Statistics suggest that close to 98% of divorces settle out of court. For the unlucky few who can only obtain finality and closure with the aid of attorneys, lawyers and judges, the journey is long, tortuous, and expensive. A divorcing husband who claimed his wife’s attorney ran up its legal bills with unnecessary discovery and irrational legal claims won’t be able to pursue his lawsuit alleging fraud and breach of fiduciary duty a Supreme Court in the USA found.
The husband alleged the litigation strategy of his wife’s attorney was to “build its fees and harass and injure” him by “pursuing unreasonable legal positions, demanding extensive and unnecessary discovery, promoting and claiming outrageous asset valuations, raising claims without proper foundation … and billing excessive time.”
The attorneys had billed $800,000 in legal fees in a marital estate worth about $15 million. The husband contended that the attorney had an improper motive to engage in protracted and vexatious litigation to build fees that would be paid through the marital estate.
The Supreme Court said the husband failed to establish elements of a fraud claim and that he also failed to establish that he acted in reliance on a misrepresentation of material fact. The husband’s breach-of-fiduciary-duty claim failed because an attorney owes no duty to an adverse party, the court said. The husband argued that the attorney owed a duty to the marital estate, but the argument had no merit, the court said.
The case, although conducted in the USA brought vital issues to the forefront of the legal community globally, including how law firm practices and policies that result in excessive billing impact on both parties to a divorce, deplete resources from marital estates, and compromise the integrity of the judicial process in this area of family law.
While one may be disappointed by the decision, the case brought light to a serious problem facing litigants, attorneys, and our courts.
As a family law attorney one’s goal with any client should be a favourable and cost-effective outcome. The prime hindrance to such a goal is the attorney who litigates to litigate, files applications of no potential value, seeks unnecessary discovery of remote or irrelevant information, encourages animosity and hostility, and drives up the costs to the attorney's benefit, and to the parties' detriment.
The problem is huge in family law, because the clients are unsophisticated legal consumers, are scared and/or angry, and can be easily convinced of the need to declare war. These are the same attorneys who dump a client when he or she is tapped out and can't fund the circus litigation anymore.
Cases and Articles on Divorce Law and Family Law in the SA courts.
Legal news and case law in the South African courts, compiled by Family Law attorney, Bertus Preller.
Bertus Preller is a Family Law and Divorce Law Attorney in Cape Town.