Morrison Mahoney Partner Alan Brown was quoted extensively in a December 12, 2016, article in Massachusetts Lawyers Weekly—”‘In pari delicto’ doctrine shields law firm from malpractice action.”

In a recent U.S. District Court case, In Re: Inofin Incorporated, Lawyers Weekly No. 02-454-16, a federal judge found that the in pari delicto (“in equal fault”) defense barred a bankruptcy trustee’s malpractice claim against a law firm that allegedly gave the trustee inadequate legal advice. The firm’s client could not show that the outcome of the trustee’s business endeavors would have been different had the law firm had been more diligent in advising the client.

The article quoted Alan on the risks of representing a client that does not follow advice:

Alan E. Brown, a Boston legal malpractice defense lawyer, said the case highlights the risk inherent in continuing to represent a client that does not follow its attorney’s advice

“While the risk of continuing the representation may well be worth taking, it should nonetheless be evaluated,” he said. “Here, the defendant firm was forced to engage in three years of litigation before ultimately prevailing on summary judgment.”

And if a lawyer does decide to continue representing a client that does not heed his or her advice, the lawyer should clearly communicate all possible negative consequences to the client in writing, Brown added.

“The lawyer also may wish to consider limiting the scope of the continuing representation expressly to exclude the issue on which the client and the lawyer disagree,” Brown said. “Any such limitation should also be reduced to writing.”

In pari delicto is a defense that applies in tort cases, including legal malpractice claims, when the plaintiff and defendant bear substantially equal responsibility for the wrong the plaintiff is seeking to redress.

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