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Custody and Legal-Malpractice; Unfamiliar Foes.

Abeln v. Eidelman, 2012 WL 1379516 (Pa. Com. Pl. 2012) is a legal malpractice case out of Lehigh county,Pennsylvania. The case is different than those normally spoken about because it primarily involved representation related to a custody dispute. The child's ... 

Abeln v. Eidelman, 2012 WL 1379516 (Pa. Com. Pl. 2012) is a legal malpractice case out of Lehigh county,Pennsylvania. The case is different than those normally spoken about because it primarily involved representation related to a custody dispute. The child's father alleged legal malpractice against 2 attorneys for the representation provided during custody hearings. The judge found no merit in either charge.

In March, 2007, the father, who will be referred to as John Doe, was proceeding against the mother in a divorce hearing. During the pendency of the divorce, the father was represented by Eidelman. While proceedings were occurring, the mother took John Doe's son toArizonawithout advance notice being provided. In response, Eidelman filed an emergency petition for relief in April. During the emergency hearing, John Doe was awarded primary custody, as well as exclusive possession of the marital residence.

Following this award, the mother filed for shared custody. Ultimately, the parents agreed to joint custody on May 2, 2007. At this time, Eidelman still represented John Doe. Trial on the custody matter was delayed pending a psychologist report until November 19, 2007. On November 16, 2007 John Doe fired Eidelman, and instructed her to forward all materials to his new attorney, Pepper, who was also sued for malpractice. Shortly after the start of the hearing on November 19, Eidelman was allowed to withdraw from representation. Pepper, however did not appear at this hearing, because a retainer was not signed until December 3, 2007. At this hearing, John Doe agreed to another custody arrangement, this time acting as his own attorney. John Doe filed actions against Eidelman for legal malpractice, as well as breach of contract because he was not happy with how events transpired, mainly that his custodial rights were diminished over time.

Following Eidelman's withdrawal, John Doe was represented by Pepper on January 22, 2008; the next hearing date. Under an agreed order, the parents shared legal custody of the child. Mother was designated as the primary physical custodian. John Doe was given partial custody rights. The lengthy agreement of the parties was set forth on the record before the trial judge. Pepper clarified that John Doe was contesting certain conclusions made by the psychologist, and contained in his report. The case proceeded in the trial court with Pepper acting as counsel. He sought psychological examinations and contested a protection from abuse order issued against John Doe. However, on January 28, 2009, Pepper withdrew as counsel because he had not been paid, and because he and John Doe had philosophical differences concerning the representation strategy. A new attorney appeared on the record on February 13, 2009. John Doe alleged legal malpractice by Pepper based on failure to retain an expert to rebut the report of the earlier psychological exam.

The court did not agree that Eidelman was negligent in representing John Doe. The general rule is that a litigant is not permitted to agree to a settlement and subsequently bring a malpractice suit against his attorney based on the terms of the settlement. This general rule is applicable in situations such as alimony settlements, or business settlements where a client is unhappy with negotiations. The rule is not applicable in cases where the alleged negligence in attaining a settlement was a result of fraud, or failure to advise a client of a principle of law, or a consequence of settling. The basic tenet is that if there is fraud by an attorney during settlement, then a malpractice suit may be filed. The court ultimately dismissed John Doe's actions against Eidelman because he voluntarily and intelligently entered into a settlement agreement while acting as his own attorney. Thus, there was no evidence linking Eidelman to fraud or failure to accurately advise a client. The breach of contract claim was dismissed because it was based on the same actions as the negligence claim.

The court cited the same case in dismissing the charges against Pepper, except for a different maxim. In addition to the other underpinnings of settlement malpractice, a deficiency in professional judgment will not allow a legal malpractice claim to move forward. Pepper advised John Doe not to take the custody issue to trial because in his professional judgment, he believed the outcome of a settlement would be more favorable. Also, working against John Doe was a report in which he stated his motivations for settling were not so much a result of Pepper, but rather, the result of his own desire, that his ex-wife cease hostile actions against him. The judge dismissed the breach of contract action as well, because its' allegations hinged on the same conduct in the legal malpractice case.

The most important part of this case is the limitation of malpractice liability once a settlement has been entered into. Our judicial system promotes settlements, which is shown in the court's reluctance to overturn them simply because of a deficiency in judgment by a party's attorney. There needs to be something more than deficiency of judgment such as fraud in inducing settlement, or failure to acknowledge an existing principle of law. This rationale shows a balance between the rights of attorneys and the rights of clients.

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