Trap of the Week: Attorneys as bond sureties

Thursday, Sept. 16, 2021
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Traps for the Unwary, the Massachusetts Bar Association’s award-winning malpractice prevention handbook, is the newest exclusive member benefit for the MBA’s 2021-22 association year. The expanded Seventh Edition is available now as an e-publication to all current MBA members, who can access and download their e-copy from their MBA profile. (See detailed instructions at

Throughout the month of September, eJournal will feature excerpts from Traps for the Unwary to highlight some of the helpful information found in the handbook. This week’s Trap of the Week looks at attorneys as bond sureties (see below).

Last published in 2011, Traps for the Unwary looks at some of the malpractice hazards for attorneys who practice in a general, civil practice. From dangers that arise in uncommon circumstances to hard-to-see risks that are masked by a complex matrix of laws and regulations, Traps for the Unwary is an indispensable reference tool that benefits both lawyer and client. The original Traps for the Unwary, published in 1988, earned a first place Award of Achievement from the American Bar Association for service to the bar.

The Seventh Edition of Traps for the Unwary updates citations and entries from the previous six editions and adds 50% more content across 18 chapters. One chapter alone includes 50 short statutes of limitations, plus 25 possible paths for relief from certain statutes of limitations. This new edition also contains hundreds of time-saving case citations, a table of cases, an improved index and hyperlinked web resources. More than 170 lawyers have contributed traps to this project since its start in 1987, including 50 lawyers who helped update this most recent edition.

James E. Harvey Jr., a partner at O’Malley, Harvey and Brosnan LLP, who served as editor in chief for the Seventh Edition, says that the expanded Seventh Edition — the first in 10 years, with its 160 pages and over 800 case citations — is the best edition yet. "No one lawyer knows all the malpractice and other hazards lurking out there, but 170 lawyers working together know a lot of them. We are grateful for their contributions to the project."

Funding for Traps for the Unwary has been provided by the MBA Insurance Agency Inc.


We’ve been publishing excerpts in eJournal to highlight some of the “traps” that readers will find in the Seventh Edition of Traps for the Unwary. Read this week’s “trap,” plus previously shared examples, below.

“No attorney shall be surety upon any bond which may be required in any civil suit . . .” Dist./Mun. Supp. Civ. P. R. 113. Attorneys are also prohibited from becoming sureties in Superior Court cases. Superior Court Rule 11. In Probate Court, attorneys take an unnecessary risk if they sign, generally as a matter of convenience, a Probate Court fiduciary bond as a surety. M.G.L. c. 190B, § 3-606(a)(2). Signing as surety may place attorneys in conflict with their own clients. In a suit brought by any heir or creditor of the estate against the fiduciary for breach of the bond, the surety shares primary liability with the defaulting fiduciary.