The Attorney Malpractice Insurance Fraud in Divorce Court
Identify and Bring in Counsel who has Malpractice CoverageAttorneys are not required to maintain malpractice insurance. Those who do likely carry it for participation in legal service plans such as Prepaid Legal or local bar association referral services.
The litigant need only ask whether the attorney carries malpractice insurance.
The basic amount of coverage is $100,000, so the litigant can tap into that amount. It is common knowledge among legal circles that malpractice insurance carriers are very easy to make the pay out. It does not take much prodding for the carrier to "settle" and pay out that amount.
Set up Counsel in a Divorce ActionMost divorce courts around the country feature inexperienced judges, so it is easy to come before a jurist who plays favorites, is involved in side deals, is a figure in local political circles and wishes to further the goals of his political party.
Counsel comes in and quickly starts to lose the case. This is normal. There are always holes in the flow of evidence, so accusations against the loser's attorney allow the judge to fill in those gaps.
A child is flipped away from the client as are items of property and money.
The litigant may fire and substitute the attorney now or later. What is needed is an initiating act that triggers the judge's wrath that supports sardonic and retaliatory conduct from the bench. The absence of a lawyer for an appearance one day will do it or some failure to file something will do it too.
"You Were Malpracticed"To start the wheels rolling, the judge need only make a comment from the bench. The most common is, "You were malpracticed," or, "You are owed a refund".
The litigant now makes a copy of the transcript and forwards it to the insurance carrier.
Carriers seek input from their covered attorneys and eventually obtain consent to make the payment.
This fraud works very well because a jurist made an impromptu ruling and no other corroboration is needed. In the eyes of the general public, a court is infallible.
BenefitsThis arbitrage allows the judge to shape the case her way. Her desired winner in the case can now be relieved of having to pay spousal support, for example. If the carrier paid out $100,000, then the losing litigant has no claim for maintenance because she got $100,000. Also, fault for a failed case can be shifted away from the court and piled on top of the loser's attorney.
The FraudUniversally, obtaining an insurance pay out is illegal when information required to trigger the payout is false or misleading. Generally, a divorce court does not have jurisdiction over malpractice actions because that is a "plenary" action that requires its own summons and complaint, appearances, a trial and a judgment. The judge in our hypothetical case is masking a legal ruling made in the total absence of jurisdiction as an innocuous comment which the litigant can take to the attorney's insurance carrier.
If you or anyone you know was hit with this, report it to your local FBI. Many insurance carriers obtained federal bail out money and are under a stricter scrutiny. Investigations are forthcoming.