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Inadequate Discovery in Matrimonial Actions

By Michael B. Solomon and Itamar Yeager
June 30, 2008

With the advent of fee dispute arbitration, many litigants are quickly becoming more informed about their lawyers' responsibilities. This has led to significant court actions with regard to discharging attorneys 'for cause,' where the attorneys forfeit their fees. In the context of inadequate financial discovery, at least one court has already allowed a client to discharge an attorney for cause, despite the court's view that the attorney did not commit actionable malpractice. Smith v. Smith, Index No. 01-07091 (Sup. Ct., Suffolk Cty., 2007).

Obviously, it is the rare case in which financial discovery is not warranted. For example, where one party to the action is engaged in a professional practice or a business, the value of that practice or business becomes extremely important. This is especially true where the titled spouse claims that some or all of the practice, license or business valuation is separate property.

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