Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, January 27, 2006

Case Law Development: Attorney Advice to Violate Divorce Decree Results in Suspension

In another blow against hardball litigation tactics in divorce actions, a divorce attorney was given a two-year suspension for counseling Husband not to comply with the part of the divorce decree requiring that transfer certain documents and information to his former wife within 30 days. Rather the attorney had drafted deeds transferring the property to others and then, after her client was in contempt, drafted a deed transferring the property to wife, even though at that point her client no longer owned the property.

The Supreme Court of Nebraska, in affirming the recommendation of discipline, concluded "it is apparent that [Attorney] assisted her client, Ronnie, in an attempt to frustrate his divorce decree and that when that attempt failed, she engaged in a prolonged series of misleading transactions intended to extricate herself and Ronnie from the consequences of her actions. Not only was her conduct deceitful and prejudicial to the administration of justice, but it was a poor discharge of her ethical responsibility to Ronnie, who landed in jail as a result of [her] counsel." The court concluded that the attorneys' conduct involved dishonesty, fraud, deceit, or misrepresentation; that she counseled and assisted her client in conduct she knew to be illegal or fraudulent; and that she engaged in conduct prejudicial to the administration of justice.

State ex rel. Counsel for Discipline v. Horneber,  270 Neb. 951; 2006 Neb. LEXIS 13 (January 20, 2006)
Opinion available on the web (last visited January 25, 2006 bgf)

Continue reading

January 27, 2006 in Attorneys | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 6, 2005

Case Law Development: Consecutive Discipline Appropriate for Family Law Magistrate's Sexual Assault of Petitioners

The West Virginia Supreme Court censured a magistrate judge, imposing four one-year suspensions and fines totaling $20,000, in a case in which the magistrate judge had sexually assaulted women, two of whom had come to the court for protective orders in domestic violence cases.   In justifying the consecutive imposition of separate sanctions for each of the four violations, the court expressed its outrage at the magistrate's conduct: "Imagine going to a magistrate's office to fill out a domestic violence petition after being beaten so badly that you required medical attention and then having the magistrate grab you and engage in revolting and inappropriate sexual contact. Such conduct cannot and will not be tolerated by this Court." 

In re Toler, 2005 W. Va. LEXIS 177 (December 2, 2005)
Opinion on the web at http://www.state.wv.us/wvsca/docs/fall05/31797.htm (last visited December 5, 2005 bgf)

December 6, 2005 in Attorneys, Domestic Violence | Permalink | Comments (0)

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)

December 6, 2005 in Antenuptial (postnuptial) Contracts, Attorneys | Permalink | Comments (0)

Friday, December 2, 2005

Case Law Development: Assisting Both Spouses to Form a Family Limited Partnership In Spite of Marital Discord States a Claim for Breach of Attorney's Fiduciary Duty

Most state rules of professional conduct expressly prohibit representing both husband and wife in a divorce proceeding. This case from the South Carolina Court of Appeals provides notice that joint representation of couples in estate or tax planning may also be ethically risky if the attorney does not inquire as to whether there is family conflict, particularly where one spouse has significantly greater wealth or is controlling the planning process. 

In this case, husband and wife weren't getting along and had failed in their attempts to use marital counseling to repair their relationship. During this period, Husband turned to Attorney, who had represented Husband substantially in the past, and began plans to set up a family limited partnership. Attorney represented both Husband and Wife but never inquired regarding family conflict, nor did he inform Wife of the ramifications of the family limited partnership in the event of a divorce (specifically that such a device can be used to "freeze out" a spouse from assets). The Court of Appeals reversed the trial court's grant of summary judgment, holding that these facts, while insufficient to state a claim for civil conspiracy or fraud, did state a claims for breach of fiduciary duty.

Smith v. Hastie, 2005 S.C. App. LEXIS 273 (November 28, 2005)
Opinion on the web at http://www.judicial.state.sc.us/opinions/displayOpinion.cfm?caseNo=4052 (last visited December 1, 2005 bgf)

December 2, 2005 in Attorneys | Permalink | Comments (0)

Sunday, November 20, 2005

Case Law Development: Attorney Malpractice for Failure to Secure Obligations in Divorce Settlement

The U.S. Third Circuit Court of Appeals provides a cautionary tale regarding the costs of failing to follow-through after the divorce decree.  Attorney represented Wife in a divorce, in which Husband eventually agreed to pay Wife a total of $143,000 in four installments. As part of the divorce settlement approved by the court, Husband agreed to provide his 401(k) Plan as security and take out an insurance policy naming Wife as beneficiary in an amount sufficient to cover his obligations.  To secure the debt through Husband's 401(k) Plan, Wife needed to obtain either a Qualified Domestic Relations Order ("QDRO") or a survivors annuity. Attorney advised Wife to enter into the divorce settlement, although it contained neither of these and despite his knowledge that Wife might not ever legally qualify for a QDRO.  He then took no steps to insure either of these security devices were put into place.  When Husband died before the obligations were paid and Wife was unsuccessful in recovering either the 401(k) or insurance funds, Wife sued Attorney for malpractice and was awarded nearly $300,000 in damages.  The Third Circuit Court of Appeals upheld the award.

Winters v. Patel, 2005 U.S. App. LEXIS 24552 (3rd Cir. November 14, 2005)
Opinion on the web at http://www.ca3.uscourts.gov/opinarch/041753np.pdf (last visited November 17, 2005 bgf)

November 20, 2005 in Attorneys | Permalink | Comments (0)

Monday, September 5, 2005

Case Law Developments: Sanctions for Bad Faith Divorce Litigation

In two cases, the Texas Courts of Appeals recently were called upon to review trial court sanctions in divorce litigation.  The first case presented an easy case for sanctions, notable only for the audacity of the petitioner.  The second case presents a much more difficult case, highlighting the sometimes precarious nature of practice for divorce practitioners.

Kramer v. Kramer, 2005 Tex. App. LEXIS 7084 (August 30, 2005)

Upholding sanctions for groundless litigation against petitioner Mother, who filed suit for divorce as next friend for her son, who had been left incapacitated in an accident. She filed the suit knowing that her son’s wife had been appointed his legal guardian.  While she later dismissed the action, the Texas 13th District Court of Appeals (Corpus Christi) upheld the trial court’s sanctions on the basis that Mother had no standing to bring an action for divorce on her son’s behalf and that the action was brought solely for the purposes of harassment.

In the Interest of K.A.R., 2005 Tex. App. LEXIS 7080 (August 30, 2005)

In a much closer question of sanctions, the Texas Fourteenth District (Houston) Court of Appeals, in a 2-1 decision, affirmed an order of sanctions against a petitioner and his attorney.  The case involved protracted litigation, in which father had moved to modify the terms of the custody decree.  Over the course of the proceeding, father apparently changed his mind about proceeding with the motion.  Father eventually committed suicide shortly after the trial.  The Court of Appeals noted that other trials courts might not have ordered sanctions and that some of the basis for the trials court’s sanctions were ill-considered, it held that the trial court sanction was justified by one of its bases: the failure of both attorney and client to attend a court-ordered mediation.   Attorney had been unable to attend the mediation because of a conflicting trial setting, but the trial court found that attorney could have notified it earlier of the conflict.  Father failed to attend the mediation because he did not desire to further participate in any proceedings. 

The majority and dissenting opinions’ characterizations of the attorney’s conduct differed dramatically:

Continue reading

September 5, 2005 in Attorneys | Permalink