Goldstein was retained as a mediator by Barrett and his then wife. After meeting with the couple, Goldstein drafted a post-nuptial agreement that Barrett and his wife later signed. (A post-nuptial agreement is one that a married couple enters into while a prenuptial agreement is entered into before the marriage). When wife filed for divorce, Barrett sued Goldstein alleging legal malpractice.
Goldstein’s defense was that there was no attorney-client relationship between her and Barrett because Barrett and his then-wife were each represented by counsel. Therefore the act of drafting a post-nuptial agreement did not give rise to a lawyer-client relationship. The court agreed with Goldstein and dismissed the legal malpractice claim. The court explained why it found that there was no attorney-client relationship between Goldstein and Barrett:
Here, plaintiff’s complaint attempts to characterize Goldstein’s role as an attorney-client relationship with plaintiff, but plaintiff failed to allege any facts to substantiate this claim.
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.
This case is worth reading for family law mediators because it illustrates a potential risk – the mediator can be sued for legal malpractice. Here, the court correctly dismissed the complaint because the mediator had the parties sign an agreement before she began work.
Source: Barrett v. Goldstein, 2017 NY Slip Op 30010 – NY: Supreme Court 2017 – Google Scholar