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DivorceYou Cannot Sue Your Spouses Attorney for Malpractice

February 8, 2007

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 [2005]), or allegations pleading the required elements of fraud (see Manna Fuel Oil Corp. v Ades, 14 AD3d 666 [2005]), including detrimental reliance (see New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d 78, 86 [2000]). 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 [1996]), 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.



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