Legal Malpractice 101: What You Need to Know
In Florida, legal malpractice is when a lawyer does something wrong and causes damages to the client. Legal malpractice cases are very complicated. They are different from most other types of cases. They usually involve both negligence and breach of contract claims. They also typically include a hidden law suit within the lawsuit. The law requires that the client must show that the underlying case would have been worth something more than they were paid in the first legal case.
When you trust your lawyer with your case, you expect them to keep their word. You may have a solid claim, but the legal malpractice attorney may need to use experts to prove it . For example, if you lost a car accident case, the legal malpractice lawyer will need to hire an accident reconstruction expert. This expert will testify and will tell the legal malpractice lawyer what went wrong in the first lawsuit.
In Florida, legal malpractice has four essential parts. These include: (1) an attorney-client relationship; (2) negligence by the attorney; (3) damages; and (4) causation.
Based on my experience, clients have some idea whether their attorney may have made a mistake. Although they may not know the particular parts of the claim, they probably have some information that provides a good starting point.
Examples of Legal Malpractice: Common Scenarios
A common example of legal malpractice in Florida is the so-called "missed deadline" malpractice case. Many practitioners have run afoul of the "one year" statute of limitations as set forth in the legal malpractice statute. In that case involving Christian v. Rinaldy & Beckett, obtained by Shawn Stubbs, there was a breach of fiduciary duty found, in addition to legal malpractice. In Christian, the legal malpractice involved a failure to timely file a garnishment action within 30 days of judgment.
Another example of missed deadlines is the failure to timely and properly file an appeal. Another example involves the very common situation of failure to properly analyze a breach of contract issue. Here, an attorney may be called in to represent a client in a breach of contract lawsuit. The attorney fails to research the damages aspect of the case and the cause of action against his client.
Another very common example, and one deemed "better" is the wrongful disclosure of information or funds. For example, an attorney is retained to contact an insurance company and settle an injury claim. Instead, the attorney discloses the amount of a settlement of a third party. In one illustrative case, the attorney revealed to an insurer that the third party policy limit was six figures, when it was, in fact, a warrant. This caused substantial harm to the third party. In that case, which is still pending, the Florida Bar intervened and the attorney was charged with an ethics violation.
How to Prove Legal Malpractice in Florida: A Comprehensive Guide
To establish a legal malpractice claim in Florida, four elements are required: the plaintiff must show the existence of the client-attorney relationship, that there was a breach of duty by the attorney, that there was an injury to the plaintiff due to that breach of duty, and causation: that is, that the plaintiff suffered actual damages as a result of the breach. The Florida Bar’s Guide to Legal Malpractice provides this clear explanation:
- (1) The defendant owed a duty to the plaintiff. This duty is normally created by the attorney-client relationship. The relationship usually is established by evidence that the defendant entered an appearance as counsel of record for the plaintiff in the action from which the alleged legal malpractice arose.
- (2) The defendant breached that duty. This element may be proved by the plaintiff’s expert witness testimony.
- (3) As a proximate cause of the breach, the plaintiff suffered a loss that would not have occurred if the malpractice had not happened. The plaintiff usually must present expert testimony to show that damages were proximately caused by the attorney’s breach of duty.
- (4) The plaintiff suffered damages. The plaintiff must attempt to prove the amount of his or her damages resulting from the malpractice. The plaintiff’s damages must be proven with reasonable certainty.
Legal Malpractice and the Statute of Limitations in Florida
If you are considering a legal malpractice claim, the Statute of Limitations starts to run for such a claim when the error is discovered, not when the error occurred. The time limit is two years from the date of the discovery, or three years from the date of the act or omission which gave rise to the claim, whichever period expires earlier.
So, in what circumstances does the period start to run later that the period stated above? There are a few exceptions. The issues can be quite complex and involve terms such as: false testimony or records, fraud, the wrongful concealment of a cause of action, and continuing errors.
The starting point is usually obvious, but when is a case "abandoned?" What if a brief is filed, or a response to a complaint is submitted, or other steps are taken in the case, but the underlying case evaporates. How does that scenario impact the statute of limitations?
What about appellate lawyers who do not realize that their client has a low-five digit, short statute of limitation. Their time may not begin to run until they now have knowledge that their services in the appeal process are the last reasonable hope of recovery for their client. And others may have affirmative duties to warn.
More applied examples are clients who knew of the error, but who did not act. The concealment element can toll the statute of limitations in Florida as it can bar recovery in other situations.
What to Do if You Suspect Legal Malpractice
If you suspect that you’ve been the victim of legal malpractice, the first step is to document everything. Make sure that you keep any and all documentation related to the case, whether it’s an email from your lawyer or a message about the proceedings. If there’s anything else you think may be relevant to the case, then you should keep a record of that as well.
Then, it’s wise to consult with another attorney about the situation. You’ll need to present the full scope of the case—the bad advice, the lost time in court, and what’s resulted from here. That means telling your new attorney everything that has happened, so that they will have a full and complete picture of what has been taking place . Once you’ve had a chance to sit down with them, and you’ve explained everything, your new attorney may recommend that you revise your strategy and your plans moving forward, or may suggest that you take another route entirely.
If you’re going to be moving forward with a legal malpractice claim, then your attorney will be able to help you get started on that process. At the same time, keep in mind that Florida has statutes of limitations in place for a reason. If you don’t act swiftly, it could result in a forfeiture of your rights. Don’t play around with a difficult situation—seek legal advice and support as soon as possible, and help to ensure that your case is resolved favorably and effectively.
Finding the Right Legal Malpractice Lawyer in Florida
When you’ve decided to pursue a claim against an attorney, the next logical question is whether you have chosen the right attorney to pursue a legal malpractice case on your behalf. A qualified legal malpractice attorney should possess specific qualities that ensure they will be able to help you get the compensation you deserve. The first thing you want to focus on is experience. Experience is vital when it comes to pursuing a legal malpractice suit. Your attorney should know not only the ins and outs of the law but should also understand how to best negotiate with the other involved parties and attorneys. They should be able to evaluate your case and help you come to a decision about whether it is best to go to trial or settle. Your legal malpractice attorney should be well-versed in malpractice matters. Find out how many malpractice cases your attorney has tried in the past and how many have gone to trial. This will help you build confidence in your selection and allow you to feel secure knowing your attorney has experience with similar cases. Each case is unique, but if your attorney has handled many similar cases, they will have a greater understanding of how to proceed with your particular matter. A good legal malpractice attorney should have a high success rate. Ask to see their win/loss ratio, or the ratio of cases they settle versus those that go to trial. An attorney who can show you statistics that prove they are effective in helping their clients is the team you want to seek out for your legal malpractice matter.
How to Prevent Legal Malpractice: Tips for Attorneys
Preventing legal malpractice is an everyday task of good lawyers. The primary way to do this is to keep communications with clients clear and in writing. Every meeting with a client or former client should be followed by a confirming email or letter to the client saying what was discussed and its import to the case. If there must be a follow up with the client thereafter, then don’t rely on imperfect memory to recall what was said.
The value of being organized is often limited, because there can be no "form file" for any particular case. Every detail of every case is different and must be followed through a complete transcript of emails and letters.
Serious attorneys will maintain a filing system of the original documents of each case on an adjoining shelf. All correspondence should be saved, each in a folder of the case. There also must be a way of keeping track of the status of each case to see if there are issues and deadlines coming up soon.
What Legal Malpractice Means for Clients and Lawyers
The ramifications of a legal malpractice can affect both the attorney and the former client. For the client, the emotional toll can be significant, resulting in feelings of betrayal, frustration, and even depression. This is especially the case if the malpractice incident relates to a matter of great personal importance to the client, such as a family law case or one involving the loss of a loved one. The client may feel that they have been failed by a trusted advocate who was supposed to have protected their rights and built a case to assist them.
Financially, legal malpractice can lead to significant costs for the client. Not only could the present situation be financially devastating to the client, but upon filing of a new case, or negotiating on behalf of a client, it could cost thousands of dollars in court fees, filing fees, discovery fees, and attorney’s fees that would not have been necessary had the first attorney not committed malpractice .
For attorneys, the harm from a malpractice claim can also be severe. Beyond facing the necessity to hire another attorney to defend against the claim, there is the potential for disciplinary action with the Florida Bar. Although the Bar is unlikely to pursue any disciplinary action in the absence of serious harm to a client, attorneys must still pay significant legal fees to defend their actions in such a situation. Furthermore, a finding of malpractice may give rise to civil liability for any damages caused by the malpractice. This is true even if there is no state or federal disciplinary action against the attorney.
Ultimately, there are a variety of ways that legal malpractice can harm a client and an attorney in Florida, and the potential for liability is virtually limitless. This is why it is critical that both clients and attorneys consult with an experienced legal malpractice attorney if they believe that a malpractice incident has occurred.