Michael Sean Quinn, Ph.D, J.D., Etc., Author

Quinn and Quinn
1300 West Lynn #208
Austin, Texas 78703
(o) 512-296-2594

(c) 512-656-0503


I have been observing the problems of lawyers practicing divorce law for a long time.  Here are some of the overarching (or underlying) non-legal principles I think I have learned.  Many of these “principles” are derived from the opinions of practitioners. These are not the sort of principles which are such that if L violates it, s/he is potentially exposed to malpractice liability.  The case law on legal malpractice been set forth elsewhere in many places. The principles sketched here are not “duty-to-client” principles; if they are anything, they are principles of wisdom for honorable self-interest. (Of course, that fact that Quinn believes it and sets forth does not make it true.  Who would ever have thought that?)  

PPP #1 (Malpractice Practice “Doomsday?”
)

There is very little probability a divorce lawyer will be “hit” with
judgments of malpractice.  In other
words, there is very little likelihood
that a family lawyer (or any other) will lose a malpractice case.  Here is a speculation:  to the extent that malpractice cases are
brought and pursued, they are probably brought more, as the size of the case
and/or the amount of the assets, go up.

One reason for this is the well
known-requirement that victory in the underlying divorce case must be proved in
order to prevail in the malpractice case.

Insurance is needed, of course,
but—usually—its most important protection is picking up the tab for legal
bills.  (The features, elements, and
dangers of malpractice CLE-type lecturing are to induce fear [1])   
“Big-Time” lawyers have
slightly more dangers than those who handle smaller cases, but not much. They
should have insurance, too.

PPP 
#2 (Even Less)

There is almost no chance of
losing a cause of action alleging breaches of fiduciary duties against L who is
handling a divorce case.   There is a very simple reason for this.[2]  Except under very, very few circumstances (maybe), and at very special times,
there is no such thing as spouses owing each other fiduciary duties. [3]   

Conduct, which is a never-actionable
breach of fiduciaries by one of the Cs, can substantially affect the division
of community property, given the discretionary actions of the trial judge.[4]

A breach of a fiduciary duty
action may be brought against a divorce lawyer for mishandling C’s assets and
maybe C herself.  (I emphasize the
feminine pronoun here for obvious reasons of published legal history.)

PPP
# 3

The greatest risk of any assault on L is
there being a conflict of interest.  This
will arise if L provides anything as miniscule as a bit of advice to ~C and
opposing counsel, at least about anything having to do with the case. TxDR 1.6(a)
(see also comment on loyalty) Avoid it at all costs; notify C if it
happens.  Get C’s permission/authorization
in advance.

A Question Regarding PPP #3

What about raising breach of fiduciary
duty in the divorce case?

Answer:  It
won’t hurt anything, except to make L look a little ignorant.  It is completely unnecessary.  Everything relevant can be proved without it.[5]

PPP #4 (Fraud on Community)

An allegation of “fraud on the
community is a different story, even though C’s probability of winning is still
lower than in a malpractice case.[6]  If a spouse does this, and gets caught,
juries and judges will be outraged 



PPP  # 5

All family lawyers should have
lawyer E & O insurance.[7]  Its main use is to pay legal fees.  It may also pay relatively small settlement
amounts under its duty to indemnify. 
Those kinds of payments will seldom be necessary, as already
indicated.  Most legal mal cases, of
which there are not many, are resolved for L and against C on motions for
summary judgment.

However, there is usually not
enough money arising out of lawyer errors in divorce cases to attract the right
sort of plaintiffs’ lawyer.  It entails too
much work, work too complex, not enough recovery money, not to mention fee-money.[8]

In addition, there is one
crucial element in proving injurious lawyer error that makes it extremely
difficult to win these cases.

PPP # 6 (Quinn’s List of “Watch Outs”)

           Think
at least three times about taking “accursed” clients:  those given to rage,[9]
impulsive sneakiness, or addicted to it, those who have sued a lawyer before,
those who have sued a lot of anybodies, those who have significant addictions:
drugs, alcohol (if very serious), gambling, those who are reluctant about a
fairly quick payment system, and so forth—on and on. One may also have serious questions about the systematically sickly. (Consider the following: If something is seriously “wrong with,” “dangerous about,” or “red flag-ish” about H, there will be a corresponding–sometimes opposite, sometimes roughtly the same–characteristic for W, and vice versa.



Consider meditating on the
dangers to you of the truly dangerous client. 
Your arrogance, hubris and erroneous self-estimate as to handling
complex personalities should be canceled or resisted.  There are nothing but temptations.  Be even more careful if you are considering
taking a case simply because you need the money.

PPP # 7 
(Monetary Temptations)

Under the vast, vast majority of situations of situations, do
not sue an ex-client for fees.[10]  Eat the loss. 
Recognize the problem. 
Investigate the applicant for client-hood. Insist on a retainer.  Insist on a written retainer agreement and
get a withdrawal clause in the agreement. 
If the prospective client refuses to sign it, don’t take him.  (Watch out even for your mother.)

A Questions Regarding Pleading Response

If L is
sued, he certainly must deploy affirmative defenses, counter claims of some
sort, even cross actions, and suits to bring others into the case. Granted that Ls should usually not sue Cs fees, does it make sense for unpaid fees be a counter claim or a
cross claim?  I don’t see how to
avoid it.



**************************************************************************************
           How does Legal Ethics fit into
all this?  Model R1.5?


None of these PPPs are relief from working diligently,
focused, and embracing workaholism, if you’re the sort.   Be careful about having no life outside of
work.  It will lead you to hating what
you do, and that leads not only to personal misery but also to errors. Some
types of advising have more to do with the psychology of the practice of
lawyers—but these are an integral part or dimension of the ethics of lawyering.
These remarks only squash the psychological side of practice. At the same office life can be very meaningful, and it sometimes involved less stress and anxiety than home life.





[1] Not an
entirely bad idea.

[2]  Sometimes actions which are hidings are
called “fiduciary duties” as a matter of simplicity (I guess although they are
not.  In
re Marriage of Moore,
890 S.W.2d 821 (Tex. App.—Amarillo 1994,
no writ).


[3] Remember:
there is a huge distance between L’s accusing 
his non-client of fiduciary duty breaches  in the divorce, and accusing L of breach of
fiduciary duties of his handling of that case and C in the tort case against
the lawyer later
.

[4] See Mayes v. Stewart, 11 S.W.3d 440 (Tex. App.—Houston
[14th Dist.] 2000, pet. denied)


[5] It’s
within the realm of ModelR 1.1 and ModelR 1.2.

[6]
Admittedly, there is no data about this, except that I have found very few
cases where such a cause of action could be brought.  One can imagine it being brought.

[7] For
generations it has been called “legal malpractice insurance.”  That location should be dropped.
There are more torts against lawyers than malpractice.

[8] Nothing
about these “Practical Practice PPPs” encourages the taking of unreasonable
risks. For a “How To” manual of some of these types of activities.
[9] What
exhibits itself as rage?   Does this
count as rage?   Is there such a thing as
concealed or hidden but dangerous rage?

Originally posted on 07/07/2014 @ 6:23 pm

Michael Sean Quinn, PhD, JD, CPCU, Etc

Michael Sean Quinn, PhD, JD, CPCU, Etc. (530)

One of Texas's leading insurance scholars, Michael Sean Quinn is a past chair of the Insurance Section of the State Bar of Texas and has a broad legal practice.

Hits: 0