Legal Malpractice Causes Unequal Property Distribution

Joseph O'Neill

Written by
— Updated on July 13, 2016

Legal Malpractice ExpertThis case involves a plaintiff who was involved in a probate situation over property in the state of Montana that she and another individual had inherited from a mutual family member. According to the terms of the will, each was to receive an equitable share of the property. There was an agreement regarding property division. The plaintiff was advised by their attorney, the defendant, that the agreement was fair and equitable. Unfortunately, the property received by the plaintiff was totally landlocked, having no access to water, except across the other property, or across neighboring properties. As a result, the plaintiff was forced to sell the land. It is alleged that had the plaintiff received property that had access to water, it would have been worth much more. It is alleged that the defendants should have disclosed the “landlocked” nature of the property. It is therefore claimed that the defendants breached their agreement to provide plaintiff with competent legal advice.

Question(s) For Expert Witness

  • 1. Do you have extensive experience working in agricultural real estate law?
  • 2. Have you ever worked on a case similar to this? If so, what was the outcome?
  • 3. Is certain information required to be disclosed to client, such as the "landlocked" nature of a property, as noted in this case?

Expert Witness Response E-012987

I taught Agricultural Law for 30+ years at the University of Oklahoma College of Law. I also taught Professional Responsibility (Legal Ethics) at the College of Law for 30+ years. I would not say that I have extensive experience working with agricultural real estate law. I have been involved in several matters and I taught about agricultural real estate law. I have worked on a number of cases in which the legal issues turned on the issue of who the lawyer’s client was. To me, the identification of the client appears to be a very likely and dispositive issue in this case. Certain information is required to be disclosed to the client if the defendant lawyer was the attorney for plaintiff (i.e. plaintiff was the client), then competence and fiduciary duties would have required disclosure. Moreover, if the defendant lawyer was not the attorney for the plaintiff, disclosure may still have been required if failure to disclose was a fraud on the plaintiff or if the defendant, as attorney, was giving legal advice to plaintiff either as an unrepresented person or as a person who had a known attorney.

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