Articles Posted in Divorce Malpractice

In Anderson v. Law Offices of Benedict Schwarz, 2014 Il App (2d) 230308-U, the plaintiff sued her former attorney, alleging malpractice in a divorce case. Plaintiff alleged: “that the defendants failed to take appropriate measures to freeze or maintain accounts that she owned with her husband. Because the assets were not frozen, her husband was able to sell five homes, five land parcels, an office, and an apartment building, most below appraised or market value. She asserted that the defendants knew of her husband’s liquidation and dissipation of marital assets but did not take adequate steps to prevent those losses. As a result of the defendant’s negligence, she alleged that she had to settle the underlying matter prematurely in order to keep her marital home and not be evicted. She further alleged that she lost money, all alimony, all her retirement, all her businesses, all her health insurance, and was left six figures in debt, with a home that needed major repairs.” The trial court dismissed the Complaint on a 735 ILCS 2-615 motion, but the Appellate Court reversed.  The trial court was swayed, in part, by the defense argument that the lawyers withdrew before the case was completed and that subsequent counsel could have remedied the problems. The Appellate Court reasoned as follows:

¶ 12 Here, the trial court erred in dismissing the plaintiff’s complaint. The plaintiff set forth all of the elements of a legal malpractice claim. She alleged that she hired the defendants to represent her in her marriage dissolution proceedings. She alleged that the defendants breached their duty to her by not freezing her husband’s assets so as to prevent him from diminishing the marital estate. She further alleged that due to the defendants’ breach of their duty, she suffered damages due to a diminished marital estate and because she had to accept a marital settlement agreement “prematurely” in order to keep her marital home. Despite the defendants’ insistence to the contrary, the plaintiff’s allegations included enough specificity for them to prepare a defense.

Of more interest to the practitioner in this area is the court’s discussion of why the fact that the lawyers withdrew does not bar the claim. Plaintiff argued that the actions of the defendant law firm so badly damaged her case that she was required to settle it for less than its value. The court cited Webb v. Damisch, 362 Ill. App. 3d 1032, 1042 (2005) and McCarthy v. Pedersen & Houpt, 250 Ill. App. 3d 166, 172 (1993). The court reasoned that there were factual disputes between the parties as to which of the various law firms was to blame for the failure to protect assets and that those factual disputes could not be resolved on a motion to dismiss.

In Flusser v. Bikel, 2019 NY Slip Op 32847(U), the plaintiff was involved in a contentious divorce. She discharged one firm and then hired the Defendant law firm (Bikel v. Mandarano) to represent her. At the conclusion of the divorce case, Plaintiff filed a legal malpractice claim against the Defendant law firm. In her complaint Plaintiff alleged that the Defendants had failed to sue prior counsel for alleged malpractice by those lawyers during the divorce case.

The Defendants responded that they had entered into an engagement agreement with Plaintiff under which Defendants representation would be limited to two areas:  “(i) “the prosecution or defense of a divorce action;” and (ii) “the prosecution or defense of a Family Court proceeding concerning custody, visitation and support proceedings, including the attempt to negotiate a resolution of the matter.'”

The trial court dismissed the legal malpractice action on the ground that the Defendants were not retained to investigate or prosecute a legal malpractice claim: The reasoning:

A guardian ad litem is a lawyer who is appointed to represent the interests of a minor child in a divorce case. Often a divorce litigant comes to believe that the guardian ad litem is the cause of their problems. No matter how upset you may be, you cannot sue the guardian ad litem for legal malpractice. In Dubinsky v. Reich, 201 A.3d 1153 (2019) the Appellate Court of Connecticut affirmed the dismissal of a complaint against a guardian ad litem. The explanation:

The conduct that forms the basis of the plaintiff’s underlying claims is Reich’s recommendation to the court of supervised visitation between the plaintiff and his minor child, as well as her recommendation against the use of coparenting counseling. Reich made these recommendations to the court while fulfilling her statutorily prescribed duties as guardian ad litem to the plaintiff’s minor child.^[8]The plaintiff has 1158*1158 not pointed to any actions taken by Reich outside of her role as guardian ad litem.^[9] Therefore, Reich is entitled to absolute immunity.

The plaintiff further argues that “[p]ublic policy requires that the trial court recognize that there is a limitation to the actions of a [guardian ad litem]” and that “[t]he grant of immunity allows unchecked abuses of power by a [guardian ad litem].” We disagree. Granting absolute immunity to guardians ad litem is not contrary to public policy.^[10] There are sufficient procedural safeguards to protect against improper conduct by a guardian ad litem. Because a guardian ad litem is appointed by the court, the guardian ad litem is subject to the court’s oversight and discretion and may be removed by the court at any time, either sua sponte or upon motion of a party. See Carrubba v. Moskowitz, supra, 274 Conn. at 543, 877 A.2d 773….

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”]).

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.