Florida Legal Malpractice Explained
Under Florida Rule 1-5.1(d), the standard of care for attorneys is to "employ that diligence and those competence and legal knowledge which are ordinarily possessed and employed by other reasonably careful and competent practitioners."
What that means is that in order to win a legal malpractice suit, a plaintiff must prove both that the attorney’s conduct fell below a standard of care accepted in the relevant practice area (as in other professions), and that the breach of that standard was a "but for" cause of some damage to the plaintiff (the "proximate cause.")
There are several leading indicators that help identify what common scenarios are likely to result in legal malpractice. The following is a list of common examples:
- Agent for service of process fails to deliver the suit papers, or fails to deliver them correctly.
- Complaint not timely (or correctly) served, filed.
- Paralegal or secretary take adverse action without attorney’s knowledge or supervision.
- Statute of limitations expired for an action (frequently in real estate, foreclosure, landlord/tenant , breach of contract).
- Failure to investigate fully.
- Filing frivolous lawsuits.
- Suing an improper party.
- Entering incorrect stipulation or settlement.
- Failing to respond to discovery requests.
- Ignoring statute of frauds.
- Not utilizing expert witness if necessary.
- Not advising client about the necessity of creating an estate and filing probate.
- Not recognizing and properly filing claim against the estate of a decedent.
- Failure to draft a deed with specific language and voiding the property transfer.
- Ignoring deadlines and events for appeal.
- Unilaterally deciding case should be appealed even though the client is against it, and not communicating the nature of the risk of losing.
- Ignoring evidence or proof, such as waiver, abandonment, ratification, estoppel, or unclean hands.
- Failure to obtain court approval for excessive fees.
- Not understanding the exception to a general rule (such as work for hire).
- Not understanding and applying foreign laws and the law in general.
- Failure to educate clients on the risk and benefits of the representation.
- Failing to keep clients informed of developments in a matter.
- Inability to appropriately staff a firm.
- Failure to understand nuances of the type of case being pursued.
- Failure of attorneys to communicate with their own clients and routine failure to return calls. Failure to understand that maintaining a client (in a productive manner) is critical to the profitability of the business of practicing law.
How to Determine if a Legal Malpractice Case Exists
One of the most difficult decisions for a former client who believes his or her lawyer committed legal malpractice is how to prepare such a claim and whether to file one at all. There are signs or red flags that can indicate you may have been a victim of incorrect legal advice. The failure to comply with statutes of limitations, for example, is arguably the most common sign of legal malpractice, as it carries some clear cut and obvious consequences. Not recognizing and overcoming the statute of limitations is more than likely going to have a significant negative effect on your case, especially when time is of the essence to file the claim. Other issues you may want to consider include:
Did your lawyer miss a deadline for filing of an important motion, change in a rule, failure to conduct proper discovery, incorrect advice on a factual situation, failure to object, or failing to properly preserve an issue for appeal? The attorney failed to communicate with you or enact his or her fiduciary duty to make certain your best interests were met; Did your lawyer represent co-clients against their own interests? Was there an inherent conflict of interest in the representation between you and others that you were not aware of? Did your lawyer make representations that were false, misleading, or communicated in bad faith? Has your lawyer collected a fee that is excessive based on the type and nature of the work done? Did you and your attorney discuss fees prior to representation and agree to a specific amount? Did your attorney exceed his authority? Did you receive advice contrary to case law and the law that was applicable to your situation? Do you have other claims for breach of fiduciary duty or fraud? Perhaps most importantly, did the lawyer fail to perform any necessary steps to protect your rights in the case? Did your attorney misrepresent facts to you, causing you to take action which directly led to your loss?
What to Seek in a Legal Malpractice Lawyer
When it comes to choosing the right Florida legal malpractice attorney, there are several key qualities to consider. Firstly, experience is crucial. You want an attorney who has handled similar cases before and has a deep understanding of the complexities involved in legal malpractice. This experience not only helps them provide sound legal advice but also ensures that they are familiar with the tactics that legal professionals may use to defend themselves.
Another important factor to consider is a strong track record of success. While no attorney can guarantee results, you should look for one who has a history of achieving favorable outcomes for clients. Testimonials and reviews from past clients can provide insight into their effectiveness and client satisfaction.
Communication skills are also crucial. Your attorney should be able to explain complex legal concepts in a way you can understand. They should also keep you informed at every step of the process and be responsive to your questions and concerns. Legal proceedings can be overwhelming, and it’s important to work with someone who will take the time to guide you through the process.
Lastly, the attorney’s approach to your case is very important. Some legal malpractice cases may involve settling disputes, while others may require litigation. Make sure the attorney you choose is experienced in both procedures, and has the resources to effectively represent you.
Finding the right Florida legal malpractice attorney is essential to successfully navigating a potentially complex and challenging situation.
Statute of Limitations for Legal Malpractice in Florida
In Florida, the statute of limitations for filing a suit alleging legal malpractice is 2 years. The statute of limitations requires that the lawsuit be filed within 2 years of the date upon which the knowledge that a cause of action exists was known or should have been known by the client. A careful review of the facts with an attorney experienced in legal malpractice claims is necessary to determine whether a statute of limitations problem exists in a particular case. Ideally, the question about the time limitations needs to be asked and answered at the outset of the case with a letter confirming the date of occurrence and forwarding it to the client. Failure to file a lawsuit prior to the expiration of the statute of limitations can result in a bar to recovery, as well as the potential for the attorney to be sued for legal malpractice. Some cases have found an attorney liable to their client for legal malpractice when the statute of limitations has expired at the time that the professional malpractice case is filed.
The Process of a Legal Malpractice Case Explained
To better understand the legal process in a legal malpractice claim, please see below:
Pursuing a legal malpractice claim requires more than an initial consultation with a Florida legal malpractice attorney. Note that such a claim must first be pursued with the underlying attorney. The underlying attorney must have had an opportunity to cure the issues resulting in the alleged malpractice. If the lawyer is unable or unwilling to cure the problems, the malpractice claim can commence. The first step is to file a notice of intent to initiate litigation, in which the attorney must set forth all the factual and legal bases for the claim against the other attorney. This will entail a painstaking review of the prior legal representation and a notation of all issues of malpractice that spelled the demise of the underlying action. Once the matter begins to unfold , the attorneys involved typically agree to mediation to decide the ultimate fate of the case. If mediation is unsuccessful, the parties will agree to proceed with discovery depositions. Party depositions typically entail the background and qualifications of the attorney who represented his or her client in the underlying action. Also, the lawyer must address why he made certain decisions in his legal handling of the action. Finally, the lawyer must establish how he would now proceed in the same underlying action given the knowledge that he has now. A possible outcome involves a negotiated resolution of the matter with each party contributing to the settlement using its malpractice carrier. If such a resolution is not possible, claims will be made for past economic damages. Legal malpractice claims stem from three elements: the duty of care owed to the client; the breach of that duty, and the resulting damages.
Pitfalls in a Legal Malpractice Case
Legal malpractice cases are challenging undertakings, and a number of significant challenges are common to many legal malpractice plaintiffs. One of the biggest problems is proving causation. Will the court have to consider two or more legal issues, one after another? How many claims are being made against the attorney? Does the original case have a large amount at stake, potentially leading to a big damage award? Do those factors have any bearing on the level of damages the plaintiff will have to prove? These are just a few of the potential complications an experienced Florida legal malpractice attorney can help clients navigate.
Paragraph 17 of the 12th Judicial Circuit’s standard order on legal malpractice suggests that the following issues must be decided before a legal malpractice case is filed: (1) Did an attorney-client relationship exist in the underlying action (either previously or currently)? (2) Was the attorney negligent in the representation of the client in the underlying action? (3) Is there a case that is still viable in the underlying action (i.e., has it been resolved?) and, if not, what is the quantum of damages that is attributable to the negligent acts of the attorney? A skilled attorney will be able to assess these questions individually and develop a strategy for moving forward that is reasonable and beneficial. For example, an attorney may attempt to negotiate a settlement with the party that initiated the allegedly fraudulent original action. It’s also possible to accept a voluntary dismissal of the case. In some situations, it may be possible to file the legal malpractice case in the same court that handled the original action.
What Legal Malpractice Attorneys Can Do for You
The role of a legal malpractice attorney is to guide their clients through the process of seeking justice and compensation for the damages caused by a legal malpractice situation. Legal malpractice is a complicated area of law, and having experienced legal representation can be invaluable to your case.
In order to properly represent a client in a legal malpractice situation, an attorney must have a comprehensive understanding of both the laws that are applicable to legal malpractices and the legal practices involved in the case. For this reason, legal malpractice lawyers often have past experience as practicing attorneys in other legal fields.
Legal malpractice attorneys will typically offer a consultation to review any potential case. This consultation allows the individual to explain his or her situation in order to determine if a legal malpractice case exists. During this time, the lawyer will explain his or her services, payment expectations, and the anticipated result of the case. This first step is vital to any legal malpractice claim, as it helps the legal malpractice attorney analyze the circumstances of the case and determine the best legal strategy.
Once a legal malpractice attorney has accepted a case, the decision must be made whether to pursue litigation against the former attorney allowing the firing of a legal malpractice lawsuit. This decision will be made with the client. Once the decision is made to file the legal malpractice case, the legal malpractice attorney will work to seek justice and compensation, and represent the client throughout the litigation and trial process.
The key to success in a legal malpractice case lies in the ability of a legal malpractice attorney to represent your interests.
Florida Legal Malpractice Frequently Asked Questions
What is legal malpractice in Florida?
Legal malpractice occurs when a lawyer fails to meet the standard of care by their practice or breaches the trust implied by the attorney-client relationship. The actions or inactions must have resulted in a financial loss or emotional distress to the client.
What are grounds for suing my attorney for legal malpractice in Florida?
Negligence and/or breach of fiduciary duty are the two most common claims. A lawyer may breach duty by:
There are many Florida attorneys who may implement proper safeguards to prevent errors, though the potential consequences of an error could be catastrophic.
What do I do if my lawyer is incompetent and has wasted my money?
Incompetent lawyers may hurt clients just as much as criminal conduct. There is a "pro se" alternative , which could eliminate financial loss. Clients can represent themselves for his or her own case.
Even if a client is disgruntled about past representation, he or she may be vulnerable to further harm. Any restitution to a former client for legal malpractice must come from the attorney’s malpractice insurance policy – not a client’s new attorney.
Can I get satisfaction after being harmed by a negligent lawyer?
Legal malpractice claims may all have different outcomes and varying scenarios that do not result in recovery. It’s helpful to seek out a legal malpractice attorney, regardless of whether the incident happened 20 years ago because it might still be possible to seek satisfaction.