In a Chapter 7 bankruptcy proceeding, a U.S. Bankruptcy Judge denied a motion by
defendant’s counsel to withdraw, ruling that a lawyer who represents the debtor in a
bankruptcy proceeding cannot rely on a clause in the retainer agreement allowing the
lawyer to withdraw in the event of non-payment. In re Cuddy, No. 04-12166-WCH
(Bankr.D.Mass. March 24, 2005).
Executrix Held Personally Liable for Legal Services Rendered to
Probate Estate
In a breach of contract action brought by Attorney Diana Butt Campbell (“Attorney”)
against an executrix, Nancy C. Toner (“Executrix”), The Massachusetts Appellate Division
for the Northern District confirmed that an executrix is personally responsible for
the payment of legal fees incurred in probating an estate, unless the parties agree otherwise.
Diana Butt Campbell v. Nancy C. Toner, 2004 Mass.App.Div. 7.
The Federal District Court Denies Summary
Judgment on Partnership by Estoppel
In Katherine Andrews v. Barry D. Elwell, Paul W.
Pappas, John F. Carlson, and Neil Colicchio, C.A. No.
03-10825-REK, the United States District Court for
the District of Massachusetts addressed the issue of
partnership by estoppel, as applied to lawyers practicing
together, who shared letterhead and used their
names together to describe their offices.
The United States Court of Appeals for the First Circuit Holds Chapter 11 Counsel Liable
for Malpractice
In a legal malpractice claim brought by the bankruptcy trustee, (“Trustee”) against Chapter 11 counsel (the
“Defendants”), the US Court of Appeals for the First Circuit addressed the elements of a legal malpractice claim as it
applies to Chapter 11 proceedings. Significantly, it considered (1) the existence of an attorney-client relationship,
which imposed a duty of care, skill and knowledge in providing legal services to a client; (2) breach of duty; and (3) the
connection of a legally recognized causation between the breach and the resulting harm to the client.
CPA Not Liable for Failing to Consider
Applicability of §280H
A recent unpublished decision of the Massachusetts
Appeals Court held that a defendant tax preparer
was not negligent when the plaintiff failed to
show that the defendant submitted an incorrect tax
form and even if he did, the alleged negligence was
not actionable because the plaintiff not was harmed
by the defendant’s omission. In Barry R. Miller v.
Roger Volk, the Appeals Court reversed a trial
court’s finding of negligence because the plaintiff
did not prove that the defendant’s failure to explore
the applicability of 26 U.S.C. §280H (1994)
(“§280H”) caused the plaintiff’s increased tax liability.
Further, the plaintiffs’ own action of withdrawing
money from his business caused the resulting
tax liability and no proof was submitted to the trial
court that the interest charged by the Internal Revenue
Service (“IRS”) exceeded the value of the plaintiff’s
use of the funds. |
