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Home / Top News / Divorce lawyers at risk for legal malpractice claims

Divorce lawyers at risk for legal malpractice claims

Two legal malpractice lawsuits out of St. Louis County show the need for proper communication between attorneys and clients.

The suits involve clients that, in part, alleged their divorce attorneys’ negligence allowed for bad behavior of their former spouses. In one the attorney was cleared of malpractice and the other was just filed, but both illustrate how the volatile nature of divorce cases can come back to ensnare the attorneys in litigation.

Suzanne Wack sued solo attorney Nathan Cohen for legal malpractice alleging he did not exercise due diligence in protecting money in a 401(k) account from her ex-husband, Michael Wack. When they were officially divorced in January 2007, Suzanne discovered Michael had removed $60,000 from the 401(k) that was hers in the divorce. 

During the divorce proceedings, Michael Wack admitted to removing $100,000 from the account. Cohen was successfully able to petition the judge to order the parties to not remove money from the account until the divorce was finalized. He sent a letter to the Vanguard Group telling it so, but the effort was futile. Michael had moved the money to an IRA after removing the $100,000.

Suzanne Wack’s attorney in the legal malpractice case, Patricia Zimmer, of Ripplinger & Zimmer, argued Cohen never sent subpoenas to Michael Wack’s employer and Vanguard to find out the account number of the 401(k) and did not follow up with the Vanguard Group after he sent them a letter. He also did not obtain a restraining order to prevent Vanguard from permitting any withdrawals from the account. 

“He had not obtained the information that he should have to properly represent her in her divorce,” she said.

Cohen’s attorney, Thomas Hayek, of Behr, McCarter & Potter, argued that if a man driven by addiction wants to steal money, there is sometimes nothing that can be done to stop it. Both sides said at the legal malpractice trial that Michael Wack was a drug addict.

“Subpoenas and restraining orders would have given notice to Michael,” Hayek said in opening arguments. “When [Michael] took $100,000 out of the account, he added a provision that would allow him to remove money by telephone. He still would have been able to take the money.”

Michael Wack could not be reached for comment.

The case went to trial last week, and Circuit Judge David Lee Vincent III granted the defense’s motion for directed verdict. Directed verdicts are usually granted when the judge finds the plaintiffs have not presented enough evidence to prove their case and no reasonable jury would reach a contrary decision.

“We always believed there was a big causation issue in the case,” Hayek said in a telephone interview. “The standard a plaintiff has to reach in a legal malpractice case is: But for the attorney’s negligence the client wouldn’t have been damaged. I don’t think they made that case.”

Zimmer said they are thinking about appealing the case.

In the other lawsuit filed recently in St. Louis County, Jennifer Belcher is suing her divorce attorney, Richard Keyes, of the Probate Law Center, after his alleged negligence contributed to her ex-husband being able to maintain custody of their child.

Belcher had filed for divorce from Kevin Slusher in 2004 in St. Louis County Circuit Court. The couple was sharing custody of their daughter Racquel. Slusher wanted to take Racquel to their residence in Florida, and Keyes said it would be a good idea to share the child and let him take her to Florida prior to any order of custody being obtained, the petition said.

Eleven days after Slusher took Racquel, he filed for a divorce and child custody in Florida.

Belcher claims that Keyes did not inform the Missouri courts of the Florida proceeding and that Belcher had filed a police report concerning the parental kidnapping.

A woman who answered the phone at Slusher’s Florida home said that he had no comment to the allegations of kidnapping and said Belcher had tried to kidnap Racquel. The woman declined to identify herself to a reporter. Slusher was never charged in Missouri for kidnapping.

A search of court records revealed that a Jennifer Slusher was charged with a felony for interference of child custody on Oct. 23, 2004, in Palm Beach County, Fla. Court records listed Kevin Slusher as the victim. The case was dropped by prosecutors nolle prosequi.

Belcher’s attorney, Joseph L. Green, of Leritz, Plunkert & Bruning, did respond to messages requesting comment by press time.

According to her lawsuit, Belcher learned her divorce proceeding in Missouri had been dismissed because Keyes failed to obtain service on Slusher. After successfully obtaining service on Slusher herself, another hearing was scheduled between both courts to discuss jurisdiction.

Belcher claims Keyes erroneously told her that she was not permitted to attend the settlement hearing and the Florida court did not inform her of it. Neither Keyes nor Belcher were present at the hearing, and on Jan. 10, 2005, Belcher was informed that the state of Florida had assumed jurisdiction over all matters including custody. The Florida court later granted Slusher temporary custody of Racquel.

After repeatedly trying to contact Keyes over several months, Belcher filed a complaint with the Office of Chief Disciplinary Counsel. According to the petition, OCDC responded to Belcher on Feb. 10, 2006, stating the investigation concluded that there was probable cause that the Keyes’ actions involved unethical conduct and that it had administered a written admonition to Keyes, which he accepted.

Keyes stated that he did receive a letter from OCDC but did not recall what the contents of the letter said. Keyes declined to comment on all other aspects of the lawsuit.

The OCDC did not provide any information regarding Keyes’ discipline. Letters of admonition are only available to the public for three years; after that they are sealed. According to OCDC’s Web site, letters of admonition are given for relatively minor violations where the conduct does not warrant removing the lawyer from the practice of law.

Family law attorneys not involved in the lawsuits said it is not uncommon for clients to be dissatisfied with the court’s actions in their divorce.

“It’s not unusual for someone to be unhappy in a divorce proceeding,” said Marjorie Carter, of The Carter Family Law Firm. “Typically, no one is happy with the outcome, and you’re just trying to do damage control to get the best outcome in the circumstances.”

According the Department of Insurance’s 2008 Legal Malpractice Report, clients in divorce proceedings filed the second most legal malpractice claims against their attorneys; claims against attorneys in personal injury and property damage were number one.

Attorneys stressed that providing your clients with reasonable expectations in their divorce is key for them being more satisfied with the outcome.

“You need to set expectations realistically,” said Cynthia Fox, of the Fox Family Law Firm. “Courts don’t have the authority or wherewithal to change a person. Many clients in their heart of hearts want their spouse hung by their toenails in open court. This is not available remedy. The prize is getting rid of a bad acting spouse.”

Carter said she follows up conversations with clients with letters again stating what they talked about.

“You’re able to cover yourself, and this way you’re able to make sure your client understands what you discussed,” she said. “They get another opportunity to take the information in.”

Attorneys should prepare their clients for possible outcomes.

“Clients often feel blindsided in court and become upset,” said Cynthia Garnholz, of Bauer Soule Garnholz Albin. “If you adequately prepare them for court, they have a greater understanding of what could happen.”

The cases are Wack v. Cohen, 08SL-CC01038 and Belcher v. Keyes et al., 09SL-CC04243.