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Thank you for your question and I'm sorry to hear about your unfortunate experience with your attorney.
Let me first off say that it is hard for me to tell you with certainty that you have a legal malpracitce claim that will win without being able to look at all the documents and fully understand what happened in the case. That being said, the failure to object to a forged pre-nuptial agreement on which the case turned is likely malpractice.
I'm a bit confused by your statement though. From my understanding, you were getting a divorce and there was a pre-nuptial agreement involved. The divorce decree is currently being appealed. Is this correct?
I think the failure of your attorney to object is probably an error that was waived and so the appellate process is not connected with the error, nor is the new trial.
That being said, your legal malpracitice claims have a four year statute of limitations.
An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission whichever occurs first. In no event shall the time for the commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist:
1. The plaintiff has not sustained an actual injury;2. The attorney continues to represent the plaintiff regarding the specified subject matter in which the alleged wrongful act or omission occurred;3. The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation; and4. The plaintiff is under a legal or physical disability which restricts the plaintiff's ability to commence legal action.
So, in short, you can sue him now, or you can sue him after the case is done. However, since the law firm is still handling your case. It's probably a good idea to wait until they finish representing you to file the malpractice claim.
Realizing that you don't have enough money to retain a malpractice attorney may bar you from asserting the claim at this time. However, as there is a four year statute of limitations, you can sit on the claim for a while to raise some money for a lawsuit.
In the meantime, you should file a griveance with the State Bar for any fees you felt were improper and for your lawyer's malpractice. It is possible that the state bar will provide you with compensation through restitution or a penalty. However, I would wait to do any of this until the case is completely finished.
Please let me know if you want to further discuss this matter.
ok so just to be clear.
The law firm I am now dealing with is massive. They have firms all the way through Ca and Nevada at least that I know of. My attorney that I actually hired left his private practice to work for this firm and to teach the newer family law attorney's. This is the tricky part. My main attorney only handled the custody support issues. He pushed me to go after the prenup. I finally said yes. So we proceeded with the process,he went to that trial. Then asked the judge for a break to speak with me. He went back in and said I had changed my mind. That was not the case I was furious as you could imagine that they had just wasted about $40,000. on the prenup and then said it was a bluff.
Then we could not mediate a good protion of the issues so it went to court again. The issue of the prenup still remained a key factor as my pension and artwork we had collected original oils from the late 1800's were also an issue. So a trial attorney from the firm drove down and did that portion and had to be briefed and rebriefed and do depo's and you know the procedure. The first attorney he turned it over to screwed things up so badly that my main attorney had to go into court and tell the judge that he would have to fall on his sword for this one as he was not keeping track, his mother had just passed away. Then he retook over the case. When it was time for the actual trial I was told he did not do trial anymore because it takes too much work and he didn't want to do it anymore. He just tells the other attorneys (this is attorney number three now) what to do and helps them prepare after they have written their briefs.
I was never told that I would be dealing with any other attorney's than the one I retianed and worked with since the first day.
It just so happens that the attorney that actually tried my case is also the one that filed the appeal with the higher court for my pension as that was my only safe guard for a future. I have no right to social security,unemployment any of it because I do not have enough credits. That is why it was put in there.
My original attorney the one that is at fault is no longer my attorney,he even filed a paper with the court saying he was no longer my attorney. So we had already started the appeal process under limited scope before Ken actually stopped consulting with me in person and on the phone and was working with the trial attorney on the side lines. He said it was to save me money. Then for some odd reason he as my family law attorney dumped me. Yet the trial attorney had already been retained for the other major one.
They are in the same firm seperate cities,county's.Because the trial attorney works for the other office than where we lived.
Am I suing the attorney or the firm?
Do I have the right to go after my x's attorney also?
Is the judge at fault for not obtaining an origial copy of the prenup?
I lost over a million dollars becuse of their error in not getting an original copy of the document.
Half the practice,the carmel house, our home,vehicles everything. The children and I left with absolutely nothing except support. No settlement,home just debt.
He is a physician that made over $500k a year how does that work. Now I am paying him back support because he proved that his income dropped to $200k in one year.
The judge ordered me to pay him back $1000. a month as well as pay all medical and dental for 3 children until he is paid back for furniture that I did not even say I wanted along with an equalizing payment. My attorney that I have now (new family law attorney) is also a law professor and has never come across a case so poorly managed. She told me that it is because they heard the word doctor and automatically suspected him of hiding money that was about another $60k to find out he was not. I told them there was no hidden money they just kept on racking up the bills.
I think the key issue here is is the pre nup valid or not. If I say no then I dump the issue regarding the pension. Yet with out it, I would be entitled to it anyway as well as half of the medical practice at time of seperation ,half of the multi million dollar beach house from the time of marriage on,half of our home and vehicles. Between the money lost on attorney fees and the money we lost because he is constantly taking me back to court and I have to travel out of state. Or my attorney would make things go to trial. It was just out of control.
I have a disease called Dystonia it caused major flair ups and I was completely bed ridden when they happen. It is a neuromuscular disease.
The mental and physical stain and stress was tremendous.Then throw in the financial burdon I was thrown into just to find out it was not even a valid document with out my signature on it. I have been and continue to have to fight for everything. I have 91% custody if that gives you any indication of the kind of parent he is. I was given a choice move here to Wa to a remote island in the San Juans or stay their with his new girlfriend then wife. After I signed the bifurcation so they could be married because he wanted to settle( so he claimed) if I would do it. I did and he didn't. We got our move away.
So I am dealing with the same firm under a limited scope for the sole purpose of the pension.With the third attorney that tried the financial end of the trial that lasted 4 days.
Not with the original that filed a withdraw as my council.
So three attorney's from the same firm did not even catch that it did not have my signature on the document.
His did and hoped we would not find out or Roger committed purgery along with his original pre nup attorney. Subsequently also with his new one after the divorce started by providing the document. I know it does not matter, I did not want the divorce . I was told I was getting one 10 days before a scheduled c section.
I just want what I am entitled to.
I want to have a home again to raise my children in and not have to rent.
I want to be out of debt.
I want my life back after the tole it has taken on me and my family with me being gone constantly back and forth to court. The work I did at home to prepare. It has been a total nightmare that won't stop.
Had they caught this in the very beginning it would have been over and done with in a year max. My newborn is now getting ready to turn 5 and I am still dealing with this psycho and his screaming in my face lawyer and their lies.
I think his attorney is at fault also for not checking the document himself to cover his own butt. You would think an attorney would have the wear withall to make sure your client did not get you or himself into trouble with the court. We are talking purgery,fraud,contempt for them all and they did not check. These are the top attorneys in the entire county that we had ,well I had. He still has his.
Where is the justice?
This is why lawyers have such poor reputations and Dr.'s have huge ego's.
When you pay for the best I should have gotten the best not some drug out for years nightmare . Where we are living check to check. While he has three homes and 5 cars and I have the children.
to have found all this out after a year of waiting for things to go through the appelet court and to get the decision back saying I had no signature on the original in Feb. 2012. We started in Nov of 07. Now another year to have this heard in family court.
Can I wait?
should I wait?
If I do go to court and get half the pension based on the document that they are going by am I agreeing that I believe this document to be true?
Should I just drop that and go after the attorneys and get this straightened out before giving them one more dime. although the higher court did order my x to pay all fees for the appeal regarding the pension.
I do not want to end up in a pickle because it looks like I am agreeing with a document that I know is not valid with out a signature.
I'll address your questions one at a time:
1. Am I suing the attorney or the firm?
You would sue the attorney. He would have insurance coverage from the firm's malpractice insurance. When an attorney in a firm is sued for malpractice, it affects the entire firm. That is why you should wait to sue.
2. Do I have the right to go after my x's attorney also?
From what I understand, your ex (through his attorney) submitted a fraudulent document to the court. Your attorney failed to object to the document. Thus, the fault is on your attorney rather than your ex's attorney. That being said, you can definitely file a grievance against the other attorney for submitting a false document as evidence. You could potentially sue that attorney for fraud, but there is likely a qualified privilege that he can assert since it was during a court proceeding.
3. Is the judge at fault for not obtaining an origial copy of the prenup?
No, a judge is only a referee. If a peice of evidence is offered without objection, then the judge is supposed to let it in without any need for indepedent inquiry.
4. Is the prenup valid.
Based on what you have told me, the prenup that was submitted to the court was not the actual document that you signed. The actual document that you signed was much more favorable to you. I don't know if I'm confused on this issue or not. But if you have in your possession, a valid and executed prenuptial agreement that was different than the one that your ex submitted to the court. You can sue the ex from fraud and breach of contract on the true prenup. Tell me if I'm misunderstanding you.
5. Attorney bills being too high - This is a hard claim to prove. Unless you directly told an attorney to not do something and they did it anyway, then you will have a hard time establishing that this was not within the scope of their representation and they have a right to charge you for it. In your case, there was mention that they charged you $60K to look for assets that you told them did not exist. This might be something you could act on unless they have some sort of document where you authorized them to go ahead with the search.
6. Should you wait
Again, I think I'm a little confused on what is going on here. You said the appellate court found that the Prenup offered did not have a signature and sent the case back. If that is what is going on, then the Court has to retry the case and you could still win if the correct pre-nup is put into evidence and allows you what you were entitled to under that pre-nup.
Am I missing something? Is there a prenup that you signed that has terms favorable to you?
Did the court make any finding as to fault against you for the divorce? Why would the court make you pay him money? Were you the breadwinner?
ok I will keep this simple I have a tendency when frustrated to ramble. I appologize..
I am wondering if I should even finish with the pension on a prenup that did not have my signature on it. I have not agreed with the prenup since day one as it is not what I signed. I told them it was a fraud and they should look into it. They did not.
If I go through with this trail as if the prenup where intact I get half of the pension plans and IRA's.
If I bail on the trial for the pension and just go after this am I not proving that It is a phony document as I originally thought and voiced.
Wouldn't it just be easier to drop the stupid pension and go after what I lost including the pension if there is not valid contract. Then half of everything is mine.
I'm still confused. Did you actually sign a pre-nup or not?
I'm very confused. Please confirm the following by a simple yes or no.
1. You signed a Pre Nuptial Agreement, which did not contain a specific reference to your name in type.
2. The Pre Nuptial Agreement which was offered into evidence by your ex-husband in your divorce proceedings was a different version than the one you signed.
3. Your lawyer did not object to the fact that the Pre-Nuptial that was offered into evidence your ex was a different version than the one you signed and was thus not authentic and was a fraudulent document.
4. The divorce decree was granted, but there are issues on which it went up on appeal regarding your right to half of the pension.
If you signed a prenuptial agreement, whether it is a conhesive legal document which binds you is impossible for me to tell you without reading the entire agreement which you signed. In general though, if you sign a document which is a contract, it binds you, no matter if there is no specific typed reference to your name. It would bind you because you are signing as the party to be bound.
If your attorney allowed for a fraudulent document to be filed with the Court in evidence without objection after you told him that this was not the document that you signed, then this is malpractice. You will not likely be able to go back and appeal the underlying divorce finding on the fraudlent document because your attorney waived your right to object on it. That is why you likely have a malpractice claim.
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