100 years + of collective legal malpractice experience

A lawyer can commit malpractice even when a case settles

by | Dec 19, 2020 | Legal Malpractice |

People may assume that an attorney negligence claim can arise only when a judge or jury decides a case in a way that harms the client because the lawyer failed to exercise their professional duty of care in the process of the lawsuit. However, there are other circumstances in which legal counsel may be negligent in their representation and harm clients, such as in the voluntary settlement of a suit.

Illustration of potential malpractice in a divorce settlement

In Miller v. Finizio & Finizio, P.A., the Fourth District Court of Appeal explained that Florida courts like those in most other jurisdictions recognize that just because a client agreed to a settlement does not preclude a legal malpractice claim in the matter.

Marital settlement agreement signed before disclosure of important financial information

In Miller, the plaintiff had signed a marital settlement agreement to conclude divorce proceedings. She alleged that her lawyer had not obtained necessary financial disclosures from her spouse before she signed, and that the attorney told her she could sign the agreement and they would seek the disclosures and division of marital property later. The client asserted that her lawyer had breached their duty of care to her, causing her to sign a “highly disadvantageous agreement” that the court then incorporated into the order for divorce.

Examples of potential lawyer negligence in the context of settlement

To recover damages from legal malpractice in a settlement, the client must show that they would have recovered money but for their counsel’s negligence. The opinion discusses ways an attorney may breach their reasonable duty of care toward the client resulting in client losses in the context of settlement negotiations:

  • The lawyer did not adequately prepare and may have entered negotiations without all the facts and evidence or before having thoroughly researched applicable law.
  • The attorney may have negligently evaluated the strengths and weaknesses of the case going into negotiations.
  • Legal counsel could have failed to use ordinary skills and care in “resolving settlement issues.”
  • The client may have relied on the lawyer’s “erroneous legal advice” in evaluating the settlement terms.


While Miller involved divorce, similar analysis would apply in other kinds of disputes that could settle such as those involving medical malpractice, personal injury, real estate transactions, motor vehicle accidents, estate planning or probate, aviation accidents and others.