Legal Malpractice Expert Comments on Ethical Lapses by Divorce Attorney

Joseph O'Neill

Written by
— Updated on January 7, 2022

Legal MalpracticeThis case involves issues that stem from a divorce that took place in Arizona. After extensive premarital counseling, a custody agreement and child support agreement were determined through the court in Arizona, and a paternity test was run to establish that the husband was indeed the children’s father and held financial responsibility to support them. The plaintiff’s ex-husband eventually moved to another state and filed a motion to change both agreements, alleging that the paternity test had been faulty. Because of this, the plaintiff sought out an attorney in the new jurisdiction to help with his case. Her new attorney never informed her that the case was still officially filed in the original jurisdiction. The attorney filed a number of motions, and billed a large amount of work to the client. Eventually, the attorney set up a settlement conference and came to an agreement with the other side without the plaintiff present or aware of the deal.

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Expert Witness Response E-007220

The improper acts and omissions here may include at least the following. Failing to inform the client about the pendency of the related case in Arizona is likely a violation of the lawyer’s duty of communication. The lawyer’s fiduciary duty of communication was also likely breached. Billing at an alarming rate describes a potential violation of the lawyer’s duty not to charge a clearly excessive fee. It also describes a possible breach of the lawyer’s fiduciary duty of loyalty. The lawyer was required to consult with the client about the settlement. If the lawyer and client could not agree whether this step was desirable, the lawyer should have deferred to the client’s wishes because the decision involved expense. If the lawyer falsely told the client that there would be no settlement conference, then the lawyer violated his fiduciary duty to be truthful with the client and violated his duty of communication. To make an agreement on behalf of the plaintiff without her permission would be a violation of the lawyer’s fiduciary duty to act in the best interest of his client and within the authority granted to him. If the lawyer made an agreement that was detrimental to his client, the lawyer may have violated his duty of competence, may have committed professional negligence, and may have violated his fiduciary duty to protect the client’s interests.

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