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Legal Malpractice Issues

The first element of legal malpractice is an attorney-client relationship

On Behalf of | Nov 25, 2020 | Attorney-Client Relationship, Legal Malpractice Law |

When someone believes that their attorney’s negligence or malpractice harmed them, they must show three elements to establish that legal malpractice occurred:

  1. An attorney-client relationship
  2. The attorney’s breach or neglect of a reasonable duty owed to the client
  3. The breach caused the client harm or loss

It seems that the first element – whether the “client” employed the lawyer to handle a legal matter – would be obvious, but the question can be surprisingly complicated at times. And if the attorney-client relationship was not there, the rest of the legal malpractice analysis is unnecessary because a lawsuit will not succeed.

A case example

Many factors could be relevant to the existence of an attorney-client relationship and the analysis can vary with each set of unique circumstances. In E.P. v. Hogreve, a 2018 case from the District Court of Appeal of Florida, Fifth District, the court explained that there can be a formal signed agreement – often called a retainer agreement – establishing the attorney-client relationship. But to have that relationship, a retainer is not required nor must there be agreement about payment of legal fees.

Without a retainer agreement, the test for an attorney-client relationship is “subjective.” The client must have reasonably thought their consultation with the lawyer was in that capacity and the client must have intentionally sought legal advice. In E.P., the court said that the plaintiffs had “sufficiently alleged an ongoing attorney-client relationship.” Some of the factors they alleged included:

  • Lawyer described the plaintiffs and himself as “we” or “us” and referred to “our case.”
  • Lawyer gave legal advice and discussed the court proceedings, filings and strategy with the plaintiffs.
  • He asked plaintiffs if they would want to appeal.
  • Lawyer emailed plaintiffs about “confidentiality issues” and declined to copy others on emails.
  • He sent bills in which he called them clients.
  • He prepared for them a legal opinion letter.

An exception for later consideration

There is a narrow exception to the first element of legal malpractice requiring the attorney-client relationship. Sometimes, if a person is an intended third-party beneficiary of the attorney’s services for someone else who is the client, that third party may be able to sue for malpractice. We will talk about this concept in a future post.

(E.P. v. Hogreve is available on Westlaw at 259 So.3d 1007.)