Florida Legal Malpractice Intro
The term "legal malpractice" encompasses a wide variety of misconduct on the part of an attorney which causes harm to a client; however, the legal definition is essentially a breach of duty by an attorney which causes damage to a client. In Florida, there are several common issues that arise when handling legal malpractice cases. This post will discuss the common questions of what exactly is legal malpractice, and why having the proper understanding of the statute of limitations as it pertains to a legal malpractice case is crucial for both the client and the attorney. When a client makes the decision to hire an attorney, they are entitled to rely on the attorney for competent representation, which means that the attorney should competently represent their client as well as competently make decisions on behalf of the client. Additionally, the attorney is prohibited from taking actions and making decisions that are harmful or detrimental to the client. The attorney must make decisions that a reasonably competent practitioner would make, taking into account all relevant circumstances. The attorney must also act fairly, honestly and in good faith when representing their client. However , the attorney-client relationship does not guarantee success. While a client may be unhappy with the outcome of their case, that does not automatically qualify as legal malpractice. A determination of whether or not there is legal malpractice is based on a case by case analysis of whether the attorney’s actions or inactions were reasonable, not whether or not the client is unhappy with the outcome of their case. It is important to understand that legal malpractice doesn’t necessarily mean that the attorney acted in a nefarious manner or engaged in intentional misconduct. Legal malpractice can occur due to honest mistakes or even simple negligence. The statute of limitations is the time limit for bringing a lawsuit. The statute of limitations for legal malpractice in Florida is two years from when the client discovered the malpractice, or from when they should have or could have discovered the malpractice. The two-year time limit does not mean that you are completely barred from bringing the claim after two years; if the legal malpractice was not known, or if it would not have been known to a reasonably competent attorney in the same or similar circumstances, than the statute of limitations does not apply.
What is a statute of limitations?
The "statute of limitations" is a phrase that sets a specific time for legal action. The clock starts the minute the alleged offense occurs. Typically, it means you can sue for compensation from a defendant within that fixed time period. This means that after the time period is over, the defendant can’t be sued for that particular offense even if he or she is at fault. Similarly, the plaintiff is unable to get compensation after the statute of limitations is over.
But, why does this particular limitation exist? The purpose of this is to ensure these cases are fairly recent and you have sufficient evidence to back your allegations. When years go by, witnesses can disappear and evidence like destroyed emails can disappear. That’s why time is of the essence.
For example, if you think your lawyer committed legal malpractice, you should try to file a lawsuit quickly after you realize something is wrong. For Florida, the statute of limitations for legal malpractice is two years. A very important exception to this rule is if you could not have known about the loss or damage until years later. In that case, the statute of limitations may not run until the date of discovery of the malpractice. Therefore, attorneys who act deceptively and fail to inform their clients of mistakes, may successfully argue the statute of limitations has not yet run.
Florida attorneys may also be subject to a "no fault" statute of limitations; this means the client cannot make a claim against them unless they prove that the attorney’s conduct was deliberate.
Time Limits for Legal Malpractice Claims Against Florida Lawyers
When it comes to "legal malpractice," Florida has a bright-line statute of limitations, with many twists and turns. "Legal malpractice" encompasses many aspects of "malpractice by attorneys," or in more modern terms "professional negligence" by lawyers. The law in Florida provides that the statute of limitations for a legal malpractice claim is two years from the date the plaintiff knew or should have known of the negligence. However, that statute provides many nuances that make it tricky for even the most learned attorneys. For instance, in Horwitz v. hello-prod, Inc., 2011 WL 4832869 (Fla. 4th DCA Oct. 12, 2011) the Court noted that, "[t]he question of when the statute of limitations begins to run on a legal malpractice claim is a question of law to be determined by the court." A malpractice claim accrues only when both "the resulting damage is apparent and is ascertainable through the use of reasonable diligence." Gibbons v. Holt, 983 So.2d 752, 757 (Fla. 2d DCA 2008). The two-year statute of limitations for attorney malpractice "is based upon the existence of injury, not the contemplation of damages flowing from that injury." Cornwall v. FloridaVet, Inc., 915 So.2d 1280, 1282 (Fla. 5th DCA 2005) (citation omitted). Thus, even though a party may incur incidental costs and expenses in an attempt to mitigate his damages, the statute of limitations does not commence until damage occurs. Id. Incidental costs and expenses associated with the legal malpractice itself are not sufficient to establish that damage has occurred. See City of Jacksonville v. McIntyre, 820 So.2d 377, 382 (Fla. 1st DCA 2002) (holding that the question of whether an attorney malpractice lawsuit was untimely due to the statute of limitations was better suited for summary judgment rather than trial, even though the plaintiff suffered some damage when it incurred expenses associated with incompetent representation). The statute of limitations barring legal malpractice actions is not triggered until the attorney’s representation of the client has come to an end. See City of Jacksonville, 820 So.2d at 382.
Factors Impacting the Statute of Limitations
A few factors that could affect the statute of limitations for legal malpractice in Florida:
Discovery Rule
The discovery rule is common in Florida and many other states. Under the discovery rule, a statute of limitations will begin to run when the plaintiff discovers, or should have discovered, the fact(s) that form the basis of the legal malpractice claim. In Florida, the discovery rule applies to legal malpractice claims.
Continuous Representation
In Florida, the continuous representation doctrine will toll (stop) the applicable statute of limitations until the attorney has completed the representation giving rise to the action for legal malpractice. In these cases, the statute of limitations will only start to run after the end of the continuous representation. The continuous representation doctrine applies in any legal malpractice matter for which the plaintiff has established an ongoing attorney-client relationship with the defendant attorney(s).
Tolling Agreements
Tolling simply means an agreement between the parties to stop the statute of limitations from running for a certain period of time to allow for further negotiations or to exhaust non-litigation alternatives. The parties will agree to toll a statute of limitations for various time periods. These agreements may require that the attorneys do not file a complaint during the tolling period. These agreements are usually only negotiated after a lawsuit has been threatened or filed.
Failing to Meet the Time Limit for Legal Malpractice
Failure to file a lawsuit within the legal malpractice statute of limitations has dire consequences. Will the dismissal of your case be with prejudice? Is the time you still have left to solve the problem too short to remedy? More importantly, is there any way for the client to recover? Most commonly, a Court will dismiss the case with prejudice and end the litigation. Dismissal with prejudice means the case cannot be brought again. The client must then seek to resolve the problem with the lawyer, on their own. In some instances, the court can choose to dismiss with leave to amend, meaning the case can be brought back to life.
More problematic than dismissal of the underlying case is the gatekeeper role the court may exercise. Typically, bars to claims are not available or recognized in malpractice claims, because, as the Florida Supreme Court noted in George v. Lee , "in legal malpractice cases there is no need for a certificate of merit: the plaintiff will always have the right to use expert testimony." The focus has been on each ‘side’ of the case. In an underlying case, the plaintiff needs to use his or her best experts, along with a good analysis of the law, to get the case to a jury. In a legal malpractice case, the plaintiff has to prove that: 1) the underlying case was meritorious; 2) the underlying defendant acted wrongfully; 3) they lost because of the negligence; 4) damages; 5) a bad faith insurer’s refusal to settle; and 6) that the insurer should not have prevailed in the underlying case. If the defendant can win on any one of these factors, they probably win the whole case.
Sometimes the underlying case is a matter relating to a child custody or visitation matter. Other times it is a burning loan provision. No matter what type of case, Florida lawyers need to be aware of the ramifications.
Steps to Take When You Suspect an Attorney’s Malpractice
As soon as you suspect that your attorney has made some error, do these 3 things:
- Evaluate the Damage by consulting with a Florida lawyer who is experienced in both legal malpractice and the substantive area of law you are concerned about. Keep in mind that while there is no harm in simply taking in a few opinions, we have seen numerous cases where the plaintiff consulted with over 15 different attorneys. In most of these instances, this caused more damage than good.
- See if you can resolve the issues amicably with your attorney. Many times, lawyers have not communicated with their client or have just had a really bad month. Meet with your attorney to go over what went wrong and to give the attorney an opportunity to fix any problems. Remember that most attorneys want to make things work with their clients and will also appreciate your willingness to cooperate with them in resolving the issue.
- If the problem cannot be resolved with your lawyer, then evaluate whether your case can be pursued with a Florida legal malpractice claim. Keep in mind that the statute of limitations for a legal malpractice action is relatively short so if you are contemplating such a case you should consult an experienced Florida legal malpractice attorney right away.
Protecting Against Malpractice – What to do in practice
Attorneys can take a variety of preventative measures that help ensure that they are operating in compliance with the Florida statute of limitations. Some of their options include implementing best practices and maintaining an organized office space to avoid alleged missed deadlines. For example, attorneys can keep a calendar of critical dates and regularly share the calendar with their staff. Spaces on the calendar can be used to fill in all deadlines for a case. This information should be shared with all relevant staff members to ensure that every deadline is met and nothing is missed. As a final precaution, offices should always send deadlines and reminders to both clients and other attorneys involved in the case to promote efficient communication and provide an additional reminder about upcoming deadlines and/or missed deadlines. It may be useful to schedule reminders on client’s and/or opposing counsel’s calendars to alert them to their upcoming service deadlines so that no one is caught unprepared in the event of a missed deadline. Using these preventative best practices together can help to avoid legal malpractice suits down the line.
Conclusion: Pursuing Legal Malpractice Cases فنيا
In summary, the statute of limitations for bringing a legal malpractice claim in Florida is two years from the date of discovery of the malpractice—or the date the client should have discovered the malpractice—and five years from the date of the acts that gave rise to the legal malpractice claim . Regardless of the statute of limitations, there is an exception called "equitable tolling" for failure to disclose that can increase the time limitations for bringing your claim. The statute of limitations for legal malpractice claims is complicated and can differ in individual circumstances. Hence, it is important to seek professional legal representation so that the statute of limitations is properly interpreted and applied to your specific case.
Leave a Reply