We recently wrote about why an attorney’s duty of care to a client is limited by the scope of the agreed-to representation. As we explained, when a lawyer and client enter into an agreement that the attorney will represent the client for a particular purpose, legal counsel does not sign up to give legal representation on every potential legal matter that may arise while the attorney-client relationship exists.
For example, if a lawyer is employed to handle a doctor’s divorce, the attorney likely has no duty of care concerning a medical malpractice lawsuit against the physician, except possibly to the extent that the outcome of the medical malpractice case could impact the doctor’s bottom line and ability to pay (or need to receive) alimony or child support in the divorce action. But, the border between the primary representation and other legal matters that arise depends on each situation and can be a gray area.
The definition of the duty of care within the scope of representation must be determined. For the jury or judge to decide whether the lawyer breached their duty of care, the factfinder must know what the law expected under the circumstances.
Lawyer’s standard of care
Florida courts – and courts in other states – use certain words when describing the components of a lawyer’s duty of care to their client:
And, the law holds the lawyer in these aspects to the level or degree of an average or ordinary lawyer in similar circumstances, with the caveat that if the attorney holds themselves out as a specialist in a complex area of law, they will be held to that higher standard.
In most cases, in a legal malpractice lawsuit, the plaintiff must provide an expert witness to educate the jury and judge on what the reasonable standard of care the defendant-lawyer had at the time the client is now claiming was professionally negligent. Expert witnesses in this context could be attorneys, law professors or former judges.
Legal counsel with experience in lawyer negligence and legal malpractice can answer questions about the standard of care and whether another lawyer breached their duty to adhere to it.