Articles Posted in Divorce Malpractice

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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.

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This is a legal malpractice case arising out of a divorce case. Plaintiff alleged that her ex-husband concealed assets during the divorce case and that her lawyers were negligent in failing to discover those assets. The lawyer defendants moved to dismiss the case, but the Appellate Division of the Supreme Court of New York reversed and ordered that the case be dismissed.

Reasoning: The court recited the elements for a legal malpractice case (a) duty; (b) breach of duty; (c) proximate causation (that the plaintiff suffered a loss caused by the lawyer’s conduct) and (d) ascertainable damages. In the case of a settlement of the underlying case, the plaintiff must prove that the settlement of the action was effectively compelled by the lawyer’s action.

In this case, the court held that there was no proof that the plaintiff was compelled to enter into the settlement by the lawyer’s actions because the plaintiff was aware, before she settled, that her husband had concealed assets. The court explained: “Here, to the extent that the complaint asserted that the appellants were negligent in failing to ascertain the full extent of the assets of the plaintiff’s former husband, it failed to sufficiently allege that the stipulation of settlement entered into was effectively compelled by the mistakes of counsel, since the plaintiff acknowledged that she elected to enter into the settlement agreement even though she was aware that her former husband had not fully disclosed his assets.”

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Source: Davidson v. GUREWITZ, Ill: Appellate Court, 2nd Dist. 2015 – Google Scholar

In recent years, there have been several attempts by dissatisfied family law litigants to sue lawyers appointed by the courts to serve various roles. This case involves an attempt to sue a court-appointed child’s representative for legal malpractice. This is now the third decision holding that the child’s representative has absolute immunity from a legal malpractice lawsuit. The court reasoned that the child’s representative was appointed by the court and was therefore immune.

The policy reason to grant absolute immunity is to protect the court’s ability to appoint a child’s representative. The child’s representative is appointed by statute and must confer with the child and make evidence based legal arguments on behalf of the child. Were the court to allow everyone who lost a custody case to sue the child’s representative, so the theory goes, it would make it difficult to have a child’s representative appointed.  Slippery Slope arguments are usually rejected by courts because every class of defendant in every case has, at one time or another, made such an argument. Prior decisions in Illinois rejecting similar claims are Vlastelica v. Brend, 2011 IL App (1st) 102587 and Cooney v. Rossiter, 583 F.3d 967 (7th Cir. 2009).

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This is, unfortunately, an unpublished opinion, In re Marriage of Elizabeth W. Nesbitt and Bruce M. Nesbitt, 2014 IL App (1st) 131825-U.

After the parties divorce reached judgment, Bruce brought a legal malpractice action against his former lawyers for errors he alleged caused him to incur economic damages. Elizabeth then brought a Rule to Show Cause against Bruce on the ground that he had failed to pay her a share of the settlement. She alleged that the legal malpractice claim was marital property.

The court reasoned that Bruce did not discover the cause of action against his lawyers until the judgment of dissolution of marriage was entered. Therefore, the settlement was not marital property and Elizabeth did not have a valid claim to a share of the settlement proceeds.

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