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Is it malpractice for an attorney to defend against a completely frivolous claim (Knowing it was frivolous)?

Alpharetta, GA |

I filed contempt against my ex for non-payment of alimony and a lump sum property settlement. My ex filed a counterclaim to modify or set aside the property settlement. My attorney did not object to the counterclaim but told me it was inappropriate, yet she never once raised this to the court. instead she proceeded to participate in litigating this improper counterclaim and another issue that wasnt even in the pleadings. The ultimate cost to me for this rouge litigation was a loss of 262k. I was told (by another attorney) that an appeal would fail because my attorney conceded to litigate what was not in the pleadings and what was improperly raised within a contempt hearing. So, I have no recourse for my loss that was directly caused by this "inappropriate" litigation?

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Attorney answers 3


Your post does not make sense. First you say your ex filed a counterclaim and then you say the claim "wasn't even in the pleadings." You say it was improperly filed, but don't tell us why. Even frivolous claims have to be defended. You also did not tell us why, exactly, you lost the issue. The bottom line is that even if your post made complete sense, no one on a forum like this can second guess your lawyer or the outcome of a case based on a few sentences. Either see a legal malpractice lawyer or pay a lawyer for a few hours time to review your file and case and go from there.



In family law it is common knowledge that the subject matter in a contempt hearing is strictly limited. Modification of a divorce decree, or to set aside a decree you must file a separate action under as a separate section of code. In your world, it would be comparable to your opponent trying to litigate a revocation of discharge in the middle of an adversary hearing filed to determine a preference complaint. As far as my comment not making sense, i believe i stated that there were 2 issues: one, the improper counterclaim that obviously was in the pleadings, and the second was another issue litigated at trial that was not in the pleadings. I do not understand your point of response other than to insult. The point of my post WAS to find a malpractice attorney who could offer an intelligent answer.

Scott Benjamin Riddle

Scott Benjamin Riddle


The point of my response was obviously to point out the fact that no one on a message board can second-guess your lawyer based on a couple sentences of your version of the story. If you want to find a malpractice lawyer, use the directory here or google, and call lawyers to make an appointment to review the entire case - as I suggested. If you are looking for a lawyer to tell you that malpractice was committed based on your post, which is what you asked, it is not likely to happen.


Filing a counter-claim to modify or set aside portions of divorce decree does are not proper defenses and must be raised in a separate proceeding. That said, the remainder of your question required a sit-down with a domestic relations/litigation atty. for a review of the entire situation and pleadings filed in the case.

Disclaimer: This response is provided to you by attorney Robert G. Rothstein (404) 216-1422 for educational and informational purposes only.No attorney-client relationship has been created hereby. Other attorneys may have different opinions or responses. If you found this response helpful, please indicate Best Answer to Avvo. Thank you.


Like doctors and other professionals, lawyers have wide discretion in deciding the proper course of action in any case. However, they are fiduciaries and must act in the best interest of the client. Whether that was done in a specific case requires a detailed evaluation of the facts of your situation. If you believe malpractice may have occurred, you should consult with an experienced professional malpractice attorney who can give you some specific advice on your situation. It may also help to get an opinion from an experienced family law attorney who can review the pleadings and help inform on what would be generally accepted procedure in your facts.

I am providing general information on the law only, and no attorney-client relationship exists by virtue of this exchange. You can not rely upon this as formal legal advice. If you require specific legal advice, you must hire an attorney and then your communications will be protected by attorney-client privilege, and you will have the benefit of an opinion of counsel. Call 770-753-9995 for a free evaluation.

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