Legal Malpractice in Massachusetts Divorce

Is legal malpractice in divorce common?  Absolutely.  Are divorce malpractice cases easy to prove?  Unfortunately not.

There are two basic ways to get divorced in Massachusetts:  you have a trial or you come to an agreement.  Each has it’s own problems in a legal malpractice case.

Separation Agreements and Legal Malpractice in Massachusetts

Most divorces are resolved with an “agreement” often called a Settlement Agreement.  Such agreements are supposed to be all encompassing, including issues with minor children, child support, alimony and a division of the marital assets.  Following the signing of a Separation Agreement, the parties appear before a Probate and Family Court Judge who asks each party, under oath, if the Agreement is fair, if they had advice of counsel, and if they understand the Agreement.

Clients often come to us stating that their lawyer “pressured” or “coerced” them into signing the Settlement Agreement.  Sometimes it is clear that the lawyer was unprepared for trial – the valuation of a home or small business was not properly undertaken, known or suspected assets were not listed and no investigation as to their value was complete.  Unfortunately, if the client signs the Agreement, and testifies in Court that they understood the Agreement and that it was fair, it’s hard to later say they were coerced or forced to sign.  After all, we have our client testifying under oath and a Judge finding the Agreement fair.

Divorce Trials and Legal Malpractice in Massachusetts

Many divorces are as a result of a trial between the two parties.  Clients often contact us after a trial and report that their lawyer was unprepared, did not object to improper evidence, failed to introduce evidence that the other party was hiding assets, or allowed them to be cross examined in a fashion that was unfair.  Their rights were not protected.

Unfortunately, for legal malpractice attorneys to review such a case, we often have to review the entire trial transcript and all of the documents introduced into evidence.  This involves a huge cost (purchasing and transcribing the trial testimony) and a vast amount of time (reading the transcripts and documentary exhibits).  Furthermore, there is implied that the Judge was fair and that both sides got and even review notwithstanding one side’s attorney being more prepared or failing to object to some questionable testimony.

Divorce Lawyers Mistakes, Misrepresentations….and Lies

What we see sometimes are very clear cases of divorce malpractice that do not involve coercion to sign an Agreement inadequate trial practice.

Attorneys that lie or misrepresent:  Often clients will provide documents with important information to their attorney and the attorney will fail to review it, fail to provide it to the other side, or fail to understand it’s significance.  Other times attorneys will report that they did something, such as file a mortgage, a deed or a  QDRO (division of retirement assets), when they neglected to do so, resulting in clear, quantifiable damages.

Overbilling and misrepresentation:  while overbilling in itself may or may not be malpractice, when the tasks being billed for are not completed satisfactorily, this can result in actionable legal malpractice.  Sometimes something being billed for did not happen, such as a lengthy meeting with opposing counsel, for example.  Sometimes when a lawyer or law firm files a lawsuit to collect on their bill, our clients will file a Counterclaim for legal negligence.

Retirement Accounts and Pensions Mistakes:  dividing retirement accounts, or pensions, should be simple.  First, you value the account.  If it’s a financial account, such as a 401k or 403b or IRA, there is a statement as to the value.  If it’s a pension, an actuary can, for a small fee, determine the present value.  How the retirement accounts and pensions get divided is a negotiation.  However, once there is an agreement, the paperwork is simple and straightforward (filing a QDRO, for example), yet attorneys who make mistakes in this can cost their clients significant monies.

Seek Expert Advice if Your Divorce Attorney Committed Malpractice

Burns & Jain has been representing victims of divorce malpractice in Massachusetts for decades.  We can undertake a complete review of your case and give you sound advice as to whether you have a valid legal malpractice claim.  Our initial consultation is free so call 617-227-6423.