The Rise of Legal Malpractice Lawsuits

By Rocco J. Carbone, III, Esq. and John Viggiani, Esq.*

Recently, there has been an alarming increase in legal malpractice lawsuits in all practice areas. This article discusses the applicable standard of proof and the statute of limitations for these actions.

Generally, in the context of a legal malpractice action, a plaintiff must plead and prove three elements: (1) employment of the lawyer; (2) the lawyer’s neglect of a reasonable duty; and (3) loss to the client proximately caused by the lawyer’s negligence. Law Office of David J. Stern, P.A. v. Sec. Nat’l Servicing Corp., 969 So.2d 962, 966 (Fla. 2007). Regarding the first element, the plaintiff must prove that the lawyer was employed with respect to the particular representation at issue. Gutter v. Wunker, 631 So.2d 1117 (Fla. 4th DCA 1994) (affirming dismissal for failure to allege attorney/client relationship). In other words, these actions require privity of contract between the plaintiff and the attorney. Angel, Cohen and Rogovin v. Oberon Inv., N.V., 512 So.2d 192 (1987). In Angel, this employment relationship was aptly described by the Florida Supreme Court when it stated: “Florida courts have uniformly limited attorneys’ liability for negligence in the performance of their professional duties to clients with whom they state privity of contract.” However, an attorney must also be aware of potential third-party beneficiaries to the employment agreement with the attorney.

Where a party will clearly benefit as a third party to the attorney/client relationship of another, this third-party beneficiary may also bring a claim for legal malpractice. In evaluating whether a third party has standing to bring such an action, it must be determined whether “it was the apparent intent of the client to benefit the third party.” Greenberg v. Mahoney, Adams & Criser, P.A., 614 So.2d 604, 605 (Fla. 1st DCA 1993). This third-party beneficiary exception typically occurs in cases of adoption and the drafting of wills, where the testamentary intent as expressed in the will is clear, but frustrated due to the lawyer’s negligent drafting. See Espinosa v. Sparber, Shevin, Shapo, Rosen and Heibronner, 586 So.2d 1221 (Fla. 3d DCA 1991).

Whether representation has been established may be a factual determination. See Davis v. Hathaway, 408 So.2d 688 (Fla. 2d DCA 1982) (reversing summary judgment due to dispute regarding the scope of attorney’s services in the sale of a business). However, it may also be a legal issue, where the record is devoid of any evidence of representation by the attorney. See Ginsberg v. Chastain, 501 So.2d 27 (Fla. 3d DCA 1986). Once privity has been plead or proven, the question turns to the second element.

The lawyer’s neglect of a reasonable duty stems from the fact that “[a] lawyer owes to the client a duty to exercise the degree of reasonable knowledge and skill which lawyers of ordinary ability and skill possess and exercise.” Home Furniture Depot, Inc. v. Entevor AB, 753 So.2d 653, 655 (Fla. 4th DCA 2000). To establish this element, the plaintiff must prove that the lawyer’s conduct fell below the requisite standard of care. Daytona Dev. Corp. v. McFarland, 505 So.2d 464 (Fla. 2d DCA 1987). Essentially, the issue turns on whether the attorney neglected to perform the services that he or she explicitly, or impliedly, agreed to when accepting employment. Home Furniture Depos, Inc. v. Entevor AB, 753 So.2d 653, 655 (Fla. 4th DCA 2000). Fulfillment of one’s duty does not require an attorney to accurately predict unsettled areas of the law, or to inform the client of conflicting law, unless the conflicting law will soon be answered by controlling authority. Stake v. Harlan, 529 So.2d 1183, 1186 (Fla. 2d DCA 1988).

Regarding the third element, the plaintiff must prove that the lawyer’s negligence was the proximate cause of the client’s damages. Goodwin v. Alexatos, 584 So.2d 1007 (Fla. 5th DCA 1991). “If the client cannot show that it would not have suffered harm ‘but for’ the attorney’s negligence, the client will not prevail.” KJB Village Property, LLC v. Craig M. Dorne, P.A., 770 So.3d 727, 730 (Fla. 3d DCA 2011). The plaintiff is required to show that the attorney’s actions or inaction resulted in an adverse outcome in the underlying lawsuit that also resulted in damages. Silverstrone v. Edell, 721 So.2d 1173, 1175 (Fla. 1998). The plaintiff must prove that it is more likely than not that the defendant’s conduct was a substantial factor in bringing about the alleged result. Tarleton v. Arnstein & Lehr, 719 So.2d 325, 330 (Fla. 4th DCA 1998). This is often referred to as the “trial within a trial” standard. Speculation or showing that the defendant’s actions “possibly caused harm” is insufficient. The client must successfully establish that it would have prevailed in the underlying action before it can prevail in the malpractice case.

Generally, the statute of limitations in a legal malpractice action is two years. See, § 95.11(4)(a), Fla. Stat. (2013). The statute begins to run “from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.” In Peat, Marwick, Mitcheel & Co. v. Lane, 565 So.2d 1323, 1325 (Fla. 1990), the Florida Supreme Court held the cause of action does not accrue until the injured party knew, or should have known, of the “redressable harm or injury.” The plaintiff’s attorneys sometimes try to avoid the two-year limitation by bringing a breach of contract action, which has a five-year statute of limitations. See, § 95.11(2)(a), Fla. Stat. (2013).

I hope this primer on Florida legal malpractice lawsuits proves useful. As these lawsuits increase in number, knowledge of the applicable standard of proof and the statute of limitations for these actions becomes more important.

*Rocco and John work in the firm’s Jacksonville, Florida, office. Rocco, who is an associate, can be reached at 904.358.4225 or rjcarbone@mdwcg.com. John, a shareholder, can be reached at 904.358.4221 or jjviggiani@mdwcg.com.

Defense Digest, Vol. 20, No. 1, March 2014

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.