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Attorney’s duty of care relates to subject of representation agreement, part 2

by | Dec 1, 2020 | Duty of Care, Legal Malpractice |

Part 1 of this post introduced the concept within legal malpractice law of defining the lawyer’s duty of care to the client by the scope of the agreed-upon reason the client hired the attorney. For what problem, goal or service did the client seek the lawyer’s representation?

Broadly, the lawyer’s duty of care to the client is delineated by the scope of the legal services the client sought and the attorney agreed to provide.

Gray areas

Unfortunately, the scope of representation is not always cut and dried. A lawyer can become aware of legal issues that could impact the client that are tangential to or within the same legal issues within the representation or the same area of law. It is matters that fall into gray areas that can end up the subject of malpractice lawsuits and court opinions.

For example, in Maillard v. Dowdell, clients sued the lawyer who had represented them in a condo purchase. Before closing, the clients and their attorney learned of a condominium association lawsuit against the builders over repair of “minor cosmetic defects.” After taking possession, the clients discovered that the problems were not minor, but major structural defects, which the lawyer could have learned if he had investigated the condo association’s related lawsuit.

The attorney-client relationship was created so the lawyer could represent the clients in buying the condo. Did that representation include a duty to investigate a lawsuit concerning the quality of the buildings?

The District Court of Appeal of Florida, Third District, said no, explaining that the client in a legal malpractice suit must establish not only the attorney-client relationship, but also that “the relationship existed with respect to the acts or omissions upon which the malpractice claim is based.” The court concluded that the trial court was right when it dismissed the case for failure to state a valid claim.

The court viewed the scope of representation precisely and narrowly, saying that the buyers hired the attorney to represent them in the condominium purchase. Further, such representation usually consists of title investigation, document review, determination of title marketability and representation at closing – and the clients had not alleged any negligence in performing these duties. They did not claim they hired him to investigate the related lawsuit or the “structural soundness of the building,” said the court.

Reasonable minds can differ

The Chief Judge dissented in the Maillard case, saying that he would not have dismissed the legal malpractice claim. He believed a jury might have found that since the attorney knew of the lawsuit, he had the duty of reasonable care to look into the allegations of defective construction since it significantly affected the value of the real estate he was helping the clients to purchase.


The link between the scope of representation and the scope of the lawyer’s duty of care to the client may be clear, but it can be vague or difficult to discern. Anyone who is unsure about whether steps their lawyer failed to take should have been can seek the advice of a seasoned legal malpractice lawyer to understand potential legal remedies.

(Maillard v. Dowdell is available on Westlaw at 528 So.2d 512.)