Articles Posted in Divorce Malpractice

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Plaintiff and his wife entered into a post-nuptial agreement. They eventually retained a mediator to assist the negotiations. Plaintiff sued the mediator for legal malpractice. His case was dismissed because he had his own lawyers and because the mediator was not his attorney. The court explained:

Goldstein also produced documentary evidence that utterly refutes plaintiff’s claim that an attorney-client relationship existed. Plaintiff’s complaint (Goldstein’s counsel, exh A) attaches a copy of the post-nuptial agreement signed by both plaintiff and Comstock. Paragraph 1.1 of the post-nuptial agreement states that “Each party acknowledges that his or her separate legal counsel has examined the attached financial information, has advised him or her with respect to same, and that each party fully understands the contents of such financial information of the other” (id.). Paragraph 1.2 states that “Each party acknowledges that: (a) he or she has had legal counsel of his or her own selection who advised him or her fully with respect to his or her rights in and to the property and income of the other and with respect to the effect of this Agreement and that such party understands such advice” (id.).

This agreement makes clear that each party consulted with his or her own attorney before signing the agreement. Further, plaintiff’s complaint supports this conclusion. Plaintiff alleges that defendants Fleischer and Berkman Bottger (the firm) were retained by plaintiff on or about March 22, 2013 to “review the Post-Nuptial Agreement drafted by Defendant Lori H. Goldstein” (plaintiff’s complaint ¶ 51). Clearly, plaintiff did have his own individual counsel review the agreement before he signed it.

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In divorce cases that settle, the judge will hold a prove-up hearing. During that hearing, the parties are asked questions about the Marital Settlement Agreement. If a litigant testifies that the settlement was fair and appropriate, can he later sue his lawyer for “coercing” him into settling the case? The answer in Michigan is “No.” The legal doctrine is judicial estoppel – which provides that a litigant cannot assert contradictory positions in two cases. In this case, the wife testified at the prove-up that she agreed to the terms of the settlement. Later, she sued her divorce lawyer for legal malpractice and alleged that she was “tricked” into settling. The court dismissed the case and the Appellate Court affirmed in an unpublished opinion. The court essentially reasoned that it was unfair for the plaintiff to obtain the benefits of a settlement (to which she consented) and then turn around and sue her lawyer.

The reasoning:

At the heart of plaintiff’s legal malpractice case is her assertion that she was tricked and/or coerced into agreeing to the settlement at the March 28, 2012 hearing at her divorce proceeding. But the doctrine of judicial estoppel renders her claims meritless. Judicial estoppel, described as the doctrine against the assertion of inconsistent positions, is a tool used by courts to impede those litigants that “play `fast and loose’ with the legal system.” Paschke v Retool Indus, 445 Mich 502, 509; 519 NW2d 441 (1994) (citation omitted). Under this doctrine, a party that has successfully and unequivocally asserted a position in a prior proceeding is estopped from asserting an inconsistent position in a subsequent proceeding. Wells Fargo Bank, NA v Null, 304 Mich App 508, 537; 847 NW2d 657 (2014); Detroit Int’l Bridge Co v Commodities Export Co, 279 Mich App 662, 672; 760 NW2d 565 (2008).

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The plaintiff filed a malpractice claim against her divorce lawyers. However, her claim did not succeed because she did not provide expert testimony. That testimony, from a family law lawyer, would be necessary to show negligence.

This is one of those truths that we cannot repeat enough times – an expert is needed to show how the lawyer’s performance fell short of the standard of care.

Source: Nolan v. Ernst, 2017 Ohio 1011 – Ohio: Court of Appeals, 12th Appellate Dist. 2017 – Google Scholar

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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).

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This is an unpublished case which had an interesting result. Plaintiff was represented by the Defendant attorney in her divorce case. Her husband, David Whittlemore, was apparently in financial difficulties. David Whittlemore offered an unusual settlement term to his soon to be ex-wife. He claimed that his wealthy brother Harvey would guarantee his maintenance obligations to her. In 2011, David filed for bankruptcy and the plaintiff contacted her lawyer who, after some correspondence, revealed that the wealthy brother had never signed the guarantee. Plaintiff then brought a legal malpractice claim against her former attorney.

The court set forth the facts as follows:

On October 11, 2007, Ms. Whittemore and her husband, Mr. David Whittemore, placed a settlement agreement on the record. Under the agreement, David Whittemore agreed to make monthly alimony payments until December 2021. He also agreed to procure a guaranty for his alimony payments from his wealthy brother, Mr. Harvey Whittemore.

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This is a post written by Wendy Dessler.

Suing a Divorce Attorney for Malpractice

So you thought you had hired the perfect divorce lawyer for your case but after the fact you don’t feel they performed as they should have. Do you feel like your divorce attorney did not handle your divorce case accurately?  You may have the option to sue your divorce lawyer for malpractice damages.  But before you do there are some things you should consider.

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This case is captioned Dustin Scott Roberts v. William R. Ray, No E2015-01522-COA-R3-CV, filed April 13, 2016.

Roberts retained Ray to draft a prenuptial agreement. Later when Roberts was undergoing a divorce the trial court held that the prenuptial was invalid because Ray did not make a full and fair disclosure of his assets to his bride. Roberts then sued Ray and alleged that Ray did not meet professional standards in drafting the prenuptial and that the errors caused Ray damages. Ray’s claim appears to be that the lawyer failed to advise him to make sure that the disclosures of assets attached as an exhibit to the prenuptial was accurate. The trial court granted summary judgment but the appellate court reversed and held that there were factual issues which prevented the grant of summary judgment.

This is the first reported case I have seen on this issue. Apparently the lawyer could have avoided liability by some sort of written communication to the client that the disclosure of assets must be complete and accurate.

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The Nebraska Supreme Court has reversed a grant of summary judgment in favor of a lawyer in a legal malpractice claim. The plaintiff was a former client of a divorce attorney. She alleged that he breached the standard of care by failing to explain to her that she had signed an agreement that unambiguously waived any interest in her ex-husband’s life insurance policy.

The underlying case was a typical divorce case resolved by an equally typical Marital Settlement Agreement. The Court quotes from three of its provisions:

In the agreement, Brenda and Dale divided the marital estate and waived whatever interest they had in certain property owned by the other spouse. Paragraph VI provided:

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This is an opinion affirming the dismissal of a legal malpractice claim against divorce attorneys. Plaintiff alleged that her former attorneys did not “ascertain the full extent of her former husband’s income, and failed to make an adequate record before the matrimonial court regarding her former husband’s level of adherence to the tenets of Orthodox Judaism and the needs of their children not to have visitation with the former husband on the Jewish Sabbath and holidays.” The lawyers moved for summary judgment and the plaintiff, also a lawyer, filed a response in opposition to that motion. The court held that the client’s affidavit was insufficient to rebut the lawyer’s prima facie showing of entitlement to judgment as a matter of law. The court does not state why the affidavit was deficient but one may guess that the affidavit by the former client did not explain how the work done by the lawyers failed to meet the standard of care for a divorce lawyer involved in the divorce of an Orthodox couple.

Plaintiff may have been able to avoid this problem by hiring a divorce lawyer to act as her expert witness. She apparently chose not to go down that path and the result was unfavorable to her.

Edward X. Clinton, Jr.

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This case is typical of divorce malpractice cases. The plaintiff sued his former lawyers on the ground that they did not adequately address a potential problem of his settlement agreement with his wife. The problem, apparently, was that after the divorce the plaintiff was unable to refinance a loan on one of his commercial properties. That led to unspecified damages. Plaintiff then filed a legal malpractice case on a pro se basis. The court granted the defendant’s summary judgment motion on the basis that plaintiff did not retain an expert witness to testify on his behalf.

Cases holding that a plaintiff in a legal malpractice case must have an expert are legion. Despite this, in my experience, many nonlawyers do not understand why retaining an expert is so important. The retained expert testifies concerning the standard of care and offers an opinion as to whether the lawyers met the standard of care or did not meet the standard of care. The law views lawyers in the same way that it views medical doctor. A doctor is required to establish the medical standard of care. In similar fashion, the plaintiff here needed a divorce lawyer to offer an opinion as to the manner and method of practice of divorce lawyers in these situations.

Thus, before filing a legal malpractice case, consider whether or not you have the resources to retain a qualified expert. In a patent case, you need a patent lawyer. In a divorce case, you need a divorce lawyer. Without an expert a plaintiff is just wasting everyone’s time and money on a legal malpractice case that is not going anywhere.