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Lawyers Defeat Divorce Malpractice Claim Because Wife Agreed to Settle Without Taking Discovery

A common legal malpractice claim made against a divorce lawyer is that the lawyer failed to take sufficient discovery of the ex-spouse’s assets. Here, Engelman brought such a claim. The claim was defeated, however, by representations in the settlement documents that showed that the client disregarded the lawyers’ advice and rushed into a settlement:

Furthermore, Engelman also failed to establish that the attorneys’ actions were the proximate cause of her alleged damages. Engelman voluntarily signed the divorce agreement, which she negotiated and begged her attorneys to get ready for her to sign. As detailed above, Engelman insisted on going forward with presenting a counteroffer to her former husband’s attorney in spite of the advice from the attorneys to slow down and try to mediate. Kessler felt that this decision to not follow his advice was so significant that he urged Tobin to put in writing for Engelman the risks of sending the counteroffer. Throughout the negotiations regarding the proposed settlement agreement, Engelman continued to communicate to the attorneys that it was urgent the settlement agreement get finalized because she needed the money she would receive from the divorce in order to buy a house. Tobin even tried to get Engelman to move back her closing date on the house because it was in her best interest to slow down.

There are few rules of law more fundamental than that which requires a party to read what he signs and to be bound thereby. This rule has particular force when the party is well educated and laboring under no disabilities. To hold otherwise is to create the potential for malpractice litigation in every contract dispute.(Citation and punctuation omitted.) Hudson, 202 Ga. App. at 887 (3).

The settlement agreement plainly states that Engelman is signing the agreement “without conducting the usual discovery and without disclosure of the income and assets of the other.” Engelman initialed that she “acknowledge[d] that she [] read each page of th[e] Agreement carefully before signing same; that she [] obtained legal counsel of her own choosing and such legal counsel’s services have been satisfactory and adequate.” Engelman voluntarily settled her divorce and failed to follow the advice of her attorneys who opined that mediating the case or meeting with Engelman’s former husband’s attorney in person could lead to a more favorable settlement. “[Engelman] made an independent, well-informed and deliberate decision that, in retrospect, [she] now regret[s] and desire[s] to rescind. Thus, [Engelman’s] choice to execute the [settlement agreement] is an intervening event which caused [her] alleged damages.” Hudson, 202 Ga. App. at 887 (3).

Thus, we affirm the trial court’s grant of summary judgment to the attorneys and KSS on Engelman’s legal malpractice claim. See Mosera, 306 Ga. App. at 230-233 (2); see also White v. Rolley, 225 Ga. App. 467, 468-469 (2) (484 SE2d 83)(1997); Hudson, 202 Ga. App. at 886-887 (3).

Comment: the lawyers documented their interactions with the client and their documentation (and the settlement agreement) showed that the client made an informed decision to settle without taking discovery. For these reasons, the legal malpractice claim was unfounded and the lawyers obtained summary judgment and that decision was affirmed on appeal.

Edward X. Clinton, Jr.

Source: Engelman v. Kessler, 797 S.E.2d 160 (2017)