September 16, 2011
In Search Of An Expert
The Massachusetts Board of Bar Overseers has imposed a public reprimand of an attorney who tasked the client in a medical malpractice case with finding an expert to support the claim:
Between 2004 and the spring of 2009, the client obtained her medical records and gave
the records to the respondent. The respondent instructed the client to try to obtain an opinion
from her doctors as to whether there had been a medical error in her surgery. He did not consult
any of the client’s doctors himself, obtain an expert opinion, or take other action of his own to
evaluate and preserve the claims. The respondent failed to commence an action for the client or
inform her that he would not file suit within the limitations period, which expired in March or
April 2007. The respondent failed to inform the client that the limitations period had expired.
In the spring of 2009, the client asked the respondent whether he had started a lawsuit for
her. The respondent told the client that he had not filed suit, that he could do nothing for her,
and that was terminating his representation. The respondent did not disclose to the client that her
claims were time barred. For about the next year, the respondent failed to respond to the client’s
repeated requests for her records. He returned the records in the summer of 2010.
The respondent’s reliance on the client to obtain an expert opinion and his failure to take
action to evaluate and preserve the client’s claims violated Mass. R. Prof. C. 1.1, 1.2(a), and 1.3.
The respondent’s failure to inform the client that he would not file suit for her prior to the
expiration of the statute of limitation, disclose to the client that the limitations period had
expired, and reply to her requests for the return of her records violated Mass. R. Prof. C. 1.4(a)
and (b). His failure to return the records within a reasonable time after her request violated
Mass. R. Prof. C. 1.16(d) and (e)(1).
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