Legal malpractice involves an act or failure to act by an attorney that causes harm to his or her client. When providing legal services to a client, every attorney must render services that are consistent with the applicable standard of care. If the attorney deviates from that standard of care, and the client suffers damages, the attorney can be found guilty of legal malpractice.
The law of legal malpractice is based on the law of negligence. In order to sustain a legal malpractice claim in Florida, the client will be required to prove the following:
- That an attorney and client relationship existed at the time of the alleged act or failure to act.
- The attorney failed to use the care, skill or diligence that another attorney would have used under the same or similar circumstances.
- That failure was the proximate cause of the client’s damages.
Should the former client fail to prove any single one of these elements, his or her case fails in its entirety.
The Attorney and Client Relationship
A relationship between an attorney and client can be established after a potential client seeks and receives advice or help from an attorney in a business or legal matter. Sometimes that relationship is established and memorialized with a written retainer agreement. Other confirmatory writings might consist of a letter, email or the filing of court documents on a person’s behalf. After an initial consultation, an attorney might even forward the person who consulted with him or her a letter or email specifically stating that they have not been retained or declined representation.
The Standard of Care, Skill or Diligence
After the attorney and client relationship has been established, an attorney must use a reasonable degree of care, skill or diligence on behalf of a client. That’s the same level of care, skill or attention that would be given by other attorneys under the same or similar circumstances as are at issue in the malpractice case. What courts might look at in the context of whether an attorney committed malpractice is whether there were any alternative choices that were available to him or her, and how long the attorney had to explore those alternatives. A bad choice with ample time to explore all of the alternatives might be malpractice. On the other hand, trial lawyers must sometimes make snap decisions on their feet within a matter of seconds. Sometimes all they have to rely on is their training, experience and their gut instinct. Even a wrong decision made in good faith is unlikely to be deemed malpractice. An attorney might even go so far as to make a gross deviation from the standard of care, but without proximate cause and damages, malpractice has not occurred. Here are some examples of what might be considered legal malpractice:
- Failing to file a timely pre-suit notice or fail to timely file a lawsuit, thus barring the client from proceeding further.
- Commingling trust account funds with personal funds.
- Collecting attorney fees and failing to do the work that the attorney was retained to do.
- Failing to file court motions, responses or replies.
If you’re able to prevail in a legal malpractice case, your damages will depend on the nature of the case that you brought. For example, if the malpractice occurred in a personal injury case, and you were the plaintiff, you would be allowed to recover the amount of damages that you would have recovered in a successful case. If you were a defendant in that case, your damages would be the amount of the judgment taken against you. If your case involved property real or personal property you can recover the value of the property. Consequential damages as a result of the malpractice like additional expenses and legal fees will ordinarily be considered.
An attorney who concentrates his or her practice in one specific legal area might not be as vulnerable to malpractice claims as an attorney practicing in another specific area. Lawyers can be found liable in a wide variety of cases. The general rule is that you’re likely to have a legal malpractice case if you lost money because your attorney committed an act or failed to act in a manner that was consistent with the applicable standard of care. These are usually complex cases. Don’t contemplate a malpractice claim or lawsuit against an attorney without speaking with us first. You can arrange for a free consultation with us by phoning our offices for a free confidential case consultation and review. Call 954-473-1500