Florida Legal Malpractice Law Blog

What Is Privity And Why Is It Important In Legal Malpractice?

The concept of privity is an essential part of an attorney-client relationship and is a term that is part of legal ethics, and regulations. Privity, a word derived from Old French and Latin, is a legal concept that stands for fidelity in a legally formed status, such as a contract or a client-attorney relationship. If someone objects to conditions established by an agreement, without privity, they have no recourse, for example, in the form of:

· Claiming damages

· Filing legal suit

· Asserting rights

Detailing your attorney's duty to communicate with you

Having not gone to law school yourself, you cannot be expected to have a strong knowledge of local statutes or the rules and regulations governing legal procedures. That is why you typically leave such matters to your attorney. Yet while you may expect your lawyer to handle all of the legal "mumbo-jumbo," you still will want to remain actively involved in your legal representation. Surprisingly, one of the more common complaints that those we here at St. Denis & Davey hear from clients who were unhappy with previous legal representation is a lack of communication between lawyers and clients. This may prompt you to wonder how much your lawyer should be communicating with you. 

Much of legal representation involves research and investigation, most of which you likely do not need to be directly involved in. Then there is the complicated "legalese" that attorneys use during hearings and when filing motions. While you may not need to understand the exact details of it all, you should be given general information regarding what it happening with your case at all times. The American Bar Association has established the standard for attorney-client communication in its Model Rules of Professional Conduct. Here, it state's that your attorney must: 

  • Promptly inform you of any action or decision which requires your informed consent
  • Consult with you about the methods needed to accomplish your objectives
  • Quickly reply to any of your requests for information
  • Inform you of his or her limitations imposed by the Rules of Professional Conduct 

Attorney Negligence: What It Is And Why It Can Lead To Malpractice

If you are disappointed with the outcome of your legal case, you may or may not have grounds for suing your attorney for legal malpractice. To qualify as malpractice, the attorney's action or inaction must:

  • Cause harm to or the loss of your case
  • The resulting damage leads to a financial loss

Here are some signs that it is likely that your attorney committed malpractice.

The statute of limitations on a legal malpractice claim

Going to court is a lengthy process. Between court appearances, hearings and discovery, it may take between months and years to finally close a case. When the case finally ends, clients may sigh in relief that it's finally over.

However, time may reveal problems with a case that clients didn't notice before. What if your lawyer submitted essential documents late? Or if they refuse to communicate with you - which harmed your appearance during trials?

Small legal mistakes could have enormous consequences on the outcome of your case. That's why it's important to know the statute of limitations for legal malpractice claims.

Detailing when an attorney can withdraw from your case

The moment you retain legal representation for any matter in Florida, you assume you are getting an advocate that is going to be with you until the conclusion of your case. Yet circumstances may arise that cause your attorney to feel the need to withdraw his or her services or recuse him or herself. Such a decision will likely have a significant impact on your case, which is why many come to us here at St Denis & Davey asking if this is even allowed. It is, but only if it is done correctly. 

The Model Rules of Professional Conduct issued by the American Bar Association detail the exact circumstances in which your attorney may end representing you. These include: 

  • If it can be done without having an adverse effect on your interests
  • If he or she believes that you are insisting on a course of action he or she believes to be unlawful or fraudulent 
  • If you have used his or her services to perpetrate fraud
  • If he or she believes that you are insisting on a course of action against which he or she has a fundamental disagreement
  • If he or she believes that you have failed in fulfilling the obligations related to your representation
  • If continuing to represent you will result in him or her having to shoulder an unreasonable financial burden 

Top practice areas for lawyers' malpractice claims

No client hopes to file a legal malpractice claim against their attorney. However, it happens more often than law firms want to admit. In fact, several practice areas breed legal malpractice claims from former clients.

According to a recent study by insurance broker Ames and Gough, four practice areas generated the most significant number of claims due to conflict of interests or other legal issues. The areas include:

How military divorces can be mishandled

Divorce is complicated, but military couples realize how difficult it can be in a whole different way. Anything regarding the military is complex, and not everyone understands the nitty gritty. Unfortunately, sometimes this is the case with divorce attorneys.

They take on a military divorce case thinking it will be like any other marriage dissolution and forget details that are crucial for an ex-spouse's life after divorce. These mistakes can have large consequences for military divorcees and may be considered legal malpractice.

Client's alleged incapacity determined to be unfounded

Of all of the professional partnerships one may enter into in Florida, that of an attorney and client might be the most unique. Clients have to place a great deal of trust in their attorneys given their unfamiliarity with legal matters. They likely do so with the expectation that not only will their attorneys do the utmost to protect their interests, but also that said attorneys would never abuse their trust or take advantage of them. Unfortunately, proving that an attorney might have taken advantage of a client's inexperience or limitations can be difficult. 

Such is the lesson currently being learned by a New Jersey woman. She entered into a property settlement agreement with her now ex-husband back in 2008, which at the time, she claimed was "fair and equitable." Yet she has since petitioned to have her case reopened due to the fact that she claims to suffer from mental health issues that have caused her financial situation to change. Her justification for reopening the case is that at the time she signed the original PSA, she was mentally incompetent and did not understand the terms of the agreement. She subsequently filed a legal malpractice claim against the attorney representing her during her proceedings, saying his firm both ignored her impairment and did not disclose the real amount her ex stood to recover from the settlement.

What happens when an attorney's practice is sold?

Whenever you are involved in a legal matter, it is only through the full disclosure of all of the information that is relevant to your case that you can ensure the best representation. That means placing a good deal of trust in the fact that your attorney will fulfill his or her obligation to keep such information confidential. Said information will often be documented in a case file that remains with your attorney's practice. Yet what happens if and when your attorney decides to sell the practice? 

Over time, a legal practice will inevitably acquire significant non-tangible assets (referred to by the American Bar Association as "goodwill"). The owners of the practice are indeed allowed to include this goodwill in a sale to another attorney or firm. Your concerns that your case file might be included in that goodwill are understandable. Fortunately, according to the ABA's Model Rules of Professional Conduct, your now former attorney still a responsibility to you to ensure your information is protected. 

When is an attorney not an attorney?

There are many reasons Florida clients may consider a legal malpractice suit against an attorney, including conflict of interest, failure to know the law, or missing important court deadlines. But merely losing your case without having such a reason does not mean your attorney committed malpractice. Now imagine having this reason: your attorney is not really an attorney. That may be the case of some who stumble onto a website claiming to belong to an unfortunate yet licensed attorney George Ackerman of Palm Beach County.

The Florida Bar relates the all-too-true tale of a fraudulent website that claims to be Ackerman’s and goes so far as to list his Bar number throughout the site. It is polished and professional in appearance, with several pages of the attorney’s accomplishments, happy associates and a variety of practice areas, including fraud recovery, business law and international law.

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