LEGAL MALPRACTICE: It’s more than just courtroom error. Part II: Contracts

In most legal malpractice cases, the error of the lawyer happened before trial, or happened in a transactional case, where a trial would never even take place.  Legal malpractice happens when your attorney commits an error, which causes you substantial, usually financial, harm.  Malpractice related to contracts can include the failure to do due diligence on your behalf, drafting vague or confusing contract terms, and failing to advise you of your legal rights.  If your lawyer’s actions, or lack thereof, caused you harm, you may have a case for legal malpractice.    

             

An example of legal malpractice in a transactional case is the failure of your attorney to do due diligence on your behalf.  For instance, you may be purchasing a business that is renting space in the local strip mall.  You retain an attorney to represent you in this transaction.  The purchase is completed and money is paid to the Seller.  A couple weeks go buy and the owner of the strip mall brings an action to evict your business because you do not have a lease and therefore no right to be occupying the space used by your newly acquired business.  You expected the attorney to advise you concerning the need to formalize a rental agreement for the space your business is occupying but he failed to contact the landlord to negotiate the assignment of the Seller’s lease to your business or negotiate a new lease with the owner.   Or you found out after the purchase is complete that the owner of the strip mall is willing to enter into a new lease, but not at the same terms he had with the prior owner resulting in a larger rental payment than you anticipated.   

Another example of legal malpractice in a transactional setting is when your attorney drafts terms that are vague and/or confusing as terms in a contract are generally construed against the drafter.  If your attorney drafts vague and/or confusing terms and there is a dispute concerning the contract in the future, the contract may being interpreted in a manner inconsistent with your wishes. 

If you think your attorney’s actions in dealing with your contractual matters have harmed you in any way, you may have a case for legal malpractice.  Phillips Silver has helped many clients throughout Massachusetts seek recourse against their former attorneys and is ready to discuss your case with you.  Contact us for a free consultation.     www.pstas.com

The information you obtain on this blog is not, nor is it intended to be, legal advice. You should consult a lawyer for advice regarding your individual situation. We invite you to contact Phillips Silver and welcome your calls, letters and electronic mail.   Please note, contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

I own a small business: how detailed should my corporate records be?

Every corporation organized in Massachusetts, whether big or small, is required to “keep as permanent records minutes of all meetings of its shareholders and board of directors, a record of all actions taken by the shareholders or board of directors without a meeting, and a record of all actions taken by a committee of the board of directors in place of the board of directors on behalf of the corporation.”  M.G.L. c. 156D, §16.01 (2012).   This may seem burdensome if you are a small family run business or if you are the only shareholder of a corporation and therefore make all the decisions.   However, the safest way to protect your business and the integrity of your corporation is to treat it like it’s a large company and keep up with all the required corporate paperwork.

If you are a small business you may not be changing officers or directors on a yearly basis, but it is still important to have an annual meeting at which the shareholders elect the directors and the directors elect the officers as memorialized in votes of the shareholders and directors, respectively.  If your company is audited or if your company applies for a loan you may be asked to provide copies of the corporate votes for the last few years.  If you have not kept up with the required corporate paperwork the audit could be prolonged or the loan could be denied. 

It is important to keep minutes from the annual directors’ meetings to memorialize decisions made, documents relied on in making a decision, and if the decision was debated.  It is not necessary to record a play-by-play of the meeting detailing what each person said, but it is important to record the substance of the decision making process and the ultimate decision.  Documenting the decision making process of the directors can also help protect the directors from personal liability in the future.  A director is not personally liable for the actions of the corporation so long as the director’s decision falls within what is known as the “business judgment rule.”  The business judgment rule protects directors, and officers, from personal liability for actions they have taken in good faith, with due care, for the best interest of the corporation, and an individual in a like position would reasonably believe appropriate in similar circumstances.  Halebian v. Bery, 457 Mass. 620, 627 (Mass. 2010).   Evidence of the director’s good faith and thoughtful consideration of a business decision may be evidenced within the meeting minutes.   

Maintaining the corporate formalities, such as paperwork, can also protect the officers, directors and shareholders from personal liability if the company is sued.  For example, your company is sued for failing to pay amounts due whether it be for products purchased or a bank loan.  If your company is not able to make payments to the debtor, that debtor will look to find additional ways to be compensated, perhaps looking to the shareholders.  If you have not maintained the corporate formalities and treated your company as a separate and distinct entity, including maintaining separate bank accounts, not co-mingling company and personal funds, and keeping up to date on the necessary corporate paperwork, a debtor may seek to “breach the corporate veil” and seek recovery from your personal assets.  While breaching the corporate veil is not easy, it is important to recognize you formed a corporation for a particular purpose, likely to limit personal liability, and therefore it is prudent to maintain the corporate formalities to limit the risk of personal liability.

If you are a small business owner and are concerned your corporate records are not complete, or you need advice concerning your corporation, Phillips Silver can help.  We have represented many small businesses throughout Massachusetts and are willing to discuss your small business needs with you.  Contact us for a free consultation.  www.pstas.com

The information you obtain on this blog is not, nor is it intended to be, legal advice. You should consult a lawyer for advice regarding your individual situation. We invite you to contact Phillips Silver and welcome your calls, letters and electronic mail.   Please note, contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Help! I’ve fallen and now I’m injured.

You’re out shopping, walking around a store or mall and all of a sudden you slip and fall.  Or you’re going into a store to run an errand and slip and fall on ice in front of the store.  You’ve sustained a serious injury and have lost time from work due to your injury.  What do you do?

If your slip and fall was due to the negligence of another, you may be able to recover for medical bills incurred, lost wages, out of pocket expenses, and pain and suffering.   The first step is determining if someone else is a fault for your injury.  For example, if you slipped and fell on ice, where was the ice located?  Who was responsible for maintaining the area where the ice was?  Did the responsible party have notice of the ice?  If you slipped and fell on a banana peel at the grocery store, it would be important to determine how long the banana peel was on the floor and if the grocery store was aware of the unsafe condition.   If the banana peel was brown and dirty it could be an indicator that the peel had been on the floor for an extended period of time without the store cleaning the area. 

           

In Massachusetts, property owners have a duty to all lawful visitors to their property to use reasonable care to maintain their property in a reasonably safe condition in view of all the circumstances.   If you fell on snow and ice was it in the middle of a snow storm?  Or was it two days after a snowfall and the sidewalk remained covered in ice?  If the snow and ice is fresh, the property owner may not have had a reasonable opportunity to remedy the problem.  However, if it has been two days since the storm and the sidewalk is covered in ice, the owner likely has had notice of the unsafe conditions and a reasonable opportunity to remedy the icy sidewalk.

           

If you were injured in a slip and fall accident you may be able to recover for your injuries.  Call us at Phillips Silver to review your case to determine if a third party may be liable for your injuries.  Phillips Silver has helped many clients throughout Massachusetts seek recourse for their slip and fall injuries and is ready to discuss your case with you.  Contact us for a free consultation.   www.pstas.com

The information you obtain on this blog is not, nor is it intended to be, legal advice. You should consult a lawyer for advice regarding your individual situation. We invite you to contact Phillips Silver and welcome your calls, letters and electronic mail.   Please note, contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

LEGAL MALPRACTICE: It's more than just courtroom error. Part I: Missed deadlines

The realm of legal malpractice stretches far beyond the acts of your attorney in the courtroom.  In fact, in most legal malpractice cases, the error of the lawyer happened before trial, or happened in a transactional case, where a trial would never even take place. 

Legal malpractice happens when your attorney commits an error, not always on purpose, which causes you substantial, usually financial, harm.  These errors can range from missing a deadline in your personal injury case, to forgetting to include terms in your contract, to leaving out loved ones in a will.  If your lawyer’s actions, or lack thereof, caused you harm, you may have a case for legal malpractice.    

A common basis for legal malpractice is missing a deadline.  In all claims whether they are based in tort, contract, or otherwise, there exists a statute of limitations - a deadline to bring your claim.  When you hire a lawyer to assist you in prosecuting your claim he or she is responsible for determining the relevant statute of limitations on your behalf.  If you sustained injuries in a motor vehicle accident you have three years to bring a claim against the responsible parties to seek damages for your injuries.   This three year statute of limitations begins to run from the date of your motor vehicle accident therefore it’s important to timely seek legal representation when you have been injured.

A common fact pattern we see is you hire a lawyer and he or she begins working on your case.  Months go by and you are calling the lawyer asking for updates but do not see any results.  Before you know it, a few years have passed and your lawsuit was never filed.  Now what do you do? 

If you retained a lawyer and they failed to settle your personal injury claim or file suit on your behalf within the applicable statute of limitations you may have a legal malpractice claim.  At Phillips Silver we will first review your case to determine what the applicable statute of limitations (deadline) is and if there exists any basis for tolling, or extending, this deadline.  If your deadline has not already passed we can assist you by filing suit against the individual or company responsible for your injuries.  If your deadline has already passed, we will review your claim and advise if there is a basis for a legal malpractice claim.   Phillips Silver has helped many clients throughout Massachusetts seek recourse against their former attorneys and is ready to discuss your case with you.  Contact us for a free consultation.     www.pstas.com

The information you obtain on this blog is not, nor is it intended to be, legal advice. You should consult a lawyer for advice regarding your individual situation. We invite you to contact Phillips Silver and welcome your calls, letters and electronic mail.   Please note, contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.