Want to hire a cheap lawyer, watch out! (Part 2)

13 October 2012

When contemplating which attorney to hire, price is typically a factor, but some people seem to weigh it too heavily and end up with the cheapest attorney they can find.  Not only do they run the increased risk that their chosen attorney could cut corners (Want to hire a cheap lawyer, watch out! (Part 1)); but the client also runs the increased risk of their attorney making mistakes, by either action or inaction.  The point this post makes is that federal law states that those mistakes are attributable to the client.

 

Yes, that is right; whatever mistake the attorney makes is yours to keep.  One may think they can simply say they did not know what the lawyer was doing and any mistake will not be determined to be their fault.  But the law of the land as established by the United States Supreme Court says differently.  Pioneer Inv. Ser. Co. v. Brunswick Assocs Ltd. P’ship., 570 US 380, 396 (1993).  And lower courts follow this precedent; the United States Court of Appeals for the First Circuit has followed the “widely accepted rule” that the attorney’s mistakes are attributed to the client.  KPS & Assocs., Inc. v. Designs By FMC, Inc., 318 F. 3d 1, 16 (1st Cir. 2003) (“[I]n this circuit we have consistently ‘turned a deaf ear to the plea that the sins of the attorney should not be visited upon the client’”) quoting Farm Constr. Servs., Inc. v. Fudge, 831 F.2d 18, 21 (1st Cir. 1987).  Simply put, the law is that “clients must be held accountable for the acts and omissions of their attorneys.” Pioneer Inv. Ser. Co. v. Brunswick Assocs Ltd. P’ship., 570 US at 396.

You may have found this blog from a search like “bankruptcy attorneys in Massachusetts” or “litigation attorneys in Massachusetts” or “identity theft attorneys in Massachusetts” or “foreclosure defense attorneys in Massachusetts” or “debt collection abuse attorneys in Massachusetts” or something similar.  You may be “shopping around” attempting to obtain quotes for legal services to address your situation.  If price is a major factor, we hope you consider this post before making it the only factor, and choose wisely.

Massachusetts’ new foreclosure law: how much does it change the landscape of foreclosure law in Massachusetts.

3 October 2012

On 3 August 2012 the Governor signed the law and the substantive portions take effect on 1 November 2012.  It has four main, significant changes to Massachusetts foreclosure law, a very brief description of the changes are:

1) If a mortgage is assigned, the chain of mortgage assignments must be recorded with the registry of deeds prior to issuance of the foreclosure notice;

2) For certain loans, banks must determine whether they would fare better in a loan modification that the homeowner can afford verses after a foreclosure, and if it fares better in offering a loan modification, it must offer one;

3) An affidavit must be filed prior to the publication of a foreclosure notice swearing to the compliance with the new section, etc.; and

4) Third party purchasers can rely on the foreclosing parties’ affidavit and are protected from title claims.

The most discussed and publicized in the mainstream is number 2 above.  It is typically described “on the street” as the bank being required to offer a loan modification, or that the bank must offer a loan modification if it will be better off doing so than foreclosing.  With these layman, cursory descriptions the details of the law are swept over, most importantly, that this new requirement applies only to certain loans.  Specifically, it is the definition in the law for “certain mortgage loan” that is not described.  A mortgage loan is deemed a “certain mortgage loan” by the new law if one or more of 7 different “features” as described in the law apply to the loan.  The law also provides that if the bank cannot determine whether the loan has any of the features or not, then the loan is deemed a “certain mortgage loan.”

            As they say “the devil is in the details” and that is here --- whether this new provision of the new law applies to your loan.  If you are interested in learning how the new law applies to your situation, we encourage you to be sure what the new law can do for you, which may mean not simply relying on what you hear on the street.  In the event you desire to discuss this issue or the new law with this office, feel free to give us a call.

If the topless pictures of Kate Middleton were taken in Massachusetts, would she have had a legal claim under Massachusetts law for violation of her privacy?

17 September 2012

Most likely.  The topless photos of Kate Middleton reportedly were taken in the south of France while the royal couple was sunbathing.  The pictures apparently were obtained from a significant distance, one report being a ½ mile away.  Although the privacy laws in France are known to be some of the strictest in the world, and much more so in general than the United States, due to the nature of the photos, the Duchess of Cambridge would likely have a legal claim under Massachusetts law if the incident occurred here in Massachusetts.

Whether a tort for the violation of a person’s right to privacy in some shape or form has existed under the common law (created by courts) in Massachusetts and under what circumstances a claim would arise was not firmly established in Massachusetts.  Baker v. Libbie, 210 Mass. 599 (1912); Corliss v. E.W. Walker, Co., 57 F. 434 (C.C.D. Mass. 1893) modified, 64 F. 28 (C.C.D. Mass. 1894).  Only in recent times did the tort under the common law take some shape.  In Alberts v. Devine the Massachusetts Supreme Judicial Court affirmed that a patient has a right of privacy for the information a physician obtains in the patient-physician relationship.  395 Mass. 59, 65 (1985).  Today, a right to privacy under the common law may still arguably have some grounding in Massachusetts law.  However, reliance on the common law in most instances may not be necessary; in October 1973 the Massachusetts legislature passed a law intended to provide citizens a statutory right to privacy.  It is Mass. Gen. Laws ch. 214 § 1B.  It reads:

   

“A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages.”

Although what is “unreasonable” or “substantial” or “serious” is a matter of some legal debate, it is hard to imagine that sneaking around taking nude pictures of a woman who is on private property is not unreasonable or substantial or serious in anyone’s book.  This author thinks it is safe to say that Kate Middleton would have a claim under this statute under the facts as reported if the photos were taken in Massachusetts. 

In the event that you are a party in a case involving the right to privacy in Massachusetts, expect to be a party in a case, or want to know if a claim exists under a certain set of facts, feel free to give our office a call.

What is limited assistance representation in Massachusetts and how can I benefit from it?

12 September 2012

Limited assistance representation (“LAR”) is a relatively new (and exciting) way clients and attorneys can structure representation agreements.   Specifically, for clients LAR is an agreement to limit the representation to only part of a case, such as one hearing or court conference, instead of the more traditional representation agreement where an attorney represents the client for the entire court case.  The goal of LAR is to allow a client to hire an attorney on a limited basis and save money by avoiding the cost of an attorney for an entire case.  Also, an intended benefit is for clients to be represented for at least part of the case when they normally would not be represented at all due to cost.  It is something to consider when money is tight for the right kind of case. 

For attorneys and formally for Massachusetts, LAR is a relaxing of procedural rules.  You see, traditionally, a lawyer who files a document in a case makes an “appearance” that triggers a number of responsibilities for the clerk’s office, the lawyer, and the opposing party.  Most importantly, a lawyer that has made an appearance in a case for a client must continue to represent the client until he gets permission to leave the case or is replaced by successor counsel.  The gist for the lawyer is that (in the past without LAR) it has been difficult to get out once you’re in.  (This is one big reason why attorneys require retainers before representing a client.)  Lawyers are fearful to avoid having to spend the time to get out of a case when the client is not paying them, or worse, have to represent the client in a trial because for whatever reason the judge will not let them out of the case, which has and does happen. 

Technically what has happened is that the Massachusetts Supreme Judicial Court has issued a standing order setting up the procedural rules that must be followed to represent a client on a LAR basis and allowing individual courts throughout Massachusetts to allow LAR if desired.  An attorney must follow these procedural rules to appear before a court under LAR. 

LAR can be a great way to go for both client and attorney.  But it is not appropriate for every case.  An attorney considering a LAR agreement must analyze the matter and make sure it is appropriate.  If so, the benefits can be great.

In the event that you are involved in a court case or expect to be involved in a court case in Massachusetts and LAR interests you, feel free to give our office a call.

Do I have a claim for intentional infliction of emotional distress under Massachusetts law?

1 September 2012

Maybe, but it is a real high legal standard to meet.

There are many people making claims for intentional infliction of emotional distress.  Once I saw a car (Car #1) driving in the breakdown lane of a congested highway fast enough to pass other cars sitting in traffic.  I then saw a car in the right lane (Car #2) pull enough into the breakdown lane to stop the progress of the car.  Is there a claim here?  Was this intentional?  Yes.  Is it inflicted upon someone?  Yes.  Is it emotional distress?  Yes.  But it is quite unlikely any judge would believe that there is a claim for intentional infliction of emotional distress under Massachusetts law. 

 

This is because the title of a claim is not all there is to it.  One must research statutory and case law to gain an understanding of what the claim is all about.  Just a few of the requirements are the degree of the behavior and the severity of the distress. 

Under Massachusetts law, the behavior inflicted must be “extreme and outrageous conduct.”  Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 466 (1997).  It must be “beyond all possible bounds of decency” and “utterly intolerable in a civilized community.”  Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976).  What car #2 did is arguably rude and intended to cause frustration, but it does not meet this standard. 

 

An intentional infliction of emotional distress claim also must cause severe distress, not garden variety distress.  Bailey v. Shriberg, 31 Mass. App. Ct. 277, 279-80 (1991) (being “upset and up tight,” or “disgusted, annoyed, fed up, tired, and rundown” about defendant’s dogs’ barking and radios blaring 20 feet away not distress of “requisite severity”).  The distress must be of a nature that “no reasonable man could be expected to endure it.”  Agis v. Howard Johnson Co., 371 Mass. at 145.  One may be quite upset that a person blocks their way to drive in the breakdown lane, but it doesn’t meet this standard.

Now pretend that the driver of Car #1 was rushing their friend to the hospital who had time-sensitive and serious injuries and the driver of Car #2 knew of the injuries and the intended destination of Car #1 and was yelling “you’ll never get there and she will die.”  Hmmmm, maybe we are getting closer.

The point is that there is usually more than just the title of a particular claim and care must be taken prior to filing suit to see if legal standards are met.  

In the event you believe you have a claim for intentional infliction of emotional distress or another tort, feel free to give us a call.

What happens if I conceal an asset in a bankruptcy?

30 August 2012

Answer: really bad ramifications, and now there is one more added to the mix for Massachusetts.

A federal appeals court has just issued a ruling that the law allows an additional remedy against bankruptcy debtors that conceal assets. This case is important because it establishes the law for Massachusetts and adds another really bad possible ramification for a debtor that is dishonest. The United States Court of Appeals for the First Circuit, with former Supreme Court Justice Souter sitting under designation authoring the opinion, just affirmed a ruling by a bankruptcy judge in Boston, Massachusetts that took the step of ordering a “surcharge” against a Debtor the judge believed concealed funds he received from a real estate transaction. The case is styled as Malley v. Agin (In re Malley), 2012 WL 3326629 (1st Cir., Aug 15, 2012) and a brief summary of the facts from the opinion is the following.

Mr. Malley and his ex-wife sold their marital home in accordance with their divorce agreement. Mr. Malley personally received $25K as his share from the sale. He then filed for bankruptcy and did not reveal his receipt of the $25K on his bankruptcy paperwork. When asked about the transaction by the trustee assigned to his case, he claimed under oath that he never received any funds from the transaction.  The trustee investigated and learned about the $25K that went to Mr. Malley.

The trustee sought sanctions against Mr. Malley and the bankruptcy court denied Mr. Malley a discharge of his debts because of Mr. Malley’s false representations. The court also ordered Mr. Malley to turnover the $25K, but he did not and did not explain where the funds went. The bankruptcy court also ordered, and this is what is important from the case, that the $25K that was unaccounted for, plus the cost to unravel the issue would be held against one of Mr. Malley’s exempt assets, a truck that he used in his business. You see, the general rule is in bankruptcy that debtors are entitled to keep exempt assets to ensure their fresh start and only have to turn over assets that are not exempt under the law. But this decision delved into that area to ensure the $25K plus was accounted for.

Although the portion of the case concerning the exempt property may be appealed to the US Supreme Court, as matters stand now, the case did not turn out well for Mr. Malley.  He will not get out of his debts, he will have to give up his only significant asset, and (if authorities believe he intentionally stated falsehoods under oath) the case may get the attention of the US Dept. of Justice for criminal prosecution.  The moral of the story is to disclose all of your assets in your bankruptcy.

If you are contemplating bankruptcy and plan to heed the moral of this story, then we encourage and invite you to contact this office.

How do I obtain documents from a third party to use in a law suit?

1 August 2012

People that have claims can find themselves in the situation of needing to obtain documents and records from a third party to use against the party they are suing or being sued by.  The best way to go about this usually is to utilize Rule 45 of the Massachusetts Rules of Civil Procedure.  This rule allows a party to a law suit to depose, and in conjunction with the deposition, to obtain documents from third parties. 

Initially, you must partly draft a Subpoena Duces Tecum and have it issued by the court clerk, justice of the peace, or notary.  Then you must choose a date and time for a deposition that is at least 30 days from the date the third party will be served.   (You must be ready to supply a stenographer to record the deposition, if indeed the deposition actually occurs.)  You must complete the rest of the rest of the Subpoena Duces Tecum.  You must pay attention to the limits on the miles the deponent is supposed to travel and provide sufficient funds in advance for the attendance and the travel costs.  Mass. R. Civ. P. 45(c) and (d)(1).  You must serve the third party with the Subpoena.  You will need to know what person or entity to make service upon and how to go about it.  You may be able to send the Subpoena by certified mail, return receipt requested, and you may want to use the sheriff of the county where the service will be made to make the service. 

The “Duces Tecum” language means “you shall bring with you.”  This added language makes a subpoena, which only requires the presence of the natural person (or natural person designated by a corporation), require the presence of the person plus the documents named.  (If you just want to depose someone, this language is not used.)

If you are really looking for the documents (and are not interested in bothering some poor third party to appear and answer questions under oath), which is typically the case, then you can inform the third party that you are inclined to cancel the deposition in the event that you are satisfied with the documents.  Upon receipt of the documents, be professional and inform the third party right away the deposition is cancelled.

In the event the documents concern information people other than the third party have an interest in.  The third party is likely to inform those people that they have been served with a Subpoena Duces Tecum and will be providing the information.  This allows those people to contest your Subpoena in court and to try and prevent the information from being released.

You also may be asked to pay the third party the reasonable costs to produce the documents.  Mass. R. Civ. P. 45(b).  This is especially so if the third party is a large corporation and it has procedures in place due to the abundance of Subpoenas it receives due to its size or particular business.  (Think Facebook, Microsoft, and YAHOO!)

This process can be daunting for one that has not been through it.  The response, or lack thereof, of third parties can vary greatly and makes it necessary for you to be nimble and react quickly to enforce your rights.  In the event you believe you have a claim but need documents or information from a third party, feel free to contact the office.