Avoiding Family Law Malpractice: Recognition and Prevention-part I
| Publication year | 1985 |
| Pages | 787 |
| Citation | Vol. 15 No. 5 Pg. 787 |
1985, May, Pg. 787. Avoiding Family Law Malpractice: Recognition and Prevention-Part I
This two-part article focuses on areas of special hazard to family law practitioners so that legal malpractice situations may be recogized and prevented.(fn1) Part II will be published in this column in June.
An ABA National Legal Malpractice Data Center study has indicated that conflicts of interest accounted for 3.4 percent of all family law malpractice claims.(fn2) The greatest number of conflicts of interest occur in situations where the lawyer has represented both the husband and wife. This problem almost always arises when a couple whom the lawyer has known for some time tells the lawyer that they have worked out their dissolution agreement and they just want the lawyer to do the paperwork. Inevitably, either spouse later will claim that the attorney failed to provide appropriate legal information and, as a result, there was fraud.
An example of this conflict is found in the case of Ishmael v. Millington.(fn3) In Ishmael, the wife asked Millington, the family attorney, to handle the property settlement in the couple's impending uncontested divorce action. Millington had known the couple for a long time, having represented the family trucking interests. Millington decided it would be all right to put together a property settlement based upon the information provided by his clients.
The couple assured Millington that they were fully aware of all the property involved and that the entire situation was amicable. Millington prepared the papers and obtained the property settlement and divorce decree. Subsequent to the final decree, the wife discovered that in return for a settlement of $8,807, she had given up community property valued at $82,500. She then sued Millington for legal malpractice.
At the malpractice trial against Millington, the wife testified that in signing the complaint and property settlement agreement she had relied upon her husband, not Millington. Nevertheless, she contended that Millington should have represented her better and that, even though she had claimed to have known all about the property, it was the attorney's duty to search it out. The California Appeals Court agreed with the wife that Millington was in a conflict position and that, by the very act of undertaking to represent the wife, even in an uncontested divorce action, Millington assumed a duty which he had failed to carry out. Notwithstanding the assurances given to the attorney by both the husband and wife, the attorney was thus held liable for legal malpractice in his representation of the wife.
The appellate court in Indiana in Holmes v. Holmes,(fn4) decided it was always a conflict of interest to prepare a property settlement agreement for both parties. On the wife's motion, the Indiana court set aside a property settlement agreement based upon the fact that the wife and her former husband had had the same attorney.
A more common situation was presented in Lange v....
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