We recently talked about the first element of a legal malpractice claim against a lawyer: the attorney-client relationship. In that post, we explained that a person suing their lawyer for malpractice must first establish that there was an attorney-client relationship.
The professional relationship can be shown by a retainer agreement executed by the parties. If there was no retainer, the relationship could be shown by the presence of relevant factors such as what the lawyer communicated or implied about the nature of the relationship and whether the attorney gave the person legal advice, represented them in court or billed them for services.
What was the scope of the lawyer’s duty of care?
The second element of a legal malpractice claim is to show that the attorney breached a reasonable duty of care to the client. An issue that Florida courts have wrestled with is to articulate a rule for how to determine the scope of the representation, which in turn defines the duty of care. A “reasonable duty” cannot logically extend to any legal harm of any type the client experiences during the representation. Counsel is professionally responsible for protecting the client’s interests in the matter for which they were employed.
An extreme, unlikely example might be that a lawyer retained to represent a client in a child custody dispute does not owe a reasonable duty to advise the client about unrelated matters the attorney might become aware of like a title problem with real estate or injury from a car accident. The attorney-client relationship existed because the parent-client hired the lawyer to fight for a modification in custody rights.
In part 2 of this post, we will illustrate these issues as they came up in a leading Florida case.