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.