Articles Posted in Divorce Malpractice

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The case is Knox v. Aronson, Mayefsky & Sloan, LLP, 2018 NY Slip Op 9030. The plaintiff was represented in her divorce by two law firms and she sued both firms in this legal malpractice case. Plaintiff lost a custody fight with her ex-husband and was ordered to pay attorney fees when she failed to comply with a court order to return the child to New York from Connecticut. She sued the Aronson firm for bad advice (alleged) and for failing to move for attorney fees. The reasoning is instructive:

Turning first to plaintiff’s legal malpractice cause of action against AMS, she alleges that AMS was negligent in failing to move for attorneys’ fees, resulting in her failure to receive an undetermined award to pay her attorneys. This claim fails because plaintiff’s various successor counsel had ample time and opportunity to make such a motion, and in fact one did (although it was purportedly abandoned) (see Davis v Cohen & Gresser, LLP, 160 AD3d 484, 487 [1st Dept 2018]).

Even assuming AMS was negligent in failing to move for attorneys’ fees, by agreeing as part of the settlement[2] to forgo any award of attorneys’ fees except for $20,000, plaintiff cannot show that but for AMS’s negligence she would not have sustained the loss (see generally Tydings v Greenfield, Stein & Senior, LLP,43 AD3d 680, 682 [1st Dept 2007], affd 11 NY3d 195 [2008] [to establish proximate cause, the plaintiff must demonstrate that “but for” the attorney’s negligence, plaintiff would have prevailed in the matter in question; failure to demonstrate proximate cause mandates the dismissal of a legal malpractice action regardless of whether the attorney was negligent]); 180 Ludlow Dev. LLC v Olshan Frome Wolosky LLP, 165 AD3d 594, 595 [1st Dept 2018] [“While proximate cause is generally a question for the factfinder. . . it can, in appropriate circumstances, be determined as a matter of law”]).

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The case is GB v. Christine Rossi, A-240-17T3. The case was decided in New Jersey and is an unpublished opinion. The case illustrates one problem with legal malpractice cases – there may be wrongful conduct, but the plaintiff must tie the wrongful conduct to her damages.

Plaintiff was getting divorced.   She met with Rossi for about an hour and made numerous disclosures. Rossi declined representation.

Later, plaintiff’s husband filed for a temporary restraining order against plaintiff alleging that she had committed domestic violence. At trial, Rossi represented husband. Husband won the trial and GB was evicted from the marital home. Please note that Rossi did not file an appearance in the divorce case. She only appeared in the domestic violence case.

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The case is captioned William Molim Siu v. The Cavanagh Law Firm, 1-CA-CV 17-0601 (Arizona Court of Appeals).

Siu sued his former lawyer for alleged negligence in handling Siu’s divorce case. The divorce case was heard by an Arbitrator who ruled that certain property owned by Siu before the marriage became community property when it was deposited in joint accounts. Siu tried to appeal but his appeal [of the underlying case] was dismissed. Siu alleged that his lawyer had (a) contracted away his right to appeal, and (b) failed to retain a forensic accounting expert.

Cavanagh moved for summary judgment and his motion was granted. Siu appealed. The Court of Appeals found that there was “substantial evidence to support the Arbitrator’s decision [in the underlying divorce case.]” Therefore, Siu could not prove that any error by the lawyer was the proximate cause of his alleged loss.

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The case is Holtzman v. Griffith, 2018 NY Slip Op 04540, decided by the Appellate Division, Second Department.

Holtzman sued for fees and his former client, Griffith, counterclaimed for legal malpractice. The trial court on the basis of an account stated ordered Griffith to pay the legal fees that were due. The trial court dismissed Griffith’s malpractice claim because he had voluntarily settled the underlying divorce case and had agreed that the settlement was fair and equitable.  The explanation:

The plaintiff’s submissions demonstrated that in representing the defendant, who was also the defendant in the divorce action, she exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the stipulation of settlement executed by the defendant in the divorce action was not the product of any mistakes by the plaintiff (see Schiff v Sallah Law Firm, P.C.,128 AD3d 668, 669). The stipulation of settlement recited, among other things, that the defendant reviewed and understood its terms, had an opportunity to consult with counsel and have the legal and practical effect of the stipulation fully explained to him, executed the stipulation voluntarily, without coercion or pressure of any kind, and believed the stipulation to be fair and reasonable (see Chamberlain, D’Amanda, Oppenheimer & Greenfield, LLP v Wilson, 136 AD3d 1326, 1328Schiff v Sallah Law Firm, P.C., 128 AD3d at 669). In opposition, the defendant failed to raise a triable issue of fact.

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Judicial estoppel is a doctrine that penalizes a litigant who takes one position in one lawsuit and a contrary position in another lawsuit. In other words, the litigant’s position shifts based on the litigant’s interests in a particular case. Kershaw v. Levy, Tennessee Court of Appeals, No. M2017-01129-COA-R3-CV., is a divorce malpractice case where the plaintiff’s claims against her former lawyer ran into the judicial estoppel doctrine. The lawyer entered the divorce case and Kershaw was promptly held in contempt of court and sentenced to 30 days in jail. Later, the lawyer settled the divorce case and obtained an order vacating the contempt finding.  When Ms. Kershaw sued him for legal malpractice the lawyer filed a motion arguing that she was judicially estopped from bringing claims based on the divorce settlement.

The court summarizes the judicial estoppel argument in this fashion:

On March 1, 2017, Mr. Levy filed a motion for summary judgment contending that Ms. Kershaw should be judicially estopped from claiming in the malpractice case that her damages from Mr. Levy’s negligence resulted from an inequitable settlement agreement with Elliot Kershaw when she previously claimed under oath that the settlement had been equitable. Further, Mr. Levy argued that Ms. Kershaw should not be allowed to pursue any malpractice claim against him based on her criminal contempt convictions because they had been vacated and she voluntarily relinquished her right to pursue any post-conviction relief related to them in the MDA. Ms. Kershaw responded in opposition to the motion for summary judgment, asserting the damage resulting from Mr. Levy’s alleged negligence left her with no bargaining power in her settlement negotiations with Mr. Kershaw, and the fact that she entered into an agreement several months after Mr. Levy’s involvement that stated the settlement with Mr. Kershaw was fair and equitable was irrelevant.

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The case is DePalma v. Maya Murphy, 16 cv 8933, from the Southern District of New York.  The relevant opinion is dated December 1, 2017.

The plaintiff, Carol DePalma, sued her former divorce attorney and the court-appointed financial expert. This post will deal with the claims against the financial expert. During the divorce the parties chose and the court appointed an accounting firm, KLG, LLC. KLG was to render an opinion as to the value of Husband’s interest in Shred-It, a company in the shredding business. KLG issued two reports and the parties ultimately settled the divorce case.

Carol then sued KLG for negligence, for its purported failure to value the interest in Shred-It after it merged with another company.  The court dismissed the negligence claim against KLG and explained that the opinion of KLG did not proximately cause any injury to Carol. The explanation:

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After his divorce case concluded Lancaster sued his former attorney for malpractice. The claim included allegations of fraudulent billing and other claims. The lawyer raised the defense of res judicata. Res judicata is a phrase borrowed from Latin which bars a litigant from re-litigating a claim that was previously litigated to judgment. The basis for the res judicata claim was that the lawyer had filed a fee petition in the divorce case seeking a judgment for fees against Lancaster. The trial court awarded fees. The legal malpractice case was held to be barred by res judicata. The court agreed with the lawyer that the claims for legal malpractice could have been raised in the fee proceeding.

Comment: this is a fairly broad reading of res judicata. Courts are often reluctant to allow the res judicata defense in legal malpractice cases because the whole point of the legal malpractice case is usually that the client lost the underlying case because the lawyer made an error. If the courts applied res judicata in every case that the client lost, malpractice liability would be swallowed up by res judicata. Because this particular case contained allegations that the lawyer’s bills were fraudulent after they had been approved by a court, res judicata makes more sense here. In any event, res judicata remains a controversial defense to the legal malpractice action.

Edward X. Clinton, Jr.

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This is a divorce malpractice case where a lawyer allegedly failed to timely appeal a divorce judgment against his client. His client (Ex-Husband) claimed that the failure to appeal constituted legal malpractice. The Georgia courts disagreed. The holding: even though the lawyer missed the deadline to appeal, there was no legal malpractice because Ex-Husband’s appeal had no merit. Put in more blunt terms, the courts found that Ex-Husband was an adulterer and, in the State of Georgia, was going to lose the divorce case.

The explanation:

We conclude that, as a matter of law, Ward failed to demonstrate that the divorce court abused its discretion and that the Supreme Court thus would have reversed the award but for Benson’s error. Although Ward complained that the divorce court gave undue weight to his alleged adultery, the amended order indicates that the court did consider “all the relevant factors” and did not improperly consider evidence of Ward’s adultery. “[E]ven though an adulterous spouse cannot obtain alimony, an equitable property division is still permissible. . . . However, where equitable division of property is in issue, the conduct of the parties, both during the marriage and with reference to the cause of the divorce, is relevant and admissible.”[

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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).