Idaho Falls, ID asked in Real Estate Law and Construction Law for Idaho

Q: Lawyer knows his client is at fault. Shouldn't he advise client to honor his obligation, instead of attacking victim?

Party A excavates his lot in preparation for building a home. He violates state law by not providing written notice required by statute to Party B about intent to excavate, and remove lateral supporting soil at their mutual property line. After the damage is done, Party A sends Party B a letter demanding a retaining wall be constructed immediately. Party A delays for over 1.5 months during which time Party B sent two additional letters. Party B then receives a letter from a lawyer. Instead of the lawyer simply directing his client to honor his legal obligation to build a wall, the lawyer actually (falsely) states that Party B's properly written letters demanding restoration, are harassment.

Actual Question: Being fully aware that his client was the party at fault, shouldn't the lawyer have chosen to simply resolve the matter, by directing his client to comply with his legal obligation to repair the damage in an honorable and timely manner?

1 Lawyer Answer
Kevin M Rogers
Kevin M Rogers
  • Boise, ID
  • Licensed in Idaho

A: I think your question involves malpractice? If so, you should first consult the Idaho Rules of Professional Conduct: Look first at the lawyer's B's duty to his clients. Then look at the lawyer's B's duties when working with 3rd parties. Your question seems to equate the failure of Party A to give adequate notice of his intent to remove soil, as his "fault" but does not specify what Party A's real fault is? You wrote, "After the damage is done," what damage? The failure to provide statutory, advance notice of his intention to remove soil or ? The middle part of your question concerning the 2 letters that Party B's attorney sent to Party A's attorney. What did these letters say? I suspect that these letters may answer my first question? What damages were suffered by Party A's failure to provide adequate notice? The final part of your question involves Party A, being at fault for removing soil and his obligation to repair the "damage" in an "honorable and timely manner?" There is nothing in Idaho law which requires that a party do his obligation in an "honorable and timely" fashion. After writing 2 letters to Party A, explaining his duty NOT to remove soil between the parties dividing lines without adequate notice etc., is your attorney telling you that there is nothing you can do to keep the Party A from failing to remediate the property? If this is your last question, please find another attorney. This is a fairly common problem and the land owner who has his property "dug up" has the right to remediation from the digger.

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