Family Law: Legal Malpractice Risk and Remedies (Part I of II)

Gap-In-MountainFamily Law attorneys are sued for malpractice more often than attorneys in every other practice area except Real Estate and Plaintiffs’ Personal Injury, according to the American Bar Association’s most recent Profile of Legal Malpractice Claims.

The profile doesn’t specify the types of malpractice claims that are filed against Family Law attorneys, but an analysis of such claims by legal malpractice insurer Lawyers Professional Indemnity Co., supplemented by further research, reveals that they generally fall into one of these categories:

I. Poor Communication

  • Failure to inform client, i.e., that even though he transferred the marital home as part of his divorce settlement, he’ll still be liable for the mortgage if his name is on it and his ex-wife doesn’t make the payments. More gen- erally, failing to manage client expectations, i.e., regarding the likelihood of achieving the desired outcome, such that the client is angry or disappointed when those expectations aren’t met.
  • Miscommunication with client, i.e., explaining the terms of a divorce settlement, vis-itation agreement, etc., incorrectly or unclearly, thus causing the client to make a decision that he/she otherwise wouldn’t have made. More generally, failing to clarify the client’s responsibilities vs. the attorney’s responsibilities, resulting in an error or omission that damage’s the client’s case.
  • Failure to obtain client’s consent, i.e., to enter into negotiations for or to include cer-tain terms in a divorce settlement, visitation agreement, etc. (May be due to mis-communication.)
  • Failure to follow client’s instructions, either intentionally, i.e., the attorney disagreed with them, and didn’t communicate that to the client, or unintentionally, i.e., the attorney either forgot or misunderstood them.

II. Failure to know or properly apply the law:

  • Improperly determining a) whether a client is entitled to receive or obligated to pay spousal or child support, or b) the amount and/or duration of such support.
  • Failure to properly transfer assets from the other spouse’s retirement plan, resulting in an unanticipated tax liability for the client spouse; negotiating a settlement agreement that stipulates that the spouses will divide the assets in the other spouse’s retirement plan, but that plan isn’t divisible; etc.

III. Inadequate discovery of facts or inadequate investigation

  • Inaccurately assessing the value of marital assets.
  • Failure to retain an expert to examine hard-to-value assets like a business, antique  collection, etc.
  • Failure to uncover hidden assets that would have been subject to equitable dis-tribution.
  • Failure to identify all issues that need to be addressed in a settlement agreement, litigation, etc.

IV. Failure to Properly Draft Legal Documents

  • Administrative failure: a drafting error or omission in a contract or agreement.
  • Substantive failure: drafting an agreement that includes terms that the client opposes (may be due to miscommunication).

V. Conflict of Interest

  • Representing a spouse in a divorce after initially consulting with the other spouse.
  • Being a family’s “family lawyer”, and then representing one of the spouses in a divorce.
  • Drafting a will for a couple, and then representing one of the parties in a divorce.

VI. Fee Disputes  

  • Charging fees that are excessive or unreasonable relative to the assets at stake and/or the result obtained.
  • Charging fees far greater than the initial estimate.

 VII. Other 

  • Failure to act in a timely manner, i.e., not filing a motion or request for pendente lite relief on time, thus pressuring a cash-strapped client to accept a reduced settlement.
  • Failure to identify and choose the most favorable jurisdiction for a client’s matter when more than one jurisdiction is available.

Part II of this article will discuss risk management measures that Family Law attorneys can take to avoid these and other types of malpractice claims.

About the author:
Curtis Cooper is principal of Lawyers Insurance GroupLegal Malpractice Insurance Brokers, which procures comprehensive legal malpractice insurance at the lowest possible cost.

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