Legal Malpractice: Parental Child Abduction Leads to $1.4M Verdict

Family Law MalpracticeLater this year, the New Jersey Supreme Court will issue its ruling in Innes v. Marzano-Lesnevich, et al, on the issue of whether a non-client who prevails in a legal malpractice action can recover legal fees.[i]

The court heard the matter last October. Marzano-Lesnevich’s attorney, and The New Jersey State Bar Association, which participated as amicus, urged the court not to expand on its 1996 ruling in Saffer v. Willoughby that clients who prevail in a legal malpractice action may recover their legal fees.

Marzano-Lesnevich’s lawyer argued “a lawyer does … owe a duty to a non-client and can be sued, but to now expose the attorney on top of that for attorneys’ fees is going too far.”[ii]

Justice Barry Albin countered “logic, fairness and public policy”[iii] suggest that non-clients should be able to recover counsel fees if they’re the victims of their adversaries’ lawyers’ malpractice.

The court’s ruling will conclude a saga that spans 11 years and two continents.

Custody Dispute and Abduction

In 2004, Peter Innes and Maria Jose Carrascosa, who were divorcing, got into a custody dispute over their five year-old daughter, Victoria.[iv]

During the dispute, Carrascosa, a native of Spain, took Victoria there without Innes’ consent, in violation of their co-parenting agreement, and ignored a court order to bring her back.

She was able to take Victoria to Spain, because a few weeks after signing the co-parenting agreement in October, 2004, she fired her divorce lawyer, who was holding the child’s passport in trust, and he sent it with the rest of his file to her new divorce lawyer, Marzano-Lesnevich, who gave it to Carrascosa during a meeting in December.

Carrascosa took Victoria to Spain in January, 2005, and she has been raised there by Carrascosa’s parents ever since. Innes petitioned a Spanish court to have Victoria returned to the US[v], but his petition was denied, as were his appeals. The Spanish court also ordered Victoria to remain in Spain until she turns eighteen.

The last time Innes saw his daughter was in Spain, in autumn, 2005[vi]. He testified that he hasn’t gone back to Spain, because fourteen criminal complaints had been filed against him there, and three were still pending. He denied committing any crime, or abusing Carrascosa or Victoria, but believed he would be unjustly accused and imprisoned if he went back, given the wealth and position of Carrascosa’s family, and the notoriety of the case, which has been covered by Spain’s media, and sparked demonstrations when American and Spanish judges met in Spain to discuss Victoria’s return to the US.

Innes also testified that he has been unable to maintain a relationship with Victoria, as Carascosa’s family refuses delivery of the Christmas and birthday gifts he sends her. He posts messages for her on victoriainnes.com, a website he maintains.

Divorce and Incarceration

Carrascosa, who is an attorney admitted to practice in the European Union, returned to New Jersey without Victoria in 2006 for her and Innes’ divorce trial.

That August, the court awarded Innes sole custody of Victoria, and ordered Carrascosa to return her to the US, but she failed to comply.

She was arrested in December, 2006, and held until 2009, when she was convicted of willful interference with child custody, and sentenced to 14 years in prison. She was paroled in 2014, and then held in Bergen County Jail until April, 2015[vii], on a contempt of court charge, for violating the order to return her daughter to the US.

She was released after Innes, who has since remarried and now has a young son, wrote to the court saying he was not opposed to her release, if she returns to Spain to be with their daughter.

Legal Malpractice Lawsuit, Trial, and Appeal

Innes sued Marzano-Lesnevich and her firm for his and Victoria’s emotional distress, alleging that Carrascosa used the released passport to “abduct”[viii] Victoria.

The firm filed 3rd-party complaints against Innes’ divorce attorney and Liebowitz, Carrascosa’s prior divorce attorney, but both were dismissed.

It also filed a motion for summary judgment, arguing that Marzano-Lesnevich had no duty to Innes, because she didn’t know the child’s passport was being held in trust, she was never asked to become the trustee of the passport, and the trusteeship remained with Liebowitz, who is named as trustee of the passport in the co-parenting agreement.

Her attorney/partner argued “we had no right to not turn over the passport to the mother”, who was the custodial parent.[ix] The court denied the motion, ruling that “defendants owed a duty to Innes”.[x]

At trial, a jury awarded Innes just over $1.4M: $700,000 for his emotional distress, $424,000 for his daughter’s, and $292,332 in interest and attorneys fees.

Marzano-Lesnevich and her firm appealed the lower court’s denial of their motion for summary judgment, and the jury award. The appeals court upheld the lower court’s denial of the motion, and Innes’ award for emotional distress, interest, and attorneys’ fees, but threw out his daughter’s award, because “there was simply no testimony regarding her emotional distress, meaning the jury’s award was based upon speculation”.[xi]

Innes responded: “Because she is…in Spain, I could not offer any proof of her emotional harm. (But)…a 4-year-old child, who is taken from her father, is certain to have been emotionally harmed”.[xii]

Marzano-Lesnevich then appealed Innes’ award to the New Jersey Supreme Court, which granted review only on the issue of whether Innes can recover his legal fees.

Declaratory Judgment Action

While the Supreme Court was deciding if it would hear Marzano-Lesnevich’s appeal, Innes sued her firm’s legal malpractice insurer to collect his judgment. However, the court granted the insurer’s motion for summary judgment, ruling that its policies don’t cover Innes’ claim, because (1) “it was first made prior to the policies’ term”, and (2) the policy excludes coverage for errors and acts the law firm “could have reasonably foreseen…might become the basis of a claim or suit”.[xiii]

As a result, Innes must collect his judgment, which totals $833,815 in damages + interest, directly from Marzano-Lesnevich and her firm.

Based on the court filings and ruling, this appears to be the sequence of events:

  • The firm didn’t have malpractice insurance when it released the passport in December, 2004.
  • In January, 2006, the firm received a letter from an attorney representing Innes “in an action against your firm”[xiv] (he sued in October, 2007).
  • The firm applied for malpractice insurance in September or October, 2006, but didn’t disclose the letter from Innes’ attorney, or that it had released the passport, or that the child was taken to Spain, even though the application asked if a claim had been made against any of the firm’s attorneys in the past five years, or if any of them knew of any act or error that might lead to a claim being made against them.
  • The first malpractice policy the firm bought after releasing the passport covered errors or omissions it committed only during the policy period, which was 10/23/06 – 10/23/07, i.e., it didn’t cover Prior Acts, which are errors or omissions committed before a policy’s inception date.
  • The firm didn’t seek coverage for Innes’ claim from its malpractice insurer, so Innes sought a declaratory judgment that he was a third-party beneficiary of the firm’s policies, and they covered his claim.
  • The insurer filed a counterclaim, seeking a declaratory judgment that its policies didn’t cover Innes’ claim.

Lessons Learned

I. Law practice risk management:

A. A co-parenting agreement that prohibits a child from traveling abroad unless both parents consent, should include safeguards that prevent any “shenanigans” regarding the child’s passport, i.e., it should specify procedures to be followed if the passport is entrusted to the attorney of one of the parents, and that attorney stops representing the parent.

B. Communication between new, prior, and opposing counsel is vital. Liebowitz should have contacted Innes’ attorney as soon as Carrascosa fired him, and Marzano-Lesnevich, as soon as he found out that she was Carrascosa’s new attorney, and arranged to be replaced as trustee of the child‘s passport.

Failing that, Marzano-Lesnevich should have contacted Innes’ attorney about replacing Liebowitz as passport trustee, as soon as she reviewed the co-parenting agreement.

Instead, Marzano-Lesnevich gave the passport to Carrascosa, and later claimed that this was permissible, because the co-parenting agreement “was moot”, i.e., “it had been repudiated by both parties immediately.”[xv] In that case, she should have contacted

Innes’ attorney about either revising or terminating it.

II. Legal malpractice:

Non-clients can sue attorneys for malpractice. According to attorneys McAvoy and Schnake, “while a lawyer typically does not owe a duty of care to non-clients, an attorney may owe a fiduciary duty to persons, though not strictly clients, (who)…relied on the attorney’s professional capacity.”[xvi]

In this case, the appeals court held that “it was entirely foreseeable that (Carrascosa’s) possession of the daughter’s passport would facilitate her ability to move from the country…giving the passport to the wife was a breach of (Marzano-Lesnevich’s) duty.”

III. Legal malpractice insurance:

The money that Marzano-Lesnevich and her firm saved by not buying malpractice insurance until after releasing the passport, is a fraction of the $833K judgment they owe Innes, which their malpractice insurer would have been obligated to pay, if they had been properly insured.

However, legal malpractice insurance is a claims-made and reported policy, not an occurrence policy, like auto or property insurance, so to trigger it, you must be insured on the date you commit an error, and the date a claim is made against you due to that error, and the date you report that claim to your insurer.

Since you can’t predict any of those dates in advance, and you may not even know you made an error until incurring a claim months or years later – as happened to Marzano-Lesnevich – the only way to always be covered is to buy malpractice insurance when you first open your practice, and renew it every year that your practice remains open.

As long as you do so, your coverage will be retroactive to the inception date of your first policy, i.e., you’ll get another year of Prior Acts coverage with each renewal. Then, if you’re sued for work you did on or after the inception date of your first policy, and before the inception date of your current policy, and you report the claim to your insurer during your current policy period, then your Prior Acts coverage will obligate your insurer to protect you (subject to policy exclusions, etc.)

Conversely, if you don’t renew your policy one year, then you’ll lose all of your Prior Acts coverage; the next policy you buy will cover any errors or omissions you commit only on or after the inception date. For example, if a firm was insured from Jan. 1, 2000 – January 1, 2016, but didn’t renew or buy Extended Reporting Period coverage, then starting at 12:01 AM on January 1, 2016, it would no longer be insured for claims arising out of errors or omissions it committed before then. Even if it bought coverage on Jan. 2, 2016, that policy would cover it only for any errors or omissions it commits between that date and Jan. 2, 2017.

End notes

  1. Booth, Michael, “Justices Mulling Counsel Fees For Non-Clients In Legal Mal Cases”, NEW JERSEY LAW JOURNAL, October 27, 2015, http://www.njlawjournal.com/id=1202740852518/Justices-Mulling-Counsel-Fees-for-NonClients-in-Legal-Mal-Cases?slreturn=20151024210721#ixzz3q7M2ubPP
  2. Id.
  3. Id.
  4. Zaremba, Justin, “Insurance Doesn’t Have to Pay $1.4M Over Law Firm’s Mistake in Custody Dispute”, NJ ADVANCE MEDIA, September 14, 2015,

http://www.nj.com/bergen/index.ssf/2015/09/dad_whose_child_was_illegally_taken_to_spain_loses.html

  1. See PETER INNES and VICTORIA SOLENNE INNES, by Her Guardian PETER INNES, Plaintiffs–Respondents, v. MADELINE MARZANO–LESNEVICH, ESQ., and LESNEVICH & MARZANO–LESNEVICH, Attorneys At Law, i/j/s/a, Defendants–Appellants/Third–Party Plaintiffs, v. MITCHELL A. LIEBOWITZ, ESQ., PETER VAN AULEN, ESQ. and MARIA JOSE CARRASCOSA, Third–Party Defendants, DOCKET NO. A–0387–11T1, http://caselaw.findlaw.com/nj-superior-court-appellate-division/1662710.html
  2. Id.
  3. Kibret, Markos, “Mother in bitter Bergen County child-custody case is freed after 8 years in jail”, THE RECORD, April 24, 2015, http://www.northjersey.com/news/mother-who-moved-child-to-spain-during-custody-battle-released-from-bergen-county-jail-1.1318448
  4. See note 5 above.
  5. Gallagher, Mary Pat, “Matrimonial Firm to Go on Trial for Allegedly Aiding in Child’s Abduction”, NEW JERSEY LAW JOURNAL, July 6, 2010

http://www.law.com/jsp/article.jsp?id=1202463246952&Matrimonial_Firm_to_Go_on_Trial_for_Allegedly_Ai ding_in_Childs_Abduction (found on http://www.bringseanhome.org/forums/index.php?topic=3315.10;wap2)

  1. See note 5 above.
  2. Sampson, Peter J., “Court hands win, loss to Hackensack law firm, Hasbrouck Heights dad seeking girl’s return from Spain”, THE RECORD, April 8, 2014, http://www.northjersey.com/news/court-hands-win-loss-to-hackensack-law-firm-hasbrouck-heights-dad-seeking-girl-s-return-from-spain-1.857685
  3. Id.
  4. See “PETER INNES, Plaintiff, v. SAINT PAUL FIRE and MARINE INSURANCE COMPANY and TRAVELERS COMPANIES, INC., Defendants. United States District Court, D. New Jersey. Civil Action No. 12-234”, http://www.leagle.com/decision/In%20FDCO%2020150915A38/INNES%20v.%20FIRE
  5. Id.
  6. See note 5 above.
  7. McAvoy, Terrence P., and Schnake, Katherine G., “Non-Client Awarded Damages for Emotional Distress”,

Lawyers for the Profession® Alert, May 20, 2014, citing Innes v. Marzano-Lesnevich v. Leibowitz, 435 N.J. Super 198, 87 A.3d 775 (April 7, 2014), http://www.hinshawlaw.com/newsroom-publications-alerts-591.html

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About Curtis Cooper

Curtis Cooper is principal of Lawyers Insurance Group – Broker For Great Law Firms, which helps attorneys optimize their malpractice coverage. Contact him by phone: (202) 802-6415, or email: ccooper “at” lawyersinsurer.com.