Have you ever retained an attorney to represent you in a legal matter that was important to you? It is likely that it all worked out to your satisfaction – that even if the results were not what you expected or hoped for, you were satisfied that your lawyer was competent, maintained open communication with you, took the actions you directed them to do and treated your case with reasonable care. You felt they were loyal, honest and diligent.
Unfortunately, sometimes lawyers can make mistakes or errors in judgment. When that happens, clients can sustain financial, emotional or other kinds of losses. For these reasons, the concept of legal malpractice evolved to allow clients to file lawsuits against their attorneys when they breach their reasonable duty of care to clients, resulting in damages – which is basically the definition of the negligent practice of law.
A legal malpractice claim under Florida law has three elements:
- The lawyer was employed or, put another way, there was an attorney-client relationship that created a duty for the attorney to exercise a reasonable duty of care toward their client.
- The lawyer breached their reasonable duty to the client under the circumstances of the representation, considering the ordinary and reasonable skill, diligence and knowledge required for competent representation. Often, the plaintiff-client will need to present an expert witness in the trial to establish what the particular standard of reasonable care should have been in the case.
- The lawyer’s negligent breach of their professional duty caused loss or harm to the client.
Legal malpractice may include a breach of fiduciary duty. A fiduciary is a person with legal obligations to another to be performed with loyalty, trust, confidentiality and honesty, including the duty to act in the person’s best interests. In addition to lawyers, other examples of fiduciaries are trustees, guardians, conservators and other similar positions of responsibility.
When a client asserts a claim for breach of fiduciary duty, they must show that the attorney breached the duty and the breach caused injury to the client. Other potential claims may exist against the lawyer such as breach of contract.
This introduces the broad topic of legal malpractice. We will continue to post information here on a variety of subjects within this important area of Florida law.