Wednesday, May 22, 2019

Google Docs And Legal Malpractice

The Massachusetts Supreme Judicial Court vacated a judgment of dismissal of a legal malpractice claim

In the summer of 2008, after the plaintiff and Michelle Barnes decided to marry, they "collaboratively" drafted a "Google [d]oc" to "identify [their] premarital assets and debts and to define [their] mutual rights and obligations regarding property and finances after" marriage. The Google doc contained a section titled "Real Estate Bought for Cash," which provided that "[i]f one partner's savings are used to purchase real estate with no mortgage, the other partner will accrue a 2.5 percent ownership interest in the real estate every year after the purchase, assuming the marriage is intact, up to a maximum ownership interest of 50 percent." The plaintiff and Barnes clarified the intended operation of the provision with an example: "A house is purchased in 2010 . . . and paid for entirely from [the plaintiff's] money market funds. In the event of a divorce in 2020, [Barnes] would receive 25 percent of the value of the house. In the event of a divorce in 2030 or after, the house equity would be split 50/50."

In August 2008, Barnes hired attorney Karen Kearns to draft an antenuptial agreement based on the Google doc. The plaintiff hired the defendant Leon C. Boghossian, III, on September 8, 2008, and noted that Kearns was to "turn this Google document into a standard pre-nup." The plaintiff told "Boghossian that one of the most important terms in the Google doc was a section entitled on [sic] 'Real Estate Bought for Cash.'"

Several drafts of the antenuptial agreement thereafter circulated among Kearns, Barnes, the plaintiff, and Boghossian. The plaintiff reviewed the drafts and sent his feedback to both attorneys, but he relied on Boghossian "to create a document that implemented the terms of the Google [d]oc and protected [his] interests." On October 3, 2008, the plaintiff and Barnes executed the final version of the antenuptial agreement. Article III, paragraph 12 (paragraph 12) of the antenuptial agreement -- the relevant text of which is reproduced in the margin -- detailed the plaintiff's and Barnes's respective ownership interests in a principal residence acquired during the marriage in various factual circumstances.

The couple proceeded to marry, purchase a home, have a child and get divorced.

On October 5, 2008, the plaintiff and Barnes married. Two days later, on October 7, 2008, the plaintiff used his separate property to buy a house in Lincoln for $1.4 million (house), taking title in his name alone. The house became the plaintiff's and Barnes's principal residence during their marriage. The couple had a baby in August 2009. Barnes filed for divorce on September 29, 2011. During the divorce proceedings, Barnes challenged the validity of the antenuptial agreement. A Probate and Family Court judge (probate judge) found the antenuptial agreement valid, and determined that paragraph 12(c)(iv) (rather than paragraph 12[a]) applied to the couple's respective rights in the house, because the couple had a minor child and both the plaintiff and Barnes wished to retain the house. The probate judge ordered that Barnes could buy out the plaintiff's interest in the house for $727,500. Had the provisions of paragraph 12(a) (which incorporated the equity accrual provisions set forth in the Google doc) been applied, Barnes's interest in the house would have been only 7.5 percent, instead of fifty percent. Barnes completed her purchase of the plaintiff's interest in the house by making the $727,500 payment in July 2014.

Plaintiff sued for malpractice. The trial court held he needed a causation expert.

The court disagreed

We conclude that the motion judge erred in ruling that the plaintiff was required to present expert evidence on the issue of causation in the form of an opinion that the antenuptial agreement would have been determined valid if drafted in accordance with the equity accrual provisions set forth in the Google doc.11 We therefore vacate the judgment and remand for additional proceedings consistent with this opinion.

(Mike Frisch)

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