What is Legal Malpractice in Florida?
Legal malpractice is a term that describes the harm caused by an attorney who has breached his or her professional duties to their client. Attorneys owe their clients a range of professional obligations, including the duty of competence, the duty of communication, the duty of loyalty, and the duty to not take any action that is prejudicial to their client’s interests. Courts do not expect perfection of attorneys, but when an attorney’s conduct falls below the appropriate standard of care as established by their peers, their client may have a legal malpractice claim against them.
Florida courts recognize a number of different scenarios as legal malpractice, and an attorney found to have committed one of these offenses may be found liable for damages. The following are a few examples of legal malpractice:
The client suffered no actual damages
It’s important to note that in order to file a legal malpractice claim , the client must have suffered damages. Even where a lawyer might be found to have violated their fiduciary duties, if the client isn’t actually harmed by the violation, there is no legal malpractice claim. The client must be able to prove three elements: the existence of an attorney-client relationship, the breach of a fiduciary duty by the attorney, and actual damages to the client as the result of that breach. If any of these elements are lacking, there is no legal malpractice.
Legal malpractice claims can be very complex, which is why it’s important to consult with a qualified attorney as soon as possible after you believe your lawyer has failed to uphold their end of the bargain.
When to Seek the Help of a Legal Malpractice Attorney
State Bar Associations track the statistics on the number of complaints they review by practice area, and legal malpractice often tops the list (with 50% of those complaints deemed to have merit). If you suspect that your former attorney may have committed malpractice, you may be considering whether you need the services of a legal malpractice attorney. Our own experience tells us that it can sometimes be hard to perceive the big picture in the immediate aftermath of the end of a relationship with a lawyer; certainly it can be difficult to believe that the lawyer for whom a great deal of money was paid has made any sort of mistake. In other situations where clients are unsure of whether or not they even had a legally cognizable problem with their lawyer, they may not realize that they could have cause of action if they fail to act. Almost anyone can be a victim of substandard legal representation. A few examples of the types of situations that warrant further investigation by a legal malpractice attorney include:
Fee Disputes: If your attorney has not completed the job, or performed at the level necessary to justify the amount of the fee, there may be grounds to reduce or eliminate the payment of fees. Further, if the fee was made contingent upon an outcome, and the outcome was not achieved, a legal malpractice attorney may be able to recoup all or part of the fee.
How to Select a Legal Malpractice Lawyer in Florida
Choosing the right attorney to handle your legal malpractice case in Florida is a priority. You will always want to do your homework on potential lawyers before making a decision. Consider their credentials and experience – you will want to know that they have handled legal malpractice claims before and know how to navigate tricky issues that can arise during litigation. Understanding their track record of success is important as well. You want to hire someone who has a proven history of getting favorable results for legal malpractice clients.
To do this, you can start their law firm website to see if they outline their past record of success with legal malpractice claims. At the very least, you want to ensure they have experience with handling similar matters – if your case is unique, then you have a good idea it could be a bit more effort to move forward. Also, check with The Florida Bar to ensure that the attorney is in good standing and has a clear record.
Additionally, take advantage of client reviews for lawyers who provide them on their website or use sites like Avvo to find the reviews. If you have previous legal experience in Florida, this process may be easier to understand, but for those without such background, you should be prepared to ask questions and potentially conduct a few consultations with different firms in order to get a complete picture of who is the best fit for your situation.
Bringing a Claim for Legal Malpractice
If you have held a consultation or are now evaluating various Florida legal malpractice attorneys to represent you on your legal malpractice claim, it is important to understand the legal malpractice case filing process. A legal malpractice claim is generally not filed until there is no dispute that you have been harmed because of an error or omission made by your lawyer. The steps involved in filing a legal malpractice claim in Florida should include: 1) The injured party must first be able to identify the errors made by the attorney that caused damage in a certain amount; and, 2) The damages incurred as a result of the actions of the attorney must be delineated to the extent that there is a dollar amount in controversy. Part of the legal malpractice claims process is to interview the legal malpractice attorney you are considering and find out how much experience they have and what their expected timeline will be for the completion of your case.
Legal Malpractice Laws and Statutes in the State of Florida
Florida’s legal malpractice laws are steeped in common law, which is judge-made law. However, Florida legislators have codified several of these laws in an effort to give attorneys and prospective plaintiffs better guidance as to when a legal malpractice lawsuit may be brought. Legal malpractice in Florida governs the actions of attorneys and sets parameters around what they may do, in cases of breach of fiduciary duties, for example.
Unlike some states, such as New York, Florida does not have any particular law that gives a defendant attorney a discrete cause of action against a former client for legal malpractice in taking another legal malpractice client. That said, there is a long line of cases in Florida governing such actions.
One of the hallmarks of Florida legal malpractice law is the statute of limitations, which is set at 2 years. Under Florida Statutes Annotated Title VI, Actions, Chapter 95, Actions Generally, Section 95.11 (2009), the statute of limitations for many civil actions is merely 4 years; however, actions upon a liability created by statute, with the exception of those listed in the section, are subject to a two-year statute of limitation . The two-year statute of limitation for actions upon liability created by statute specifically includes "actions for condign damages caused by breach of trust." While Florida’s statute of limitation does not expressly provide for a 2-year limitation for other torts, including malpractice, Florida courts have consistently found that such actions, including legal malpractice, are governed by the 2-year statute of limitation for actions upon a liability created by statute.
With a 2-year statute of limitation, it is imperative that an action for legal malpractice in Florida be brought within the allowed time period. The 2-year statute of limitation may not be easily tolled in Florida courts. In fact, while Florida statutes specifically toll the statute of limitation for certain events, such as a party’s insanity or fraud, Florida courts have refused to find continue tolls for legal malpractice actions. So long as neither party was fraudulently deceived, the 2-year statute of limitation is likely to be enforced.
What Happens After a Legal Malpractice Case?
There are a list of potential outcomes after a legal malpractice case as well. Litigation holds many twists and turns, and the outcome may not be what the client is hoping for. A case may be dismissed early on in the litigation, or after a court ruling on a summary judgment motion. The case may settle, or it may go completely to trial. There are various types of recovery that a plaintiff could receive. They may receive damages that would include all the fees paid to the attorney, and expenses, plus any other unanticipated losses caused by litigation of the original matter. Punitive damages could be awarded, depending on how egregious the actions of the negligent attorney were. This is why it is paramount that a legal malpractice attorney works on a contingency fee basis. The plaintiff needs the financial peace of mind of knowing that the attorney is taking on the risk of success, thereby essentially leveling the playing field. A legal malpractice attorney will make sure that the potential outcome of a legal malpractice case has been thoroughly explained to the client, so that they have a clear understanding both going into the case, and at every step of the litigation process.
Professional Responsibility and Ethics
When it comes to legal malpractice, not only is the law implicated but also professional responsibility and ethics, or as it is commonly referred to today, professional ethics. Nearly every attorney owes their client and the court a duty of good faith and fair dealing, and when an attorney malfunctions, it can be appropriately characterized as malpractice. Legal malpractice occurs when the attorney does not have the legal aptitudes and skills, offer competent advice, or represent the client honorably, fairly, and with integrity.
As per the American Bar Association Standards For Imposing Lawyer Discipline-Rule 1, "A lawyer shall act competently to preserve the client’s interest on terminating representation." Additionally, Rule 10(a) stipulates that "duty – [a] lawyer who withdraws from representation shall take steps reasonably practicable to avoid foreseeable prejudice to the rights of the client. Such action shall include giving due notice to the client, allowing time for employment of other counsel, and surrendering papers and property to which the client is entitled." As described in the ABA/BNA Lawyers’ Manual on Professional Conduct, "Lawyers owe clients a duty of competence, which is defined in Model Rule 1.1. In addition to requiring that lawyers perform competently, Model Rule 1.1 mandates that lawyers maintain the requisite knowledge of the law and its practice."
The professional code of ethics that governs attorneys licensed to practice law in the United States (particularly Florida in this article) is there to ensure client protection. In some personal settings, clients may not know about the established code of ethics by which their attorney is governed, and it is in their best interest to familiarize themselves with it before having the opportunity to receive legal advice and counsel from their attorney. In most circumstances, though , clients are familiar with the concept that their attorney must uphold a high level of competence and integrity, but expect this to be applied equitably, so clients are not victimized by an attorney’s misconduct. Fidelity and competence are required, and courts will not permit misconduct to go unpunished simply because it was not intentional or malicious in nature.
Legal malpractice is a type of professional negligence in which a client brings an action against his or her attorney for negligent or improper advice, not respecting the rights of the client, or failure to exercise the appropriate skill, care, and diligence that is necessary for a lawyer to provide competent service to his or her client. To prove a claim of legal malpractice, a plaintiff must satisfy the legal elements or claims that are necessary to prevail in their case.
A plaintiff, in order to recover damages in a legal malpractice lawsuit, must demonstrate that the attorney’s conduct "did not live up to the standard of care for a Florida lawyer." An attorney in Florida "owes a duty to use the skills and care normally employed by attorneys practicing under similar circumstances," and "failure to use such skills and care may give rise to liability for malpractice." In other words, attorneys have a duty "to use reasonable care and skill" in preparing their clients’ cases and representing their clients’ interests. In determining whether an attorney has acted with "reasonable care and skill," "the standard of care is the same as the standard for an attorney’s conduct."
In the context of clients who seek legal representation, and entrust a lawyer with their legal affairs, the American Bar Association expects the lawyer to use his best skill and judgment on the client’s behalf. The model rules, as well as the standards, are used to identify how an attorney handling a case exhibits reasonable care and skill.
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