Update on Ethics and Malpractice Avoidance in Family Law-part Ii
| Publication year | 1990 |
| Pages | 647 |
| Citation | Vol. 19 No. 4 Pg. 647 |
1990, April, Pg. 647. Update on Ethics and Malpractice Avoidance in Family Law-Part II
This article is an update of an article published in The Colorado Lawyer in 1985,(fn1) discussing the many potential ethics and malpractice pitfalls that face family law practitioners. Part I [19 The Colorado Lawyer 465 (March 1990)] dealt with conflict of interest and ethical issues. This Part II discusses cases concerning substantive legal issues. Because there are so few Colorado cases in this area, most of the examples are drawn from other jurisdictions. Nevertheless, they present family law practitioners with abundant information on how to avoid such situations.
The burden of proof on plaintiffs' legal malpractice cases is often difficult. One resulting strategy used recently by plaintiffs' attorneys is the claim that their clients were given warranties by the attorneys accused of malpractice.
The case of Martinez v. Reed(fn2) is illustrative. In Martinez, an attorney had a woman sign certain documents to relinquish her unborn child while she was in the hospital to give birth. In later litigation brought by the adoptive parents, it was determined that the documents executed by the mother were insufficient to perfect the adoption. The mother had changed her mind about the adoption and won custody of the child.
The adoptive parents claimed in their action against the attorney that the attorney had warranted that she had properly completed the documents for the mother's signature so they would be able to adopt the child. The court, in reversing a lower court determination in favor of the attorney, returned the case for trial on all issues. The court said:
This promise, if proven, is a guarantee that [the attorney's] standard of performance would parallel that of a prudent attorney. An attorney's express promise to follow legal requirements is not a guarantee of a specific result.(fn3)
The Tax Reform Act of 1986 caused a number of changes in the taxation of maintenance and alimony, and attorneys have a duty to consider tax consequences to a client when entering into stipulations and settlements in divorce cases.(fn4) Therefore, attorneys are cautioned to familiarize themselves thoroughly with the taxation consequences of divorce settlements. This preventive tactic also should include the recommendation to clients to execute a joint tax return, rather than a single tax return, after separation.
The Colorado legislature enacted the Colorado Marital Agreement Act in 1986.(fn5) Family law practitioners should consider whether the risk of malpractice is worth the rewards of prenuptial agreements. A recent article(fn6) on the subject cited chief complaints in suits against family law practitioners based on marital agreements as follows:
1) failure to...
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