It comes as no surprise, given the absence of privity of contract, that you cannot sue your spouse’s attorney for legal malpractice in a divorce action according to the New York Attorney Malpractice Blog. However, Andrew Lavoot Bluestone reports that fraud and deceit may be available remedies:
Here is a rare circumstance when you may sue the opponent’s attorney. This particular husband failed; the opening remains, however.
Mars v Grant
2007 NY Slip Op 00576
Decided on January 30, 2007
Appellate Division, First Department
“Plaintiff, who is also the plaintiff in a divorce matter in which his wife is represented by defendants herein, failed to support his pleading of a cause of action under Judiciary Law
§ 487 with allegations that adverse court rulings in the matrimonial action were based on acts of deceit by defendant attorneys (see Melnitzky v Owen, 19 AD3d 201 ), or allegations pleading the required elements of fraud (see Manna Fuel Oil Corp. v Ades, 14 AD3d 666 ), including detrimental reliance (see New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d 78, 86 ). The failure to plead detrimental reliance is also fatal to plaintiff’s cause of action for notary liability under Executive Law § 135 (Rastelli v Gassman, 231 AD2d 507, 508 ), which, in any event, is pleaded in conclusory terms without any specificity. “
It seems to me that it would be very difficult to sustain a case of fraud or deceit against an adversary’s counsel. The lawyer would have to have done something real stupid, like falsify a bank statement or some or similar financial document upon which you justifiably relied.
A litigant should be on notice that papers prepared by counsel for his/her spouse are intended to advance a case against you. A litigant has a right to discovery of all material and relevant information. The litigant can and should verify counsel’s factual representations. For this reason, I am not sure any reliance on documents prepared by an adversary’s attorney is ever justified.
Finally, I am not sure what the measure of damages would be. It seems to me that if a fraud was perpetuated on a court, the judgment should be set aside as would any agreement procured by fraud. Perhaps the element of damages would be the legal fees incurred because of the fraud.