Jacksonville Legal Malpractice Law Blog

Defining legal malpractice

Legal counsel is often an expensive service. You hired a professional attorney who is licensed by the state bar, and you expected results from your investment. As with other services, sometimes the results don’t meet your expectations. Can you sue for legal malpractice?

Losing a case itself—or disliking your attorney—is not grounds for a legal malpractice claim. Even if your attorney made an identifiable mistake or error, there are criteria before bad service becomes malpractice.

Legal malpractice statutes of limitations

If you or someone you know have worked with an attorney on a sensitive matter and then later you believe that your legal counsel may have not provided you appropriate advice or service, you may need or want to consider investigating a malpractice claim. This can be a challenging situation indeed and one of the first things you will want to understand is whether or not you are actually able to do this. The timing involved in your situation will play a big part in determining this.

As explained by the Florida Statutes, there are legally identified timeframes in which any malpractice or other action seeking recourse may be initiated. These are officially referred to as statutes of limitations. The length of time you have to start a malpractice claim against a lawyer is generally 24 months but that is not necessarily from the date that the error or negligent action occurred. Instead, your two-year statute of limitations begins from the date that you did or should have first learned about the problem. What may be deemed as a date upon which you should have known about an error may be a somewhat subjective topic that different parties may identify differently.

Legal malpractice claim may arise many years later

Legal malpractice in Florida is a unique type of claim that can become viable many years, even decades, after a prior separate legal matter began. A lawyer who causes a court to dismiss a case due to inaction or lack of prosecution may find himself on the defending side of accusations of malpractice.

USA Today reported an interesting recentlegal malpractice case that evolved from a Florida medical malpractice case from decades ago. In 1991, there occurred a tragic death of a Mississippi State University football player following a game in Orlando, Florida. That death prompted a medical malpractice suit against the treating medical providers a couple of years later, by a family member of the ball player. The plaintiff family member retained an attorney to file lawsuit. However, the lawsuit was never resolved on the merits, nor was it settled.

Can a legal conflict of interest be overcome?

Conflict of interest is a term that many in Jacksonville may like to throw around, particularly when dealing with legal professionals. The generally accepted opinion on this matter is that anytime your attorney has dealings with both sides of your dispute, or has any special connections or ties to another lawyer or anyone else involved in your case, a conflict of interest exists. While there may an element of truth to that, it does not necessarily mean that he or she is automatically precluded from providing you representation in your case. He or she simply need to follow the correct steps to resolve the conflict.

Those steps have been clearly described in the Rules of Professional Conduct established by the Florida Bar Association. These rules typically prohibit your attorney from representing you if his or her obligations to another client will have a direct impact of your representation. However, he or she can get around this obstacle by ensuring that:

  •          Your representation is not prohibited by law
  •          Your representation does not involve an assertion that presents a position adverse to another client he or she may representing in the same proceedings
  •          He or she ensures both sides that he or she can competently and fairly represent you both

What happens when attorneys sidestep Florida law?

A recent Florida case emphasizes that lawyers must adhere to state laws in all case proceedings. A Florida appellate panel decided in favor of Dr. Christina Paylan who sued her former attorney, Timothy Fitzgerald, for legal malpractice.

Fitzgerald had forced Dr. Paylan to release a former patient’s medical records to use as evidence during a criminal trial, but failed to obtain the patient’s written authorization formally releasing their medical records. Under Florida law, doctors must receive written authorization from patients before medical records are provided to a third-party requesting the information.

Professional responsibility and legal conflicts of interest

Florida residents may find themselves in need of legal counsel for many reasons. These could include a divorce, financial challenges and even a bankruptcy filing, the need to seek compensation after a workplace accident or motor vehicle accident and more. Regardless of the reason that an attorney is sought, people need to know that they are finding someone who will be not only willing but fully able to work with their best interests in mind.

Sometimes a conflict of interest may be evident either at the start of a potential legal relationship or maybe even once the relationship gets underway. The Balance suggests that a conflict of interest may not always be evident in a relationship with an attorney but should be watched for. One example of a type of potential conflict include when one attorney represents multiple plaintiffs in a personal injury lawsuit and all plaintiffs do not want to settle at the same time. Another example is when different attorneys in the same practice represent clients with competing interests.

A final look at attorney sanctions in Florida

Earlier this week, we concluded a series of ongoing posts discussing the attorney discipline process here in Florida from the filing of the initial complaint all the way to the hearing before the state Supreme Court.

In today's post, we'll conclude a parallel discussion examining the types of sanctions that the Florida Supreme Court or another agency may elect to impose upon offending attorneys pursuant to the Standards for Imposing Lawyer Sanctions. While we've discussed sanctions on both ends of the spectrum -- admonishment and suspension -- today's post will focus on an intermediate form of punishment: probation. 

How Florida's attorney discipline process works - IV

In today's post, we'll conclude our ongoing discussion of the how the attorney discipline process works here in Florida. Once again, our purpose in this important endeavor has been to help shed some light on how those who have been harmed by the unscrupulous tactics of their attorney can seek redress outside of a civil lawsuit.

Last time, we discussed how the third step in the process is the review of a complaint by a grievance committee. Specifically, we examined how if the grievance committee determines probable cause exists to support an allegation that an attorney has violated the rules of professional conduct, a formal complaint will be filed by Bar counsel with the Florida Supreme Court and the matter taken to trial should the attorney elect to contest it.

The most common legal malpractice claims

In every court case, there is a winner and a loser. If the case did not go in your favor, you might be disappointed, but it does not mean that your lawyer was incompetent or committed malpractice. Perhaps the law was not in your favor. If you are considering pursuing legal action against your attorney, you might want to consider a few things.

A client who sues for malpractice has the burden to show that the attorney made a mistake. It could be that the action taken was wrong, or that no action was taken when one should have been. Then, the action must have hurt your case. You must show that you might have won the case if not for the mistake. Finally, you must demonstrate that you suffered financial loss because of the outcome.

Understanding who can help with your legal issue

When people find themselves suddenly needing legal representation, it's often because they are facing less than ideal or truly unfortunate circumstances. Indeed, they may have been placed under arrest, served with divorce papers, involved in an accident, learned they are being deported or even lost a loved one.

Compounding the anxiety that frequently accompanies such scenarios is the fact that many people might not know where exactly to look for an attorney. Indeed, they might be so out of sorts and/or concerned about money that they begin to examine the feasibility of non-attorneys -- i.e., paralegals, legal assistants -- handling their case.

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