Tuesday, April 4, 2006
Family law clients may pressure attorneys to raise every conceivable argument available in pursuit of their case and attorneys are rightfully concerned when clients second guess their judgment not to raise a particular argument or defense. The Michigan Court of Appeals emphasizes in a decision this past week that an attorney is not liable for malpractice if he or she is exercising good faith strategic judgment. The case involved an attorney's failure to raise a statute of limitations defense in a child support action. The parent was subsequently arrested for non-payment of the ordered support and the trial judge in that action had sua sponte raised the statute of limitations issue and released the parent. Parent then sued his attorney, arguing that he would not have been arrested at all had the attorney raised the statute of limitations defense in the support action. Attorney argued that raising the statute of limitations defense was meritless because parent had made partial payments of support, which under Michigan law, serves to renew the child support obligation and thereby extend the statute of limitations. The trial court agreed and the court of appeals affirmed, noting that, simply because the judge in the criminal action had overlooked the exception to the statute of limitations, attorney had not duty to "forsee and exploit such an error." Moreover, the court of appeals emphasized that even assuming the statute of limitations defense would have properly barred the proceedings, attorney was not liable for malpractice. "By developing a strategy that a reasonable attorney could honestly believe was consistent with and well founded in state law, [attorney] acted in the best interests of this client."
Wickham v. Lepley, 2006 Mich. App. LEXIS 905 (March 30, 2006)
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