One of the more emotional and potentially complex legal matters is marital dissolution. Emotions and tempers often run high in these cases since substantial assets are involved as well as possible child custody issues. Attorneys handling such cases are expected to be competent in not only the divorce laws of their state but also in the tax implications and business valuations. It is not that unusual for a divorce client who received a poor outcome to suspect that his attorney may have committed legal malpractice.
When to Suspect Legal Malpractice
Certain indications may signal that your attorney did not provide you with the standard of representation expected of a competent divorce attorney. These may be:
- Your attorney has not been communicating with you about the status of your case or regarding significant developments
- You have been misled about what was promised or represented to you
- Significant decisions were made without your knowledge
- You read a recent court ruling on your case that castigated your attorney for a poorly drafted motion, a failure to meet a deadline, for not appearing in court, or for failing to submit mandatory documents
- Your legal fees appear to have been misused
- Your attorney missed court dates
- Your attorney failed to disclose a conflict of interest
- The attorney disclosed confidential or privileged information without your consent
- The attorney failed to uncover assets the opposing party had been hiding that could have been found through adequate investigation
- Your attorney failed to secure an expert regarding the value of your spouses business or estate
- You were not properly advised regarding tax consequences that could have been avoided
- Your attorney failed to properly investigate the opposing party’s inappropriate conduct that affected child custody issues
- The attorney entered into an agreement with the opposing party or attorney without your knowledge or consent
Not all conduct or omissions by an attorney in a particular case may be legal malpractice. But if such ineptitude seriously affected the outcome of your case or caused you to lose valuable assets that should have been awarded to you, then you need to consult with an experienced legal malpractice attorney.
How to Prove Legal Malpractice
All legal claims have certain elements that must be proved by a standard of proof. In civil matters such as legal malpractice, the claimant must prove each element by a preponderance of the evidence, or that it is more likely than not that the facts and law favor the claimant. For a legal malpractice claim to prevail, you must prove:
- You entered into an attorney-client relationship so that the attorney owed you a duty to exercise that degree of competence ordinarily practiced by other attorneys
- Your attorney breached his duty of care by certain negligent or fraudulent conduct
- You suffered economic harm as a result of your attorney’s negligent or fraudulent conduct
Should any of the indications listed above have happened to you, or your attorney was guilty of other conduct or omissions that led to a poor result for you and caused you to suffer economic loss, then a legal malpractice attorney needs to assess that conduct to see if it meets the standards of legal malpractice.
You and your legal malpractice attorney will typically need the following:
- All correspondence, retained agreement, emails, texts, and phone records with your attorney or law office—if the attorney failed to communicate with you, list all dates that you attempted to contact him
- All legal documents in your case
- A timeline of all contacts with your attorney and events in your case
- Make a list of what conduct or omissions fell below the standard of care—this may include missed court dates, his failure to communicate with you, court rulings that went against you, misleading or incorrect information communicated to you, assets that you may have been entitled to, misappropriation of legal fees, making decisions adverse to your best interests, failure to disclose a conflict of interest
Your legal malpractice attorney will review all documents and ascertain whether you have a valid compensation claim. If so, a demand letter to your original attorney will be drafted and possible negotiations will ensue to see if a reasonable settlement can be achieved. If not, you should be prepared for litigation.
Contact the Law Office of Burns and Jain
We have litigated and won many legal malpractice claims against our clients’ divorce attorneys; note however that just because you received an unfavorable outcome does not necessarily mean you are a victim of negligence. We have won legal malpractice claims against criminal defense attorneys.
Legal malpractice claims are complex matters and require the experience and knowledge of a seasoned legal malpractice attorney. Contact our office at (617) 227-7423 for a consultation about your divorce case should you suspect that your attorney negligently handled your case.