Protection from negligence claims. If a lawyer has provided thorough advice based on proper valuation evidence, and the client still insists on signing the agreement, then in order to protect oneself the lawyer should: • Record the advice given in writing to the client before the agreement has been signed. Set out the position under the Act, and the position the client is agreeing to in the agreement. • Keep good, clear, legible filenotes. • Ask the client to sign a disclaimer that includes an indemnity for any legal fees that arise out of future proceedings. It is unlikely that this will prevent the agreement being set aside, but it may help shield the lawyer against a negligence claim as it is further evidence of the advice that he or she gave the client. • Ensure that the file is not destroyed. • If unsure about the agreement, obtain a second opinion from another lawyer. • If a lawyer is really in doubt, he or she can refuse to certify the agreement. United States of America: Prenuptial Agreements and Cohabitation Agreements have been part of the legal landscape in America for some time. The dust has settled. What appears evident from the writings of eminent American Lawyers including Xxxxx Xxxxxx and Xxxxxxxx Xxxxxxxx is that there is an undercurrent of concern for malpractice suits in the United States arising out of the preparation of such agreements. Xxxxxxxx Xxxxxxxx (of Georgia) makes the following observations about agreements in Georgia: “Georgia’s Attorneys draft any pre-nuptial agreements assuming that law suits challenging the validity of the pre-nuptial agreements are a probable outcome. Because the Attorney and client cannot know how the events of the marriage will unfold, the Attorney must advise the client that there is no assurance that the agreement will be enforced at divorce because it will be subject to attack on the basis that facts and circumstances have so changed since the signing that enforcement would be unreasonable….Pre- nuptial Agreements have the capacity to achieve this same result (The parties can be creative in tailoring solutions a Court usually would not or could not fashion and can agree by Contract to obligations that a Court could not impose) but concerns have been expressed that, even with a Prenuptial Agreement, the same amount of litigation continues to occur, with the only difference being that the subject of litigation is the agreement and not the traditional issues contested in a divorce…..“The parties are not experts on the facts as they will ...
