246 A.3d 1126
Del.2021Background
- Sherman (husband) gave fiancée Silverman a premarital agreement drafted by attorney Ellis before a secret Las Vegas wedding; the agreement left most assets as Husband’s separate property and waived spousal and inheritance rights.
- The agreement did not include the statutory §326(a)(2)(b) waiver of further disclosure; Silverman was advised by counsel not to sign, signed an acknowledgment of that advice, then signed the agreement.
- Years later Silverman sought divorce and successfully challenged the agreement in Family Court as unconscionable for lack of fair and reasonable disclosure; this Court reversed in Silverman v. Silverman, finding Husband had in fact provided a fair and reasonable disclosure.
- Sherman then sued his own drafter, Ellis, for legal malpractice, alleging Ellis negligently failed to include the statutory waiver (and to ensure proper disclosure), which caused Sherman to incur litigation expenses and risk of loss in the divorce action.
- The Superior Court found a genuine dispute on breach of care but applied a traditional "but for" causation test, held causation was speculative (uncertain whether Silverman would have signed if the waiver had been included), and granted summary judgment for Ellis.
- The Delaware Supreme Court held the "but for" test applies to transactional legal malpractice, reversed the grant of summary judgment, and remanded because the record raises a factual dispute whether Silverman would have signed if the waiver had been included.
Issues
| Issue | Sherman's Argument | Ellis's Argument | Held |
|---|---|---|---|
| Applicable causation standard in transactional legal malpractice | Adopt relaxed "increased risk of harm" standard; need only show defendant's omission increased risk of damages | Traditional "but for" causation should apply; plaintiff must show he would have obtained a better result absent negligence | Held: Traditional "but for" causation applies to transactional legal malpractice |
| Causation — would the other party have signed if waiver included | Sherman: Circumstantial evidence (broad waivers, attorney advise not to sign, failed negotiations) creates jury question that she would have signed with the waiver | Ellis: Speculative; no sufficient evidence she would have accepted the omitted clause; summary judgment appropriate | Held: Evidence viewed favorably to Sherman creates genuine factual dispute on whether Silverman would have signed; summary judgment improper |
| Summary judgment — sufficiency of evidence on proximate cause | Sherman: Facts create triable issue on causation and damages; summary judgment premature | Ellis: Even accepting breach, causation too speculative to survive summary judgment | Held: Reversed — material factual dispute exists, remand for further proceedings |
| Cross-appeal about scope of §326(a)(2)(b) waiver (interpretation if clause had been present) | N/A (Ellis argued the waiver should not shield fraudulent/inaccurate disclosure) | Ellis: The statutory waiver should not bar challenge where disclosure was unfair or fraudulent | Held: Not addressed — clause absent here; Court declines to decide hypothetical statutory-interpretation question |
Key Cases Cited
- Silverman v. Silverman, 206 A.3d 825 (Del. 2019) (prior interlocutory decision reversing Family Court and finding Husband provided fair and reasonable disclosure)
- United States v. Anderson, 669 A.2d 73 (Del. 1995) (discusses "increased risk of harm" doctrine in medical negligence; Court declines to extend that causation approach to legal malpractice)
- Homeland Ins. Co. of N.Y. v. CorVel Corp., 197 A.3d 1042 (Del. 2018) (standards for de novo review of summary judgment cited)
- City of Wilmington v. Nationwide Ins. Co., 154 A.3d 1124 (Del. 2017) (de novo review of questions of law guidance)
- Gulfport OB-GYN, P.A. v. Dukes, Dukes, Keating & Faneca, P.A., 283 So.3d 676 (Miss. 2019) (persuasive authority applying but-for causation in transactional malpractice)