Hello, my name is***** am a practicing attorney in New York City. I am truly sorry to hear that you are going through this situation.
I understand from your question that you are interested in suing the lawyer who represented your mother and who you believe failed to return your mother's files to her, including her will.
As a matter of fact, attorneys' client files are actually the property of their clients insofar as they were created under a work for hire relationship. Therefore, attorneys do have an obligation to provide clients with copies of their files whenever a client so requests. Also, an attorney should never just discard an important client file - like a will - without giving the client notice and/or an opportunity to claim the document. A client may be able to sue for malpractice if an attorney fails to maintain the proper standard of care with regard to that client's files and documents.
Unfortunately, in this situation, your mother was the client who's files and documents were not maintained properly. You, yourself, never owned these files in any way, as you were not the client in this case. Therefore, you would not have "standing" to sue your mother's lawyer for any malpractice he may have committed against her with regard to her files.
"Standing" is a word courts use to determine who is eligible to bring a lawsuit. Generally speaking, a person, or their property, must be harmed in order for that person to bring a lawsuit. For instance, if I simply read about a car accident in the newspaper that did not involve me in any way and was caused by a drunk driver, I cannot sue the drunk driver for any damages because I was not involved in the accident, and neither was any of my property.
I realize that your situation must feel very different. You must feel as if your mother's lawyer damaged you personally by mishandling her files. Unfortunately, you never had any ownership of the files and you were never that lawyer's client, so he owned you no professional standard of care. In the eyes of the law, all he did was harm your mother by failing to do the job she hired him to do - which was to make sure that her wishes for her estate were carried out. Therefore, it is very unlikely that you will be able to sue over the fact that he may or may not have misplaced the files and failed to have her will enforced.
However, your mother's estate can certainly sue the lawyer if he did, in fact, commit malpractice with regard to her files. It sounds like you have already spoken with the guardian of your mother's estate about suing on behalf of her estate, but the guardian has told you that it is not possible at this time.
Unfortunately, the statute of limitations for a legal malpractice suit in Massachusetts is three years, meaning that you have three years from the time that the malpractice is discovered to file a lawsuit. The timeline of all of this is a little unclear from the facts written above - I can't tell whether the lawyer disposed of the files 10 years ago, or whether he disposed of them more recently because they were 10 year old files. In either case, if your mother, or her estate, discovered her lawyer's actions within the last three years, then you may still be able to sue. If that is the case, then you should speak with the guardian of your mother's estate once more and try to explain that your mother never knew about her lawyer's actions until sometime within the last three years. If the guardian is still not interested in pursuing a lawsuit against your mother's lawyer, then you should hire a local lawyer of your own to take further action to try to compel the guardian to act.
I hope this answer has been helpful. I realize that family inheritance issues can be very difficult and I sincerely ***** ***** all the best with this matter.
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