When an attorney fails to adhere to their duty of care to their client and the lack of proper care in the delivery of legal services negligently harms the client, counsel has committed legal malpractice. The client may file a lawsuit for malpractice against their former lawyer seeking money damages for compensation.
Nature of the lawyer’s duty of care
An attorney must deliver legal services using a duty of care that is reasonable, average or ordinary for the legal matter for which they were retained. The representation does not have to be stellar, just professionally acceptable. A caveat is that the “average” duty of care may seem elevated in a case where a lawyer provides complex, high level or niche services. For example, in an intricate bankruptcy or patent matter, the lawyer’s duty of care is that of an ordinary lawyer who handles high-level bankruptcy or intellectual property matters.
Establishing the proper duty of care through an expert witness
In the malpractice suit, the plaintiff (client harmed in original legal matter through alleged malpractice of the former lawyer) must establish the scope and nature of the previous lawyer’s duty of care. A judge or jury cannot assess whether a breach of the duty of care occurred unless evidence clarifies the parameters of that duty.
The malpractice lawyer may retain a legal expert to help develop the case. The expert can review the previous representation in light of the correct duty of care and assist the malpractice attorney in understanding the scope of reasonable care under the circumstances.
In almost all Florida attorney negligence trials, evidence of the standard of care that bound former legal counsel is introduced through testimony (or written report) of an expert witness. Acceptable legal experts may include practicing or retired lawyers, retired judges, or law professors. The expert should have specific training, experience or knowledge of the area of practice at issue or of the actions alleged to have been negligent. Florida allows an exception to the need for expert testimony if the standard of care is obvious to the layperson.
Daubert and legal expert testimony
A federal district court in Tampa issued an opinion in 2023 about expert testimony in a legal malpractice lawsuit. (The case is unpublished at the time of this Dec. 2023 writing.) The suit alleged that an attorney retained to provide regulatory compliance advice to a cryptocurrency startup had failed to provide adequate guidance and oversight of accounting and banking issues. The situation culminated with the discovery that a founder had allegedly committed securities fraud, causing the winding down of the business.
Another owner became the business liquidator and on behalf of himself and one of the legal entities involved sued the attorney for malpractice. The plaintiff and attorney defendant each submitted the testimony of their own legal experts on the duty of care.
Both parties asked the court to exclude from consideration the other’s expert opinions based on the Daubert standard. Daubert was a monumental U.S. Supreme Court case that requires strict standards for experts testifying about scientific matters. Daubert is now incorporated into federal court rules and Florida statute and applies far beyond just the initial scientific expert, including to legal experts.
Just calling someone an expert does not make them so and Daubert makes gives the court a “gatekeeping function” through application of a three-part test to an expert:
- Qualifications: Is the person qualified to competently express an expert opinion on the duty of care?
- Reliability: Does the person use reliable methodology?
- Helpfulness: Does the expert opinion assist the judge or jury because it clarifies matters most people do not understand?
Anyone considering a legal malpractice suit will likely collaborate with an expert to establish their former lawyer’s duty of care. In a more complex situation, a malpractice claim may arise (again) if the lawyer bringing a malpractice case fails to properly locate a qualified expert under Daubert to establish the standard of care and that causes harm to the client.
(The case discussed above is Vyas for and on behalf of Q3 I, L.P. v. Polsinelli PC, available on Westlaw at 2023 WL 4305229. Daubert v. Merrell Dow Pharmaceuticals, Inc. is available on Westlaw at 509 U.S.579.)