Florida Legal Malpractice Law: Commentary and Forms
When the Florida Legislature reformed medical malpractice insurance law in 2003, many physicians and even some lawyers predicted that an increase in legal malpractice claims would result; the idea being that lawyers in Florida would turn on themselves. Whether such reforms are indeed responsible for an increase in legal malpractice claims is uncertain. What is certain, as Warren R. Trazenfeld and Robert M. Jarvis reflect in their book, Florida Legal Malpractice Law: Commentary and Forms (Full Court Press, $95), the chances that a lawyer will be sued for malpractice have increased considerably in recent years.
While every lawyer, regardless of experience or practice field, runs the risk of being sued, the law controlling legal malpractice claims is a subject about which many lawyers know very little. Moreover, although many works exist on this subject in other jurisdictions, as the authors observe, not much has been written specifically on legal malpractice in Florida. Florida Legal Malpractice Law attempts to fill this gap and addresses particularly attorney malpractice law in Florida. Written in a commonsense format that begins with the essential elements of a claim, and carries through on issues such as venue, defenses, and expert testimony, the book is comprehensive and well footnoted. Although the subjects of a legal malpractice claim may be as varied as the areas in which lawyers practice, the authors cover fundamental principles and describe steps that every lawyer should take to reduce exposure. Reducing exposure to civil liability also reduces the chances of a Bar complaint and, of course, generally enhances the attorney-client relationship.
Many aspects of legal malpractice law follow the more general doctrines of negligence. In Florida, however, attorney liability is nuanced in various areas. One of many examples the authors discuss is Florida’s more expansive rule in which an intended third-party beneficiary may assert a claim for professional negligence even though strict privity may be lacking. Other topic areas include the method of determining when the statute of limitations begins to run in Florida on transactional malpractice, the challenges of the “trial within a trial” standard of proving proximate causation in litigation based claims, and the often misunderstood area of how courts treat pre-petition legal malpractice claims in bankruptcy. The authors also address common ways to avoid the publicity of a lawsuit, and the possibility of a jury evaluating the lawyer’s conduct, through such considerations as including a provision in the engagement letter requiring legal malpractice claims be resolved through arbitration.
Beyond a summary of Florida law, the book also provides useful forms and sample documents, such as engagement letters, pleadings, and discovery requests. These forms are helpful, not only in suggesting how to draft a complaint, but also in suggesting the numerous affirmative defenses available in Florida. Given the frequently subjective nature of whether an attorney-client relationship exists in the first place, an issue of particular interest that the book treats is how to document when a lawyer declines representation.
Florida Legal Malpractice Law is a useful resource for malpractice litigators, for managing partners, and professional liability insurance carriers. This book is also recommended to all attorneys interested in learning more about their potential exposure to legal malpractice claims.