Merger and Survival

Merger / Survival.  The basis of the malpractice claim in DiPietro is also instructive for mediators.  The client alleged that the attorney negligently failed to advise him on the difference between “merger” and “survival” as they relate to the subsequent modification of the agreement.  Note, too, the client’s statements during the judge’s colloquy that he understood the agreement and was satisfied with the advice of counsel do not preclude a malpractice action.  If there’s a lesson in here — perhaps it is that mediators should ask clients to sign a document confirming their understanding of these terms. DiPietro v. Erickson, 2010 WL 1178410 (Mass.Super.) (March 16, 2010)