Legal Malpractice Update

Legal-Malpractice Update

By: Michael J. Sullivan and David C. Anderson, Collins Einhorn Farrell P.C.,


Legal Malpractice Report

It’s Not Malpractice to be Wrong.

Kirk v Defendant-Attorney, unpublished opinion per curiam of the Court of Appeals, issued February 14, 2017; 2017 WL 603571 (Docket No. 329377).

Facts: In August 1994, plaintiff and William Kirk were divorced pursuant to a Consent Judgment of Divorce. The consent judgment did not contain any language specifically granting plaintiff survivor benefits in William’s pension. A year after the entry of the consent judgment, the Court entered a qualified domestic relations order (“QDRO”), requiring Ford Motor Company to pay a portion of William’s pension benefits to plaintiff. The QDRO further provided that plaintiff would be treated as the surviving spouse under the pension in the event of William’s death.

In April of 2005, William remarried. In 2007, William retired and on his retirement application, he designated his new wife to receive 65% of his surviving pension benefits for her lifetime. On June 29, 2011, William died and plaintiff, pursuant to the QDRO, began receiving monthly survivor income benefits from William’s pension. William’s widow filed a motion to amend the QDRO, asserting that she, and not plaintiff, was entitled to the survivor benefits. Plaintiff retained defendant-attorney to represent her against the widow’s motion.

In support of her motion to amend the QDRO, the widow argued that Michigan case law provides that the right of survivorship in a pension does not extend to a divorced spouse unless it is specifically awarded in the judgment of divorce. The widow relied on Quade v Quade, 238 Mich App 22 (1999) and Roth v Roth, 201 Mich App 563 (1993). The defendant-attorney, on behalf of the plaintiff, responded by arguing that the QDRO reflected the parties’ intent for plaintiff to receive the survivor’s benefits in William’s pension, and thus the consent judgment of divorce should be amended, in equity, to comport with the QDRO.

Relying on Quade and Roth, the trial court granted the widow’s motion to amend the QDRO, finding that “the Consent Judgment of Divorce is silent as to surviving spouse benefits in the pension award section,” and thus, those rights could not be extended to plaintiff as a divorced spouse as part of the QDRO.

Through subsequently retained counsel, plaintiff filed a motion for reconsideration of the trial court ruling. Plaintiff’s new lawyer relied on Neville v Neville, 295 Mich App 460 (2012) and Thornton v Thornton, 277 Mich App 453 (2008), which held that a QDRO is properly treated as part of the consent judgment of divorce and that the parties were free to modify the terms of their property settlement by entering a consensual QDRO. The trial court denied the plaintiff’s motion for reconsideration and found that Thornton and Neville were factually distinguishable from the instant case.

Plaintiff appealed. The Court of Appeals reversed the trial court, concluding that the holding in Neville was controlling and, thus, the QDRO was properly treated as part of the divorce judgment.

Following her successful appeal, plaintiff brought this case of alleged malpractice against her former attorney. Plaintiff alleged that her former attorney was negligent in formulating a response to the motion to amend the QDRO by failing to rely on Neville and Thornton in the initial response. Plaintiff claimed that her former attorney “squandered the initial opportunity for the trial court to be properly informed and provided with access to the correct legal citations of Michigan authority” and, had the former attorney properly represented her by arguing Thornton and Neville in her initial response, plaintiff would have avoided the additional legal fees she incurred to obtain the correct result, as well as the “extreme” emotional distress she suffered due to the deprivation of her benefits.

The defendant-attorney moved for summary disposition principally based on a lack of causation argument. The defendant-attorney argued that plaintiff could not establish cause in fact to support her claim because plaintiff could not prove that the trial court would have reached a different result had the defendant-attorney initially relied on Thornton and Neville to defend against the widow’s motion to amend the QDRO since the trial court specifically found those cases to be factually distinguishable from the instant case. The defendant-attorney further argued that plaintiff could not establish that she breached the duty owed because the attorney-judgment rule protected her decision to rely on a legal theory other than the theory that was ultimately successful on appeal.

The trial court granted defendant-attorney’s motion for summary disposition.

Ruling: The Court of Appeals affirmed, concluding that plaintiff could not establish causation, as a matter of law. The appellate court noted that a plaintiff must show that but for the attorney’s alleged malpractice, he would have been successful in the underlying suit. Plaintiff must present “substantial evidence from which a jury may conclude that more likely than not, but for the defendant’s conduct, the plaintiff’s injury would not have occurred. Id. at *3, quoting Pontiac School District v Miller Canfield Paddock and Stone, 221 Mich App 602, 614 (1997). “The crux of plaintiff’s malpractice claim is that [defendant-attorney] failed to formulate a proper response to the motion to amend the QDRO by presenting the appropriate law, Thornton and Neville.” Id. at *4. However, the appellate court held that because the trial court “ultimately rejected the applicability of those cases, plaintiff cannot establish that she would have been successful in the trial court and avoided the cost of an appeal, as well as the emotional distress caused by the loss of her survivor benefits, but for [defendant-attorney’s] failure to argue Thornton and Neville in the initial response” to the widow’s motion to amend the QDRO.

Practice Note: The fact that a lawyer is ultimately wrong, does not necessarily support a legal-malpractice claim. An attorney owes a duty to her client “to act as would an attorney of ordinary learning, judgment, or skill under the same or similar circumstances.” Simko v Blake, 448 Mich App 648, 658 (1995). An attorney is not required to provide perfect representation.

Categories: Volume 7 #4

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