Can You Sue Your Divorce Lawyer?

It is a well-established principle of common law that attorneys owe their clients an extraordinary duty of care. One of the oft-quoted statements on this came from the Alabama Supreme Court 30 years ago: “The relationship of attorney and client is one of the most sacred relationships known to the law and places upon the attorney a position likened to a fiduciary calling for the highest trust and confidence, so that in all his relations and dealings with his client, it is his duty to exercise the utmost honesty, good faith, fairness, integrity and fidelity” Hannon v. State, 266 So. 2d 825, 829 (Ala. 1972).

The Court called this principle “universal and hoary with age.” In case you’re wondering what “hoary” means, I looked it up. It has nothing to do with what my great-great aunt Gertrude did for a living. It means ancient and venerated.

Fortunately for lawyers, and unfortunately for the people they represent, the statutory authority of the legislature trumps hoariness. In 1988 the full-of-lawyers Alabama legislature, reacting to a real or imagined crisis in the delivery of legal services, passed the Alabama Legal Services Liability Act (ALSLA). The legislature said it was reacting to the “spiraling cost and decreasing availability of essential legal services caused by the threat of [legal malpractice claims].”

I was then and am now aware of no crisis. I believe I have read that there are more lawyers joining the bar each year than there were in the preceding year, and the cost of my malpractice insurance seems to me quite reasonable, but that’s an issue for another day. The fact is that if you want to sue your divorce lawyer in Alabama, you’re going to have to deal with ALSLA.

You can look up ALSLA at your local library or at any law library. It’s at Ala. Code 6-5-570-581, and it describes and limits your lawyer’s liability to you. It says that the standard of care your lawyer owes to you is “that level of such reasonable care, skill, and diligence as other similarly situated legal service providers in the same general line of practice in the same general locality ordinarily have and exercise in a like case.” If the lawyer publishes the fact that he or she is certified as a specialist in an area of the law or publicly advertises as a specialist in an area of the law, the standard becomes that of other similar specialists. Ala. Code § 6-5-572.

There is now only one claim a lawyer’s client can file against the lawyer for legal liability, and it is the legal service liability action. Actually, the statute itself is even broader. It says that’s the only way anybody can sue any lawyer in Alabama for anything, but the Supreme Court has limited to scope of the limitation to actions involving the receipt of legal services. Cunningham v. Langston, Sweet & Freese, P.A., 727 So. 2d 800,804 (Ala. 1999).

ALSLA sets up a two-year statute of limitations, measured from the act or omission (of the lawyer) giving rise to the claim. The statute does say, however, that if the claim is not discovered and could not have reasonably have been discovered within the two-year period, the claimant will have an additional six months to file. There is an ABSOLUTE bar, however, after four years from the act or omission. Ala. Code § 6-5-574.

ALSLA permits but does not require arbitration (§ 6-5-575); allows partial settlement payments without admission of liability (§ 6-5-576); and allows for a separate trial of an underlying action if it might affect the legal service liability claim (§ 6-5-579).

ALSLA places the burden of proof on the plaintiff to show the attorney breached the applicable standard of care (§ 6-5-580). It specifically states that any evidence that a lawyer has violated the Alabama Rules of Professional Conduct governing lawyers may NOT be admitted in a legal services liability action, but it does allow the lawyer to introduce evidence of compliance in his or her defense against a claim. (§ 6-5-578).

Functionally, a claimant in a suit for legal malpractice must introduce expert testimony (of another lawyer) to establish the breach of the standard of care and to show that the breach caused damage to the claimant. If you’re getting ready to call me to ask me to serve as an expert, the answer is no, I won’t do it, and no, I don’t know of other lawyers who do. For what it’s worth, it’s NOT clear that the expert must be an Alabama lawyer.

9 comments

  1. JT says:

    Your comments clarify much the ALSLA. I have a couple of Questions that I would appreciate further comment on:
    1)You indicate that a plaintiff cannot use the lawyer’s violation of the Rules of Professional Conduct in a ALSLA action. Is that restriction limited to evidence of past violations unrelated to a plaintiff’s instant claims giving rise to the ALSLA action? In other words, can a plaitiff allege actions or omissions that constitute violations of the Rules of Professional Conduct? 2) Have the Ala. courts defined what is meant by an expert in the same “vicinity”? Given other lawyers unwillingness to offer expert testimony against their peers (that a given act or omission was violative of the standard of care) it seems likely that one would have to go outside that area of influence to find an expert. Thanks for any clarification you might provide.

  2. Allie Wright says:

    I hired divorce attorney January 2005. To this date I have not received my divorce nor child support. He didn’t do anything. Basically to make long story short -they took my money and ran. I file a complaint with board of reasonability this past summer. They only can discipline him; they can’t make him give me my money back. They told me I had to find an attorney. And that is the hard part. I can’t find attorney willing to sue another attorney. Where is the justice? What rights do a person have? I was a victim of domestic violence and now I’m still a victim and so are my children. Basically I was robbed by an attorney and it is legal. And he had the nerve to send me a bill for $230.00. This in the state of Tennessee

  3. Rebecca Howell says:

    Need an attorney licensed in New Jersey to sue another lawyer for a huge error made in my divorce that didn’t come to my attention until a few months ago when the firm was going to take me to court to put a lien on my house because they said I wasn’t sending enough money every month, which is 25.00 and that is all I can afford.

  4. R. Brown says:

    As a licensed Realtor in the state of Alabama I would like to know why Realtors are held to a much higher standard concerning fiduciary responsibilities, honesty, integrity, and fairness than any attorney when an attorney is not only handling their client’s real estate but also their life’s savings and even their children???
    Is it because State Legislatures make these laws and in almost all cases they are or have been attorneys themselves????? I have been involved in a divorce/property settlement since the year 2003. I don’t seem any closer now than I was four years ago. I feel the courts have much more important cases to be heard and my case is being prolonged simply to assure these attorneys of a continous income!!!!
    R. B.

  5. Deana says:

    If a person can’t sue an attorney, can they sue the company they represent? What if it is a nonprofit organization? Shouldn’t the organization be liable for the clients they represent; such as background checks. Isn’t it they’re responsiblity to make sure their client is truthful, especially if the representation is free? I’m in Albuquerque, New Mexico by the way. Thanks.

  6. Lee Borden says:

    Yes, if you can show that the attorney violated a standard of care AND that the organization knew or should have known this would happen when it assigned the attorney to your case.

  7. Hunter says:

    I am not a lawyer, but have done quite a bit of research on this subject. You can sue a lawyer, but the statute of limitation on time often trips up the case. There are a few lawyers in the state who specialize in this type of law to represent you or be an expert. You can find them by calling the state bar who should supply you with a few names. With that said, legal malpractice cases are expensive execute and can take a long time, so finding a lawyer that will want to take your case will depend on several factors, but mainly:
    1. how much are your damages
    2. how hard will it be to prove your case
    3. will it pass muster under the legal services act.

    So if your damages are not very high (I will arbitrarily say under 50k) then your case is not going to be attractive. If it is difficult to prove then the amounts will need to be much higher. Think of it this way…if you had to pay for services hourly (figure 250 to 300 an hour) would the outcome still be worth it to you?

    If you want to know more then read the book “If You Want to Sue a Lawyer…”

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