Divorce is a huge step.  It ends a marriage and brings with it seismic shock.  When (as always) this type of event is coupled with legal representation, the client will often blame the attorney for the outcome.  Sometimes this is warranted, and sometimes not.  Barrett v Goldstein 2017 NY Slip Op 30010(U) January 3, 2017 Supreme Court, New York County Docket Number: 154225/2016 Judge: Arlene P. Bluth (which we will call Barrett 1 ) is an example of the latter.

This defendant was a mediator in a mediated divorce.  When plaintiff discovered that he had given away inherited non-marital property he sued everyone.  In Barrett 1 he unsuccessfully sued the mediator.

“Goldstein claims that the post-nuptial agreement signed by plaintiff and Comstock states ‘ that each party had their own legal counsel advising them regarding the effects of the post-nuptial agreement. Goldstein claims that plaintiff failed to state a cause of action for legal malpractice/breach of fiduciary duty because plaintiff failed to establish the existence of an attorney-client relationship. Goldstein further claims that even if there was an attorney-client relationship, plaintiff failed to plead facts to establish that ‘but for’ Goldstein’s alleged negligence, plaintiff would have received a larger distribution of the marital estate. Goldstein asserts that the complaint does not state what occurred in the divorce action and how the marital property was eventually divided, thereby precluding a finding of legal malpractice. Goldstein further argues that the cause of action for breach of fiduciary duty and fraud are duplicative of the cause of action for legal malpractice and, therefore, must be dismissed. In opposition, plaintiff disputes that Goldstein was a mediator and claims that Goldstein was hired by Comstock. Plaintiff insists that he had an attorney-client relationship with Goldstein and declares that the documentary evidence provided by Goldstein does not dispute that characterization. Plaintiff asserts that Comstock became entitled to a fifty percent interest in plaintiffs inherited land and mineral rights to which Comstock would not have otherwise been entitled under equitable distribution. Plaintiff claims the causes of action are not duplicative because if no attorney-client relationship is found, then a cause of action for fraud should remain. ”

“”In determining the existence of an attorney-client relationship, a court must look to the actions of the parties to ascertain the existence of such a relationship” (Wei Cheng Chang v Pi, 288 AD2d 378, 380, 733 NYS2d 471 [2d Dept 2001]). A purp9rted client’s “unilateral beliefs and actions do not confer upon [him] the status of client” (Jane Street Co. v Rosenberg & Estis, P.C., 192 AD2d 451, 451, 597 NYS2d 17 [1st Dept 1993]). Here, plaintiffs complaint attempts to characterize Goldstein’s role as an attorney-client relationship with plaintiff, but plaintiff failed to allege any facts to substantiate this claim. Goldstein also produced documentary evidence that utterly refutes plaintiffs claim that an attorney-client relationship existed. Plaintiffs complaint (Goldstein’s counsel, exh A) attaches a copy of the post-nuptial agreement signed by both plaintiff and Comstock. Paragraph 1.1 of the post-nuptial agreement states that “Each party acknowledges that his or her separate legal counsel has examined the attached financial information, has advised him or her with respect to same, and that each party fully understands the contents of such financial information of the other” (id.). Paragraph 1.2 states that “Each party acknowledges that: (a) he or she has had legal counsel of his or her own selection who advised him or her fully with respect to his or her rights in and to the property and income of the other and with respect to the effect of this Agreement and that such party understands such advice” (id.). This agreement makes clear that each party consulted with his or her own attorney before signing the agreement. Further, plaintiffs complaint supports this conclusion. Plaintiff alleges that defendants Fleischer and Berkman Bottger (the firm) were retained by plaintiff on or about March 22, 2013 to “review the Post-Nuptial Agreement drafted by Defendant Lori H. Goldstein” (plaintiffs complaint~ 51 ). Clearly, plaintiff did_ have his own individual counsel review the agreement before he signed it. ”

“Although Goldstein may have used her legal expertise to draft the agreement, plaintiff did not exclusively rely on that expertise before signing the agreement. He employed his own attorneys for that task. “