In McMillan v. Westport Insurance Corporation, CA No. 03-6107H Middlesex County
Superior Court (J. Botsford) (December 16, 2004), a Massachusetts Superior Court
Judge refused to require the lawyer who defended a law firm insured by Westport
Insurance Corporation (“Westport”) to produce that part of his file containing his work
product in a lawsuit against the insurer for bad faith settlement practices. The plaintiff
settled the underlying legal malpractice case for $370,000, which was what remained
of a $500,000 declining limits insurance policy that Westport had issued to the
law firm. As part of the settlement, the insured law firm assigned to the plaintiff all
rights or claims they have or may have against the insurer for the insurer’s failure to
settle promptly after liability and damages were reasonably clear. The plaintiff sued
the insurer for unfair claim settlement practices.
Terminating the Employment Relationship . . . Carefully
By Cheryl A. Waterhouse, Esq.
Termination of an employee is an adverse employment action that often triggers a
claim against the employer by the former employee. The employer may have a legitimate
business reason for the termination, such as an economic downturn, restructuring
or performance issues, but that may not, and often does not, stop a dejected or indignant
former employee from asserting a claim. This article discusses briefly the types of
claims that can be alleged against employers, examples of the adverse impacts such
claims can have on an employer and suggestions for minimizing and attempting to
avoid these types of claims.
Employer Found to Violate the Whistleblower
Provision of the Sarbanes-Oxley
Act of 2002
In the first Massachusetts case to test section 806 of
the Sarbanes-Oxley Act of 2002 (the “Act” or “SOX”),
codified in 18 U.S.C. § 1514A, an Administrative Law
Judge found that an employer violated the Act’s
whistleblower protection provision.
A Massachusetts Superior Court
Awards G.L.c.93A Liability and Multiple
Damages in a Legal Malpractice Case
In Correll v. Partlow, Suffolk Superior Court Civil Action
No. 02-04485, March 14, 2005 (Judge Charles
R. Johnson) Correll, a resident of Colorado, cracked a
tooth while eating at a hotel restaurant during a
business trip to Boston in 1992. In March, 1994, Correll
retained Partlow on a contingency fee basis to
represent him in a suit against the hotel and restaurant.
In February, 1995, Partlow began an action in
Suffolk Superior Court but failed to arrange for service
of the complaint. The complaint was ultimately
dismissed, but Partlow did nothing to revive the case
and did not inform Correll of the dismissal.
Contingency Fees: An Examination of
Attorney No. 1 v. Attorney No. 2
The Supreme Judicial Court recently addressed
whether an attorney retained under a contingency
fee agreement and discharged by the client before
the case is resolved is entitled to recover a fair portion
of the contingency fee obtained by successor
counsel. In Attorney No. 1 v. Attorney No. 2, 442
Mass. 692 (2004), the SJC ruled that a discharged
attorney may be entitled to share in the contingency
fee based on the particular facts the situation. Further,
the court held that the party responsible for
paying the fee - successor counsel or the client –
would also depend on the circumstances of each
case.
The New Hampshire Supreme Court
Addresses the Elements of a Legal Malpractice
Claim
In Carbone v. Tierney, 864 A.2d 308 (N.H.2004) the
Supreme Court of New Hampshire (the “Supreme
Court”) addressed the elements of a legal malpractice
claim in the context of failed litigation. Significantly,
it considered whether (1) expert testimony
was required for a plaintiff to prevail; (2) the plaintiff
must prove the judgment in the underlying case was
collectible; and (3) attorney’s fees should be deducted
if the recovery could have been subject to a
contingent fee. |
