attorney. I’m considering suing over what feels like a blatant conflict of interest violation. Would the clock start ticking as soon as I was first contacted, or when I was first sued, although again, with a new attorney who took over the case.
    First of all, you wrote that your "sibling started taking legal action against [you] in 2015," but then you wrote that you weren't sued "until last year," so what "legal action" was begun in 2015? Making threats is not "legal action."

    Second, what you've described here is not malpractice. As you've described it, it certainly does appear to be a conflict of interest, but the remedy would have been to have the attorney disqualified. However, you've told us that "a new attorney . . . took over the case," so it sounds like it's now a moot point.

    Am I missing something?

  9. #19

    Default Re: Statute of Limitations for a Legal Malpractice Case

    Quote Quoting pg1067
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    First of all, you wrote that your "sibling started taking legal action against [you] in 2015," but then you wrote that you weren't sued "until last year," so what "legal action" was begun in 2015? Making threats is not "legal action."

    Second, what you've described here is not malpractice. As you've described it, it certainly does appear to be a conflict of interest, but the remedy would have been to have the attorney disqualified. However, you've told us that "a new attorney . . . took over the case," so it sounds like it's now a moot point.

    Am I missing something?
    But the new lawyer was referred by the first lawyer, (who still stayed involved for a period of time (participated in meetings and was copied on emails)), and is using strategy devised by the first lawyer. Essentially the conflict is still affecting me?

  10. #20
    Join Date
    Jul 2018
    Posts
    1,960

    Default Re: Statute of Limitations for a Legal Malpractice Case

    Quote Quoting Starr12
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    But the new lawyer was referred by the first lawyer, (who still stayed involved for a period of time (participated in meetings and was copied on emails)), and is using strategy devised by the first lawyer. Essentially the conflict is still affecting me?
    The new lawyer is free to use whatever strategy he/she wants, regardless of where it came from. Again, nothing you've described constitutes malpractice, but you certainly can submit a complaint to the Board of Bar Overseers.

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