For most of us, when we seek and retain legal representation we are involved in a matter of some importance. Whether concerning legal rights and responsibilities or sums of money or both, we have a vested interest in the outcome, which can have a major impact on our lives moving forward. A negative result can be devastating. But what if that unfortunate outcome was due to legal malpractice? What is your recourse? How should you proceed?
Every Negative Outcome is not Malpractice
It’s generally accepted that no competent lawyer will guarantee results, but even if one does and fails to deliver, that may not be malpractice. You should understand, and your attorney should make it abundantly clear, that almost every legal situation has the potential for a less than perfect result. Additionally, there can be circumstances where although a lawyer made a mistake, it did not rise to the level of malpractice.
For example, consider if you had a law suit against the driver of a car that caused an accident in which you were injured that needed to be filed by a certain date, because the statute of limitations was running out. In other words, if you filed passed that date, your case would be thrown out of court. In our example, your lawyer misses the filing date, but it can be proved the person you sued was not the driver of the car that hit you. Yes, your lawyer erred in missing the court date, but you would not have prevailed even if the suit was timely.
Elements of Legal Malpractice
To have a cause of action for legal malpractice in Florida, you must show:
• Conduct, either an act of commission or an act of omission, that falls below the standard of care that would be required of an average practitioner similarly situated, and
• Damages sustained by you, and
• A causal connection between the conduct and the damages.
Generally speaking, a legal malpractice suit must be filed within two years of when the client knew or should have known of the malpractice.
Types of Legal Malpractice
Each alleged occurrence of legal malpractice must be evaluated on its own unique facts and circumstances, but the following are typical issues in many such cases:
• Negligence – Like the example above concerning missing a statutory date, an act of negligence is evaluated against the average practitioner standard of care.
• Negligent misrepresentation – Although closely related to negligence, negligent misrepresentation is a mistake made by an attorney which was relied on by someone to his or her detriment. Most often these types of cases involve third party non-clients, but they may involve a client and attorney, as well.
• Breach of contract – The state bar association strongly recommends a written agreement in every case and requires it in some, but it is important to realize that oral agreements can be valid provided sufficient proof is offered to verify the terms. In addition, the law implies certain terms in every attorney/client agreement. Issues such as the duty to perform competently, the duty to disclose conflicts of interest, the duty to maintain confidentiality and the duty to keep the client informed are implicit, for example, if not stated.
• Fraud – Fraud typically involves intentional misrepresentation of material facts, but also may include intentional omission of the same.
• Breach of fiduciary duty – The attorney /client relationship calls for the highest level of loyalty on behalf of the attorney. Certainly there is a breach if a lawyer’s interests are placed ahead of the client’s, but there are many other ways in which the required fidelity may be breached.
• Misuse of client funds – This may be the most common abuse committed by lawyers. It can be quite blatant, such as billing for hours not actually worked or intercepting and converting funds earmarked for clients, but it may also be more subtle. Attorneys are required to maintain a client trust fund where unearned fees are kept until earned. Even if the fees are ultimately earned, it can be considered malpractice to move the funds from the rust account to the attorney’s operating account or personal account before it is appropriate to do so.
If you feel you have been unethically taken advantage of by your lawyer, you need an independent analysis by an attorney experienced in legal malpractice. Call us today 954-473-1500