Florida - LEGAL MALPRACTICE
Court did not err in rejecting former client’s claim that law firm had “continuing duty” that tolled fraud statute of repose. [Added 8/15/18]
Client met with accountants and investment advisers regarding participation in a tax shelter strategy (“Strategy”). Law Firm provided an opinion letter to Client in 2002 regarding Client’s participation in the Strategy. The IRS subsequently audited Client and concluded the Strategy was an abusive tax shelter.
In 2016 Client and others sued Law Firm and others alleging conspiracy to commit fraud. Law Firm moved to dismiss based on the fraud statute of repose. Law Firm asserted that it had no contact with Client after late 2002. The trial court granted the motion to dismiss.
The plaintiffs appealed, contending that Law Firm “had an ongoing fiduciary relationship” with Client that required Law Firm to “1) correct the knowingly false misrepresentations contained in the opinion letter; and 2) inform them of material information pertaining to the Strategy. [Plaintiffs] allege that by remaining silent, the law firm committed fraud by omission.”
The Fourth DCA affirmed, rejecting the continuing relationship theory. “The statute of repose runs from the date of a discrete act on the part of the defendant without regard to when the cause of action accrued. . . . Nevertheless, the plaintiffs theorize a law firm is burdened with a presumably never-ending duty to make corrective disclosures. Under that theory, the statute of repose would never expire. Such an interpretation subverts the statute’s very purpose.” Garofalo v. Proskauer Rose LLP, __ So.3d __ (Fla. 4th DCA, No. 4D17-2398, 8/1/2018), 2018 WL 3654826.
In legal malpractice case, Fourth DCA holds that arbitration clause in attorney-client retainer agreement is unenforceable because it did not comply with Rule 4-1.5(i). [Added 7/10/18]
A former client (“Plaintiff”) sued a lawyer and her law firm (“Defendants”) for alleged legal malpractice. Defendants moved to dismiss based on an arbitration clause in the attorney-client retention agreement. The arbitration clause provided in part: “Any controversy, dispute or claim arising out of or relating to our fees, charges, performance of legal services, obligations reflected in this letter, or other aspects of our representation shall be resolved through binding arbitration in Broward County, Florida, in accordance with the Fee Arbitration Rule (Chapter 14) of the Rules Regulating the Florida Bar, and judgment on the award may be entered in any court having jurisdiction thereof.” It did not advise the client to seek independent counsel regarding entering the agreement.
Plaintiff responded to the motion to dismiss with two primary arguments. First, she contended that the arbitration clause was ambiguous because it referred to any dispute over the “performance of legal services” but then referred to arbitration in accordance with the Fee Arbitration Rule in the Rules Regulating The Florida Bar. Second, Plaintiff argued that the arbitration clause was unenforceable because it failed to comply with the requirements of Rule 4-1.5(i), which “prohibits lawyers from making an agreement with a client for mandatory arbitration of fee disputes without advising the client in writing that the client should consider obtaining independent legal advice.”
The trial court dismissed the case, ruling that the parties had agreed to arbitrate. Plaintiff appealed. The Fourth DCA reversed, addressing Plaintiff’s second argument and finding it dispositive.
Arbitration clauses in attorney-client agreements must comply with the Rules Regulating The Florida Bar and may be unenforceable if they do not. (Citations omitted.) The retainer agreement containing the arbitration clause violated Rule 4-1.5(i) because it “prospectively provided for mandatory arbitration of fee disputes without giving the plaintiff the required written notice that she ‘should consider obtaining independent legal advice as to the advisability of entering into an agreement containing such mandatory arbitration provisions.’ Thus, because the arbitration clause does not comply with Florida Bar Rule 4-1.5(i), we hold that it is unenforceable on its face.”
The court rejected Defendants’ argument that Rule 4-1.5(i) did not apply because the case involved a claim other than a fee dispute. The clause could be read as applying to disputes other than fee disputes, but “this does not alter the fact that the arbitration clause clearly violated the rule by prospectively providing for mandatory arbitration of fee disputes without giving the required warning language.”
The court concluded: “[T]he contract here at issue is different than the garden variety commercial contract. Lawyers owe ethical obligations and duties to their clients that exceed what the common law requires of arm’s length contracting parties. We therefore hold that the arbitration clause in the retainer agreement was unenforceable on its face for violating Florida Bar Rule 4-1.5(i).” Owens v. Corrigan, __ So.3d __ (Fla. 4th DCA, No. 4D17-2740, 6/27/2018), 2018 WL 3198555.
Statute of limitations for legal malpractice in domestic case began to run upon issuance of amended final judgment, despite fact that the issues relating to malpractice claim had been resolved earlier in case. [Added 1/8/18]
Lawyer represented Wife in a dissolution of marriage case. The trial court issued a final judgment on January 24, 2011. Wife appealed, and the Fourth DCA affirmed in part and reversed in part. The trial court ultimately entered an amended final judgment on August 13, 2013. Wife appealed that judgment, but voluntarily dismissed her appeal on October 4, 2013.
Allegedly as a result of post-judgment litigation, Wife filed bankruptcy. Wife also sued Lawyer for legal malpractice in July 2014. Lawyer moved to dismiss, asserting that the statute of limitations had run. Lawyer’s motion for summary judgment was granted. The court ruled that the limitation period began to run 30 days after entry of the initial final judgment and that, consequently, Wife’s suit was untimely. The court disregarded the appeal of that initial final judgment “because the issues on appeal did not concern the matters upon which [Wife’s] legal malpractice claim was based.” Wife appealed the summary judgment.
The Fourth DCA affirmed. Discussing leading cases, the court’s opinion analyzed the issue of when the statute of limitations on a legal malpractice claim begins to run. The court concluded that the limitations period began to when Wife’s second appeal was voluntarily dismissed in October 2014, which “is the date upon which the final judgment was truly final.” As a result, Wife’s malpractice suit was timely filed. The court explained: “Contrary to the trial court’s conclusion, nothing in the supreme court opinions suggests that a judgment may be final for purposes of the running of the statute of limitations for a malpractice action as to some issues but not others. To parse an appeal to determine whether an issue relating to the later claim of malpractice was raised in the brief would invite the very case by case determination of the accrual date for a legal malpractice that the supreme court rejected in Silvestrone [v. Edell, 721 So.2d 1173 (Fla. 1998).] It could also result in the disruption of the attorney-client relationship during an appeal, which problem the bright-line rule of Silvestrone cured. See Larson [&Larson, P.A. v. TSE Industries, Inc., 22 So.3d 36 (Fla. 2009)]. Forest v. Batts, 228 So.3d 156 (Fla. 4th DCA 2017).
Bankruptcy trustee may sue debtor’s lawyer for legal malpractice, per Second DCA. [Added 12/31/17]
Hutchins shot and killed someone. Hutchins was convicted of manslaughter. The deceased’s estate brought a wrongful death suit against Hutchins, who was represented by Mandelbaum. At trial Mandelbaum presented no evidence about Hutchins’ net worth and did move for directed verdict on the punitive damages claim based on Hutchins’ inability to pay. The jury returned a large verdict against Hutchins, including $500,000 in punitive damages. Hutchins filed for bankruptcy and his debt based on the wrongful death judgment was discharged.
The bankruptcy trustee, Herendeen, filed a legal malpractice suit against Mandelbaum alleging that he failed to properly defend his client against the punitive damages claim. Mandelbaum’s motion for summary judgment was granted. Trustee Herendeen appealed.
The Second DCA reversed and remanded for trial. The appeals court concluded that Hutchins’ bankruptcy discharge did not bar the trustee’s malpractice suit against Mandelbaum. Hutchins’ potential claim against his lawyer became the property of the bankruptcy estate. “The trustee and professionals acting for the estate are entitled to compensation. See 11 U.S.C. § 330. Ms. Herendeen, as trustee of the bankruptcy estate, stands in the shoes of Mr. Hutchins as to claims existing on the date of filing. She is entitled to pursue such claims so as to maximize the assets of the bankruptcy estate. To achieve that goal, Ms. Herendeen can pursue any claim that Mr. Hutchins could have pursued prior to filing bankruptcy.”
The court also rejected Mandelbaum’s argument that public policy regarding recovery of punitive damages from a non-party precluded the trustee from bringing the malpractice claim against him. “Mandelbaum ignores the fact that the lawyers’ alleged malpractice exposed Mr. Hutchins to punitive damages. The parties have directed us to no Florida statutory or case law on point. We are chary to conclude that Florida public policy insulates the lawyers from the consequences of the misconduct alleged by Ms. Herendeen.” Although Florida law does not permit indemnification for punitive damages, the trustee was not seeking indemnification. Rather, she alleged that Mandelbaum “failed to properly defend the suit” and thereby exposed Hutchins to the punitive damages award. Herendeen v. Mandelbaum, __ So.3d __ (Fla. 2d DCA, No. 2D15-4300, 10/25/2017), 2017 WL 4798155.
Fourth DCA rejects argument that former client could not prove redressable harm in malpractice suit arising from family law case because marital settlement agreement is always subject to modification. [Added 9/4/17]
Former Client was represented by Law Firm in a divorce case. The case was resolved through a marital settlement agreement, which was incorporated in the court’s final judgment of dissolution of marriage. Former Client subsequently sued Law Firm for legal malpractice, alleging that she was damaged “in that she relied on [Law Firm’s’ advice and signed a highly disadvantageous [marital settlement] agreement.” Law Firm moved for judgment on the pleadings, arguing that Former Client: (1) could not bring the malpractice action because she voluntarily entered into the marital settlement agreement; and (2) could not prove redressable harm because “the marital settlement agreement is always subject to modification in the family court based on changed circumstances.” The trial court granted the motion for Law Firm.
The Fourth DCA reversed. Law Firm’s first argument in support of its motion has not been accepted by Florida courts. Former Client’s acceptance of the marital settlement agreement does not bar her malpractice claim as a matter of law. “A client’s agreement to settle a case does not, as a matter of law, negate ‘any alleged legal malpractice as a proximate cause of loss.’ . . . Instead, ‘[t]his is a matter of proof for trial.’” (Citations omitted.)
The court also rejected Law Firm’s argument that that Former Client could not show redressable harm because the marital settlement agreement is always subject to modification in family court as being inconsistent with the bright-line rule on accrual of legal malpractice claims established in Silvestrone v. Edell, 721 So.2d 1173 (Fla. 1998). “[U]nder the bright-line rule of Silverstrone, the plaintiff’s legal malpractice claim has accrued because the underlying dissolution litigation has been concluded by final judgment. The dissolution judgment is final within the meaning of Silverstrone because the time for filing an appeal or postjudgment motions has expired. The defendants’ argument to the contrary is unworkable in practice and would create uncertainty as to when legal malpractice claims accrue in the family law context.” Miller v. Finizio & Finizio, P.A., __ So.3d __ (Fla. 4th DCA, Nos. 4D15-4649, 4D16-831, 8/23/2017), 2017 WL 3616392.
Summary judgment for lawyer in malpractice case affirmed where court properly declined to apply equitable estoppel as bar to lawyer’s statute of limitations defense. [Added 7/18/17]
Lawyer represented Riverwood Nursing Center. Lawyer allegedly failed to timely request a hearing on an administrative complaint, resulting in a default order revoking Riverwood’s nursing license. Riverwood sued Lawyer for legal malpractice. Lawyer moved for summary judgment based on the running of the statute of limitations and the inapplicability of the doctrine of equitable estoppel to the limitations defense. The trial court granted Lawyer’s summary judgment motion, finding that “the undisputed facts did not support the elements of equitable estoppel because the pre-suit settlement negotiations did not toll the statute of limitations and [Riverwood president] Hagan’s deposition testimony and affidavit ‘do not present any factual evidence that [Lawyer or his insurer] acted fraudulently or made any misrepresentation of a material fact.’”
Riverwood appealed. The First DCA affirmed.
At all relevant times, Riverwood was represented by counsel. Lawyer’s insurer informed Riverwood prior to expiration of the statute of limitations on April 14, 2013, that Lawyer would not offer more than $100,00) to settle the claim, which was not acceptable to Riverwood. Riverwood’s president “repeatedly attested that he never wanted to sue [Lawyer], he always thought the statute of limitations stops running once a claim is filed, and [Lawyer] did not inform him about the two-year statute of limitations and that Riverwood had to file a lawsuit on or before April 14, 2013.” The appellate court concluded that “no genuine issue of material fact existed as to whether [Lawyer] should be equitably estopped from relying on the statute of limitations defense given that there was no evidence of fraud, misrepresentation, or other affirmative deception by” Lawyer or his insurer. Riverwood Nursing Center, LLC v. Gilroy, __ So.3d __ (Fla. 1st DCA, No. 1D16-2556, 6/6/2017), 2017 WL 2438333.
Court erred in granting summary judgment for defendant lawyer and law firm in legal malpractice suit. [Added 5/12/17]
Plaintiff retained Defendants (a lawyer and his law firm) to pursue a false arrest claim against Plaintiff’s former girlfriend (Salgado) and a police department detective (Fuentes). The suit was not filed. Plaintiff later sued Defendants for legal malpractice, asserting that they were negligent in not filing suit before the statute of limitations expired. Defendants answered and asserted, as an affirmative defense, that there was probable cause to arrest Plaintiff and thus he would not be able to bring a false arrest claim. The trial court granted Defendants’ motion for summary judgment.
The Third DCA reversed the summary judgment. Although probable cause is a defense to a false arrest claim, the arresting officer must conduct a reasonable investigation to determine if there was probable cause to make the arrest. “Our review of the record, taken in a light most favorable to [Plaintiff] as the non-moving party, demonstrates that there remain disputed issues of material fact regarding whether, prior to arresting [Plaintiff], Detective Fuentes conducted a reasonable investigation (and whether a reasonable investigation would have established probable cause to arrest [Plaintiff]). Because these issues of material fact remained in dispute, the trial court erred in its determination that [Plaintiff] could not have prevailed on a claim of false arrest against Salgado or against Fuentes.” Rivero v. Howard, __ So.3d __ (Fla. 3d DCA, No. 3D16-1579, 5/10/2017), 2017 WL 1908375.
Florida state court lacked subject matter jurisdiction over legal malpractice case whose resolution would have required court to decide federal law issues related to patent’s scope, validity, or infringement. [Added 3/23/17]
Law Firm represented Client in seeking a patent for Client’s fastening shade system for playground structures. Client later learned that the patent allegedly was inadequate to protect the product from patent infringement. Rather than pursuing patent infringement claims, Client sued Law Firm and one of its lawyers for legal malpractice. Law Firm moved to dismiss. The trial court dismissed the suit without prejudice based on lack of subject matter jurisdiction. Client appealed.
The Second DCA affirmed. In order to decide the legal malpractice claim, the state court necessarily would have to first decide issues relating to the patent’s scope, validity or infringement. These questions, however, are “quintessential” federal patent law issues. “[F]or the trial court to find that [Law Firm and lawyer] committed legal malpractice, [Client] must show, first, that the patent was invalid or that its scope was not sufficiently broad to protect [Client] from its allegedly infringing competitors. Resolution of a federal patent question, in the first instance, is necessary for [Client]’s legal malpractice case to survive.”
The appeals court distinguished a U.S. Supreme Court case relied on by Client, Gunn v. Minton, 133 S.Ct. 1059 (2013). Gunn involved the question of whether a legal malpractice claim belonged in federal court, which was not at issue in this case. Further, the malpractice case in Gunn was filed after an unsuccessful federal patent infringement suit had been resolved. Solar Dynamics, Inc. v. Buchanan Ingersoll & Rooney, P.C., __ So.3d __ (Fla. 2d DCA, No. 2D15-5728, 2/8/2017), 2017 WL 519314.
Applying bright-line rule regarding accrual of legal malpractice cause of action, Fourth DCA concludes that statute of limitations may run on some claims in litigation but not on others that remain unresolved. [Added 3/1/17]
A bank loaned money to a corporation (RSB), with the loan guaranteed by RSB’s 2 co-owners (the Mizrahis). The FDIC took over the bank and called the loan. The Mizrahis hired lawyer Berlowitz and his law firm (the Berlowitz Defendants) in connection with litigation with the FDIC. A month later RSB sued the FDIC. The FDIC filed a counterclaim against RSB and a crossclaim against the Mizrahis to foreclose the mortgage. At some point Berlowitz “allegedly realized that he had erred in suing the FDIC in the first place.” The Berlowitz was replaced as counsel by another lawyer and his firm (the Lithman Defendants). The Lithman Defendants did little on the case, resulting in entry of a default judgment of foreclosure against RSB. The appeal was dismissed for lack of prosecution by the Lithman Defendants. The property was sold and the underlying suit was administratively closed. No deficiency judgments were entered against RSB or the Mazrahis.
RSB and the Mazrahis filed a 2-count legal malpractice suit against the Berlowitz Defendants and the Lithman Defendants. (The count against the Berlowitz Defendants was dismissed for improper venue.) The Lithman Defendants moved to dismiss the count against them, arguing that “the malpractice action was premature because the underlying suit was still pending.
The trial court granted the motion to dismiss. The administrative closing of the case did not affect the parties’ rights because it can be easily reopened. Several matters in the case remained pending. The plaintiffs appealed.
The Fourth DCA affirmed in part and reversed in part. A cause of action for litigation legal malpractice accrues when the final judgment becomes final. Silvestrone v. Edell, 721 So. 2d 1173 (Fla. 1998). This bright-line rule applies when a client has suffered “some loss” due to the lawyer’s negligence, but “does not require that there be a determination of the full extent of all losses suffered by the client due to the lawyer’s negligence.” Larson & Larson, P.A. v. TSE Indus., Inc., 22 So. 3d 36, 42 (Fla. 2009) (emphasis by court).
The trial court erred in ruling that RSB’s malpractice claim was premature. RSB’s claim accrued when the appeal of the default foreclosure judgment became final. Accordingly, “even though collateral issues have not been resolved in the underlying litigation, a foreclosure judgment adverse to RSB has reached the point of finality, so RSB’s legal malpractice claim has accrued with respect to the foreclosure judgment.”
The court affirmed regarding the Mazrahis’ claim, because “no adverse final judgment has been entered against the Mazrahis individually.” Thus, their malpractice claims were premature. R.S.B. Ventures, Inc. v. Berlowitz, __ So.3d __ (Fla. 4th DCA, No. 4D15-372, 1/25/2017), 2017 WL 362583.
Court erred in dismissing tort claims against law firm on basis of economic loss rule. [Added 8/5/15]
Former Client had a dispute with Law Firm over payment of fees. Former Client sued Law Firm and its principal for breach of contract, breach of fiduciary duty, conversion, and civil theft. Law Firm “moved to dismiss the tort claims under the economic loss rule because they were based on a duty created solely by contract. The trial court granted the motion as to the claims against Law Firm for breach of fiduciary duty, conversion, and civil theft. Former Client appealed.
The Fourth DCA reversed. In Tiara Condominium Ass’n v. March & McLennan Cos., 110 So.3d 399 (Fla. 2013), the Florida Supreme Court curtailed the scope of the economic loss rule by concluding that it applies only in the products liability context. “Because the instant case does not involve products liability, the trial court erred in dismissing the tort claims against the firm under the economic loss rule.” Bornstein v. Marcus, __ So.3d __ (Fla. 4th DCA, No. 4D13-4098, 7/22/2015), 2015 WL 4461117.
Per Fourth DCA, trial court erred in holding that, as matter of law, lawyer representing ward’s court-appointed emergency temporary guardian owed ward no duty under third-party beneficiary theory. [Added 7/12/15]
The adult children of a wealthy elderly man were concerned about his conduct and contacted Lawyer, who worked with a professional guardian. The guardian filed an incapacitation petition. The court appointed the guardian because of an “emergency” and Lawyer became the guardian’s attorney. In an effort to “settle” the guardianship, the ward agreed to establish a trust. The ward later obtained a court order setting aside the trust.
The ward then sued Lawyer on a claim of legal malpractice. The ward alleged the following. The guardian, while acting as court-appointed emergency guardian for the ward, was represented by Lawyer. The guardian, Lawyer, and the ward’s court-appointed attorney agreed that the ward would establish a trust in exchange for dismissal of the incapacity proceedings. They took steps to have the ward execute the trust documents. Lawyer “was aware [the ward] was elderly, lacked a formal education, and spoke English as a second language, yet she advised [the ward] regarding the mechanics of the trust. She led [the ward] to believe he would remain in control of the trust and its contents, and would be able to make decisions regarding the trust. Although [the ward] initially refused to sign the document, he succumbed to the pressure. . . . [Lawyer] failed to advise [the ward] of the significant negative tax consequences of establishing such a trust.”
Lawyer moved for summary judgment on the ground that there was no privity of contract between her and the ward and that, as a result, she owed no duty to the ward. The trial court granted Lawyer’s motion.
The Fourth DCA reversed. During a temporary guardianship, the emergency temporary guardian is to protect the ward and is the ward’s fiduciary to the extent defined by the court. “Even though there is no lawyer-client relationship between the alleged incapacitated person who is a temporary ward and the lawyer for the emergency temporary guardian, counsel for the emergency temporary guardian owes a duty of care to the temporary ward.”
The appeals court relied on Rushing v. Bosse, 652 So.2d 689 (Fla. 4th DCA 1995), involving an incapacitation case in the context of adoption of a minor. “Here, as in Rushing, the proceedings were rooted in a Florida statute that involves the protection of incapacitated persons. . . . [The ward] was the apparent intended beneficiary of the guardian’s attorney’s services. It would be antithetical to suggest that a guardian – appointed for the sacrosanct reason of providing protection to the ward and at the ward’s expense – could ever take any action which would knowingly be adverse to the alleged incapacitated person.” (Emphasis by court.)
The court concluded: “we find that [the ward] and everything associated with his well-being is the very essence i.e. the exact point, of our guardianship statutes. As a matter of law, the ward in situations as this, is both the primary and intended beneficiary of his estate. To tolerate anything less would be nonsensical and would strip the ward of the dignity to which the ward is wholly entitled.” (Emphasis by court.) Saadeh v. Connors, __ So.3d __ (Fla. 4th DCA, No. 4D13-4831, 6/24/2015), 2015 WL 3875682.
Lawyer need not research a particular issue in order to successfully defend a legal malpractice case on ground of judgmental immunity. [Added 6/19/15]
Law Firm was sued by Former Client for legal malpractice in connection with legal advice about Former Client’s potential contractual exposure to a claim by the opposing party for attorney’s fees under Florida law. Law Firm’s motion for summary judgment was granted. Former Client appealed.
The Fourth DCA affirmed. The appeals court concluded that “[b]ecause the advice was in accord with the weight of Florida law, we hold that there was no malpractice at all.”
The court went on to address the issue of judgmental immunity, which was raised and argued by the parties. For Law Firm to prevail on this issue, it had to show that: (1) the legal authority supporting its advice was fairly debatable or “unsettled;” and (2) it acted in good faith and made a diligent inquiry into the legal issue. Law Firm satisfied both of these requirements.
Regarding the second requirement, Former Client did not argue bad faith but alleged that Law Firm “did not research or look into the issue until after litigation had ended.” The appeals court concluded that this was not fatal to Law Firm’s claim of judgmental immunity. “An attorney need not perform research on every issue during the course of litigation, but rather can rely on his honest belief and experience.” The court commented that “[a]ny experienced Florida commercial lawyer worth his salt would know this state of the law without extensive research or memoranda. Horn [the lawyer handling the case for Law Firm] was not required to research an area of law with which he was familiar. In any event, an associate at [Law Firm] confirmed Horn’s belief with legal research after litigation had commenced. . . . Horn reasonably believed there was no exposure to attorney’s fees and subsequent research confirmed his belief.” Air Turbine Technology, Inc. v. Quarles & Brady, LLC, __ So.3d __ (Fla. 4th DCA, No. 4D14-110, 6/3/2015), 2015 WL 3480236.
Court erred by granting summary judgment for legal malpractice defendant on ground that plaintiff could not prove that alleged conflict caused plaintiff’s damages. [Added 4/25/15]
Law Firm represented Father and Mother in a wrongful death case. The jury awarded $200,000 to Father and $4 million to Mother for past and future pain and suffering. Father sued Law Firm for legal malpractice, alleging that the firm’s “conflict of interest and divided loyalty resulted in the disparate verdicts.” Specifically, Father alleged that Law Firm did not obtain his informed consent to joint representation, as required by Rule 4-1.7(b)(4).
The trial court granted Law Firm’s motion for summary judgment, “finding that ‘the alleged conflict of interest cannot in and of itself form the basis of the legal malpractice lawsuit.’ The court also based its ruling on the element of causation, finding that there was no evidence that the alleged conflict caused the disparate awards. The court found that ‘as a matter of law,’ it would require speculation and inference stacking to establish causation.”
The Fourth DCA reversed. Father argued that the trial court erred in finding that violation of a rule of professional conduct can never be the sole basis of a legal malpractice suit. Had the court actually ruled that way, it would have erred. The appeals court read the lower court’s decision more broadly. “[T]he trial court was merely recognizing that a violation of a rule of professional conduct does not constitute negligence per se; rather, it may be evidence of negligence. Causation and the other elements of a negligence action must still be established.”
The trial court improperly shifted the burden to the non-movant (Father) to establish causation at the summary judgment stage. The court also erred in concluding that, as a matter of law, Father would be unable to prove causation. “The Father’s theory of causation was not so attenuated that it required speculation or inference stacking. . . . He is instead making the simple argument that his attorney’s conflict of interest compromised his attorney’s preparation and presentation of his case, which led to the hugely disparate awards.” Pitcher v. Zappitell, __ So.3d __ (Fla. 4th DCA, No. 4D14-91, 4/1/2015), 2015 WL 1448612.
Legal malpractice action should be stayed or abated while underlying litigation on which it is based is still pending. [Added 4/19/15]
Defendants were sued for legal malpractice. The underlying action on which the malpractice suit was based was still pending. Consequently, the trial court stayed the malpractice trial and discovery regarding damages. The court “otherwise allowed the action to proceed, including discovery as to liability.” Defendants petitioned the Fourth DCA for a writ of certiorari.
The appellate court granted the petition. “ Until there is a judgment against plaintiffs in the underlying action, ‘a malpractice claim is ‘hypothetical’ and damages are ‘speculative.’’ . . . The trial court erred in allowing any discovery to go forward. The case should have been stayed or abated.” (Citations omitted.) Armour v. Hass, __ So.3d __ (Fla. 4th DCA, No. 4D14-4375, 4/8/2015).
Successor personal representative may bring legal malpractice action against lawyer hired by prior personal representative. [Added 5/16/14]
Ford was appointed personal representative (“P.R.”) of a decedent’s estate. Ford hired Lawyer as counsel for the P.R. Later Bookman was appointed successor P.R., replacing Ford. Bookman sued Ford on various claims and sued Lawyer for legal malpractice. Lawyer moved for summary judgment, arguing that “successor personal representative is not in privity with the original personal representative’s attorney, a necessary prerequisite to maintaining a malpractice claim under Florida law.” The trial court granted summary judgment for Lawyer, finding that Bookman lacked standing to sue Lawyer “because he was not in privity with” Lawyer. Bookman appealed.
The First DCA reversed and remanded. Noting that case “presents a question of first impression in Florida,” the court determined that a successor P.R. may bring a cause of action for legal malpractice against a lawyer hired by the predecessor P.R. to provide services necessary to the estate administration. The appeals court relied on the relevant statute (F.S. 733.614) and so did not reach the privity issue.
“[B]y virtue of the plain language of section 733.614, we hold all of the power and rights Ford possessed, including the right to bring suit against appellee on behalf of the estate, likewise transferred to appellant as the successor personal representative. In essence, [Bookman] stepped into the shoes of Dana Ford when he became the successor personal representative. Consequently, the trial court erred when it entered summary judgment in favor of [Lawyer], claiming [Bookman] lacked standing. [Bookman], as successor personal representative, has every right and duty under the Florida Probate Code to pursue legal action for malpractice against [Lawyer] on behalf of the estate.” Bookman v. Davidson, __ So.3d __, 39 Fla.L.Weekly D932 (Fla. 1st DCA, No. 1D13-3086, 5/5/2014), 2014 WL 1772707.
Court erred in dismissing legal malpractice claim of non-claim who claimed to be intended third-party beneficiary of law firm’s services. [Added 2/18/14]
Kyreakakis, the sole shareholder of a foreign corporation, hired attorney Dillinger to prepare a deed that would gift certain real property from the corporation to two individuals, the Dingles. Kyreakakis provided Dillinger with a power of attorney purporting to authorize him to do this. In another suit, it was determined that the power of attorney did not authorize the action and that the conveyance was therefore invalid.
The Dingles sued Dillinger and the firm she worked for, the Millhorn Law Firm, L.L.C., alleging legal malpractice. The defendants moved to dismiss on the ground that they owed the Dingles no duty because the Dingles were not parties to the attorney-client relationship. The trial court agreed and dismissed the causes of action with prejudice. The Dingles appealed.
The Fifth DCA reversed. Although a lawyer’s liability for legal malpractice ordinarily is limited to the lawyer’s clients, there is an exception to this privity requirement for certain intended third-party beneficiaries of the lawyer’s services. “To assert a third-party beneficiary claim, the complaint must allege: (1) a contract; (2) an intent that the contract primarily and directly benefit the third party; (3) breach of the contract; and (4) resulting damages to the third party.” (Footnote and citation omitted.) The Dingles satisfied these requirements.
Although the third party beneficiary exception to the privity requirement is perhaps most often successfully asserted in the will-drafting context, it is not limited to that situation. The appeals court cited and discussed in Iowa Supreme Court case in which the exception as applied to the preparation of donative nontestmentary instruments of conveyance. See Holsapple v. McGrath, 521 N.W.2d 711 (Iowa 1994).
The Fifth DCA rejected the defendants’ contention that Dillinger did not owe a duty of care to the Dingles because the transaction at issue was a two-sided transaction and “the requirement of privity in attorney malpractice actions has only been relaxed where there is only one ‘side’ to a transaction (e.g., wills, trusts, estate planning and adoptions).” The court acknowledged that “it is accepted that an attorney is not liable to the third party for malpractice alleged to have occurred during adversarial proceedings on the rationale that adversaries would never desire to benefit one another” but found that principle inapplicable under the facts of this case. “This case involved a real estate transaction, typically a two-sided transaction. However, here, there was no adversarial relationship or differing interests to be protected, as the Dingles’ interests were not in conflict with [the corporation] or Kyreakakis, thus suggesting a one-sided transaction.”
The court remanded for reinstatement of the dismissed causes of action. Dingle v. Dillinger, __ So.3d __ (Fla. 5th DCA, No. 5D13-1725, 2/7/2014), 2014 WL 470679.
Statute of limitations in legal malpractice case began to run when dismissal of underlying case became final, not when agreement to settle case was signed. [Added 1/16/14]
Insurer Arrowood was involved in litigation over a construction project brought by Estoril. Law Firm represented Arrowood for a period of time, but was replaced by other counsel during the litigation. The underlying case was settled effective December 22, 2008. The trial court entered an order of dismissal with prejudice on January 12, 2009. That order was not appealed.
On December 22, 2010, Arrowood filed suit against Law Firm alleging legal malpractice. Law Firm moved to dismiss, arguing that the 2-year statute of limitations had run. The court agreed, relying on Glucksman v. Persol North America, Inc., 813 So.2d 122 (Fla. 4th DCA 2002) (when no underlying judicial proceedings exist and dispute ends in settlement agreement, limitations period begins to run when the parties execute settlement agreement). Arrowood appealed.
The Fourth DCA reversed. The appellate court noted that, per Glucksman, “when a malpractice action is predicated on errors or omissions committed in the course of litigation, the cause of action accrues ‘when the client incurs damages at the conclusion of the related or underlying judicial proceeding’” (citation omitted; emphasis by court). Accordingly, consistent with the Supreme Court’s bright-line rule established in Silvestrone v. Edell, 721 Ao.2d 1173 (Fla. 1998), the court concluded that the statute of limitations period “began to run when the trial court’s order dismissing the underlying Estoril litigation became final.” (Footnote omitted.) Arrowood Indemnity Co. v. Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., __ So.3d __, 39 Fla.L.Weekly D128 (Fla. 4th DCA, No. 4D12-3251, 1/8/2014), 2014 WL 51692.
Fourth DCA questions whether nominal damages are recoverable in legal malpractice claim. [Added 12/31/13] -- Bluth v. Blake, 128 So.3d 242 (Fla. 4th DCA 12/11/2013).
Court was not required to admit evidence of any rule of professional conduct claimed to have been violated by legal malpractice defendant. [Added 7/16/13] -- Greenwald v. Eisinger, Brown, Lewis & Frankel, P.A., 118 So.3d 867 (Fla. 3d DCA 7/10/2013).
Court erred in granting new trial in a suit against lawyer after ruling that breach of fiduciary duty cannot be waived. [Added 3/26/13] -- Band v. Libby, 113So.3d 113 (Fla. 2d DCA 5/22/2013) (on rehearing).
Law firm failed to properly raise lack of standing in moving for summary judgment on legal malpractice claim. [Added 2/13/13] -- Alexopoulos v. Gordon Hargrove & James, P.A., 109 So.3d 248 (Fla. 4th DCA 2/6/2013).
Third DCA affirms summary judgment for defendant lawyers in malpractice case because “no one could have anticipated” the decision of the trial court on remand. [Added 10/23/12] -- Hanson v. Fowler, White, Burnett, P.A., 117 So.3d 1127 (Fla. 3d DCA 2012).
Summary judgment inappropriate in legal malpractice case where plaintiffs alleged they were intended beneficiaries of negligently implemented estate plan. [Added 2/12/12] -- Hodge v. Cichon, 78 So.3d 719 (Fla. 5th DCA 2012).
Legal malpractice claim fails on summary judgment because plaintiff dropped suit against party responsible for damages and thus suffered no redressable harm from lawyer's work. [Added 12/3/11] -- KJB Village Property, LLC v. Craig M. Dorne, P.A., 77 So.3d 727 (Fla. 3d DCA 2011).
Enforcement of representation agreement clause requiring arbitration of legal malpractice claims is not against public policy, per Second DCA. [Added 6/20/11] -- Johnson, Pope, Bokor, Ruppel & Burns, LLP v. Forier, 67 So.3d 315 (Fla. 2d DCA 2011).
Law firm may be liable in legal malpractice action for harm to former client occurring after firm withdrew from representation. [Added 4/17/11] -- Golden Gate Homes, LC v. Levey, 59 So.3d 275 (Fla. 3d DCA 2011).
Court erred in denying motion to compel arbitration in legal malpractice case. [Added 3/30/11] -- Mintz & Fraade, P.C. v. Beta Drywall Acquisition, LLC, 59 So.3d 1173 (Fla. 4th DCA 2011).
Court erred in vacating order staying legal malpractice case while underlying case was still pending. [Added 12/9/10] -- Colodny, Fass & Talenfeld, P.A. v. Bal Bay Realty, Ltd., 48 So.3d 1030 (Fla. 3d DCA 2010).
In legal malpractice case venue not proper in county where negligent acts allegedly occurred because resulting damages did not occur there. [Added 11/27/10] -- Moscowitz v. Oldham, 48 So.3d 136 (Fla. 5th DCA 2010).
Failure to allege ultimate facts relating to duty and breach leads to dismissal of legal malpractice complaint. [Added 10/28/10] -- K.R. Exchange Services, Inc. v. Fuerst, Humphrey, Ittleman, PL, 48 So.3d 889 (Fla. 3d 2010).
Third DCA affirms summary judgment for defendant law firm in legal malpractice action. [Added 3/29/2010] -- KT Holdings USA, Inc. v. Akerman, Senterfitt & Eidson, 34 So.3d 61 (Fla. 3d DCA 2010).
Florida Supreme Court decides when statute of limitations on legal malpractice claim begins to run where sanctions order becomes final after underlying judgment did. [Added 11/11/09] -- Larson & Larson, P.A. v. TSE Industries, 22 So.3d 36 (Fla. 2009).
Venue of legal malpractice case based on disclosure of confidential information is proper not where disclosure took place but where resulting damage occurred. [Added 10/21/09] -- Rocco v. Glenn, Rasmussen, Fogarty & Hooker, P.A., 32 So.3d 111 (Fla. 2d DCA 2009).
Law firm not responsible for losses caused by one of its lawyers who acted outside scope of employment and defrauded "investors." [Added 10/9/09] -- Saralegui v. Sacher, Zelman, Van Sant, Paul, Beily, Hartman & Waldman, P.A., 19 So.3d 1048 (Fla. 3d DCA 2009).
Law firm did not commit transactional malpractice by failing to obtain signature on contract where there was no meeting of the minds. [Added 9/8/09] -- Natural Answers, Inc. v. Carlton Fields, P.A., 20 So.3d 884 (Fla. 3d DCA 2009).
Middle District of Florida federal court concludes that insurer may bring legal malpractice action against lawyer it hired to defend its insured. [Added 7/6/09] -- Hartford Ins. Co. of the Midwest v. Koeppel, 629 F.Supp.2d 1293 (M.D.Fla. 2009).
New York law firm subject to suit in Florida for legal malpractice based on legal work performed mostly in New York. [Added 3/31/09] -- Beta Drywall Acquisition, LLC v. Mintz & Fraade, P.C., 9 So.3d 651 (Fla. 4th DCA 2009).
Legal malpractice case seeking recovery of fees paid fails because client's mother, not client, had paid lawyers' fees. [Added 10/31/08] -- Maxakoulis v. Kotler, 995 So.2d 1024 (Fla. 4th DCA 2008).
Failure of law firm's former client to appeal adverse judgment does not necessarily preclude its ability to maintain legal malpractice action against firm [Added 5/13/08] -- Technical Packaging, Inc. v. Hanchett, 992 So.2d 309 (Fla. 2d DCA 2008).
Supreme Court reaffirms general rule that legal malpractice claims NOT assignable. [Added 7/6/07] -- Law Office of David J. Stern, P.A. v. Security National Servicing Corp., 969 So.2d 962 (Fla. 2007).
Lawyer who breaches client confidentiality AFTER attorney-client relationship ended may be liable to client for malpractice, but former client must allege what confidence was breached. [Added 6/25/07] -- Elkind v. Bennett, 958 So.2d 1088 (Fla. 4th DCA 2007).
Trial court erred in calculating limitation period for legal malpractice claim from date of case's final judgment rather than from date of subsequent sanctions order. [Added 7/25/06] -- Integrated Broadcast Services, Inc. v. Mitchel, 931 So.2d 1073 (Fla. 4th DCA 2006). (NOTE: The Florida Supreme Court agreed with this decision in Larson & Larson, P.A. v. TSE Industries, 22 So.3d 36 (Fla. 2009).)
Petition for writ of prohibition granted because trial court lacked subject matter jurisdiction to try legal malpractice case against union-retained lawyer. [Added 6/15/06] -- Florida Education Ass'n v. Wojcicki, 930 So.2d 812 (Fla. 3d DCA 2006).
Settlement agreement provision requiring party to pursue legal malpractice against against its former lawyer for benefit of adverse party void as tantamount to assignment of claim. [Added 5/16/06] -- Michael E. Greene, P.A. v. Leasing Associates, Inc., 935 So.2d 21 (Fla. 4th DCA 2006).
Section 57.105 fees awarded against indigents who sued their former lawyer for malpractice before statute of limitations on underlying claim had run. [Added 5/16/06] -- Morales v. Marques, 931 So.2d 169 (Fla. 5th DCA 2006).
Fourth DCA expands exception to general rule that legal malpractice claims are not assignable. [12/2/05] -- Security National Servicing Corp. v. Law Office of David J. Stern, P.A., 916 So.2d 934 (Fla. 4th DCA 2005).
Plaintiff in legal malpractice claim against criminal defense lawyer must show "exoneration" of underlying crime. [Added 6/20/05] -- Cira v. Dillinger, 903 So.2d 367 (Fla. 2d DCA 2005).
Fourth DCA does not take opportunity to rule on question of expert testimony concerning "the law" in legal malpractice case. [Added 2/23/05] -- Robinson v. Kates, 895 So.2d 1156 (Fla. 4th DCA 2005). NOTE: For a detailed look at the use of expert testimony in lawyer disciplinary matters, see an article by Tim Chinaris titled "Even Judges Don't Know Everything: A Call for a Presumption of Admissibility for Expert Witness Testimony in Lawyer Disciplinary Proceedings," 36 St. Mary's Law Journal 825 (2005).
Corporation's law firm owed duties to entity rather than individual shareholders; additionally, individuals waived all conflicts. [Added 2/7/05] -- Rudolf v. Gray, Harris & Robinson, P.A., 901 So.2d 148 (Fla. 5th DCA 2005).
Lawyer's inquiry to client about possible preparation of document did not create legal duty to prepare document; summary judgment in malpractice case affirmed. [Added 9/1/04] -- Lane v. Cold, 882 So.2d 436 (Fla. 1st DCA 2004).
Defendant insured's assignment to plaintiff of proceeds of insured's malpractice action against his lawyer in exchange for non-execution of excess judgment is void as tantamount to assignment of malpractice claim. [Added 12/10/03] -- Weiss v. Leatherberry, 863 So.2d 368 (Fla. 1st DCA 2003).
Impact rule does not preclude recovery of noneconomic damages in certain very specific circumstances of legal malpractice action against criminal defense lawyer, per Florida Supreme Court. [Added 6/30/03] -- Rowell v. Holt, 850 So.2d 474 (Fla. 2003).