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DrakeLAW
DrakeLAW, Lawyer
Category: Family Law
Satisfied Customers: 431
Experience:  Attorney at Drake Law Firm PLC
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I'm trying to decide if I can prevail in a malpractice

Customer Question

I'm trying to decide if I can prevail in a malpractice against my attorney. I was advised during a motion for alimony modification that I only needed to make sure and pay child support. The judge ruled against me claiming unclean hands for self help in not paying alimony for 2 months. This advice was from my attorney but I don't have it in documents. Do I have a case?
Submitted: 6 months ago.
Category: Family Law
Expert:  DrakeLAW replied 6 months ago.
Hello and welcome to JustAnswer, my name is ***** ***** I am an attorney. Please note:This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. This question and response may be viewed by other parties as noted in JA’s terms of service. By continuing, you confirm that you understand and agree to these terms. I am sorry to hear that you may have gotten bad advice. What is your total loss/damages? Is it the two months of alimony or something more?
Customer: replied 6 months ago.
Thank you so much Richard for identifying yourself and the questions....
The most obvious damage was $2,000 to pay for my ex-spouse legal fees. The judge listed two reasons... one I've listed...the other for not providing the proof of my job search. I didn't mention the job search evidence earlier because I sent that via e-mail to my lawyer but he did not include. It seemed that part was easy to prove.The other part of the losses included the original $2500 retainer paid and the additional $2000 my lawyer is charging which I have not yet paid. Harder to prove is the amount I would have escaped paying had my motion for modification been approved. That is $3000 per month going back to March and going forward. If the judge had approved a temporary modification (that is what I requested) I may not have had to pay the $3,000 until I became employed. I say harder to prove because I'm not sure if I can say exactly what the judge would have done. I may have had a partial modification. I was specifically told by my lawyer that I would not have to pay legal fees. I might as well tell you also that unbelievably...and despite being unemployed for over 6 months the judge also increased child support. The judge felt that I was acting in bad faith because of the "self help" but it certainly didn't help that during oral arguments, my lawyer said that both sides were stretching the truth. This was infuriating. Months earlier, I had attended a mediation and opposing council told the judge I was informed but refused to negotiate several points. I told my attorney categorically that this did not occur and even sent him an email to that effect. After his oral argument I asked him what he was doing by suggesting that I was stretching the truth and he said to wait for the judges decision. You see, I'm not just considering a malpractice because of losing a judgement but because of failure to submit evidence...wrong advice and negligently suggesting I was not telling the truth. My original question to you was to help me understand how I might prevail without an email or absolute document that I can point to with his negligent advice. ...? Please feel free to ask further questions
Thanks
Customer: replied 6 months ago.
Also Richard,I am trying to determine whether I should refile a second motion. It seems that since my income is basically zero due to unemployment I can cure the judges first complaint that I did not provide evidence of a job search. Then if I bring all alimony current, I won't be accused of unclean hands. So my question.... my lawyer said that regarding ability to pay alimony "you can't take a second bite of the apple" He understood that I had 401ks and a second account that had all been equitable distributed. I don't know if you can see any of my previous questions on here but I've been trying to get a fix on how I should position my "ability to pay". It seems that I can't get a straight answer. If I have a mutual fund that has been equitably distributed...would it be accurate that the judge would take the theoretical interest return to calculate ability to pay? And in my case...I was ordered to pay alimony even though it required me to sell assets that had been distributed.... Comments?
Expert:  DrakeLAW replied 6 months ago.
Sorry, I was sick yesterday. Ok, no you should not pursue a malpractice claim because the damages are not big enough and you will never find a malpractice lawyer to take on that claim for the amount involved. You are much better off raising your concerns with your lawyer and refusing to pay the remaining amounts owed for the reasons you cited. If the lawyer is adamant on your paying the bill, you might contact the State Bar and either file a complaint or use the fee dispute process. That will get you a similar result to filing a malpractice lawsuit and is much more likely to actually result in some sort of benefit for you.
Expert:  DrakeLAW replied 6 months ago.
I cannot see your earlier questions sorry. I am afraid I cannot comment on those specific New Jersey family law questions. I would be happy to do my best and try but that is best asked as a separate question and hopefully someone with New Jersey family law experience can comment. They would do a much better job than I would. I hope I was able to answer your initial question regarding malpractice.Thank you for your question. It has been my pleasure to assist you and I welcome you to request my assistance in any future legal questions you may have, by simply placing my name in the first sentence of your new question. It is important that you are 100% satisfied with my courtesy and professionalism, there is no charge for follow-up questions. Finally, please be so kind as to promptly rate this answer favorably so that I may be compensated and the question may be closed in the system. I wish you the best in your endeavors! –Rich
Customer: replied 6 months ago.
Richard
regarding suing for malpractice....my intent was to go pro se
If I went to the nj bar I think I could only prevail on his bill... a suit potentially would return the 2k I had to pay in legal fees for opposing council..... I also don't think the nj bar would be able to order repayment of the retainer
...thoughts?
Customer: replied 6 months ago.
I am trying to determine whether I should refile a second motion. It seems that since my income is basically zero due to unemployment I can cure the judges first complaint that I did not provide evidence of a job search. Then if I bring all alimony current, I won't be accused of unclean hands. So my question.... my lawyer said that regarding ability to pay alimony "you can't take a second bite of the apple" He understood that I had 401ks and a second account that had all been equitable distributed. I don't know if you can see any of my previous questions on here but I've been trying to get a fix on how I should position my "ability to pay". It seems that I can't get a straight answer. If I have a mutual fund that has been equitably distributed...would it be accurate that the judge would take the theoretical interest return to calculate ability to pay? And in my case...I was ordered to pay alimony even though it required me to sell assets that had been distributed.... Comments?
is this only answerable from an nj attorney?18 May 2016 05:45
Expert:  DrakeLAW replied 6 months ago.
I understand about pro se, your biggest problem is that in order to prove malpractice you will need to hire an expert witness lawyer that will testify that what your lawyer did fell below the standard of care for lawyers and that he thus committed professional negligence. Hiring such an expert witness lawyer would cost probably around $10k. So, if you are going to try it you should find your expert first and determine the cost. In my opinion, it is pointless to pursue malpractice. Sure, the Bar can order a return of a retainer if ethical rules were violated. I am not able to answer the other question about your proceeding in family court unfortunately.Please be so kind as to promptly rate this answer favorably so that I may be compensated and the question may be closed in the system. I wish you the best in your endeavors! –Rich
Customer: replied 6 months ago.
Hello Richard,Just one more question about the expert witness. If I have direct evidence supported by e-mail that shows my attorney did not submit the proof that the judge cited as deficient....Would I really still need an expert...wouldn't the judge be able to see that required information was not provided, either in the original motion or counter-motion?Thanks,