Florida Legal Malpractice Law Blog

The many sides to professional malpractice

When it comes to the topic of malpractice, most Floridians might connect such incidents with the medical field. However, professional malpractice cases are not uncommon in the state. Many of these cases involve conflict of interest between lawyer and client, but others stem from deeper, often more unsettling issues. 

One report from the Miami Herald revealed that a number of Florida attorneys faced discipline from the state Supreme Court. Shockingly enough, these eight Miami-Dade and Broward attorneys were disciplined for not only neglect, but for greed and child pornography. This is not to say that these instances of neglect were minor; one attorney cost a client a whopping $192,000, and another forced a client to lose his job and move out of the country. Detailing each of the eight cases, the Herald shows that violating rules of incompetence and conflict of interest are still at play among Florida's legal network. Although the discipline report mentioned eight attorneys and the subsequent penalties, many of these professionals are allowed to return to their practices in the near future. 

Understanding the importance of attorney specialization

You hire an attorney in Jacksonville typically based off one simple assumption: That he or she knows the law. Unfortunately, based off of some of the experiences of past clients that we here at St. Denis & Davey have worked with, many view the law to be a single collective set of principles rather than several different series of statutes. Every legal discipline has volume after volume of different regulations, some so vast that even those attorneys and judges who specialize in them sometimes struggle in their interpretation. The question is do you have any legal recourse when one does? 

Information shared by the American Bar Association shows that a general failure to know and apply the law is the most common reason behind legal malpractice claims in the U.S. It is understandable that when you need the services of an attorney, you would prefer to go with one who you already know and trust. Yet simply because your neighbor is a divorce lawyer does not mean that he or she is qualified to argue your criminal case. Most attorneys specialize in a limited number of practice areas. Outside of those areas, they may know little more about the laws surrounding a case than you do. 

Reviewing common reasons for legal filing errors

People turn to attorneys for help with their legal matters in Jacksonville due to their unfamiliarity with the law and their inexperience in dealing with judicial procedures. The expectation is that not only will their attorneys provide the knowledge needed to support their claims, but also the assistance required to comply with the rules of the court. Often, many of those rules involve the simple filing of paperwork. While it may seem like a trivial detail, missing a filing date can lead to the complete dismissal of a case. In many situations, attorneys promise to handle those tasks for their clients. So what happens when they do not? 

The American Bar Association lists a failure to file documents as being among the top five most common types of legal malpractice. One would think that filing paperwork would be the simplest aspect of a case, yet in many situations, such tasks are delegated. The danger that comes with doing that is that important details (such a filing requirements) are lost in translation between the different parties involved. That may come as little solace to a client who sees his or her case dismissed because of such an error. 

Can my attorney leave my case because of a conflict of interest?

Question: I was in a bad car accident: I was turning left and had the green light, when a very big truck smashed into me from behind. I called an acquaintance who is a personal injury attorney and within a few days he had reviewed my case and I had signed an agreement with him that said he would represent me in both my medical case against my own insurance company and also in my case against the guy who hit me.

Within a couple of weeks, he called me in for a conference. He told me that the guy who hit me was a cousin of someone who worked in his office. He said that he could represent me for my medical bills and told me he would not charge me for that service. Then he told me that he could not represent me against the guy who hit me because it was a conflict of interest. Is that legal?

Legal malpractice cases and clients' rights

Hiring a lawyer is a step that ideally helps an individual relieve legal tensions. Yet when a lawyer fails to provide that assistance, a client could find themselves dealing with the same legal issues they initially sought to resolve, or worse: their issues could multiply altogether due to the added complications. Clients in Florida have the right to take legal action when they suspect that their hired legal professional is not practicing in an ethical manner. 

While legal malpractice is unlawful in the state of Florida, it is important to know the details of these ethical missteps. Some common forms of malpractice are conflict of interests, wherein a lawyer places bias in cases that demand objectivity, and negligence, when a lawyer fails to meet the needs of a client altogether.

Defining cases of commingling

There is an old adage that says you never should mix business with pleasure. Outside of referring to your activities, this saying can be applied to any aspect of business. Whenever a professional combines business and personal resources, the potential for trouble exists. Many of those that we here at St. Denis & Davey have worked with in Jacksonville have seen firsthand how difficult it may be to recover assets and funds from a fiduciary once said professional has mixed them with his or her own. A term exists for this particular breach of trust: commingling. 

Commingling is defined as a fiduciary mixing personal funds and assets with that of an employer, client or ward. Some common examples of this may include: 

  • A real estate agent placing the money for your down payment on a property into his or her own personal bank account
  • A landlord using your deposit money for personal reasons
  • An investment broker combining yours and other customer-owned securities with those of his or her brokerage
  • An attorney mixing funds allocated for your case with his or her own

Understanding professional ethics

When referencing cases of professional malpractice in Jacksonville, many of those involved will use the term "breach of ethics." At first glance, identifying an ethical breach may seem difficult because ethics themselves are seemingly subjective. What one may deem to be ethical, another might just as easily argue that it is not. Some may view ethics (even those established for professions) as being founded on religious standards, while others may view them as being based upon the laws of the land. Still others might argue that they are rooted in societal or industry norms. Thus, how is one to clearly know when a professional breach of ethics occurs? 

The Center for the Study of Ethics in the Professions at the Illinois Institute of Technology defines a professional code of ethics as the manner in which professionals should pursue their common ideal so as to be able to do the best they can at a minimal cost to themselves and their stakeholders. To be viewed as a professional standard, a code of ethics should: 

  • Standardize generally the work done within a profession
  • Be modifiable based on the experience of profession
  • Make sense in a practical context 

Procrastination and legal malpractice

No matter the type of situation, legal procedures can take extensive time, planning and dedication. When a Florida resident places trust in a legal practice, they rely on their chosen attorney to help sort issues out. When that lawyer fails to do so, the situation can take even longer to resolve, and can even worsen.

How does professional malpractice actually occur? Anyone looking to find a solution through a lawyer-assisted plan should know of the common types of legal malpractice, and ways to become more aware of unlawful actions. 

Legal malpractice: a continuing issue

When an individual in Florida decides to address a situation through the legal process, trust and clarity are two essential components. After all, one must place some level of trust in a professional who claims to resolve legal issues or work on other client-based matters. Yet when a lawyer is dishonest, countless obstacles can arise, and the client can ultimately be affected. 

Such was the case for Russian businessmen Andre Tolkachev and Oleg Tolkachev, who, according to the Daily Business Review, discovered that their lawyers hid vital information regarding past real estate judgments. The businessmen, two brothers in the oil and gas industry, filed a complaint against Porter, Wright, Morris and Arthur and its Naples managing partner for negligence and breach of fiduciary duty. Through a partner, the brothers invested millions toward what they thought were real estate projects. The Tolkachevs continue to wade through the issue's aftermath and salvage the investments as accurately as possible. 

Understanding the standard of care

When you hear the word "malpractice," like most in Jacksonville, you likely associate it only with the medical profession. However, that those not mean that you cannot be the victim of malpractice at the hands of another type of professional provider. The clients that we here St. Denis and Davey PA work with come to us after having experienced firsthand the damage that the negligence of a supposed "professional" can cause. Typically, such damage is due to a failure to meet the accepted standard of care.

You have likely heard through your life how no one is perfect, and that everyone will inevitably make mistakes. Yet perfection is not what it demanded of professional providers. "Standard of care" is defined as "the degree of care or competence that one is expected to exercise in a particular circumstance or role." Simply put, this means that when you secure the services of one who advertises him or herself as a professional in his or her particular field, then you anticipate that he or she will perform as you would expect one familiar with that line of work to. 

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