Archive for the 'Divorce Lawyers' Category

Malpractice: It’s Not Just Losing the Case

Wednesday, February 24th, 2010

Attorney malpractice means both professional misconduct and unreasonable lack of skill. Misconduct generally implies commission, that is, doing something unethical or illegal, including taking advantage of the emotional vulnerabilities of client going through a divorce. The bomber, as he is known, is an unethical divorce lawyer who sleeps with his clients, and it is self-evident that this is bad business. A lawyer who has a sexual relationship with a client is unethical and is at risk of civil liability for malpractice, breach of fiduciary duty, fraud, and deceit.

An unreasonable lack of skill generally implies making unacceptable mistakes in judgment or performance, such as missing a filing deadline. Legal malpractice, therefore, is a large enough term to include felonious behavior as well as incompetence. Unacceptable mistakes in judgment or performance does not mean losing a case, any more than medical malpractice means caring for a patient who subsequently dies, or generalized unhappiness with the outcome a divorce because very few people are ever happy.

Strangely, one of the most common causes of legal malpractice is completely preventable. It is a failure to make filing deadlines. No matter how solid the case, a lawyer who misses a filing deadline — for example, an appeal — has just lost it. An excuse — that the paperwork was misplaced — falls on the deaf ears of courts that are not interested in alibis. This is not to say there are not competent lawyers who appear disorganized, but it is a note of caution: A lawyer whose desk looks like a cyclone hit it may be one to avoid.

Often legal malpractice stems from violations of the canons of (legal) ethics, which is also called the Code of Professional Responsibility and are established by state supreme courts. Violations can lead to warnings, fines, suspensions and disbarment. If an attorney’s actions seem questionable, the place to begin is an inquiry at the county bar association.

Lawyers who improperly manage funds left in their trust in escrow accounts frequently find themselves cited for violations of the canons of legal ethics.

Settlements negotiated before a complete discovery of assets, marital and separate, pose a malpractice risk for divorce lawyers, particularly when he or she fails to fully investigate all marital and separate property. A lawyer who fails to inform a client of settlement offer or fails to recommend acceptance of settlement offer may also be liable for malpractice.

In general, attorney malpractice includes several identifiable elements: breach of contract, fiduciary duty or negligence. The plaintiff must prove that the lawyer failed to exercise reasonable skill and that such failure was the proximate cause of damages or loss.

Some jurisdictions require that a person intending to sue a lawyer for malpractice file an affidavit of merit from a professional legal malpractice attorney who certifies that there are at least reasons for consideration of malpractice.

Finding the Right Divorce Lawyer

Monday, January 11th, 2010

Very often by the time a divorce is over, the spouses end up hating not only the other party’s lawyer but his or her own. That’s because the divorce action itself in one very sharp blade in the emotional meat grinder of a marital collapse.

Divorce litigation, unlike other types of civil litigation, carries with it considerations that make selecting a lawyer very difficult, even as the consequences of selecting a bad lawyer are drastic. Unlike other types of litigation, divorce litigations allows for a concept of fundamental fairness in the distribution of a couple’s marital estate, and judges recognize that the letter of the law must be applied in the context of a human event of considerable pain and suffering for all involved.

Some people, reeling from the pain and suffering of a separation, hire attack dog lawyers whose cutthroat, no-holds-barred tactics have given them a reputation in a given community. These are the lawyers who believe in the attack, who badmouth the client’s spouse, and who promise victory even before the action has begun. When the client’s spouse also retains an attack dog lawyer, the odds increase dramatically that the case, which might have been settled through joint negotiation, will now end in a divorce trial, the worst possible outcome for a couple ending a marriage. There is no doubt that bad lawyering in divorce actions draws out the process even as it increases the cost because bad lawyering always mean unnecessary lawyering, not to mention the emotion wear and tear of all litigation.

Divorce books contain checklists of objective considerations in hiring a divorce lawyer. Generally, considering a family law specialist is a good first step. But a lawyer who takes the high road, one who is assertive without being aggressive, is a far better bet than a hired gun who will willingly turn the action into a bloodbath.

If a person hires a lawyer who, while mindful and attentive of his or her client’s interests, also works to try to bring the action to settlement outside of the courtroom, who treats his client and client’s spouse respectfully and who is mindful of the welfare of the children, the divorce can move forward with less cost and less anguish.

Legal Fees, necessary or not?

Monday, November 17th, 2008

Legal fees can be a necessary expense when contemplating divorce. However, how do you know if you are paying your lawyer too much and if they are doing what they claim to be doing for you?

Remember, every telephone call, letter, pleading (filing with the court), court appearance, research and even email is being charged to you. Divorce, custody and support cases can be very expensive for the parties involved. It is best if husband and wife can attempt to be civil and try to negotiate the details of division of property, custody, visitation, etc., before taking this to the lawyer.

Getting along, the best you can, will save both parties money in the long run. That is not to say a lawyer is necessary in all cases or that no one should get a lawyer, only you know if you need a lawyer or not. However, getting divorced is emotional enough without having money issues piled on top.

Trying to work together to end a marriage will be the easiest way to save money throughout the divorce. Hiring lawyers to “fight it out” will only cost you what little your “marital estate” may be worth. It is best if you both can negotiate rather than allowing the court to decide who should get what.

Shopping for a Divorce Lawyer?

Wednesday, October 22nd, 2008

When shopping around for a divorce lawyer, what qualities are most important to look for? This is often a highly charged question with surprisingly little answers. Word of mouth would seem like a good way to go; however, what one person feels is a great quality, another might not.

All local bar associations offer lawyer referral services. It is best to check with your local bar association to find a lawyer in your area and see if they have a free consultation. If so, you may find that you clique right away or would not even stand another minute in their presence. Sometimes you may have to meet with a few lawyers to find the right one for you. But remember, hiring a divorce lawyer that will work for you and not just for the money they make is the reward.

Find a lawyer who will listen to you as well as have suggestions; but one that does not over-power your comments. A lawyer who is too aggressive may also be that way in a courtroom and a judge may not care for that personality type. After all, you will have to live with the final outcome regarding your divorce Ad Vitam Aeternam (for all time). Be prepared and be diligent.

Appealing Your Divorce Settlement

Thursday, January 26th, 2006

It is not uncommon for one spouse to appeal a divorce settlement, but it is uncommon for a spouse to actually win or be granted the terms requested in the appeal.

Issues like child support and alimony are often amendable post divorce, but the actual division of the marital assets is typically not. There are certain circumstances that will potentially enable you to have the current decree thrown out and these circumstances are, but not limited to, signing under duress, blackmail, intoxicated at the time of signing, under the influence of mood altering mediations, etc. The bottom line is, an appeal can not be filed on the basis that you now feel as though what you originally agreed to was simply unfair.

Hiring a lawyer to appeal your settlement is not a bad choice if you feel strongly that you have a legitimate case. It is the responsibility of the lawyer to do his or her best job to prove your case. If your lawyer knows that you do not have a legitimate case to begin with, he or she should advise you of such, thus eliminated the costly time and attorney fees. If you feel as though your attorney is taking advantage of you, probably knowing all along that the case would be dismissed, I would consider contacting your local Bar Association to speak with the ethics committee.