Did my divorce lawyer commit legal malpractice?

Do you believe your divorce lawyer committed legal malpractice?

We hope you’re wrong, but it wouldn’t surprise us if you’re right. Legal malpractice claims likely occur more often in a divorce or some other family law matter than in many other areas of practice. When a divorce lawyer botches a case through laziness or sloppy work, it is possible they have committed legal malpractice.

The Consequences of Legal Malpractice In Divorce Can Be Devastating

Often, the results can reverberate for years to come. This is especially true where a divorce lawyer fails to obtain an adequate property settlement in a longer term marriage. This can occur many ways. The attorney may simply be an inexperienced divorce lawyer. They might be a lazy attorney who cuts corners or who fails to take important steps common in any legal matter.  The divorce lawyer works in a law firm that handles divorce cases on a high-volume basis without adequate oversight. In any event, here are some of the most common ways divorce attorneys commit malpractice. This may occur in several ways.

Legal Malpractice Because Of Failure To Investigate Finances

One of the critical challenges in many marital dissolution proceedings is identifying the couple’s financial assets and agreeing on the assets’ proper distribution. Sadly, divorce lawyers can and often do make costly mistakes while negotiating a property settlement. This may occur when your divorce attorney takes your ex-spouse’s word regarding their finances and does not conduct adequate discovery. In general terms, discovery refers to the process of uncovering facts necessary to competently and effectively resolve a case. Discovery may consist of exchanging written questions and answers, requests for documents, requests for admissions, issuing subpoenas, and taking depositions.

When your ex wife or husband appears to be hiding something or refuses to respond, your divorce lawyer should push back with motions to compel. We are regularly surprised at how often we see family law attorneys conduct sloppy discovery, or none at all, and therefore fail to develop an adequate financial picture. This can lead to financial devastation for one spouse. 

Did Your Divorce Lawyer Fail To Investigate Your Former Spouse’s Assets? 

If you feel like your spouse hid assets during your divorce and your lawyer failed to identify them, you should consult with an experienced legal malpractice attorney.

A former spouse may insist certain assets are “separate property” obtained before the marriage and therefore should not be subject to distribution in the divorce.  A client may believe that his or her spouse is “hiding” assets to avoid distribution.  In situations like these, an attorney has a duty to raise appropriate arguments or conduct aggressive and dogged discovery to ensure their client receives a fair property division. When an attorney fails to secure sufficient financial information from the opposing spouse to value the marital assets properly and, thus, that the distribution of assets is inequitable, they may have committed malpractice.  See, e.g., Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 646 A.2d 195 (Conn. 1994) (affirming judgment against defendant attorneys for legal malpractice during divorce proceeding where, among other things, attorneys advised client to enter into a settlement without first conducting an adequate investigation and evaluation of the opposing spouse’s business interests and assets).

Attorneys Should Employ All Available Means To Discover Concealed Assets 

Attorneys should use all available methods to ensure that they obtain complete financial documentation from their own client and from the opposing spouse before agreeing to any divorce settlement.  It is therefore critical that the attorney first listen carefully to his or her client regarding the client’s beliefs about the couple’s assets and ask detailed questions to accurately identify all potential asset sources. The attorney should then request all relevant financial documentation from the opposing spouse’s counsel and include in the request as much specific information as possible regarding the assets that the attorney’s client has identified. When the attorney suspects that the spouse is concealing assets, the attorney may need to employ the assistance of the court to secure further information.  See, e.g., McClung v. Smith, 870 F. Supp. 1384, 1405 (E.D. Va. 1994) (attorney breached the standard of care by failing to institute formal discovery in divorce proceeding where “it was obvious from the obstinate, irrational, conflicting and contentious positions being taken by [the opposing spouse] that informal discovery would not adequately protect [the client’s] interests.”). 

If you discover that your ex-spouse successfully hid assets during a divorce proceeding, you should investigate whether your attorney failed to take adequate steps to investigate your ex’s assets during the divorce proceeding.

A Divorce Lawyer May Commit Malpractice When They Fail To Consult Experts 

In many divorce proceedings, it may be necessary to retain experts, such as business valuation experts, pension experts, tax experts, or trust and estates experts.  The importance of retaining outside experts usually depends on the complexity of the divorcing couple’s assets and the lawyer’s level of knowledge and experience in other areas beyond family law. When a divorce attorney fails to consult with experts they may commit malpractice. See, e.g., McClung, 870 F. Supp. at 1405 (involving claim against attorney for failing to value the opposing spouse’s law practice correctly, including failing to seek expert assistance in valuing the asset); Helmbrecht v. St. Paul Ins. Co., 362 N.W. 2d 118 (Wis. 1985) (holding that there was substantial evidence to support the jury’s finding of malpractice where divorce attorney had failed to obtain independent financial appraisals for the marital home, the spouse’s dental practice, and three trusts).

A Divorce Lawyer Should Seek Out Experts Sooner Rather Than Later

An family law attorney should attempt to identify the need for outside expert assistance early in the case. As in other areas of a divorce case, a divorce lawyer should consult closely with their client regarding the decision to employ such expert(s), including the costs involved and the risks associated with failing to retain an expert. Where an attorney believes that they are unable to advise the client fully with respect to certain legal issues that are beyond the attorney’s area of expertise or experience, such limitations should be communicated to the client in writing and the client should be advised of the need to retain outside assistance to consult on these issues.

If your divorce involved complicated assets such as a jointly owned business, defined benefit pension, trust funds, or complex securities, your attorney should have consulted and retained qualified experts to ensure the value of the property was divided fairly and equitably. This category of “mistake” is often very costly and can give rise to a viable legal malpractice lawsuit.

Fee Disputes And Overcharging

Clients of divorce attorneys often feel that their attorney’s fees were unreasonable.  For example, a client may argue that the fees charged were excessive or unreasonable in comparison with the assets at stake and/or the results their divorce attorney obtained. They may also complain that the fees far exceeded the attorney’s initial estimate. Regardless of the specific contours of the claim, the common thread underlying all of the disputes is generally the same – i.e., the client’s belief that he or she paid the family law attorney too much. This is often a difficult area to obtain recovery via a legal malpractice case, because fees paid to your attorney are not typically considered “damages” for a legal malpractice claim. However, in appropriate cases, an experienced legal malpractice attorney can file an action asking the Court to order your divorce attorney to repay, or “disgorge,” attorneys’ fees because of the lawyer’s failure to follow the appropriate standard of care during the representation. 

When it comes to awarding child support, custody, or spousal support (“alimony”), a person will nearly always be entitled to petition the court for a modification, which means that the damages a person suffers as a result of a lawyer’s mistake can be limited. However, where the over-charging is exceptionally shocking given the outcome, it can be appropriate to pursue  legal malpractice and breach of fiduciary duty claims against your divorce attorney. You may also attempt to recover compensation for the expense of filing a petition to modify the faulty parenting plan

Contact An Experienced Washington State Legal Malpractice Attorney

These are just a few of the most significant ways that divorce attorneys commit legal malpractice. The consequences of such malpractice can be extensive, including unfair and inequitable divisions of property that cannot be undone. In such cases, the best source of recovering your loss may be a legal malpractice lawsuit against your former divorce attorney.

If you suspect your divorce lawyer committed legal malpractice, contact the legal malpractice attorneys at Peterson Baker. We have an active practice litigating legal malpractice claims on behalf of plaintiffs, including on behalf of individuals who suffered  financial harm as a result of legal malpractice committed during a divorce.