December 6, 2005
Case Law Development: Malpractice in Drafting Pre-Nuptials
The Michigan Court of Appeals, in a 2-1 decision, upheld summary judgment for an attorney in a malpractice action based on his drafting of a prenuptial agreement. The attorney had provided his client (Wife) with the agreement and instructed her to attach a list of assets to the agreement. She did so, but without including values of the assets on the list. When, in her subsequent divorce, the antenuptial was set aside for failure to disclose financial assets, Wife sued the attorney for malpractice. The majority of the court of appeals upheld the trial court's summary judgment on the basis that the failure to disclose values in the asset list was only one factor in the court's decision to set aside the prenuptial, so that Wife could not prove that the attorney's negligence was the proximate cause of the court's action.
A scathing dissent castigated the attorney for his sloppy approach to drafting. "defendant devoted a relatively small portion of his practice to family law, so it is not too surprising to discover that he left the tailoring of a boilerplate antenuptial to his client and his secretary....Attorneys are legal professionals who are hired to forge binding agreements and are best equipped to detect any fatal flaws. Just as a doctor may not provide a patient with plaster and gauze and expect the patient to set and encase her own broken leg, an attorney may not leave the most legally sensitive portion of a contract to a client's drafting skill and expect that it will survive judicial scrutiny. If a contract fails because of a flaw related to the attorney's abandonment of the drafting process, we should hold the attorney responsible."
Winkler v. Carey, 2005 Mich. App. LEXIS 2989 (December 1, 2005)
Opinion on the web at http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20051201_C255193_33_255193.OPN.PDF (last visited December 5, 2005 bgf)