Legal Malpractice –


[1] Elements and Case Citations

(1) The Defendant attorney was employed by Plaintiff;

(2) The Defendant neglected a reasonable duty owed to Plaintiff;

(3) The Defendant’s negligence was the proximate cause of Plaintiff’s damage, which is the amount Plaintiff would have recovered but for the Defendant’s negligence; and

(4) Plaintiff suffered damage.

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Florida State Courts

Supreme Court: Law Office of David J. Stern, P.A. v. Sec. Nat'l Servicing Corp., 969 So. 2d 962, 966 (Fla. 2007)

First District: Olmsted v. Emmanuel,783 So. 2d 1122, 1125 (Fla. 1st DCA 2001)

Second District: Thompson v. Martin, 530 So. 2d 495, 496 (Fla. 2d DCA 1998)

Third District: Hold v. Manzini, 736 So. 2d 138, 142 (Fla. 3d DCA 1999)

Fourth District: Elkind v. Bennett, 958 So. 2d 1088, 1090 (Fla. 4^th DCA 2007)

Fifth District: Horowitz v. Laske, 855 So.2d 169 (Fla. 5th DCA 2003)

Florida Federal Courts

Eleventh Circuit: In re Alvarez, 224 F.3d 1273, 1276, (11^th Cir. 2000)

Southern District: Walco Investments, Inc. v. Thenen, 881 F. Supp. 1576, 1584 (M.D. Fla. 1995)

Middle District: In re Jennings, 378 B.R. 687, 693 (Bankr. M.D. Fla. 2007)

[2] Defenses To Legal Malpractice Claim

(1) Fla. R. Civ. P. 1.110(d) (pleading affirmative defenses), and other standard defenses. See § 60.

(2) Statute of Limitations: § 95.11, (4)(a), Fla. Stat. (two years). Generally, ``a cause of action for legal malpractice does not accrue until the underlying proceeding has been completed on appellate review because, until that time, one cannot determine if there was any actionable error by the attorney’’. Peat, Marwick, Mitchell & Co. v. Lane, 565 So. 2d 1323, 1325 (Fla. 1990).

(3) A client’s abandonment of the pursuit of the underlying action may bar his legal malpractice claim. Pennsylvania Ins. Guar. Ass’n v. Sikes, 590 So. 2d 1051, 1053 (Fla. 3d DCA 1991).

(4) A criminal defendant who fails in attacking his conviction because of alleged ineffective assistance of counsel is barred by collateral estoppel from subsequently bringing a legal malpractice claim against his lawyer. Zeidwig v. Ward, 548 So. 2d 209, 214 (Fla. 1989).

(5) Plaintiff is neither in privity with the Defendant attorney nor an intended third-party beneficiary of Defendant’s relationship with the client. Espinosa v. Sparber, Shevin, et al, 612 So. 2d 1378, 1379-1380 (Fla. 1993).

(6) Excessive fees cannot support a legal malpractice claim. See Dadic v. Schneider, 722 So. 2d 921, 923-924 (Fla. 4th DCA 1999).

(7) Convicted criminal defendant cannot maintain legal malpractice action unless appellate or post-conviction relief is obtained. Steele v. Kehoe, 747 So.2d 931 (Fla. 1999) and the defendant proves his innocence. Rowe v. Schreiber, 725 So. 2d 1245, 1250 (Fla. 4th DCA 1999).

(8) Standing in a legal malpractice action arising from a will contest is limited to those who can establish that “the testator’s intent as expressed in the will is frustrated by the negligence of the testator’s attorney.” Babcock v. Malone, 760 So.2d 1056 (Fla. 4^th Dist. 2000).