This article originally appeared in Goldberg Segalla’s Professional Liability Matters. Read the issue here.
By late 2014, the marriage was over. Jordan Seaman and Rebecca Colin were living apart—Seaman in Westchester County, Colin and their children in a rental home in Greenwich, Connecticut—and they were beginning to formalize their separation.
What happened next became the basis for a legal-malpractice lawsuit by Seaman against the New York City-based law firm Schulte Roth & Zabel—a case that would reaffirm, in an appellate court ruling, the importance and enforceability of non-representation clauses when seeking to limit legal-malpractice exposure for services performed by counsel outside an attorney-client relationship. Around March 3, 2015, Seaman executed a two-page agreement prepared by defendants. In Seaman v. Schulte Roth & Zabel LLP, Seaman alleged that a partner in that firm, Susan Frunzi, agreed to represent him and Colin in drafting the agreement.
The agreement provided that Seaman would pay $3.5 million toward a new home for Colin and assume responsibility for paying half of the expenses associated with the home as long as Colin owned it. Seaman blamed the defendants for failing to advise him that his obligations under such an agreement would not cease if he and Colin divorced, despite his specific request that their prenuptial agreement remain intact.
Schulte Roth & Zabel argued that they did not represent Seaman or Colin in connection with the preparation of the March 2015 agreement. Rather, the firm maintained, it acted as mere scrivener of the agreement and not as counsel to either party. Schulte Roth & Zabel disclaimed the existence of any attorney-client relationship repeatedly in writing and argued that each party to the agreement had been informed of its right to obtain independent counsel. Both also had time to review the agreement before signing it, the defendants maintained.
Seaman tried to argue that an attorney-client relationship existed despite the presence of a non-representation clause. In essence, he argued that actions, not words, should determine whether an attorney-client relationship existed. He argued that an attorney-client relationship existed in this instance because the attorney had drafted a legal document, had provided advice, and had sent a bill for legal services for his “personal representation.”
The New York Appellate Division, First Department, disagreed with Seaman. The court held that “[al]though defendants were required to use the ordinary degree of skill required of the legal community in drafting a postnuptial agreement, there [was] no claim that the agreement was ineffective due to a technical error or that Frunzi failed to accurately memorialize the terms of the parties’ agreement.”
The appellate court affirmed a lower court’s dismissal of the complaint.