Updated June 2017
7 THINGS TO KNOW BEFORE YOU SUE YOUR DIVORCE ATTORNEY FOR MALPRACTICE
So, you didn’t like what your divorce lawyer did in your case and you want to sue for damages? It happens. Not all divorce lawyers are “good divorce lawyers near me, unfortunately. Once in a while, you do encounter a lemon, or what you perceive as a lemon. But before you start a lawsuit against your divorce lawyer, here are 7 things to consider:
1. Before you sue your divorce lawyer, assess the case objectively and figure out if there is a legal basis for the suit that is winnable – did your lawyer do something negligent or illegal – or whether it is just emotions that are governing your decision.
2. Why are you suing? Are you just angry because you feel you didn’t get as much as you should have legally gotten? Or is it sour grapes because you wanted more than you were entitled to get or more than even the best divorce lawyer/magician could get for you?
It’s a tough question to ask yourself but very important to do. Case in point: Some people get cheated in their divorce. For example, a financially savvy husband could easily cheat his wife by hiding assets when they divorce. Is it malpractice if the lawyer doesn’t catch this cheater? It depends. If a reasonably prudent lawyer could have discovered the fraud under the same circumstances, then maybe it is malpractice. But if it was so complex that it would have required tons of money to prove (money you didn’t have) then it may not be malpractice.
At the same time, if the husband had enough money so that your lawyer could have asked for attorney’s fees and other fees in order to do a proper investigation – but failed to make such a request of the court – that may be malpractice. It’s very case specific. So you have to really assess it carefully before you sue your divorce lawyer.
3. Know what lawyer “malpractice” is. Malpractice is more than just you being “unhappy” with the final divorce agreement. I have a good friend who sued her attorney for malpractice but while I think at least one of her lawyers (she had about six) did commit malpractice by failing to insist on the prenup being enforced, I was not persuaded that the lawyer she sued was the one who dropped the ball; one of the other lawyers did.
Arguably, the lawyer she eventually sued had a duty to try to correct this error of the original lawyer; but she wasn’t even suing about the prenup. She was suing because she felt he had allowed the other side to “defame” her. I didn’t think defamation (under those circumstances and by another party – not even by the lawyer she sued) was malpractice; I didn’t think asserting a malpractice claim should or would excuse her having to pay his fee (the fee was ridiculously exorbitant I have to say) and I told her so.
Who was right? Maybe we both were. But in the end, the judge dismissed her malpractice suit and ordered her to pay the outstanding bill. The point is, be sure about the issues you are suing about and stay focused. Don’t paint with too broad a brush. And remember you can’t sue a lawyer for malpractice if in fact there was no malpractice. And suing won’t usually get you out of paying the bill.
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4. You will probably need an expert witness if you are suing your divorce lawyer for malpractice. That witness would have to testify that what the attorney did in your case was not what a reasonably prudent attorney would have done in the same or similar case. Without an expert witness who will demonstrate this, you will probably have a tough case that you can’t prove and therefore can’t win.
5. Try not to go pro se. Hire competent counsel to assist you with this if you are serious about winning. Most lawyers (not all) will be able to beat you in court if you don’t have a good lawyer on your side. My friend, who is singularly brilliant, represented herself. She did a good job, but ultimately, I think she was outmatched by opposing counsels. And frankly, the court probably treats pro se litigants with less respect than it does those who are represented by counsel. (This isn’t right, but it is what it is.)
6. If you have a retainer agreement with your lawyer, suing for malpractice normally won’t get you out of paying the bill if you incurred the bill. If the lawyer has an itemized bill which you did not object to at the time, coming back after the fact to sue for malpractice usually won’t get you out of this contractual obligation.
7. Finally, most lawyers have malpractice insurance and these insurance companies have tough lawyers whose job it is to “save” their employers having to pay big bucks to disgruntled clients. That means that these insurance lawyers are very aggressive. It doesn’t mean they can’t be beaten but brace yourself for a good fight. Make sure you have a strong case before proceeding.