Hannah P. Sachs
Downs Rachlin Martin PLLC and Caryn Waxman, Esq.
Appeal from Superior Court, Windsor Unit, Civil Division
P. Wesley, J. Katherine Burghardt Kramer of Katherine
Burghardt Kramer Law Office LLC, Middlebury, and James L.
Mulligan of Simpson & Mulligan PLLC, Lebanon, New
Hampshire, for Plaintiff-Appellant.
D. Rachlin and Samantha V. Lednicky of Downs Rachlin Martin
PLLC, Burlington, for Defendants-Appellees.
PRESENT: Reiber, C.J., Skoglund, Carroll and Eaton, JJ., and
Harris, Supr. J., Specially Assigned
1. After a bench trial, the trial court concluded that
defendant- attorney's failure to adequately inform
plaintiff Hannah Sachs of the risks of delay in filing a
parentage action "negligently fell short of the standard
of reasonably competent legal representation." Despite
the court's conclusion that defendant breached her
professional duty of care, the trial court determined that
plaintiff failed to demonstrate direct causation or
measurable damages as a result of defendant's negligent
advice. On appeal, plaintiff challenges the court's legal
conclusions and contends that the court's factual
findings established both causation and damages. We agree,
and so reverse.
2. Defendant's negligent advice occurred when plaintiff
consulted her about filing parentage and child support
actions in conjunction with plaintiff's pregnancy, which
was the result of a brief relationship during the summer of
2010. When plaintiff informed the child's father of the
pregnancy, he expressed his wish not to be involved with
plaintiff and the child.
3. Three months before her daughter's birth, plaintiff
visited the offices of Downs Rachlin Martin (DRM) and met
with defendant. Plaintiff sought information regarding
"establishing parentage, considerations of parental
rights and responsibilities, and the determination of child
support." Defendant advised against filing a paternity
action immediately after the child's birth. Instead, she
recommended waiting at least a year. According to defendant,
delayed filing of a parentage action when the father had had
no contact with the child could lessen any risk of the father
seeking primary or joint physical and legal responsibility or
a substantial amount of parent-child contact. Further, she
advised, delay in filing would also limit his ability to use
child custody as a negotiation tool to limit child support.
4. More significant in this case, defendant assured plaintiff
that she would receive child support retroactive to the date
of her child's birth. The court found defendant "did
no specific research to support her opinion as to the
retroactivity of child support, " instead relying on her
experience as a family law attorney. Based on defendant's
advice, plaintiff was persuaded to wait a year from
child's birth before she filed a legal claim. She also
arranged to receive, as a loan, $500 per month from her
mother and $500 per month from one of her mother's
friends after the child was born, to help her support her
daughter. Plaintiff expected to repay the loans from her
mother and the friend once the child support obligation was
5. Plaintiff's daughter was born on July 12, 2011.
6. In June 2012, following through on defendant's advice
to wait one year, plaintiff again contacted defendant to
commence parentage and child support proceedings against the
father. Four months later, in October 2012, defendant filed a
7. At a case manager's conference in January 2013, the
father stipulated that plaintiff was the sole physical and
legal guardian of their daughter. The father agreed to
contact his daughter only at plaintiff's discretion.
Plaintiff was represented at the case manager's
conference by a colleague of defendant, an associate attorney
8. Either on the same day of the case manager's
conference or some date closely following the conference, the
associate attorney also discussed child support with
plaintiff. During this discussion, the associate informed
plaintiff that any child support award would be retroactive
to the date the parentage action was filed, not the date of
birth. Plaintiff protested that she had received different
advice from defendant. The associate later followed up with
plaintiff and confirmed that defendant still believed that a
child support award would be retroactive to birth. Defendant
reiterated this belief in a March 15, 2013 email to
plaintiff, where she indicated that she was waiting for the
court to approve the parentage and parental rights
stipulation and stated that the order should be
"finalized before we make any issue of child
9. Subsequently, several phone conversations took place in
March 2013 between plaintiff and the father, and they agreed
to meet at a playground in April 2013. During the
conversation, Plaintiff said that she needed $2000 per month
for childcare, and the father approved of the amount, but
there was no discussion of retroactivity to the child's
date of birth. Either in this conversation or in a later one,
the father explained that if plaintiff maintained an amicable
relationship with his family, plaintiff might even receive
financial assistance above and beyond the assistance required
for child support, but he warned that contentious litigation
would turn his mother "into a mad dog."
10. Negotiations between defendant and the father's
attorney revealed that the father would not agree to pay
$2000 per month as plaintiff anticipated. Moreover, even
though the parties ultimately agreed on $1875 per month for
child support dating from the child support order, the
father's attorney disagreed that the father should owe
any payment in arrears, either from the date of the parentage
action or the child's birth.
11. Given the father's attorney's stance, defendant
finally researched the law governing child support arrears to
confirm her position. At this point, defendant discovered that
she had provided incorrect advice to plaintiff regarding
retroactive child support. Instead, in a letter to plaintiff
acknowledging her error, defendant explained that no
definitive law authorized arrears back to a child's birth
and the date of retroactivity was generally at the trial
court's discretion. In practice, moreover, "courts
use the date of filing as opposed to the date of birth."
After receiving this letter, plaintiff told her mother's
friend, "This is devastating news . . . . I can hardly
see straight [sic] I'm so angry and upset."
12. Subsequently, in a letter to the father's attorney,
defendant acknowledged that her research revealed that she
had been mistaken about the date of retroactivity. In the
same letter, defendant also wrote: "Without a doubt, had
the rules on retroactivity of support been more clear,
[plaintiff] would have filed a parentage action as soon as
[her daughter] was born."
13. After further negotiations, the parties finally reached a
stipulated child support agreement, which was approved as a
Child Support Order on June 28, 2013. The agreement required
the father to pay $1875 monthly to plaintiff beginning on
July 1, 2013 and one lump sum payment for arrears. The
arrears went back only so far as the filing of parentage
action-$1625 was for child support, and $250 was for medical
care. The agreement considered the father's gift income
from family members, although this income was unpredictable
and unreliable. Two worksheets computing calculations based
on the Vermont Child Support Guidelines were included in the
agreement. The first worksheet considered the father's
trust income in child support calculation. In that scenario,
the guidline child support would be $1060 per month. The
second worksheet considered trust income and gift income in
its calculation. There, the guildine child support would be
$1562 per month.
14. After using the lump sum of arrears to partially repay
the loans made by her mother and her mother's friend,
plaintiff still owes $15, 000 on the loans they made to
support plaintiff and her daughter and to pay plaintiff's
15. Plaintiff filed legal malpractice and breach of contract
claims against defendant in the Vermont Superior Court,
Windsor Unit, Civil Division. Following a bench trial, the
court concluded that "by failing to adequately give
Plaintiff an explanation of the risk that, by following
[defendant's] recommended strategy of delay, Plaintiff
quite conceivably might be unable to establish retroactive
child support, [defendant] negligently fell short of the
standard of reasonably competent legal representation."
However, the court determined that plaintiff failed to prove
the negligent representation was a "cause-in-fact"
of plaintiff's injury and that the evidence was
"equivocal" as to whether plaintiff would have
decided to file immediately had she been aware of the risk.
It also found insufficient evidence for nonspeculative
16. On appeal, plaintiff claims that defendant provided
negligent advice, that plaintiff relied on it to her
detriment, and that she suffered nonspeculative damages.
Defendant claims that even if she breached her duty of care,
plaintiff has not ...