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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Florida Legal Ethics

I. CLIENT-LAWYER RELATIONSHIP

1.1   Rule 1.1 Competence

1.1:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary:

1.1:101      Model Rule Comparison

The text of the Florida Rule is identical to that of the Model Rule. The Florida Rule Comment regarding "thoroughness and preparation" adds language suggesting that the lawyer consult with the client about the degree of thoroughness and the level of preparation required, as well as the estimated costs involved under the circumstances.

1.1:102      Model Code Comparison

DR 6-101(A)(1) provides that a lawyer should not handle a legal matter which he knows or should know he is not competent to handle, but does not expressly define "competent" as does the Florida Rule. The Florida Rule also contains no counterpart to DR 6-101(A)(3), prohibiting a lawyer from neglecting a legal matter entrusted to him.

1.1:200   Disciplinary Standard of Competence

Primary Florida References: FL Rule 4-1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 31:201, ALI-LGL § 16, Wolfram § 5.1

All lawyers are required to provide competent representation to their clients. FL Rule 4-1.1. The components of competence are: (1) legal knowledge; (2) skill; (3) thoroughness; and (4) preparation. FL Rule 4-1.1.

Under the following conditions a lawyer may handle a matter in which the lawyer is not initially competent: (1) the lawyer undertakes the study necessary to attain the requisite level of competence; (2) the lawyer enlists the assistance of a competent lawyer; or (3) an emergency exists such that referral to or association with a competent lawyer is impractical. Comment, FL Rule 4-1.1.

The level of preparation required for a particular matter depends upon the complexity of the matter and what is at stake. A lawyer should consult with the client about the preparation necessary and the attendant costs. Comment, FL Rule 4-1.1.

A lawyer may be found to have violated the requirement of competence even if the client suffered no actual harm. Florida Bar v. Solomon, 711 So. 2d 1141 (1998); Florida Bar v. Littman, 612 So. 2d 582 (1993). Thus, a disciplinary action for incompetence differs from an action for malpractice which requires proof of harm to the client [see also 1.1:300].

In the context of criminal law, a claim for ineffective assistance of counsel does not necessarily give rise to a disciplinary action based on incompetence. Florida Bar v. Sandstrom, 609 So. 2d 583 (1992). A lawyer who is appointed to represent an indigent person in a criminal case, who seeks to avoid the appointment by asserting incompetence to handle the case, cannot be held in contempt. Easley v. State, 334 So. 2d 630 (1976).

Ignorance of the law is no defense. Florida Bar v. Kinney, 606 So. 2d 367 (1992).

Noting that the comment provides that "a lawyer is not expected to give advice until asked by the client" the Florida Supreme Court held that a lawyer did not violate FL Rule 4-1.1 when he failed to realize the fraudulent nature of a client's scheme for collecting campaign contributions in excess of $500. Florida Bar v. Brown, 2001 WL 776667 (Fla., July 12, 2001). The lawyer was contacted to help solicit personal checks from subordinate lawyers and their family members for $500. Id. The client would then allow the lawyer to "premium bill" on a matter being handled for the client, in order to allow the lawyer to repay the contributions in the form of bonuses. Id. The court found no violation of rule 4-1.1 because the lawyer was not contacted by the client for his opinion regarding the reimbursement scheme. Id.

Sanctions:

For a first offense with no bad motive, a lawyer was publicly reprimanded. Florida Bar v. Shannon, 398 So. 2d 453 (Fla. 1981). In Florida Bar v. Lecznar, 690 So. 2d 1284 (Fla. 1997), a lawyer was publicly reprimanded for violating Rule 4-1.1 when part of his client’s claim was extinguished due to the lawyer’s failure to file a claim within the applicable statute of limitations. For a case of gross neglect which resulted in the incarceration of the lawyer’s client (along with trust fund violations), an lawyer was disbarred. Florida Bar v. Lee, 396 So. 2d 169 (Fla. 1981). An lawyer may also be ordered to pay restitution. Florida Bar v. Micks, 628 So. 2d 1104 (Fla. 1993).

1.1:300   Malpractice Liability

Primary Florida References: FL Rule 4-1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 301:1, ALI-LGL § 49-54, Wolfram § 5.6

In Florida, the elements of a claim for legal malpractice are: (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. Lenahan v. Russell L. Forkey, P.A., 702 So. 2d 610, 611 (Fla 4th DCA 1997); Sure Snap Corp. v. Baena, 705 So. 2d 46 (Fla. 3d DCA 1997); Anderson v. Steven R. Andrews, P.A., 692 So. 2d 237, 240 (Fla. 1st DCA 1997); Bolves v. Hullinger, 629 So. 2d 198, 200 (Fla 5th DCA 1993).

1.1:310      Relevance of Ethics Codes in Malpractice Actions

The preamble to the RPC explicitly provides that they are "not designed to be a basis for civil liability." Preamble, RPC. The purpose of the rules is to guide lawyers and provide a framework for disciplining lawyers. Violation of a rule, while subjecting a lawyer to discipline, does not also create civil liability. Violation of the rules is not negligence per se, but may be used as evidence of negligence. Pressley v. Farley, 579 So. 2d 160, 161 (Fla. 1st DCA 1991).

1.1:320      Duty to Client

The plaintiff in a legal malpractice action must prove that the lawyer was employed with respect to the particular acts that the lawyer is alleged to have performed negligently. Atkin v. Tittle & Tittle, 730 So. 2d 376, 377 (Fla. 3d DCA 1999); Maillard v. Dowdell, 528 So. 2d 512 (Fla. 3d DCA 1988). In Maillard, the court held that the purchasers of a condominium had no malpractice action against their attorney for his alleged failure to discover serious structural defects in the condominium. Generally, the duties of an attorney hired to represent a purchaser of real estate are to investigate title, give an opinion regarding the marketability of title, and handle the closing. The attorney's alleged failure to discover structural defects was not within the scope of duties he was hired to perform. Similarly, in Kates v. Robinson, 786 So. 2d 61 (Fla. 4th DCA, 2001), the court held that where an attorney was hired specifically to collect a consent judgment, the client did not have a malpractice cause of action for the attorney's failure to discover additional parties who might be liable for damages in the client's personal injury action. The firm that originally represented the client had negotiated a settlement with the defendants, which stipulated that no other parties were liable for the client's damages. After the client hired a different attorney to collect the judgment, it was learned that other parties might indeed have been liable. The court rejected the client's contention that inherent in the duty to collect the judgment was the duty to discover and collect from other parties who might be liable. The court also rejected the contention that the collection attorney had a greater duty because he was also a personal injury lawyer.

Referring attorney

A referring attorney may be held liable for the malpractice of a lawyer to whom a client has been referred, if the referring lawyer retains a financial interest in the client's case by agreeing to divide the legal fee. Noris v. Silver, 701 So. 2d 1238 (Fla. 3d DCA 1997). Lawyers can agree to divide fees only if "the division is in proportion to the services performed by each lawyer;" or with client consent if "each lawyer assumes joint legal responsibility for the representation and agrees to be available for consultation with the client." FL Rule 4-1.5(g). The court in Noris reasoned from the rule that a referring lawyer would retain responsibility for the client's representation and could be held liable for malpractice of the working lawyer. 701 So. 2d at 1240; see also FL Eth. Op. 90-3 (July 15, 1990) ("an attorney's acceptance of joint legal responsibility for the case and agreement to be available to consult with the client is the quid pro quo for the attorney's receipt of a portion of the fee that does not represent payment for work performed").

In Noris, The referring lawyer argued that because the agreement to divide fees was oral and therefore unenforceable he could not be held liable for any malpractice. The court agreed that the oral agreement would be unenforceable, but held that the unenforceability of the agreement would not shield the referring attorney from malpractice:

To hold otherwise would allow attorneys to thwart their responsibility to a client by intentionally disregarding the Rules Regulating The Florida Bar. This cannot be condoned. It would also be unfair to lawyers who comply with Rule 4-1.5 to allow an avenue of escape for those who do not.

701 So. 2d at 1240-41. The court explained that the burden would be on the plaintiff to prove the existence of the agreement. It would not be enough to prove that the working attorney had a "unilateral, subjective intent to pay a referral fee." Id. at 1241.

1.1:330      Standard of Care

The attorney's standard of care is to represent the client competently. Atkin v. Tittle & Tittle, 730 So. 2d 376 (Fla. 3d DCA 1999). The attorney must act with a reasonable degree of care, skill and dispatch. Crosby v. Jones, 705 So. 2d 1356 (Fla. 1998). "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). A lawyer advising a client with regard to a settlement proposal "has a duty to utilize ordinary skill and knowledge." Sauer v. Flanagan & Maniotis, P.A., 748 So. 2d 1079, 1082 (Fla. 4th DCA 2000). In a legal malpractice action, 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). The facts that a lawyer's work was challenged, that litigation ensued and that the client lost do not by themselves establish that the lawyer violated the applicable standard of care. Id. at 467. A lawyer who drafts documents "is not ipso facto a guarantor that the documents will be litigation free or will accomplish everything the client might want." Id. "The rationale is that if there were malpractice liability under those circumstances, an attorney would in effect insure his work; but since insurance coverage ordinarily calls for premium payment, attorney fees would then inevitably increase substantially to provide for that type of insurance." Id. In Dillard Smith Constr. Co. v. Greene, 337 So. 2d 841 (Fla. 1st DCA 1976), a lawyer was sued for giving a client negligent advice regarding a contract claim as a result of which the client's claim was barred. The court held that there was no malpractice cause of action for having negligently interpreted the contract:

A lawyer does not guarantee the efficacy of his advice. His contractual interpretations, rendered in the exercise of judgment, in good faith and with the degree of knowledge and skill ordinarily possessed by other lawyers similarly situated, do not become actionable simply because a court later rules against his client.

Id. at 843. The court did find, however, that there was a malpractice cause of action for the lawyer's failure to have read the contract at all, even though a lawyer who had read the contract might have given the same advice. Id.

The cases are not clear with regard to whether an attorney who achieves the end result desired by the client may be liable for malpractice if the means used fell below the standard of care and proximately caused loss to the client. In Lawyer's Professional Liability Ins. Co. v. McKenzie, 470 So. 2d 752 (Fla. 3d DCA 1985), the lawyer was hired to foreclose on behalf of his client. As a result of the lawyer's error in the legal description of the property a delay ensued and the client was not able to regain possession of the property. She did, however, receive all money due to her under the mortgage. The court held that the lawyer was not liable because the client had not proved that she had hired the lawyer to get the property back rather than to get the money she was owed. Nor did the client prove that the lawyer's negligence had caused her not to be able to regain possession of the property. See also Daytona Dev. Corp. v. McFarland, 505 So. 2d 464 (Fla. 2d DCA 1987) (court denied summary judgment because there was an issue of fact regarding whether the lawyer was hired to accomplish not only a particular end, but also to accomplish that end by a particular means).

1.1:335      Requirement of Expert Testimony

Expert testimony may be required in some legal malpractice actions. For example in a case in which the claimant alleged that the lawyer's failure to call a particular witness was malpractice, testimony from a legal expert was necessary because in the absence of such testimony a jury could only speculate as to whether legal malpractice occurred. The defendant attorney had made a strategic decision not to call the witness who could have given testimony on cross examination that would have been damaging to the plaintiff's case. Willage v. Law Offices of Wallace & Breslow, P.A., 415 So. 2d 767 (Fla. 3d DCA 1982). However, in some cases, where the jury can determine without expert testimony whether the client would have prevailed on a particular point, expert testimony is not required. For example, in Tarleton v. Arnstein & Lehr, 719 So. 2d 325 (Fla. 4th DCA 1998), the plaintiff had to prove that she would have prevailed on the underlying claim but for the attorney's negligence. The plaintiff, former wife, claimed that in her dissolution of marriage she would have received a larger amount at trial than she received under a settlement agreement due to her attorney's negligence. The court stated

Under the "trial within a trial" standard of proving proximate cause, the jury necessarily has to determine whether the client would have prevailed in the underlying action, in this case the dissolution action, before determining whether the client would prevail in the malpractice action. Because the jury is substituting its judgment for the fact finder of the dissolution proceeding, no expert testimony specifically stating that a reasonable judge would have given her more than she received in the settlement agreement would be required to establish proximate causation. To establish proximate causation, Former Wife must demonstrate that there is an amount of damages which she would have recovered but for the Firm's negligence. From the evidence noted above, the jury, sitting as the trier of fact in the dissolution action, determined the amount Former Wife would have been awarded if she went to trial and concluded that the amount was greater than she received under the settlement agreement. Thus, Former Wife has established the proximate cause element.

Id. at 330 (citation omitted).

1.1:340      Causation and Damages

No cause of action for legal malpractice exists absent actual harm to the client. Sure Snap Corp. v. Baena, 705 So. 2d 46 (Fla. 3d DCA 1997). In addition, 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) (attorney not liable for delay in clearing title where there was no agreement as to deadline and the delay was caused by actions of third parties not within the attorney's control). Expert testimony is not required to prove causation and damages. Tarleton v. Arnstein & Lehr, 719 So. 2d 325 (Fla. 4th DCA 1998). The plaintiff must prove that he "would have prevailed on the underlying action but for the attorney's negligence." Id. at 328. In Olmsted v. Emmanuel, 2001 WL 288669 (Fla. 1st DCA, Mar. 27, 2001), the court held that the plaintiff had not proved that he would have prevailed, but for the attorneys' negligence because in order for him to prevail, the Eleventh Circuit would have had to have receded from precedent. The court held that the defendant attorneys were not estopped from arguing that plaintiff's claims were speculative, despite the fact that they had taken a contrary position throughout the underlying litigation. The doctrine of judicial estoppel did not apply because the parties were not the same, as the attorneys were not parties to the underlying proceedings.

1.1:350      Waiver of Prospective Liability [see 1.8:910]

1.1:360      Settlement of Client's Malpractice Claim [see 1.8:920]

1.1:370      Defenses to Malpractice Claim

Statute of Limitations

Section 95.11, Florida Statutes sets forth the statute of limitations for legal malpractice:

(4) WITHIN TWO YEARS.--

(a) An action for professional malpractice, other than medical malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.

§ 95.11(4)(a), Fla. Stat. (1999). The statute applies to legal malpractice actions "whether founded on contract or tort," § 95.11(4)(a), Fla. Stat. (1999). When a lawyer is not acting as a lawyer, as for example when acting as an escrow agent, the two-year professional malpractice statute does not apply. Mizrahi v. Valdes-Fauli, Cobb & Petrey, P.A., 671 So. 2d 805 (Fla. 3d DCA 1996).

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." § 95.11(4)(a), Fla. Stat. (1999). In litigation matters, the Florida Supreme Court established a bright line rule: the statute of limitations begins to run when judgment is entered and becomes final, "either upon expiration of the time for filing an appeal or postjudgment motions, or, if an appeal is taken, upon the appeal being affirmed and either the expiration of the time for filing motions for rehearing or a denial of the motions for rehearing." Silvestrone v. Edell, 721 So. 2d 1173, 1175 (Fla. 1998). If review is sought in the Florida Supreme Court, the statute of limitations does not begin to run until the Supreme Court resolves the case. Gilbride, Heller & Brown, P.A. v. Watkins, 783 So. 2d 224 (Fla. 2001). However, in transactional matters, the court had previously held in Edwards v. Ford, 279 So. 2d 851 (Fla. 1973), that the statute of limitations began running when the client knew of the malpractice, despite continued representation by the defendant attorneys. The client knew of the malpractice because the attorney agreed to correct the malpractice free of charge. In Peat, Marwick, Mitchell & Co. v. Lane, 565 So. 2d 1323 (Fla. 1990), the Supreme Court distinguished Edwards on the basis that the attorney in Edwards had admitted his error, thus triggering the running of the statute of limitations. In Peat, Marwick, by contrast, the attorneys continued to assert that their actions were correct. Therefore, the statute did not begin running until the plaintiffs lost on appeal. However, the Florida Supreme Court receded from Edwards in Perez-Abreu, Zamora & De La Fe, P.A. v. Taracido, 2001 WL 776550 (Fla., July 12, 2001). Quoting its opinion issued the same day in Blumberg v. USAA Casualty Insurance Co., 2001 WL 776599 (Fla., July 12, 2001), the court stated:

Consistent with Peat, Marwick, we hold that, in the circumstances presented here, a negligence/malpractice cause of action accrues when the client incurs damages a the conclusion of the related or underlying judicial proceedings or, if there are no related or underlying judicial proceedings, when the client's right to sue in the related or underlying judicial proceeding expires. If a negligence/malpractice is filed prior to the time that a client's right to sue in the related or underlying judicial proceeding has expired, or if a negligence/malpractice action is filed during the time that a related or underlying judicial proceeding is ongoing, then the defense can move for an abatement or stay of the claim on the ground that the negligence/malpractice action has not yet accrued. The moving party will have the burden of demonstrating that the related or underlying judicial proceeding will determine whether damages were incurred which are causally related to the alleged negligence/malpractice. The determination of this will be for the trial court. Similarly, if a party raises an affirmative defense that a negligence/malpractice action has expired, the party bringing the action may file a reply asserting the avoidance of the statute of limitations due to a related or underlying judicial proceeding.

In Segall v. Segall, 632 So. 2d 76 (Fla. 3d DCA 1993), the court set forth the abandonment theory:

Where a party's loss results from judicial error occasioned by the attorney's curable, nonprejudicial mistake in the conduct of the litigation, and the error would most likely have been corrected on appeal, the cause of action for legal malpractice is abandoned if a final appellate decision is not obtained.

See also Bradley v. Davis, 777 So. 2d 1189, 1190 (Fla. 4th DCA 2001) (malpractice claim cannot survive where client fails to pursue appeal that she would have "in all likelihood" won). There is no bright-line rule that an appeal is always required, however. In some cases an appeal is unlikely to be successful and "the law will not require performance of a useless act." Id. at 78. As stated in Eastman v. Flor-Ohio, Ltd., 744 So. 2d 499, 504 (Fla. 5th DCA 1999):

If we were to issue a ruling that appeals are required in all cases in order to preserve the client's right to subsequently pursue a claim for legal malpractice, meritless appeals would be prosecuted by litigants solely for the purpose of preserving their right to later assert a malpractice claim. Of course, such a ruling would also discourage parties from settling pending appeals and would be inconsistent with the party's legal duty to mitigate their damages."

Id.

Some states apply the continuing representation doctrine in which the statute of limitations for legal malpractice does not begin to run while the representation is continuing. Only two Florida cases have been found that mention the doctrine. In Hampton v. Payne, 600 So. 2d 1144 (Fla. 3d DCA 1992), the court acknowledged the doctrine, but stated that under the facts of the case, the doctrine did not apply. The court did not cite any Florida cases as authority for the existence of the doctrine. In Wilder v. Meyer, 779 F. Supp. 164 (S.D. Fla. 1991), the court held that the statute of limitations is tolled by the continuing representation doctrine as long as the attorney continues to represent the client. The court did not cite any Florida case regarding the doctrine; the only citation was to Birnholz v. Blake, 399 So. 2d 375 (Fla. 3d DCA 1981) in which the court did not mention the doctrine. In Birnholz, the court stated that if the attorney assures the client that a bad result can be remedied, the client has no reason to know of the existence of a malpractice claim. Thus, this case was not based on the continuing representation doctrine, but on the fact that a cause of action for malpractice accrues when the client knows or should know that a malpractice claim exists. In a dissenting opinion in Perez-Abreu, Zamora & De La Fe, P.A. v. Taracido, 2001 WL 776550 (Fla., July 12, 2001), Justice Pariente suggested that the court adopt the continuous representation rule, thus implicitly acknowledging that the rule does not currently apply in Florida.

Judgmental immunity

Florida recognizes the doctrine of judgmental immunity, also called "the error in judgment rule" which provides that "[g]ood faith tactical decisions or decisions made on a fairly debatable point of law are generally not actionable." Crosby v. Jones, 705 So. 2d 1356, 1358 (Fla. 1998). "The rule of judgmental immunity is premised on the understanding that an attorney, who acts in good faith and makes a diligent inquiry into an area of law, should not be held liable for providing advice or taking action in an unsettled area of law." Id. at 1358; see also Herig v. Akerman, Senterfitt & Eidson, P.A., 741 So. 2d 591 (Fla. 1st DCA 1999); Kaufman v. Stephen Cahen, P.A., 507 So. 2d 1152, 1153 (Fla. 3d DCA 1987) ("failure to accurately predict a change in the law cannot serve as a foundation for a legal malpractice action"). Mere ambiguity in a rule, however, is not sufficient. DeBiasi v. Snaith, 732 So. 2d 14 (Fla. 4th DCA 1999). "[T]he lawyer who seeks the protection of judgmental immunity must have acted in good faith and made a diligent inquiry into that area of the law." Id. at 16.

A lawyer does not generally have a duty to inform the client of conflicting case law:

Attorneys cannot be placed in the position of having to accept direction from clients on intricate interpretations of the correct or current state of the law. The attorney, not the client, is the individual trained to interpret the law. This does not mean that an attorney should never be required to inform a client regarding a conflict in the law; however, when an interpretation has been made as to the state of the law in a given district and that interpretation has a proper basis of support, an attorney should not be required to compromise a reasoned judgment by having to factor into the judgment the client's reasoning on a fine point of law.

Id. at 1359. As suggested by the court, there may be exceptions, such as where the issue is pending on a certified question before the Supreme Court. Stake v. Harlan, 529 So. 2d 1183 (Fla. 2d DCA 1988) (cited with approval in Crosby, 705 So. 2d at 1359, n. 3). Judgmental immunity does not apply where there is evidence that the attorney fell below the standard of reasonable care in representing the client. Sauer v. Flanagan & Maniotis, P.A., 748 So. 2d 1079, 1082 (Fla. 4th DCA 2000).

Union-agent immunity

Union agents cannot be held individually liable when acting on behalf of a union in collective bargaining activities. Stafford v. Meek, 762 So. 2d 925 (Fla. 3d DCA 2000) (citing DeGrio v. Am. Fed'n of Gov't Employees, 484 So. 2d 1, 3 (Fla. 1986)). Stafford held similarly that "[A] union attorney representing a member in a collective bargaining activity enjoys immunity from a legal malpractice action filed by an individual grievant." Id. at 926.

1.1:380      Liability to Client for Breach of Contract, Breach of Fiduciary Duty, and Other Liabilities

Claims against lawyers may be brought as malpractice claims or as ordinary negligence claims. Nale v. Montgomery, 768 So. 2d 1166 (Fla. 4th DCA 2000). A claim for negligent referral may be made against a referring attorney who has knowledge of facts that would indicate that the lawyer to whom a client is referred will commit malpractice. See Noris v. Silver, 701 So. 2d 1238 (Fla. 3d DCA 1997). "A claim for breach of fiduciary duty, coupled with a claim for legal malpractice, does not necessarily combine to form one claim for legal malpractice. Rather a complaint containing each of these claims can be one in which the plaintiff is pleading in the alternative" as permitted by Fla. R. Civ. P. 1.110(g). Palafrugell Holdings, Inc. v. Cassel, 2001 WL 20824 (Fla. 3d DCA, Jan. 10, 2001).

1.1:390      Liability When Non-Lawyer Would Be Liable

[The discussion of this topic has not yet been written.]

1.1:400   Liability to Certain Non-Clients

Primary Florida References: FL Rule 4-1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 71:1101, ALI-LGL § 51, Wolfram § 5.6

1.1:410      Duty of Care to Certain Non-Clients

The general rule in Florida is that an attorney owes no enforceable duty to anyone but the client. Espinosa v. Sparber, Shevin, 612 So. 2d 1378 (Fla. 1993); Chapman v. HRS, 517 So. 2d 104 (Fla. 3d DCA 1987). Florida law requires that a plaintiff in a legal malpractice action be in privity with the lawyer defendant, unless the nonclient plaintiff is an intended third party beneficiary of the lawyer’s action. Arnold v. Carmichael, 524 So. 2d 464 (Fla. 1st DCA 1988). An attorney is liable to a testamentary beneficiary only if the testamentary intent expressed in the will is frustrated by the attorney’s negligence and the beneficiary’s legacy is lost or diminished as a direct result. Lorraine v. Grover, Ciment, Weinstein & Stauber, P.A., 467 So. 2d 315 (Fla. 3d DCA 1985)(beneficiary not entitled to recover for an attorney’s alleged negligent drafting of a will based on the attorney’s failure to advise testator about the possibility of making an inter vivos transfer of property); Stept v. Paoli, 701 So. 2d 1228 (Fla. 4th DCA 1997)(no liability to beneficiaries of revocable living trusts for alleged negligence resulting in $100,000 federal estate taxes where trust document did not contain any expressed intent to avoid or minimize taxes). Compare Kinney v. Shinholser, 663 So. 2d 643 (Fla. 5th DCA 1995)(beneficiary of a will and trust has a cause of action for negligence against the attorney who failed to advise decedent of need to disclaim power of appointment, to avoid additional tax liability). In Babcock v. Malone, 760 So. 2d 1056 (Fla. 4th DCA 2000), the court held that the beneficiaries of a draft will that was not executed, allegedly due to the lawyer's negligence in failing to timely draft the will, did not have standing to sue the lawyer for malpractice, even though the testator's intent arguably could have been determined from the draft will. The court, relying on Espinosa, declined to rely on the draft will to determine the testator's intent:

If extrinsic evidence is admitted to explain testamentary intent . . .the risk of misinterpreting the testator's intent increases dramatically. Furthermore, admitting extrinsic evidence heightens the tendency to manufacture false evidence that cannot be rebutted due to the unavailability of the testator. For these reasons, we adhere to the rule that standing in legal malpractice actions is limited to those who can show that the testator's intent as expressed in the will is frustrated by the negligence of the testator's attorney.

Id. at 1057 (quoting Espinosa, 612 So. 2d at 1380).

The Florida Supreme Court has expressly declined to expand the third party beneficiary exception from the rule of privity to include incidental third party beneficiaries, rejecting the invitation to adopt California’s “balancing of factors” test as set forth in Biakanja v. Irving, 320 P.2d 16 (Cal. 1958). Angel, Cohen & Rogovin v. Oberon Inv., 512 So. 2d 192 (Fla. 1987)(law firm’s knowledge of fiduciary relationship between its client and corporation gives rise to no duty of the law firm to the corporation). One appellate court has read the Angel, Cohen case expansively to permit a third party to bring suit “where it was the apparent intent of the client to benefit the third party,” regardless of whether the situation involves will drafting. Greenberg v. Mahoney Adams & Criser, P.A., 614 So. 2d 604 (Fla. 1st DCA 1993). The intent to benefit a third party must be "apparent." If such intent can only be inferred from contradicted circumstantial evidence, then the intent is not apparent. Hewko v. Genovese, 739 So. 2d 1189, 1192 (Fla. 4th DCA 1999). In Hewko, the court held that an insured was not an intended third party beneficiary of an insurer's contract with an attorney hired specifically to represent the insurer's interests in light of a possible bad faith claim. In Hare v. Miller, Canfield, Paddock & Stone, 743 So. 2d 551 (Fla. 4th DCA 1999), the court held that a beneficiary of a trust had standing to sue the settlor's attorney for malpractice where the beneficiary was named in the amendment to the trust and alleged that the settlor's intent was frustrated by the attorney's negligence.

In Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399 (Fla. 2d DCA 2000), the court held that a homeowners' association was not an intended third-party beneficiary of the declaration of covenants, conditions, and restrictions for a residential community. The court stated that in contract matters, "[a] party is an intended beneficiary only if the parties clearly express, or the contract itself expresses, an intent to primarily and directly benefit the third party or a class of persons to which that party claims to belong." Id. at 400. "To find the requisite intent, it must be shown that both contracting parties intended to benefit the third party; it is insufficient to show that only one party unilaterally intended to benefit the third party." Id. The declaration expressly indicated that its provisions were intended for the owners, defined as the record owners of the lots. "If the parties had intended the [attorney's] representation . . . to primarily and directly benefit the homeowners' association, such an intent could have been expressly set forth in the documents, or the association could have been included within the definition of 'owner.'" Id. at 401.

A minority shareholder in a closely held corporation is not a third party beneficiary of a contract of representation between the corporation and an attorney sufficient to support a malpractice claim regarding the attorney’s drafting of the shareholders’ agreement. Brennan v. Ruffner, 640 So. 2d 143 (Fla. 4th DCA 1994). The purchaser of property cannot maintain a claim against the original seller’s attorney for negligence and fraud in the procurement of an affidavit of nonhomestead property, where the property was sold twice before plaintiff purchased it. Kahn v. Post, 463 So. 2d 348 (Fla. 3d DCA 1985). Lack of privity between sublessor’s attorney and sublessee bars suit for negligent misrepresentation, but does not bar suit against attorney for fraud in falsely representing that sublessor owned the property. Moss v. Zafiris, Inc., 524 So. 2d 1010 (Fla. 1988). An adopted child, as an intended beneficiary of an adoption, may pursue a cause of action for professional negligence against the attorney who instituted the adoption. Rushing v. Bosse, 652 So. 2d 869 (Fla. 4th DCA 1995). In Vargas v. Reinert, 547 So. 2d 264 (Fla. 3d DCA 1989), the court found that the plaintiffs in a motor vehicle accident case had no malpractice cause of action against the lawyer who represented the defendant in that case for the lawyer's failure to inform his client of an order preserving a van, which was destroyed, to the detriment of plaintiffs. The attorney, as a representative of the defendant, obviously had no intent to benefit the plaintiffs, who were "merely incidental beneficiaries of the defendant's legal services." Id. at 264-65.

Assignment of a legal malpractice action

Legal malpractice is "a personal tort which cannot be assigned because of the personal nature of the legal services which involve highly confidential relationships." National Union Fire Ins. Co. v. Salter, 717 So. 2d 141, 142 (Fla. 1998). The same policy reasons lead to the conclusion that an insurance company may not proceed as a subrogee of an insured's malpractice claim against the insured's lawyer. Id. at 143.

Business transactions with non-clients

Florida courts have repeatedly held that an attorney can be disciplined for failing to completely disclose essential matters in business transactions with non-clients. See, e.g., Florida Bar v. Adams, 453 So. 2d 818 (Fla. 1984); Florida Bar v. Davis, 373 So. 2d 683 (Fla. 1979); Florida Bar v. Bennett, 276 So. 2d 481 (Fla. 1973).

1.1:420      Reliance on Lawyer's Opinion [see 1.8:920]

1.1:430      Assisting Unlawful Conduct [see 1.2:600-1.2:630]

1.1:440      Knowledge of Client's Breach of a Fiduciary Duty [see 1.13:520]

1.1:450      Failing to Prevent Death or Bodily Injury

There are no Florida cases on this issue.

1.1:500   Defenses and Exceptions to Liability

Primary Florida References: FL Rule 4-1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 301:1001, ALI-LGL §§ 54, Wolfram § 5.6

Comparative Negligence

"A client cannot be found comparatively negligent for relying on an attorney's erroneous legal advice or for failing to correct errors of the attorney which involve the exercise of professional expertise." Tarleton v. Arnstein & Lehr, 719 So. 2d 325 (Fla. 4th DCA 1998).

1.1:510      Advocate's Defamation Privilege

"[D]efamatory statements made in the course of judicial proceedings are absolutely privileged, no matter how false or malicious the statements may be, so long as the statements are relevant to the subject of inquiry." Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994). There is no strict relevancy test; absolute immunity applies if the statement is made during the course of the proceeding and "has some relation to the proceeding." Hope v. National Alliance of Postal & Fed'l Employees, 649 So. 2d 897, 901 (Fla. 1st DCA 1995) (quoting Levin, 639 So. 2d at 608). "The privilege arises upon the doing of any act necessarily preliminary to judicial proceedings." Burton v. Salzberg, 725 So. 2d 450 (Fla. 3d DCA 1999). Statements made during the course of taking depositions are privileged. Sussman v. Damian, 355 So. 2d 809 (Fla. 3d DCA 1977) (attorney's statement made during deposition, although "intemperate and unprofessional" absolutely privileged). The privilege extends to parties, judges, witnesses and lawyers and protects them from causes of action for perjury, libel, slander and defamation. It extends to actions as well as statements and provides protection from other causes of action including tortious interference with a business relationship, id.; extortion, Ponzoli & Wassenburg, P.A. v. Zuckerman, 545 So. 2d 309 (Fla. 3d DCA 1989); and abuse of process, American Nat'l Title & Escrow v. Guarantee Title & Trust Co., 748 So. 2d 1054 (Fla. 4th DCA 1999). The privilege applies to statements made during representation-certification proceedings. Daniels v. Patterson, 751 So. 2d 678 (Fla. 1st DCA 2000).

Even though the absolute privilege prohibits a cause of action for defamation, an attorney may be liable for malicious prosecution. [See 1.1:520].

The Supreme Court has set forth the policy reasons for the privilege:

This absolute immunity resulted from the balancing of two competing interests: the right of an individual to enjoy a reputation unimpaired by defamatory attacks versus the right of the public interest to a free and full disclosure of facts in the conduct of judicial proceedings. In determining that the public interest of disclosure outweighs an individual's right to an unimpaired reputation, courts have noted that participants in judicial proceedings must be free from the fear of later civil liability as to anything said or written during litigation so as not to chill the actions of the participants in the immediate claim. Although the immunity afforded to defamatory statements may indeed bar recovery for bona fide injuries, the chilling effect on free testimony would seriously hamper the adversary system if absolute immunity were not provided.

Levin, Middlebrooks, 639 So. 2d at 608 (citations omitted). The court stated that immunity did not abolish all remedies for defamation in the context of judicial proceedings. The courts, the bar association and the state all retain power to curb abuses. "In particular, a trial court would have the ability to use its contempt powers to vindicate its authority and protect its integrity by imposing a compensatory fine as punishment for contempt." Id. at 608-09.

Statements that are not relevant to the proceedings are entitled to only a qualified privilege. Stucchio v. Huffstettler, 720 So. 2d 288 (Fla. 5th DCA 1998). To overcome a qualified privilege, the plaintiff must prove actual malice. Pledger v. Burnup & Sims, Inc., 432 So. 2d 1323, 1327 (Fla. 4th DCA 1983). "Malice may be inferred from the language of the publication itself or may be proven by extrinsic circumstances, but malice can not be inferred from the mere fact that the statements are untrue or that the statements contain strong words, or that the expressions used are angry and intemperate." Sussman v. Damian, 355 So. 2d 809, 811 (Fla. 3d DCA 1977). Pre-litigation settlement negotiations are not "considered necessarily preliminary to the institution of judicial proceedings unless required by statute, administrative regulation or contract." Id. Therefore, allegedly defamatory statements made in the course of such negotiations are entitled only to a qualified privilege. Id. The privilege also does not protect a lawyer who deliberately misleads an unrepresented party in settlement negotiations. Hatcher v. Dixon, 660 So. 2d 1105 (Fla. 1st DCA 1995).

1.1:520      Wrongful Use of Civil Proceedings; Abuse of Process; False Arrest

Even though suits for defamation may be barred by absolute immunity [see 1.1:510] a claim may be brought against a lawyer for malicious prosecution. Wright v. Yurko, 446 So. 2d 1162 (Fla. 5th DCA 1984). The elements of a cause of action for malicious prosecution are:

(1) A criminal or civil judicial proceeding has been commenced against the plaintiff in the malicious prosecution action;
(2) the proceeding was instigated by the defendant in the malicious prosecution action;
(3) the proceeding has ended in favor of the plaintiff in the malicious prosecution action;
(4) the proceeding was instigated with malice;
(5) without probable cause and
(6) resulted in damage to the plaintiff in the malicious prosecution action.

Id. at 1166 (quoting Kalt v. Dollar Rent-A-Car, 422 So. 2d 1031, 1032 (Fla. 3d DCA 1982)). "To establish probable cause, it is not necessary to show that the instigator of a lawsuit was certain of the outcome of the proceeding, but rather that he had a reasonable belief, based on facts and circumstances known to him, in the validity of the claim." Id.

1.1:530      Assisting Client to Break a Contract

[The discussion of this topic has not yet been written.]

1.1:600   Vicarious Liability

Primary Florida References: FL Rule 4-1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 58, Wolfram § 5.6

[The discussion of this topic has not yet been written.]