To state a claim for attorney malpractice or legal negligence in Florida, the plaintiff must first show that there was an attorney-client relationship, sometimes determined by the answer to the question: Did the plaintiff employ the lawyer for legal services? If so, there was privity of contract between the lawyer and client.
Then, the plaintiff must show that the attorney breached their duty of professional care, causing harm to the plaintiff.
What is privity?
Privity can be a difficult concept, but it generally means that there was a mutually agreed-to contractual relationship between two parties. In legal malpractice, it would be the legal relationship created by a contract for legal services between the attorney and client.
The apparently intentional third-party beneficiary
A Florida court will likely dismiss a legal malpractice complaint that does not sufficiently show the existence of privity. And while Florida courts do not find very many instances of it, one narrow exception to the privity requirement exists, although Florida courts seem to set a high bar. Namely, if the client by engaging the lawyer had the “apparent intent” that the legal work would “benefit a third party” (language used in several Florida cases) despite the absence of privity of contract between the third party and the lawyer, the third party can bring a legal malpractice suit against the attorney.
Courts in the Sunshine State have emphasized that the client must have intended to benefit the third party – benefit that was only incidental or accidental is not enough to overcome the privity requirement.
An illustration in the will context could involve a client who hires a lawyer to write a will that leaves property to specific people. If the attorney negligently drafts the language of the will and the mistake results in an heir not getting their bequest, that heir may have the right in Florida to sue for legal malpractice as an intended third-party beneficiary of the client’s contract for legal services – despite not being in privity with the lawyer.
Florida courts have mostly approved third-party exceptions to privity in the context of wills, but it may happen in other circumstances like those involving the protection of vulnerable people such as in guardianship and adoption.
For example, in Saadeh v. Connors, the ward (protected, incapacitated person) of a temporary emergency guardian was the obviously intended beneficiary of the legal services the guardian secured for the guardianship matters, so the ward could sue the guardian’s lawyer for malpractice. The attorney owed a duty of care to the incapacitated ward even though the disabled ward was not a client. In addition, the lawyer was paid from the ward’s estate.
Legal counsel can advise people harmed by the negligent legal services of the attorneys of others whether they may be able to sue as third-party beneficiaries. Many other states have similar exceptions, but the law varies from jurisdiction to jurisdiction.