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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 89362
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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legal malpractice

Customer Question

The lawyer who represented me in the divorce failed to inform the court that the respondent was in contempt to court on two counts:  1.he never restored the funds he stole from the joint account as he was ordered per court order. 2. He stopped paying court assigned mortgage for half of the court duration. Also, this lawyer didn't submit to me the results of the financial discovery prior to mediation. I want to get my legal fees back and may be some damages

Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

If the attorney did not properly handle the matter and make appropriate motions as required and this directly caused you a loss, this is grounds for a malpractice suit. In order to sustain an action for legal malpractice, you must have a legal expert review your case files and determine that the attorney did not practice within the reasonably accepted standards for an attorney with similar experience and as a direct result you suffered damages.

Thus, before you can actually file suit you have to get your case file to a legal malpractice expert for actual review to determine if there was a breach of the reasonable standard of practice to know how best to proceed against the attorney before you can just file suit.



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Customer: replied 1 year ago.

Thank you Paul. Understandably, you answer is very general, but the facts are already in the court's file, and the court's orders were not honored as to restore stolen funds back to the joint account. There is nothing in the court file showing that they were restored and not legal actions to notify the court of the contempt either.


That he didn't pay the mortgage during 6 months out of 1 year of the proceedings, I have a legal letter that was sent to me by the collectors after the decree was granted showing when he stopped paying a court ordered mortgage. She would not be able to prove that the financial discovery was submitted to me, since she didn't submit.


I need to know how courts/judges usually take to the facts that I described above from your personal legal knowledge

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

If your attorney did not pursue the continued content it is generally considered malpractice, especially if you instructed him to do so. Yes, the facts are in the record, I am not disputing they are, but those facts in the record have to be reviewed together with your attorney's inaction in pursuing the matter in accordance with your wishes against the standard of reasonably accepted standards of practice (while it sounds from your description to be negligent on the attorney's part, without reviewing the files we at this forum cannot say for certain it is).
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 89362
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
Law Educator, Esq. and other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Thank you. I have been married for 26 years to the same man, who emptied the accounts, removed my name from the joint account to which my own paycheck was arriving, stole the car, investments and went into hiding. I filed for divorce and it was an effort to serve him. He was ordered to reinstate me on accounts and return the funds, pay a mortgage for the family condo for the time of the divorce procedures. I have never been divorced before and in a state of shock. I only moved to US from Canada shortly, I had nobody in this country.


That is why a person hires an experienced divorce lawyer, to follow the courts orders to ensure if all is done as per court orders. I don't need to "instruct" a lawyer paid $350 per hour how to conduct a divorce. I have been through a hostile divorce, I can now tell a person what to do and what to file, a lawyer with 25 years of experience doesn't need instructions of a distraught client on how handle court when it's orders are not obeyed. His duty is to inform the court and let it deal with the offender.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

You are correct, the attorney should have been pursuing restitution of the money and property taken and ordered by the court to be returned. As I stated, based on your account, it certainly does sound as though the attorney was negligent and a malpractice expert is likely to find that it was negligent when they review the files.

The reason an expert is still needed is because when you sue in court you bear the burden of not only presenting the evidence of what he did not do that he should have, but a professional expert is required to testify in court as to what the proper actions he should have taken would have been given your facts and circumstances. It is about you meeting your burden of proof in court on a malpractice case. He should indeed not need instructions from you and with 25 years of experience his actions would be reviewed very critically by the court as he should know better.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your bad rating, I am afraid I do not understand what more you want. I cannot state outright he committed malpractice because all I have is your version and I cannot actually see the records. You have been told the legal standard and what you need to prove and yet you are blaming me for bad service when I have no access to your court records for review. As stated in terms of service we are not substitution for local counsel and you agreed you understood that when you signed onto this service.

I am happy to provide information in accordance to what the laws are and I can only tell you what the laws are and what you need to prove your case, but I cannot fully evaluate your evidence without seeing it or I would be committing malpractice and it is pretty unfair of you to think I could do so.
Customer: replied 1 year ago.

Paul,


your first advice was of the quality I can get anywhere, it had no value tome at all


your other advices were better, and I will rate them accordingly, as it is my right


Have you ever personally known a lawyer being punished by the judge for something like I described? what is the chance of a "hand washes the hand" vs to see the case for what it is?

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

I am sorry you feel that way, but as explained in my first response, we can only respond based on the information provided by the customer. The more general information provided by the customer the more general the answer, the more specific information they ask for the more we can provide and the service works by back and forth communication not necessarily on the first or sometimes even the second response provided as you found out as we progressed I hope.

Yes, I have indeed seen attorneys have to pay judgments for failure to take proper actions on behalf of their client to preserve their client's rights. As far as sanctions from the court or the bar against the attorney, other than civil malpractice suits where clients are awarded damages, no, most times it is restricted to the malpractice suit and money damages as the only punishment.

Not to be repetitive, but this is the reason for a legal expert having to testify in a malpractice case, if the legal expert testifies the attorney should have taken action they did not take, it is difficult for the court to ignore that evidence. As far as bar complaints though for this type of thing, most bar investigations I have seen in these matters will not recommend action against the attorney's license (that does not save the attorney from the legal malpractice suit and civil damages).
Customer: replied 1 year ago.

Thanks Paul, I don't care about any disciplinary ethics with WSBA, I just want my legal fees back, since I feel that if a court issued an order, the least a lawyer can do for a client to ensure that the order is followed. I my case the situation with getting away with court orders contempt has emboldened the respondent to take bigger risks, first he didn't return the money, after he stopped paying support, but when an order was filed he resumed the support, but stopped paying the mortgage and never resumed even after the divorce, at the end of the divorce, he got so bold that he was GPSing me via a cell phone (we had 2 for one deal ) and for him paying my phone, I paid for his medical insurance via copay to my employer, I had to file a protection order when I found out that he is spying on me. My point is, it is extremely harmful to a Plaintiff and ruins the concept of justice if a lawyer is not doing the duty to protect clients interest

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

I mentioned the bar complaint just for the purpose of being clear and thorough in response to your last question.

I agree with you that the lawyer's inaction in filing motions for order to show cause for contempt and pushing the court to hold your ex in contempt fostered your ex to keep violating the court orders.

In addition to pursuing your attorney for malpractice, if your ex is still in contempt, you need to get an order to show cause for contempt of court motion filed in the case as well and the court will set it for a hearing where you can argue all of the failures of your ex to follow the court orders and get the court to rule and even sanction your ex for non-compliance.
Customer: replied 1 year ago.

Thanks for a good advice. The ex never resumed paying the mortgage and I found out through the letter from collection law firm after decree. He asked for the condo , but the settlement reflected him taking the condo which was "under the water" but nobody knew that he stopped paying mortgage, I was not on the mortgage only on the title,meaning his default info was not available to me but would to my lawyer. Who new his tendencies but didn't bother


The only way I can use his contempt on mortgage would be to renegotiate the settlement by showing it to re negotiation lawyer/court . He never wanted the divorce to start with, he just wanted to dictate his rules and took the money and car to scare me into obedience It backfired by me filing for divorce which he didn't count on. He wanted the procedure as long as possible after firing his lawyer he was per se and court takes it easy, he would get a shoddy legal advice and I had to pay premium to fight and unruly brut . So, I had a per se manipulator for whose intriques I had to pay through the nose in legal fees .

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

I am sorry to hear he has done this to you. I understand your position about the contempt and also why you want to pursue your attorney for not stopping all of that sooner.
Customer: replied 1 year ago.

Thanks Paul,


If I decide to file, may I ask how if could be arranged that I will be paying for the advice again on this site get to you specifically?

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

If you come back and have more legal questions, you can specifically ask for me in your headline of your question and I will get back to you as soon as possible.
Customer: replied 1 year ago.

thanks, XXXXX XXXXX


I will send her a Demand Letter first, since asking her in email format didn't do anything, and if she will not return the legal fees, I will take her to court

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

It is always best to send a regular letter as that better documents your proof that you tried to resolve the dispute without litigation.
Customer: replied 1 year ago.

Do you mean just a regular letter vs demand letter?

Expert:  Law Educator, Esq. replied 1 year ago.
No, I was referring to your demand letter. It is best to send that regular mail so you can have a record of delivery.
Customer: replied 1 year ago.

I plan on sending it by registered mail with a receiver's signature and a return receipt requested

Expert:  Law Educator, Esq. replied 1 year ago.
You can send it that way as long as she will sign for it. If she will not sign for it, you can send it priority mail with delivery confirmation, which does not require a signature and it still provides you proof of delivery.
Customer: replied 1 year ago.

She has an office full of staff. She is well known, was recommended to me as a "bulldog" by an attorney friend of the professor I work for. I really needed a bulldog, but instead I got a greedy chihuahua :) They all were intimidated by the ex and trying to placate him at my expense instead of taking a firm legal stand. I found my email to her that I was writing that I can't go to Mediation without the discovery results, and still she obtained the results but didn't submit to me prior to mediation. I was exhausted at the end of the divorce and on top he was GPSing me via cell phone. I had a Major depressive episode during the divorce proceeding and I never had depression before and my therapist provided a letter. I really needed a lawyer to represent my interests and the least she could do, at least to ensure that the court's orders are followed. She used the situation to her advantage getting me a worse settlement that I negotiated by myself at enormous bills

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your follow up.

All of those things you are mentioning are all grounds and pieces of evidence for your malpractice claim and you will have to prove them in court with your documents and your witnesses and your expert witness would have to testify as to how this conduct was a breach of the standard of care that the attorney owed to you on this case (which she did and failure to do these things when proven in court would be malpractice and open her to damage liability).
Customer: replied 1 year ago.

Thanks,


Could you please explain to me what kind of witnesses needed to the judge to verify that the court orders were not followed? There is a court order, there are documents showing that the order was not followed. There is nothing in the court proceedings showing that a legal attempt was done on my lawyer's part to force the respondent to follow the order or notify the court about his contempt to the court.


There were explicite court orders and there were documented actions of the respondent showing otherwise and there are no legal actions (documents) or hearings to prove on the part of the lawyer that the lawyer took actions to ensure that the court orders are followed.

Expert:  Law Educator, Esq. replied 1 year ago.
In your case, as the court record would bear out the attorney took no actions, according to you, the court record would be evidence. If you have any witnesses to testify you told your attorney to take action, then you would present them. The biggest witness you need which is pretty much mandatory if you want to win would be the legal malpractice expert to testify about your attorney's actions and conduct in the case.
Customer: replied 1 year ago.

One doesn't really have witnesses when one is talking to the lawyer. It is absurd. There is a documented proof that the respondent wrote to me that he stopped paying the mortgage as his part of intimidating me. This email was a part of my case. She didn't follow it up, which was very easy, all she needed to do was to find out the status of mortgage prior to mediation to get a leverage. He would have immediately paid it up to avoid the contempt. Any normal lawyer would use another party contempt to court to the advantage of the client. The only reason not to use it to keep the contempt and bilk the client for more "legal" work. Same with the order to reinstate the funds, he was giving me some checks whatever he felt like giving to me from the joint funds that he stole, without any proper legal supervision of the funds reinstating to the account and locked there till the divorce is final.


She aslo was informed in writing that I needed to see the discovery documents prior to mediation, since mediation will be pointless if I don't know what was discovered. Still, she never submitted the discovery to me. She would have to prove that she did, there is no evidence to that at all. She got me worse settlement than the one I negotiated privately with respondent and enormous bills.


She didn't ensure that he is to notify me about his moving out of state, and now he moved from Seattle to NC without notifying me. If he will stop support, I don't even know where to find him.


There are still re assessment tax dues coming to me for a marital property and they could come for another 5 years which she didn't address in the settlement meaning I am saddled alone with paying them.


She came to mediation not even knowing the conditions of the current settlement, she brought another lawyer without asking me, since she didn't know the case at all and I couldn't even follow the case since she didn't submit the discovery. I was nearly nervous breakdown at that point since I had to seek a protection order on top of the already existing restraining order which he violated by electronically surveying me few days prior to the mediation date.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

I mentioned witnesses because I really do not know enough specifics about your case so I wanted to make sure to be thorough and let you know that if there were witnesses, you should call them to testify. While you think it is absurd, if I did not mention it and there was a witness, then I would be remiss in failing to mention it to you.

Everything you are saying about what a normal lawyer would do is based on your non-expert opinion (which really is correct, but not the way the law actually works in court) and in order for the court to accept any opinions, those opinions must come from an expert in the matter under the US Supreme Court cases of Frye and Daubert, which set the standards for expert testimony, since the rules of evidence forbid testifying as to opinion unless you are qualified as an expert by the court (experts are the only ones who can testify as to their opinions).

Her not showing you the discovery before the mediation after she put it in a letter to you would be evidence of her breach of contract with you at the very least (if not malpractice).

Failure to address taxes and costs is also malpractice, based on the way you are describing it. However, again, that is an opinion of mine which coincides with your opinion, but for a court to accept it, an expert must testify in court to that.

Failure to prepare for mediation or court hearing is also malpractice and again, an expert has to testify to that, since your opinion (which again is correct) is not acceptable under the rules of evidence.
Customer: replied 1 year ago.

Thanks Paul,

I do see the difficulties of the case, plus going again a lawyer having no legal training. I hope that she would not want to go to the court, just as I don't really want, who in right mind would? But it is in writing that I instructed her to submit the discovery to me and that it is on the lawyer to go to ensure before going to mediation that all court's orders are followed during the divorce proceedings. She didn't. There was a mediator present at mediation who actually commented how easy the mediation went and how short it was vs the normal mediation process, it went this way because I had no documents on hand to review the prior and my lawyer was not prepared at all, plus I was under a nervous breakdown and all I wanted just to get it over.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

Most attorneys do not want to go to court on a malpractice claim if the evidence shows they did not do things they were supposed to do. However, they will fight in court if they believe they did zealously and properly represent you. This is why the expert is needed as well, to prove that they did not do what they were supposed to do.
Customer: replied 1 year ago.

No kidding, but it is kind of hard to fight the documented request of client for discovery who stated that it would be pointless to go to mediation unless I reviewed the discovery and still go ahead with a mediation.

It is hard to fight the legal documents from the law firm trying to collect the mortgage due for 6 months of the divorce proceedings. It is hard to fight the fact that I was subjected to harassment of the law firm because I was on the title of the property to which he didn't pay the mortgage.

There is no clause in the settlement covering the retroactive debts during the marriage time and reflecting 5 years post settlement joint responsibility for that. There is no clause that the Respondent to notify me about his moving out of State and current address, while he owes support to me.

From what little I know about the Tort law, res ipsa loquitur.

Expert:  Law Educator, Esq. replied 1 year ago.
You are correct for ordinary torts, of course, but malpractice claims are a specialized type of tort and they have specialized rules regarding standard of practice and standard of practice can only be established by a licensed professional.
Customer: replied 1 year ago.

Can a court be asked that a lawyer paid a fine to the court on top of damages as a part of the petition?

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your new question.

The court can award you damages, they will not charge them a fine on top of that. Your damages would be the penalty.
Customer: replied 1 year ago.

thank you for asking me about the witness. Actually, the Mediator who is very experienced commented at the end how short and easy my mediation was to compare to other mediations. Of course it was, I had no financial documents to review provided to me, my lawyer didn't even know the conditions of the last settlement that was actually in her file, and she didn't work at all on the conditions of the settlement and I was in a vulnerable state mentally and emotionally and trusting her to legally fight for my rights. I can call in the Mediator and I will actually outline in my demand letter the comment. It was also mentioned in the presence of another lawyer, the one she brought in without my permission.

Expert:  Law Educator, Esq. replied 1 year ago.

You can call your mediator regarding what she did in the mediation, that would be one witness for you. However, for other aspects of your case, you would need an expert to review them.

Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 89362
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
Law Educator, Esq. and other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Thank you, I will outline in the demand letter that I am going to call in the Mediator who will be an expert witness on bothered mediation process and I will ad all documentation including my written request for the discovery and that I wrote to her that it is pointless for me to go into mediation without me reviewing discovery. I will provide the letters from the law firm dealing with the default mortgage who were harassing me long after the divorce only because I was on the title and she didn't ensure that he paid mortgage while it belonged to both of us. I will add respondent's written statement that he stopped paying mortgage while ordred so by court. I will also provide a letter from my therapist who describes my emotional and mental state during the divorce. I paid the lawyer to represent my best interests by doing an honest legal job.

Expert:  Law Educator, Esq. replied 1 year ago.
Good, get the letter sent and hopefully she will decide to settle with you or at least offer to go to court to try to fix the damage she did without any further charges.
Customer: replied 1 year ago.

thanks, will do, but there is no obligation for a lawyer to reply to the Demand letter right? It just will be a part of my case if I go to court to show that an serious attempt to resolve the matter out of court was done on my part and she was given the chance to rectify the damage?

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

There is no obligation for the lawyer to reply to the demand, that is correct. The letter just shows that you tried to put her on notice and resolve the matter without court.
Customer: replied 1 year ago.

Thank you.


The mediator, who commented on how abnormally short and easy my mediation was after it concluded, to me, my lawyer and my lawyer's associate, and indeed it was, since I had no discovery and hense questions to the respondent and my lawyer didn't work, she didn't even know the conditions of the last settlement should I call her in as a witness by subpoena or she can provide an affidavit?


Who actually pays to witnesses, a person who calls them in or they appear for free on the subpoena She was a part of the mediation she could be called in to testify and not as a expert, I think her testimony would have more weight as a present witness rather than an expert

Expert:  Law Educator, Esq. replied 1 year ago.
I do not know why your attorney conducted no discovery, since without discovery she would not know what assets were available and this could be considered malpractice as will.

You would have to call her as an actual witness, as an affidavit cannot be cross examined in a court proceeding and the opponent has a right to question witnesses against them.

Witnesses who must be paid would be paid by the person who call them. The mediator would be called as an actual firsthand witness, not so much as an expert, because they witnessed your attorney's conduct.
Customer: replied 1 year ago.

She did the discovery, but she didn't submit the results for the discovery to me, while there were my explicit written instructions to her ( I have proof of that) that I stated that it would be pointless to go to mediation without me prior reviewing the results of discovery. She didn't submit the results to me and didn't know them either. She brought her associate to mediation, and they didn't even know the latest settlement's conditions. I went into mediation because I was on the verge of the nervous breakdown, respondent was so emboldened that he gets away with court contempt, he was even electronically surveilling me while there was a restraining order, I had to get a protection order just prior to mediation. There was a lot of pressure deliberately exerted on me by him at the time prior to mediation with a lawyer who didn't control the situation, didn't inform the court about contempt, didn't submit to me the financial discovery and didn't work on my behalf at mediation at all

Expert:  Law Educator, Esq. replied 1 year ago.
It does not do much good to conduct discovery if you are not going to use it and that is her malpractice. Also, it is malpractice not to share it with you per your instructions. Again, all of this goes to her inappropriate conduct in your case.

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