93A and Legal Malpractice
LEGAL MALPRACTICE AND THE CONSUMER PROTECTION LAW, MGL CHAPTER 93A
Many clients, as well as attorneys, call us and ask what the relationship is between Massachusetts General Laws, Chapter 93A, the Consumer Protection Statute, and legal malpractice. The simple answer is that because clients are “consumers” of the lawyer’s trade or professional work, the 93A law applies to lawyers. It is an additional “count” in a Complaint for legal malpractice. A successful 93A case can result in double or treble damages plus attorney fees.
How Does Chapter 93A Work in Legal Malpractice Cases?
93A requirements are outlined in of the Consumer Protection Statute, Section 9. The basics are simple, the application of the law, however, can be complex. To initiate a 93A case, the client must send a written demand letter to the attorney specifying and “reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered.” You will need an attorney to draft and send the 93A letter as they are complicated and must stand up to Court scrutiny if you later want the right to multiple damages and attorney fees.
The Supreme Judicial Court has held that attorneys can be held accountable under Massachusetts General Laws, Chapter 93A, and that the scope can be expanded to include negligent as well as intentional misrepresentations. It has been held that Chapter 93A, Section 2 includes the practice of law as “trade or commerce” which prohibits “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” A lawyer’s liability for multiple damages and attorney fees may generally be found under Chapter 93A, section 9.
In some instances, the judge will bifurcate the trial so that there is first, a trial regarding the issue of the underlying case and second, a hearing regarding multiple damages. Defendants frequently request this. In the second stage, there is a hearing before a judge. The judge will look at the egregiousness of the case in deciding about multiple damages. We have found that judges come down strongly about attorneys who lie and do not do what they agreed to do. This goes beyond negligence, or simply making a mistake that causes damages.
Does Lawyer Liability Insurance Cover 93A Damages?
To add a layer of confusion, the attorney’s malpractice insurance carrier may or may not be responsible to the client/consumer under 93A and Chapter 176D as well. This is because, once you can show clear liability and collectability, the attorney’s malpractice insurance company is obligated to make a reasonable offer of settlement. While the insurance policy may not cover 93A damages (multiple damages and attorney fees), it would obligate the company to take the claim seriously and focus on resolution to prevent their insured from facing multiple damages. In many cases, a well drafted and properly served 93A letter will result in the insurance company asking to negotiate or mediate prior to even responding, so that they will not be subject to failing to make an unfair offer.
In a Suffolk County Superior Court case, which we tried to completion, the Court held that the defendant did violate Chapter 93A and that we were entitled to triple damages. To avoid appeal, the defendant’s insurance company paid the triple damages and attorney fees.