Wednesday, January 14, 2009

Divorce Settlement No Bar To Malpractice Claim

A lawyer drew up an antenuptial agreement for a husband shortly before the wedding. The bride elect, who was not represented, signed the agreement. After six years of marriage, the wife filed for divorce. The husband's new lawyer raised concerns about the enforceability of the agreement and the husband entered into a settlement based on the "fear[] it would not be upheld..." The husband certified that the settlement was fair and equitable. He then sued the lawyer who had drafted the agreement for malpractice. The trial court dismissed the legal malpractice action on grounds of public policy and judicial estoppel.

The New Hampshire Supreme Court reversed, holding that the divorce settlement did not bar the malpractice action on either grounds.  The husband's acknowledgement that the settlement was fair was not clearly inconsistent with his malpractice claim and  there was no abuse of judicial process in allowing the claim to proceed. (Mike Frisch)

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