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Los Angeles Dodgers owner Frank McCourt is free to bring a malpractice case against Bingham McCutchen, over claims the firm mishandled the preparation of financial papers for McCourt and his now-estranged wife. A Massachusetts state judge has dismissed the firm’s lawsuit that asked the court to declare that its legal work for him was up to par. Associate Justice Janet Sanders dismissed Bingham McCutchen v. McCourt in an order dated Aug. 17 and issued on Aug. 18, following an Aug. 8 hearing in the case in the business session of the Suffolk County, Mass., Superior Court. Other McCourt litigation is central to the Massachusetts case, a declaratory judgment action. Frank McCourt is embroiled in divorce proceedings with his wife, Jamie McCourt, in the Superior Court of Los Angeles County, Calif. Bingham lawyers’ work on financial papers that purported to set up separate ownership of certain assets by each of the McCourts separately has been a central issue in that case. According to the complaint, the McCourts reached out to Bingham Boston partner Lawrence “Larry” Silverstein in 2001 and hired the firm for estate planning and other legal work. Silverstein and other Bingham lawyers ultimately represented Frank McCourt when he acquired the Dodgers. They also prepared a “Marital Property Agreement,” which was designed to keep certain assets in Jamie McCourt’s name and shield them from Frank McCourt’s creditors. Frank McCourt took on significant debt to buy the team, which had already operated at a loss for several years. Last December, the California court ruled that it would not enforce the Bingham-drafted agreement on the grounds that it wasn’t a valid agreement under California marital property law and that “there had never been a sufficient meeting of the minds between the McCourts,” according to Frank McCourt’s Massachusetts court papers. In the Massachusetts case, Bingham sought a declaratory judgment that the firm didn’t cause any of Frank McCourt’s losses stemming from his ownership of the Dodgers, a professional baseball team that’s now in Chapter 11 bankruptcy, and was “in accordance with ordinary standards of care for legal professionals.” At the hearing in the case earlier this month, McCourt’s lawyer, Fred Bartlit Jr., a Denver partner at Chicago-based Bartlit Beck Herman Palenchar & Scott, described Bingham’s position as “saying as a matter of law in Massachusetts any tortfeaser…can run over someone [with a car] and when they’re in the emergency room sue them and say they weren’t paying attention.” In her order, Sanders wrote that the declaratory judgment process has never been used in Massachusetts “to allow an individual or entity accused of a tort to preemptively sue the alleged victim. There is good reason for this lack of precedent: to permit the reversal of roles in a negligence action and to allow the tortfeaser to sue first would upset the traditional right that our judicial system gives to the injured plaintiff to choose when and where to litigate.” In a written statement, Bingham said the firm “is disappointed that the court has determined that it cannot, at this time, proceed to obtain a determination of Mr. McCourt’s threatened claims against the firm and must await Mr. McCourt’s filing of a suit to have its day in court. Bingham is studying the court’s ruling in order to determine its next step in this process.” McCourt’s lawyers at Bartlit Beck declined to comment. Another McCourt lawyer on the case, Thomas Reilly, of counsel to Boston’s Cooley Manion Jones and a former Massachusetts attorney general, could not be immediately reached for comment. Sheri Qualters can be contacted at [email protected].

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