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MI: No Malpractice for Lawyer Advised Perjury

Pantely v Garris, Garris & Garris, PC, 180 Mich App 768, 773; 447 NW2d 864 (1989)

MI: Underlying uncontested divorce

Student Contributor: Matthew Feinbloom

Facts: A couple was getting divorced so they hired a lawyer to represent both of them in the proceeding. In the report, the woman claimed that she had been living in Livingston County for at least ten days before filing the papers. It became clear to the court that she had lied about this fact and now they attempted to have this modified to show the truth. Because she lied about this, the court that filed the divorce did not have jurisdiction and the divorce was set aside. The woman then filed a malpractice claim against their attorney claiming that he counseled her to testify falsely and then after to have her hire an incompetent lawyer. The first lawyer claimed that she was also at fault and should not be able to profit on the grounds of her on perjury. The newer attorney claims that he had nothing to do with this case because at the time of the perjury he was not even her legal representation. The lower courts agreed and held for the attorneys.

Issue: Can a client who perjures herself recover damages caused by the failed deceit from the lawyer who counselled the lie?

Ruling: The court agreed with the lower court concluding that a client who perjures herself cannot recover damages caused by the failed deceit from the lawyer who counseled her to lie. The court used the maxim, in pari delicto potior est conditio defendentis (in cases of equal fault, the position of the defendant is stronger). The woman was at equal fault here because she knew the truth of the matter and told the lie anyway. The court did not find it right that she should be able to profit from her own lie.

Lesson: If you perjure yourself in court at the counsel of an attorney, you cannot sure him for malpractice afterwards.

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Posted in: Family Law, Michigan