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Do I Have A Case?

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SteveBrandt

Junior Member
What is the name of your state (only U.S. law)? Florida

On April 22, 2010 I retained an attorney to obtain a divorce from my wife from whom I have had no contact with since November of 2002. I did not know if my wife was even alive or where she was living if indeed she was. I made it clear to this attorney from the start that I want nothing but a simple divorce, and he said that that would be easy to get, not to worry. I paid him $1500.00 in an agreed flat fee for everything.

The attorney did a seach on the computer using a database site he subscribes to and discovered she had lived in 3 different states in the last 8 years, but that she currently resides in Miami. He served a summons to that address on May 5, 2010. My wife did not respond then and has not responded at all up to this very day.

21 days later he put in for a default, as I know is the standard routine. But then he began putting in for Motions to Compel and Motions for Discovery. When I asked him why he was doing that he said that the judge was making him do it because the judge wanted him to make a "good faith effort" (my lawyer's words) to bring my wife into court. Not knowing any better, I took his word for it.

October comes and it's now 6 months this has gone on, and now I'm getting suspicious. I send him another e-mail (I've sent numerous e-mails & have saved them all, both his & mine) telling him I want this over with, and he responds by e-mail saying that the judge is a "hardass" and is making him do all this.
This past week I go to the courthouse to see my file, and the court secretary tells me that my lawyer and only my lawyer, NOT THE JUDGE, has put in for these motions all this time. I then retained another lawyer who went to the courthouse to see my file and said the same thing, that there's no legal reason to not put in for a final hearing, and that my lawyer is the one filing for all these motions. The new lawyer said he'll have this wrapped up and done in 3 weeks.

Do I have a malpractice case against this first lawyer? He knew I wanted this matter wrapped up and that all I wanted was a simple divorce. This was stated in three written e-mails to him as well as verbally from the beginning. He told me in 2 e-mails that the judge was making him file for these motions, yet the court secretary and my new attorney say different, and the judge's name is on none of the motions, just my lawyer's. The new lawyer said this case should have and could have been finished in early June at the latest, since my wife was served on May 5th, and never, ever responded.

I have e-mails from him where he says these motions are being done because the judge demands it and because they are "standard procedure in every divorce", both of which are false.

Any advice?
 
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Dave1952

Senior Member
You've been happily living in separation from your wife for many years but you now want a divorce. You hire a lawyer for $1500 with the instructions that he find your wife and effect "a simple divorce". The lawyer finds your wife (maybe). He attempts to serve your wife without success. Your attorney asks for a default divorce. Up to this point you seem happy. Your attorney begins filing motions that you do not understand. Remember here that he's been paid a flat rate and your contract does not require a "rapid" divorce.
So what's your complaint? Like you I find these motions weird but since they're free and you aren't in a hurry, who cares? Perhaps he's being diligent. Perhaps he's served the wrong person.
How's the new lawyer doing? Has he managed to find and serve a summons on your wife?

Good luck
 

latigo

Senior Member
When you refer to your “new attorney” does that mean that he or she has been retained and has formally substituted for the first attorney?

If so, has the new attorney determined that there is in fact a return of service in the court file? Which on its face shows that the wife was properly served with summons and complaint in accordance with Florida’s Rules of Civil Procedure so that default can now be entered against her?

All you tell us is that the “attorney served a summons” at an address in Miami. And there is no provision in Florida’s CCP allowing the plaintiff’s attorney to make service of process upon a named defendant. Only the sheriff of the county or a “special process server” appointed by the sheriff can perform that function. (FCCP Section 48.021)

Have you been billed for the superfluous “legal services” as described? That is, over and above the $1,500 retainer?
_______________

It appears to me that there is much yet to be known about the conduct of the attorney before making any decisions in terms of malpractice.

As far as his procrastination, such alone is generally not grounds to support a complaint to the bar unless the delay in prosecuting the client’s cause of action has resulted in undue prejudice.

Here it might be difficult to show such prejudice when you waited the better part of a decade to file. During which, I might add, you were exposing yourself to being possible held liable for her necessaries and medical expenses. (See Connor v. Southwest Fla. Reg'l Med. Ctr., Inc., 668 So. 2d 175, 175 (Fla. 1995).
 

SteveBrandt

Junior Member
When you refer to your “new attorney” does that mean that he or she has been retained and has formally substituted for the first attorney?

If so, has the new attorney determined that there is in fact a return of service in the court file? Which on its face shows that the wife was properly served with summons and complaint in accordance with Florida’s Rules of Civil Procedure so that default can now be entered against her?

All you tell us is that the “attorney served a summons” at an address in Miami. And there is no provision in Florida’s CCP allowing the plaintiff’s attorney to make service of process upon a named defendant. Only the sheriff of the county or a “special process server” appointed by the sheriff can perform that function. (FCCP Section 48.021)

Have you been billed for the superfluous “legal services” as described? That is, over and above the $1,500 retainer?
_______________

It appears to me that there is much yet to be known about the conduct of the attorney before making any decisions in terms of malpractice.

As far as his procrastination, such alone is generally not grounds to support a complaint to the bar unless the delay in prosecuting the client’s cause of action has resulted in undue prejudice.

Here it might be difficult to show such prejudice when you waited the better part of a decade to file. During which, I might add, you were exposing yourself to being possible held liable for her necessaries and medical expenses. (See Connor v. Southwest Fla. Reg'l Med. Ctr., Inc., 668 So. 2d 175, 175 (Fla. 1995).
Does the following answer your question about the return of service? It's copied and pasted from the court's record's search from it's website:


SMIS - SUMMONS ISSUED
Filing Date: 28-APR-2010
Filing Party: My Lawyer
Disposition Amount:
Docket Text: DELIVERED TO P/S SM-10-067062
SRTN - SERVICE RETURN (ATTACHED)
Filing Date: 26-MAY-2010
Filing Party:
Disposition Amount:
Docket Text: SERVED 05/05/10
4 MDFT - MOTION FOR DEFAULT
Filing Date: 01-JUN-2010
 

SteveBrandt

Junior Member
You've been happily living in separation from your wife for many years but you now want a divorce. You hire a lawyer for $1500 with the instructions that he find your wife and effect "a simple divorce". The lawyer finds your wife (maybe). He attempts to serve your wife without success. Your attorney asks for a default divorce. Up to this point you seem happy. Your attorney begins filing motions that you do not understand. Remember here that he's been paid a flat rate and your contract does not require a "rapid" divorce.
So what's your complaint? Like you I find these motions weird but since they're free and you aren't in a hurry, who cares? Perhaps he's being diligent. Perhaps he's served the wrong person.
How's the new lawyer doing? Has he managed to find and serve a summons on your wife?

Good luck
The summons has already been served with a return attached, so the new lawyer has simply done what the old one could have done 21 days after the summons was served and the default was entered because my wife didn't respond: Set a date for a final hearing.

The first attorney said in numerous e-mails to me that the judge was making him put those motions in, but the judge's judicial assistant said that it was my lawyer and ONLY my lawyer putting these motions in when there was no reason to.
I made it clear to this lawyer from the start, in writing, (and I have copies of everything) that all I wanted was a simple divorce as quickly as possible. He told me that it'd be done in about 3 months, but suddenly he began all these motions and the case is in it's 8th month.
Today, upon learning I had a new lawyer, he called me about 4 times per hour all day (yet he never left a voicemail message), and at around 3pm I sent him an e-mail saying that anything he can say on the phone can also be said in a e-mail, and that I prefer the e-mails in order to have a record of everything. The phone calls stopped and no e-mail came. I wonder why?
My new lawyer asked him via e-mails to explain why he put in for all those motions, since the judge's judicial assistant said that it was NOT the judge demanding any of this as the first lawyer had told me in previous written e-mails as well as on the phone, and the first lawyer asked him to call the office. The new lawyer said no, that he wanted to see the reason in writing and that there should be no reason to not write it if all is on the up and up. There were no further e-mails after that.
 
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latigo

Senior Member
Let’s keep sight of your original question, which was, “Do I have a malpractice case against this first lawyer?”

I assume that you have talked about it with your current attorney. And hopefully he or she mentioned a rule of law known as , "injuria abseque damno" (sometimes “injuria sine damno”).

And that it means that a wrong that does not result in damage is not actionable.

Which is what I’ve tried to get across to you without noticeable success. Because regardless of how inept and/or deceitful the lawyer has acted, if you have not thereby suffered any compensable damages, then you have nothing to support a cause of action grounded on the tort of malpractice.

Now the state bar association could find misconduct and take some form of disciplinary action or at least issue a stern reprimand, but their disciplinary policies are not conditioned upon an actual injury inflicted. A civil action for malpractice is.

Also, since you’ve been required to retain new counsel to finish off the divorce for which you paid a “flat fee” and more than ample time has elapsed for the attorney to perform his services as agreed, you might have a civil claim for reimbursement of some of the retainer fee.

Anyway, you seem to have confidence in the new counsel, so rely on his or her recommendations.
 

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