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Liability of the Divorce Litigator
(provided by Gruber & Colabella, P.A.)
HOW TO AVOID BEING SUED BY A CLIENT OR A THIRD PARTY
Who ever said that being a divorce attorney is easy? Through our continuing legal education and observance of ethics and rules of professional conduct, we strive to provide the most honest and professional representation of our embattled divorce clients. The remuneration is commensurate with the responsibility and level of stress. On a daily basis, we deal with highly emotional clients, aggressive adversary attorneys, and judicial staff under constant pressure to move cases along. As divorce litigators, we are like fighter pilots in command of an arsenal of legal weapons navigating through the divorce process and engaging in "dog fights, air-strikes, and all out battle."
There is emerging a trend of client and third party actions against us in our roles as divorce litigators. Our passengers (clients) can turn hostile and become our enemy. The adversary litigant can also take aim and focus at us and bring legal action. Thus, as the captains of our client's litigation, we sometimes become the target of "friendly fire" and "mutiny."
This article will explore recent trends of exposure to the divorce litigators from their own clients and from adverse litigants.
> Malicious Prosecution
Malicious prosecution claims arise when the Defendant in a criminal action receives a favorable determination and that Defendant can establish that the initial action was initiated without probable cause and with malice. Damages can, then, be sought. In the divorce arena, examples can include counseling one's client to file domestic violence, related criminal charges or contempt for non-support or violation of domestic orders. The divorce litigator is exposed on an agency theory to the actions of the client when malicious. In a rare case, the attorney could have direct liability, if it can be proven that the attorney was malicious.
Most courts have resisted malicious prosecution claims against clients and attorneys, due to the nature of Family Law proceedings. In the Family Law setting the court may assess counsel fees against a party as a sanction or bad faith conduct. (1)
> Abuse of Process
Abuse of process is the misuse of legal process for an end other than that which it was designed to accomplish. (2) Basic to the tort of abuse of process is a requirement that Defendant performed further acts after the issuance of the process, which represent the perversion, or abuse of the legitimate purpose. An area in the Family Court most abused is that of domestic violence. It can be argued that the filing of a Domestic Violence Complaint and obtaining a Restraining Order is an abuse of process when its sole purpose is to gain advantage in a dissolution case. One court held that a litigant could bring a civil action for abuse of process against that litigant's former spouse for misusing the "Writ of Ne Exeat." Writ of Ne Exeat is an application to compel a litigant's physical presence in the Court. Where an attorney utilized the writ on behalf of his client as a means of coercing the payment of a debt, the Court held that an action could lie against the attorney. (3)
Other examples of potential abuse of process claims may include the assertion of an alimony claim for the sole purpose to later abandon the claim in favor of a desired custodial plan. Seeking custody as a diversion to lower spousal support would likewise qualify.
> Frivolous Litigation
Many states have statutes, which grant litigation cost and attorney's fees to a successful litigant upon a showing that the non-prevailing party was frivolous. (4) These statutes usually limit the claim of frivolous litigation to a party and only permit recovery of litigation cost and reasonable attorney's fees.
A contempt of court is a disobedience of the Court by acting in opposition to its authority, justice and dignity. An act calculated to embarrass, hinder, impede, frustrate or obstruct the administration of justice is contempt. Likewise, an act, which interferes with and prejudices the parties during the course of litigation, can be the basis of contempt.
Attorneys, as well as parties, are subject to contempt. In vexatious divorce litigation, one can only imagine the situations in which contempt of an attorney may arise. The aggressive pursuit of an emotionally charged issue, after the Court has ruled that issue, could be considered a contempt. Filing successive motions for reconsideration with little or no likelihood of success may as well qualify as a contempt on the attorney and the litigant's part.
Contempt by an attorney may include fines and incarceration. A New Jersey Appellate Division case upheld a trial judge's finding of contempt against an attorney who, during an evidentiary ruling shook his head, smiled and was disrespectful. (5) There exists a fine line of an attorney arguing vehemently for a client and engaging in "antics," which the Court may deem disrespectful and interfering with the administration of justice.
Federal and State Wiretap Statutes prohibit and penalize any person who intentionally intercepts, endeavors to intercepts, or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication. 18 U.S.C.A. Sections 2510 – 2520. The Wiretap Statute applies not only to telephones, but also to e-mails, cell phones, pagers, instant messaging, and storage of electronic data. In the prosecution and defense of divorce cases, we constantly deal with clients obsessed with proving the infidelity of their spouse or abuse of children. The natural instinct of the divorce litigator is to utilize this information in support of the client's case and to discredit the adverse party. The Federal Statute prohibits the use of any intercepted communication from being admitted into evidence from any trial, hearing or proceeding. The attorney's use or endeavored use of intercepted materials subject the attorney to the penalties of the Wiretap Statute. Remedies under the Wiretap Statute permit the aggrieved party equitable or declaratory relief, damages and/or punitive damages, reasonable attorney's fees and litigation costs. Note 18 U.S.C. Section 2520.
Most common is the client who presents an audiotape of a phone conversation between their spouse and paramour. The client, upon questioning, admits to their own attorney that they connected an intercepting devise on the phone lines of the marital home and intercepted the phone conversation. The information contained on the recording specifically identifies the paramour and reveals dates and places of adultery. Can this information be used to frame a Complaint for Adultery? Can the tape be used to cross-examine the spouse after denial of the extra-marital affair? If you have answered the prior two questions in the affirmative, you have subjected yourself to criminal and civil penalties for a wiretap violation.
The Racketeering Influenced Corrupt Organization Act permits any person injured in his business or property by reason of a violation of the act to sue and recover three-fold damages, costs of suit and reasonable attorney's fees. (6) Dissipation of marital assets is considered injury to property. (7) Racketeering activity may also include, mail fraud, wire fraud, obscene matters, obstruction of justice, obstruction of criminal investigations, witness tampering, retaliation against a witness victim or informant, relating to false statement in application and use of passports, and misuse of passports. (8)
A RICO claim was permitted against a woman's ex-husband's attorney and his associates and his accountants. She alleged a fraudulent scheme to conceal his income during the divorce proceedings, which she claimed resulted in lesser awards of alimony and child support. (9)
The Husband's attorney became a target of a RICO action where he diverted income to his paramour, and concealed interests in real estate, which prevented his wife from making claim on the property in the divorce proceedings.
Additional potential RICO claims might include forgery, false claims, false statements concerning the sale of land, resale of land with intent to defraud, fraud in the purchase or sale of securities, and all other activities, which sometime occur in divorce.
> Spoliation of Evidence
Spoliation of Evidence generally is defined as the existence of pending or probable litigation and the intentional destruction of evidence by a Defendant designed to disrupt the Plaintiff's case. There are few states, which recognize Spoliation of Evidence. See discussion in Domestic Torts, Family Violence, Conflict and Sexual Abuse, Section 7A.12. The states recognizing Spoliation of Evidence are Texas, California, Alaska, Florida and Kentucky. The attorney practitioner can intentionally or unintentionally become the Defendant in an action for Spoliation of Evidence. Advising a client to destroy audiotapes of conversations obtained in violation of the Wiretap Statutes Complaint could result in an action for Spoliation of Evidence. Counseling clients to destroy damaging records, documents or photographs could likewise subject the litigator to liability.
A more traditional remedy available against a party (or person) who destroys evidence is through discovery sanctions. The Courts often order that designated facts be taken as established, refuse to permit the disobedient party to support or oppose designated claims or offenses, prohibit the introduction of designated matters into evidence, dismiss an action, or enter judgment by default. Discovery sanctions also may include the delinquent party to pay reasonable expenses, including attorney's fees.
> Failure to Warn of Intended Assault or Abuse
Basic concepts of negligence involve the breach of a duty, which results in harm or damage to another. That concept can extend to the attorney litigator in certain circumstances. There may exist a duty to protect a third party from the litigator's clients intended child abuse. It is generally prohibited by the lawyer-client confidentiality to reveal the client's admission of prior abuse or criminal activity. However, there may be a duty to warn of immediate and impending violent action against a third party or abuse against a child. The attorney-client privilege was held not to apply to the New Jersey Attorney after he had learned that his client had a propensity to engage in continuing child abuse. (10)
The victim of an assault or abuse may have a negligence action against an attorney who fails to warn of an immediate likely assault. The duty of the attorney may require that attorney to contact law enforcement on an emergent basis.
DO'S AND DON'TS
HOW TO AVOID BEING SUED BY A CLIENT OR THIRD PARTY
AVOID filing motions, Orders to Show Cause, or separate actions to strong-arm a settlement. This could lead to malicious prosecution, abuse of process, violation of rules of professional conduct, or frivolous litigation claims against the attorney or the attorney's client. Think twice about abandoning positions during settlement, which positions have very little merit in the beginning. This, likewise, could be considered abuse of process or advancing frivolous claims to gain advantage for other benefits.
DO NOT assist actively, passively, or acquiesce in the concealment of assets or income. This subjects the litigator attorney to potential claims for RICO violations, contempt or violation of rules of professional conduct.
NEVER use or endeavor to use evidence obtained in violation of Wiretap Statutes.
DON'T counsel clients to file Domestic Violence Complaints, Criminal or Municipal charges, or contempt charges, unless you verify that probable cause exists.
DO NOT encourage frivolous litigation
DO NOT persist in your claims and arguments after being instructed by the court to cease. This may subject you to contempt of Court.
DO NOT counsel clients to destroy Wiretap Violation evidence or other damaging evidence. This could lead to a Spoliation of Evidence or even co-conspiracy charges.
WARN of intended assault or abuse.
REPORT perjerous statements or false swearing to the proper authorities or, in the alternative, counsel clients to rehabilitate themselves.
DO show respect and authority toward the judiciary.
DO counsel your clients on the Wiretap Laws in the early stages of your representation.
1. Bidner v. Rosen, 19 Cal. App. 4th 27, 23 Cal. Rptr. 2d 251 (1993); See also an excellent summary of May 2004, Cumulative Supplement of Domestic Torts, Family Violence, Conflict and Sexual Abuse, by Katherine Palo, J.D., L.L.M., Thompson West Publication
2. Prosser and Keeton on Torts Section 121 at 897 (5th Edition 1984)
3. Tedards v. Auty, 232 N.J. Super. 541 (App. 1989). For further discussion, See Domestic Torts, Family Violence, Conflict and Sexual Abuse, Section 7A.10, by Katherine Palo, J.D., L.L.M., Thompson West Publication
4. New Jersey, as an example, has a frivolous litigation statute which provides "a party who prevails in a civil action, either as Plaintiff or Defendant, against any other party, may be awarded reasonable litigation cost and reasonable attorney's fees, if the judge finds at any time, during the proceedings or upon judgment, that a Complaint, Counterclaim, Cross-Claim or defense of the non-prevailing person was frivolous." N.J.S.A. 2A: 15-59.1a (1)
5. Matter of Daniels, 219 N.J. Super. 550, 530A. 2d 1260 (App. Div. 1987). Cert. granted 109 N.J. 496, 537A. 2d 1287 (1987)
6. 18 U.S.C.A. Section 1961 – 1968
7. Farkas v. D'oca, 857F. Sup. 300 (SDNY 1991); See also discussion in Domestic Torts, Family Violence, Conflict and Sexual Abuse, Section 7A.15
8. 18 U.S.C.A. Section 1961
9. Perlberger v. Perlberger, RICO Bus. Disp. Guide (CCEH) P.9438, 1998 WL 76310 (E.D. PA 1998) reported in 24 Flr. 1221 (March 17, 1998)
10. New Jersey Supreme Court Advisory Committee on Professional Ethics, Op 280 Supp, 97 N.J.L.J. 753 (1974)
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