PLEADINGS AND PRACTICE, PLLF FL-CLE 4-1

PLLF FL-CLE 4-1

The Florida Bar

2006
Professional Liability of Lawyers in Florida
Chapter 4

PLEADINGS AND PRACTICE

Daniel K. Bean [FNa1]

Current through the Fourth Edition 2006

Copyright © 1989, 1993, 1999, 2002, 2006 by The Florida Bar
I. [§ 4.1] INTRODUCTION

II. STATUTE OF LIMITATIONS

A. [§ 4.2] General Principles

B. [§ 4.3] Extension Of Statute Of Limitations When Recoupment Is Defense
III. [§ 4.4] ACCRUAL OF CAUSE OF ACTION

IV. PROPER PARTIES

A. Plaintiffs
1. [§ 4.5] Attorney-Client Relationship
2. [§ 4.6] Third-Party Beneficiaries
B. Defendants
1. [§ 4.7] Individual Liability
2. Vicarious Liability
a. [§ 4.8] Professional Association
b. [§ 4.9] Partnership
c. [§ 4.10] Estate Of Deceased Attorney
d. [§ 4.11] Delegating, Supervising, Consulting, And Referring Attorneys
e. [§ 4.12] Employees And Agents
V. [§ 4.13] JURISDICTION

VI. [§ 4.14] VENUE

VII. PLEADING ELEMENTS OF CAUSE OF ACTION

A. [§ 4.15] Negligence
B. [§ 4.16] Breach Of Contract
VIII. [§ 4.17] JURY OR NONJURY TRIAL

IX. [§ 4.18] ALTERNATIVE DISPUTE RESOLUTION

X. DEFENSES

A. [§ 4.19] In General
B. [§ 4.20] List Of Defenses

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PLEADINGS AND PRACTICE, PLLF FL-CLE 4-1

C. [§ 4.21] Comparative Negligence

XI. DISCOVERY

A. [§ 4.22] Attorney-Client Privilege

B. [§ 4.23] Court Orders In Underlying Case; Judge And Opposing Counsel As Witnesses
C. [§ 4.24] Tactical Considerations Of Deposing Plaintiff’s New Attorney
D. [§ 4.25] Other Considerations
XII. EXPERT WITNESSES

A. [§ 4.26] Local Or Out-Of-Town Experts

B. Standard Of Care
1. [§ 4.27] In General
2. [§ 4.28] Other Jurisdictions
3. [§ 4.29] Generalists Or Specialists
C. [§ 4.30] Other Considerations
XIII. [§ 4.31] SUMMARY JUDGMENT

XIV. [§ 4.32] BIFURCATION

XV. [§ 4.33] OFFERS OF JUDGMENT / PROPOSALS FOR SETTLEMENT

XVI. FORMS

A. [§ 4.34] Complaint For Breach Of Contract And Negligence

B. [§ 4.35] Answer, Defenses, And Affirmative Defenses
C. [§ 4.36] Motion For Change Of Venue
D. [§ 4.37] First Request For Production Of Documents
E. [§ 4.38] Request To Produce From Defendant To Plaintiff

I. [§ 4.1] INTRODUCTION
Litigating professional malpractice cases includes a variety of considerations not normally present in cases involving
ordinary negligence, breach of contract, and other claims. Attorneys representing clients in professional malpractice cases
will undoubtedly have their actions evaluated by either their disgruntled lay client, as the plaintiff, or by their attorney client,
as the defendant. Therefore, an attorney undertaking a professional malpractice case must be extremely careful not to create
an additional layer of professional liability issues. Furthermore, extra consideration should be given to reviewing strategic
decisions with the client so that the client is fully aware of each step taken and the rationale for any action or inaction.
This chapter focuses on certain specific and potentially confusing considerations confronting attorneys handling the pleading
and practice aspects of legal malpractice cases. It does not cover general pleading and practice requirements. For information
on those issues, see the applicable sections of FLORIDA CIVIL PRACTICE BEFORE TRIAL (Fla. Bar CLE 7th ed. 2004).
Furthermore, little consideration has been given to certain pleading and practice requirements under the Federal Rules of
Civil Procedure, the Florida Rules of Civil Procedure, the Florida Probate Rules, or other local rules of practice and
procedure promulgated for state and federal courts.
II. STATUTE OF LIMITATIONS
A. [§ 4.2] General Principles
The statute of limitations for a professional malpractice claim is generally two years. F.S. 95.11(4) provides in pertinent
part as follows:
(a) WITHIN TWO YEARS.—An action for professional malpractice, other than medical malpractice, whether founded on
contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should
have been discovered with the exercise of due diligence. However, the limitation of actions herein for professional
malpractice shall be limited to persons in privity with the professional.
Thus, an attorney’s liability for negligence is almost exclusively limited to clients with whom the attorney is in privity. In
Baskerville-Donovan Engineers, Inc. v. Pensacola Executive House Condominium Ass‘n, Inc., 581 So.2d 1301 (Fla.
1991), the Florida Supreme Court explained that, for lawsuits alleging professional malpractice, when privity between the
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parties exists, F.S. 95.11(4)(a) provides for a two-year limitations period. However, as discussed in § 4.6, there is a
limited exception for intended third-party beneficiaries. Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612
So.2d 1378 (Fla. 1993). In those limited instances the two-year statute of limitations is expanded, depending on the specific
cause of action. For example, causes of action alleging breach of contract are subject to the five-year limitations period under
F.S. 95.11(2)(b), and tort actions are controlled by the four-year limitations period under F.S. 95.11(3)(a).
It is important to note that, although Baskerville-Donovan did not involve a legal malpractice issue, the Florida Supreme
Court nevertheless did not attempt to otherwise distinguish it when citing it in Espinosa for the purpose of defining privity in
a professional malpractice claim. See Espinosa; see also Peat, Marwick, Mitchell & Co. v. Lane, 565 So.2d 1323, 1325
(Fla. 1990) (“the basic principles for all professional malpractice actions should be the same, absent a clear legislative intent
to distinguish certain professions in the application of the limitations period”).
When a client contracts directly with a law firm rather than with an individual attorney, privity nevertheless exists with the
individual attorney. See Moransais v. Heathman, 744 So.2d 973 (Fla. 1999) (professional negligence claim against
engineers; includes historical discussion of issue).
B. [§ 4.3] Extension Of Statute Of Limitations When Recoupment Is Defense
Even if the statute of limitations has expired, a malpractice allegation may still be revived as a defense against recoupment.
Kellogg v. Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., 807 So.2d 669 (Fla. 4th DCA 2001). Furthermore, a
“plea in recoupment may be used to obtain affirmative relief.” Allie v. Ionata, 503 So.2d 1237, 1239 (Fla. 1987) (having
filed complaint, plaintiff must be prepared to defend it against any affirmative defenses arising from it). The practitioner must
also consider whether the malpractice claim is a compulsory counterclaim under Fla.R.Civ.P. 1.170(a). “A counterclaim is
not compulsory if it does not ‘exist at the time the answer is served.”’ Kellogg, 807 So.2d at 672, citing TRAWICK,
FLORIDA PRACTICE AND PROCEDURE § 12-3 at 216 (2000 ed.).
Thus, an attorney who files a lawsuit for fees under a written contract may be exposed to a counterclaim for legal malpractice
even if the statute of limitations on the legal malpractice claim has technically expired. If the potential for a counterclaim for
malpractice exists, the attorney should seriously consider, from both a business and professional standpoint, whether a
lawsuit against the former client for the attorney’s fee is the proper course.
III. [§ 4.4] ACCRUAL OF CAUSE OF ACTION
Regardless of the applicable statute of limitations, perhaps the most difficult query in any legal malpractice case is: When did
the cause of action accrue? The Florida Supreme Court issued three decisions in 2001 in an attempt to clarify just that issue.
However, some ambiguity still remains, keeping the attorney’s strategic decision-making extremely challenging.
Before the three 2001 decisions were issued by the Supreme Court, Florida appellate courts routinely drew “a distinction
between those malpractice actions arising from transactional work and those arising from errors or mistakes committed
during the course of litigation.” Robbat v. Gordon, 771 So.2d 631, 634 (Fla. 4th DCA 2000). Peat, Marwick, Mitchell
& Co. v. Lane, 565 So.2d 1323 (Fla. 1990), was considered the seminal case for issues involving the statute of limitations in
transactional malpractice cases, and Silvestrone v. Edell, 721 So.2d 1173 (Fla. 1998), was considered the seminal case for
litigational malpractice cases. Id.
Peat, Marwick involved a claim for accounting malpractice. The plaintiffs were notified by the Internal Revenue Service of
deficiencies in their tax returns, which had been prepared by the defendant accounting firm. On March 17, 1981, the
accounting firm advised the plaintiffs that the deductions were proper and that they should challenge the ruling in tax court.
Ultimately the plaintiffs, on May 9, 1983, entered into a stipulation requiring them to pay a tax deficiency. On February 22,
1985, well beyond two years — the limitations period in legal malpractice cases — from the time the plaintiffs were initially
notified of a potential problem, the plaintiffs filed a lawsuit against the accounting firm. The Florida Supreme Court held that
the plaintiffs did not have an action for malpractice “until their tax court action was final.” Id. at 1326.
Silvestrone involved an attorney’s representation in an antitrust lawsuit. The jury returned a verdict in favor of the plaintiff on
February 27, 1990. During the next two years posttrial motions were filed, and a final judgment was entered on February 4,
1992. The malpractice claim was filed on January 19, 1993, which was beyond the two-year period from the date of the jury
verdict. The Supreme Court admitted that “[t]he law is not clear as to when the limitations period for legal malpractice in a
litigation-related context begins to run,” and attempted to clarify the issue by stating that
when a malpractice action is predicated on errors or omissions committed in the course of litigation, and that litigation

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proceeds to judgment, the statute of limitations does not commence to run until the litigation is concluded by final
judgment. To be specific, we hold that the statute of limitations does not commence to run until the final judgment
becomes final.
Id. at 1175. The court explained that a malpractice claim is hypothetical and that damages are speculative until the underlying
action is concluded, “[s]ince the trial court retains inherent authority to reconsider and, if deemed appropriate, alter or retract
any of its nonfinal rulings prior to entry of the final judgment.” Id. Also of note was that the court expressly distinguished its
earlier decision in Peat, Marwick from the issue in Silvestrone because Peat, Marwick “involve[d] transactional malpractice.”
Silvestrone, 721 So.2d at 1174 n.1.
In Gilbride, Heller & Brown, P.A. v. Watkins, 783 So.2d 224, 226 (Fla. 2001), a case involving alleged litigational
malpractice, the Florida Supreme Court unanimously held that “a final judgment is not final until a timely filed appeal to, or
petition for review by, the supreme court is resolved.” The court stated that its decision was “consistent with the purposes of
the bright-line rule announced in Silvestrone: to provide certainty and reduce litigation concerning when the statute starts to
run.” Id. at 226.
During the summer of 2001, the Supreme Court revisited the issue on three separate occasions in the span of 45 days. The
unanimity that existed in Gilbride in the spring of 2001 was short-lived. In Blumberg v. USAA Casualty Insurance Co.,
790 So.2d 1061, 1065 (Fla. 2001), the court considered a malpractice action against an insurance agent and concluded in part:
Consistent with Peat, Marwick, we hold that, in the circumstances presented here, a negligence/malpractice cause of action
accrues when the client incurs damages at the conclusion of the related or underlying judicial proceedings or, if there are
no related or underlying judicial proceedings, when the client’s right to sue in the related or underlying proceeding expires.
If a negligence/malpractice action is filed prior to the time that a client’s right to sue in the related or underlying judicial
proceeding has expired, or if a negligence/malpractice action is filed during the time that a related or underlying judicial
proceeding is ongoing, then the defense can move for an abatement or stay of the claim on the ground that the
negligence/malpractice action has not yet accrued. The moving party will have the burden of demonstrating that the related
or underlying judicial proceeding will determine whether damages were incurred which are causally related to the alleged
negligence/malpractice. [Footnotes omitted]
Former Chief Justice Harding, writing for a 4-3 majority, explained that a rule mandating “simultaneous suits would hinder
the defense of the underlying claim and prematurely disrupt an otherwise harmonious business relationship.” Id. Justice
Pariente, joined by Justices Shaw and Anstead, dissented, reasoning that a negligence claim against an insurance agent
“accrues when the insurer denies coverage and the insured has reason to know that coverage does not exist.” Id. at 1068. The
dissent also noted that, under the majority view, a potential plaintiff would be placed in the untenable position of having to
argue inconsistent positions in separate and unrelated lawsuits.
In Perez-Abreu, Zamora & De La Fe, P.A. v. Taracido, 790 So.2d 1051 (Fla. 2001), issued on the same day as Blumberg and
also authored by former Chief Justice Harding, the court receded from its earlier decision in Edwards v. Ford, 279 So.2d
851 (Fla. 1973), in which it had held that the statute of limitations began to run when the negligence became known to the
plaintiff. Perez-Abreu involved allegations of an attorney’s negligence in drafting stock purchase agreements. In holding that
the outcome of Perez-Abreu, a transactional malpractice case, was controlled by Blumberg, another transactional malpractice
case, the court enumerated the reasoning behind its decision in the instant case as well as the others that it had resolved in the
past, including litigational malpractice cases:
Moreover this Court’s decisions in Peat, Marwick, ... Silvestrone ..., and Blumberg were intended to: (1) provide certainty
and reduce litigation over when the statute starts to run and (2) prevent clients from having to take directly contrary
positions in the two actions.
Perez-Abreu, 790 So.2d at 1054. The court dismissed the common argument that the limitations period commences when the
client is “assessed attorneys’ fees to defend the related or underlying judicial proceeding.” Id. Specifically, the court stated
that “in some circumstances the related or underlying judicial proceeding may have a bearing on such damages, as the
possibility exists that if the clients prevail, the clients can collect the attorney’s fees from the losing party pursuant to a
statutory or contractual provision.” Id.
Also in 2001, the Florida Supreme Court addressed a legal malpractice statute of limitations issue in Fremont Indemnity Co.
v. Carey, Dwyer, Eckhart, Mason & Spring, P.A., 796 So.2d 504 (Fla. 2001). In answering a certified question from the
United States Court of Appeals for the Eleventh Circuit, the court determined that “the statute of limitations began to run ...
when the underlying litigation was final.” Id. at 507. The court noted that, because the alleged negligence evolved from the
handling of litigation, it was controlled by Silvestrone. In addition to reaffirming its rationale in Perez-Abreu, the court
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stated:
[T]he present case is a classic example of why redressable harm cannot be determined until the conclusion of the litigation.
Carey, Dwyer alleges that Fremont had to pay attorney’s fees and costs to defend a lawsuit that it otherwise could have
settled. The settlement would have cost Fremont two million dollars. As Fremont points out in its brief, prior to the
conclusion of the litigation, there was the potential of a lower settlement or judgment. Hence, even including the additional
costs and fees, the possibility existed that Fremont would not suffer any redressable harm.
Fremont, 796 So.2d at 506.
Former Chief Justice Wells, in his dissent, stated his belief that the majority had incorrectly applied Silvestrone. He
contended that the damages in Silvestrone were not fixed until the final disposition of postjudgment motions and appeals,
whereas in Fremont, nothing in the underlying litigation would eliminate the additional costs Fremont had to expend after the
law firm’s alleged failure to communicate the settlement offer. In Chief Justice Wells’ view, “some damages were
proximately caused by the alleged malpractice of Carey, Dwyer, and the statute of limitations began to run from the date the
failure to communicate the settlement demand was learned by Fremont.” Id. at 510. Chief Justice Wells reminded the
majority that damages are an essential element of a negligence claim, and that, for statute of limitation purposes, a cause of
action accrues when “the last element constituting the cause of action occurs.” Id. at 507, citing Prosser, LAW OF TORTS, §
30 at 143 (4th ed. 1971). The majority’s response to the dissent would probably be that until the conclusion of the litigation,
the possibility existed that Fremont would not suffer any redressable harm. Thus, the last element — damages — had not yet
occurred, and the clock had not started. The dissent also does not explain how its position would affect earlier Florida
Supreme Court decisions that were designed to both provide some certainty as to when the statute commences, and prevent
clients from having to take directly contrary positions in the two actions. See Peat, Marwick; Silvestrone; Blumberg.
In summary, the status of Florida appellate case law on this issue is a bit clearer after the Florida Supreme Court decisions
during the summer of 2001. However, some ambiguous areas continue to exist. Specifically, in litigational malpractice cases,
the Silvestrone standard still applies. In other words, “the statute of limitations does not commence to run until the litigation
is concluded by final judgment.” Fremont, 796 So.2d at 506. Conversely, in transactional malpractice cases, a malpractice
cause of action accrues when a client “incurs damages at the conclusion of the related or underlying judicial proceedings or,
if there are no related or underlying judicial proceedings, when the client’s right to sue in the related or underlying
proceeding expires.” Blumberg, 790 So.2d at 1065. Upon comparison, the two standards are not very different. They both
achieve the expressly intended goals of providing certainty and reducing litigation as to when the statute commences to run,
and preventing clients from having to take directly contrary positions in two lawsuits. Furthermore, it is interesting to note
that, although the Florida Supreme Court decisions continue to categorize malpractice cases as either transactional or
litigational, cases from both categories are cited interchangeably. However, despite the apparent procession toward one
uniform standard, the prudent practitioner will not unnecessarily delay the filing of a professional malpractice claim. The
strong dissents in Blumberg and Fremont indicate that the status of the law is not entirely settled. Furthermore, as the court
noted in Blumberg, if a claim is filed prematurely, the defense can move for an abatement or stay of the claim.
For a discussion of accrual in a criminal context, see Steele v. Kehoe, 747 So.2d 931, 933 (Fla. 1999), holding that
a convicted criminal defendant must obtain appellate or postconviction relief as a precondition to maintaining a legal
malpractice action. We also hold that the statute of limitations on the malpractice action has not commenced until the
defendant has obtained final appellate or post-conviction relief.
See also Schreiber v. Rowe, 814 So.2d 396 (Fla. 2002), the most recent decision by the Florida Supreme Court regarding
legal malpractice statute of limitations issues. The court in Schreiber reaffirmed Steele, declining to extend the doctrine of
judicial immunity to public defenders, and stating that a criminal defendant/plaintiff must provide evidence of actual
innocence.
IV. PROPER PARTIES
A. Plaintiffs
1. [§ 4.5] Attorney-Client Relationship
As noted in § 4.2, usually the only proper plaintiff in a legal malpractice case is a party who has a direct contractual
relationship with the attorney; i.e., the individual who employed the attorney. Espinosa v. Sparber, Shevin, Shapo, Rosen
& Heilbronner, 612 So.2d 1378 (Fla. 1993); Kyle v. McFadden, 443 So.2d 497 (Fla. 1st DCA 1984); Drawdy v. Sapp, 365
So.2d 461 (Fla. 1st DCA 1978); Weiner v. Moreno, 271 So.2d 217 (Fla. 3d DCA 1973). Prior employment on unrelated
matters is not sufficient to establish an attorney-client relationship. Ginsberg v. Chastain, 501 So.2d 27 (Fla. 3d DCA 1987).

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The existence of an attorney-client relationship as to the matter in question must be specifically pled. The exact services to be
performed, however, may be implicit in the relationship, and a cause of action will not be dismissed for failure to allege the
specific services that the lawyer agreed to render. See Kartikes v. Demos, 214 So.2d 86 (Fla. 3d DCA 1968).
2. [§ 4.6] Third-Party Beneficiaries
Florida appellate courts have recognized an exception to the direct privity requirement. In Espinosa v. Sparber, Shevin,
Shapo, Rosen & Heilbronner, 612 So.2d 1378 (Fla. 1993), the Supreme Court held that, to initiate a legal malpractice action,
a plaintiff must either (1) be in privity with the attorney or (2) be an intended third-party beneficiary. With regard to will
drafting, “a limited exception to the strict privity requirement has been allowed where it can be demonstrated that the
apparent intent of the client in engaging the services of the lawyer was to benefit a third party.” Id. at 1380. See also Moss
v. Zafiris, Inc., 524 So.2d 1010 (Fla. 1988); Angel, Cohen & Rogovin v. Oberon Investment, N.V., 512 So.2d 192 (Fla.
1987); Babcock v. Malone, 760 So.2d 1056 (Fla. 4th DCA 2000).
The appellate courts have elaborated on this exception as well. The District Court of Appeal, Second District, explained that
intended third-party beneficiaries have standing to initiate an action for legal malpractice if they can properly allege “that the
testator’s intent as expressed in the will is frustrated by the negligence of the testator’s attorney.” Passell v. Watts, 794
So.2d 651, 652 (Fla. 2d DCA 2001), quoting Espinosa, 612 So.2d at 1380. Expanding the exception beyond the
estate-planning venue, the District Court of Appeal, Third District, in Hickey v. Dunn & Corey, 761 So.2d 1245 (Fla. 3d
DCA 2000), permitted a member of a prepaid legal plan to amend his complaint to allege that he was not in direct privity
with the attorneys. The amendment had the effect of removing the complaint from the two-year statute of limitations period
to the four-year period.
The privity exception is not infinite, as noted by the Florida Supreme Court in Moss and Angel, Cohen & Rogovin. Similarly,
in Amey, Inc. v. Henderson, Franklin, Starnes & Holt, P.A., 367 So.2d 633 (Fla. 2d DCA 1979), the appellate court was
unwilling to hold that a purchaser of real property was an intended third-party beneficiary of a contract between a financial
institution and a law firm. The court highlighted a recurring concern in this type of case, which involved a two-sided
transaction rather than a one-sided transaction such as drafting a will. A decision in favor of the purchaser would place an
attorney in the “untenable position” of having to take action that is adverse to the party to whom the attorney owes a duty.
Id. at 635. See also Assad v. Mendell, 511 So.2d 682 (Fla. 3d DCA 1987). That theme was reaffirmed by the District
Court of Appeal, First District, in Silver Dunes Condominium of Destin, Inc. v. Beggs & Lane, 763 So.2d 1274 (Fla. 1st DCA
2000), in which it concluded that individual condominium unit owners were not the intended third-party beneficiaries of a
contract between the condominium association and its attorney. See also McCarty v. Browning, 797 So.2d 30 (Fla. 3d
DCA 2001).
Aside from the claims for breach of contract and negligence, under certain circumstances nonclients may have claims for
certain intentional torts and violations of certain federal and state statutes, as well as under additional theories covered in
Chapter 1 of this manual. Although the erosion of the privity doctrine is prevalent in other areas of tort law, the decision in
Angel, Cohen & Rogovin should severely limit a nonclient’s ability to sustain a cause of action against an attorney. See also §
3.9 of this manual.
B. Defendants
1. [§ 4.7] Individual Liability
The attorney retained by the client, as well as the individuals who performed or supervised the performance of services for
the client, are generally proper party defendants. Unless the scope of the representation is limited, an attorney who undertakes
to perform services for the client has a duty to perform “in such manner as ‘lawyers of ordinary skill and capacity commonly
possess and exercise.”’ McAbee v. Edwards, 340 So.2d 1167, 1170 (Fla. 4th DCA 1976), quoting from Heyer v.
Flaig, 449 P.2d 161, 165 (Cal. 1969), disapproved on other grounds 828 P.2d 961.
2. Vicarious Liability
a. [§ 4.8] Professional Association
A professional association, professional corporation, or limited liability company is a proper party defendant when either the
client retained one of those entities or the attorney or attorneys alleged to be negligent were employed by the entity. See F.S.
621.07; Moransais v. Heathman, 744 So.2d 973 (Fla. 1999). General corporate law as well as the Rules Regulating The
Florida Bar should be consulted for liability of an entity for the negligence and intentional acts of its employees and agents.

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b. [§ 4.9] Partnership
Florida has adopted the Revised Uniform Partnership Act of 1995, F.S. 620.81001-620.9902. Because, “all partners are liable
jointly and severally for all obligations of the partnership unless otherwise agreed by a claimant or provided by law,” F.S.
620.8306(1), each individual partner is a proper defendant if the lawyer alleged to be negligent is a member of the
partnership, Smyrna Developers, Inc. v. Bornstein, 177 So.2d 16 (Fla. 2d DCA 1965). See also Riccio v. Stein, 559 So.2d
1207 (Fla. 3d DCA 1990). However, a person who joins an existing partnership is not personally liable for any partnership
obligation incurred before that person joined the partnership. F.S. 620.8306(2). The determination of when an obligation is
incurred differs for a tort and a breach of contract. See Uniform Partnership Act § 306 cmt. 3. For an analysis of liability of a
departed partner, see Burnside v. McCrary, 384 So.2d 1292 (Fla. 3d DCA 1980). A partner in a registered limited liability
partnership is not individually liable for the negligence of other partners. F.S. 620.8306(3).
c. [§ 4.10] Estate Of Deceased Attorney
Legal malpractice actions may be instituted against the estate of the deceased attorney. The requirements for timely filing the
claim with the personal representative of the estate apply to legal malpractice claims. See Browder v. Da Costa, 91 Fla. 1,
109 So. 448 (1926).
d. [§ 4.11] Delegating, Supervising, Consulting, And Referring Attorneys
With increased legal complexities and the age of specialization, attorneys routinely delegate legal matters to other attorneys
within the firm, consult with attorneys within and outside the firm, and refer matters to other lawyers more skilled or
experienced in specialized areas. There are no legal or ethical prohibitions concerning delegating or consulting within an
attorney’s own firm, because the retention of an attorney in a firm is considered to be retention of the entire firm.
The association of outside counsel, however, must be with the client’s consent. Although the referring counsel generally will
not be held vicariously liable for the negligence of the referred counsel, Christensen, O’Connor, Garrison & Havelka v.
State, Dept. of Revenue, 649 P.2d 839 (Wash. 1982), a referral to unqualified counsel may subject the referring lawyer to
liability for negligent referral, Tormo v. Yormark, 398 F.Supp. 1159 (D. N.J. 1975). See also Miller v. Metzinger, 154
Cal.Rptr. 22 (Ct.App. 1979); § 3.71 of this manual.
e. [§ 4.12] Employees And Agents
Attorneys and law firms are liable for the negligence of their employees. An attorney may also be liable for agents
independently retained by the attorney. Noble v. Sears, Roebuck & Co., 109 Cal.Rptr. 269 (Ct.App. 1973), 73 A.L.R.3d
1164. Generally, however, an attorney is not liable for errors committed by clerks of the court, In re Hegarty’s Estate,
222 P. 793 (Nev. 1924), negligence of a sheriff carrying out a writ of execution, Enterline v. Miller, 27 Pa.Super. 463
(Super.Ct. 1905), or errors of an independent process server, Bockian v. Esanu Katsky Korins & Siger, 476 N.Y.S.2d
1009 (Sup.Ct. 1984).
V. [§ 4.13] JURISDICTION
Florida courts have jurisdiction over all lawyers doing business or practicing law within the state, whether licensed to
practice in the state or not. Out-of-state lawyers who perform professional services in the state or whose services result in
damages in the state may be subject to the jurisdiction of the Florida courts under “doing business” and “long arm” statutes.
See Meyers v. Smith, 460 F.Supp. 621 (D. D.C. 1978). Conversely, a New York court declined jurisdiction in a situation in
which the only contacts by Florida lawyers in New York were by mail and telephone and all interested parties and the escrow
funds involved in the dispute were in Florida. Barcelona Hotel, Ltd. v. Mahoney Hadlow & Adams, 440 N.Y.S.2d 660
(App.Div. 1981).
VI. [§ 4.14] VENUE
The selection of venue is of strategic importance for plaintiffs and defendants. Generally, the plaintiff will opt for venue in
the plaintiff’s geographic area, particularly if the defendant attorney is from out of town. In this manner, the plaintiff may be
in a better position to obtain local attorneys to testify against the out-of-town attorney.
Conversely, defendant attorneys generally prefer to defend litigation in their hometown, particularly if they enjoy a positive
reputation in the community. Defendant attorneys are generally in a better position than the plaintiff client to retain the best
available experts. When the allegations against an attorney relate to fraud or unethical conduct, however, some attorneys
prefer to fight such charges outside the community for public relations reasons.
Under F.S. 47.011, venue is proper “in the county where the defendant resides, where the cause of action accrued, or where
the property in litigation is located.” Generally, the location of the accrual of the cause of action is the central argument in
attorney malpractice venue disputes. The out-of-town defendant attorney usually argues that the negligence and damage to
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the client occurred in the attorney’s office, where the attorney allegedly acted, or omitted to act, in a negligent manner. The
often-cited opinion for this proposition is Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA 1975), in
which the appellate court held that the cause of action in a medical malpractice case accrued in Flagler County, where the
alleged negligence occurred, rather than in Orange County, where the patient died.
Another appellate court distinguished the Gaboury decision in Tucker v. Fianson, 484 So.2d 1370 (Fla. 3d DCA 1986), an
action involving allegations of negligent professional advice and services surrounding a condominium conversion of a
building in Dade County. The attorney, who practiced and resided in Broward County, asserted that the alleged negligence
took place in Broward County. The court rejected the attorney’s argument, holding that the “last event necessary to make the
defendant liable for the tort” took place in Dade County, where the asserted negligence affected the client’s economic
interests. Id. at 1371. Consequently, the court found that venue was proper in Dade County. Although in Tucker the last
element of the cause of action (i.e., damages) accrued in a county other than that where the alleged negligence occurred, there
are numerous situations in which all or some of the damages occur in the county where the act or omission took place. In
such cases, Gaboury should control in the determination of venue.
In Weiner v. Prudential Mortgage Investors, Inc., 557 So.2d 912 (Fla. 3d DCA 1990), the court held that venue in a breach of
contract action is proper in the county where the services were to be performed, and venue in a legal malpractice claim is
proper in the county where the attorney’s alleged negligence had its impact and caused damage.
In Wincor v. Cedars HealthCare Group, Ltd., 695 So.2d 924 (Fla. 4th DCA 1997), the appellate court reiterated that the
plaintiff has the right to select the venue, if it is one of the statutory alternatives. See F.S. 47.011. To change venue, the
defendant must establish that the selected venue is improper. The court in Wincor emphasized, however, that its opinion did
not take into consideration the impact of F.S. 47.122, which authorizes a change of venue “[f]or the convenience of the
parties or witnesses or in the interest of justice.” Wincor, 695 So.2d at 926.
Finally, in Bacardi v. Lindzon, 845 So.2d 33 (Fla. 2002), the Florida Supreme Court revisited the forum non conveniens
doctrine set forth in Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla. 1996). The court answered in
the negative the following certified question: “DOES THE TRIAL COURT ABUSE ITS DISCRETION IF IT DISMISSES
AN ACTION ON FORUM NON CONVENIENS GROUNDS UNDER KINNEY SYS., INC. v. CONTINENTAL INS.
CO., 674 So.2d 86 (Fla.1996), WHEN DISMISSAL REQUIRES THE PLAINTIFF TO REFILE THE CLAIMS IN MORE
THAN ONE ALTERNATIVE JURISDICTION?”
VII. PLEADING ELEMENTS OF CAUSE OF ACTION
A. [§ 4.15] Negligence
It is fundamental in Florida that, in a lawsuit against an attorney for negligence, the plaintiff must allege “(1) that the
defendant attorney was employed by the plaintiff; (2) that the defendant attorney neglected a reasonable duty owed to the
plaintiff; and (3) that such negligence was the proximate cause of loss to the plaintiff.” Olmsted v. Emmanuel, 783 So.2d
1122, 1125 (Fla. 1st DCA 2001). See also Riccio v. Stein, 559 So.2d 1207 (Fla. 3d DCA 1990); Thompson v. Martin, 530
So.2d 495 (Fla. 2d DCA 1988); Freeman v. Rubin, 318 So.2d 540 (Fla. 3d DCA 1975). These basic elements cannot be
alleged as legal conclusions; the complaint must contain ultimate facts that support these essential elements. Kartikes v.
Demos, 214 So.2d 86 (Fla. 3d DCA 1968). See also Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v.
Bowmar Instrument Corp., 537 So.2d 561 (Fla. 1989), and Maillard v. Dowdell, 528 So.2d 512 (Fla. 3d DCA 1988),
requiring specific facts in support of the essential elements to be pled and proved to support a legal malpractice action.
The preamble to the Rules of Professional Conduct expressly states that a violation of those rules “should not give rise to a
cause of action nor should it create any presumption that a legal duty has been breached.” Moreover, Florida appellate courts
have held that a rule violation does not constitute negligence per se. Oberon Investments, N.V. v. Angel, Cohen &
Rogovin, 492 So.2d 1113, 1114 n.2 (Fla. 3d DCA 1986), quashed on other grounds 512 So.2d 192. Nevertheless, an
attorney handling a legal malpractice action should consider pleading any applicable rules violations, because such violations
may be used as evidence of negligence. Pressley v. Farley, 579 So.2d 160 (Fla. 1st DCA 1991); Oberon Investments, N.V.
B. [§ 4.16] Breach Of Contract
The general rules applicable to breach of contract claims apply to contract actions involving attorneys. If the attorney
expressly or implicitly agreed to perform particular services and failed to do so, a cause of action for breach of contract may
exist. Kartikes v. Demos, 214 So.2d 86 (Fla. 3d DCA 1968). See also Weiner v. Prudential Mortgage Investors, Inc., 557
So.2d 912 (Fla. 3d DCA 1990).

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In Moransais v. Heathman, 744 So.2d 973 (Fla. 1999), the Florida Supreme Court definitively answered the question of
whether the economic loss rule would bar a separate claim of negligence based on the same facts as a breach of contract
cause of action against an attorney. “The rule ... should not be invoked to bar well-established causes of action in tort, such as
professional malpractice.” Id. at 983. See also Monroe v. Sarasota County School Board, 746 So.2d 530 (Fla. 2d
DCA 1999). In Indemnity Insurance Co. of North America v. American Aviation, Inc., 891 So.2d 532, 543 (Fla. 2004),
involving a company that maintained and inspected landing gear, the Supreme Court reaffirmed that “in cases involving
either privity of contract or products liability, the other exceptions to the economic loss rule that we have developed, such as
for professional malpractice, ... still apply.”
VIII. [§ 4.17] JURY OR NONJURY TRIAL
Generally, the former client should request trial by jury. A jury may be more sympathetic toward a fellow layperson,
particularly if it appears, as is usually the case, that the attorney had a superior advantage in the attorney-client relationship.
Juries are generally more apt than judges to award substantial damages against attorneys in today’s climate, in which lawyers
sometimes are deemed by the public to have a low degree of credibility.
There are instances, however, in which the plaintiff should give careful consideration to a nonjury trial. If the local attorney
has a reputation among judges as being unethical or has a reputation for not serving the interests of clients, the plaintiff may
be in a better position before a judge than a jury. This is particularly true if the attorney might make a good witness before
strangers who may never know of the lawyer’s true character. The jury versus nonjury decision must be carefully considered,
discussed with the client, and confirmed in writing. This is true for both the plaintiff and the defendant.
IX. [§ 4.18] ALTERNATIVE DISPUTE RESOLUTION
In situations involving possible significant damages, the parties should consider alternative dispute resolution. An agreement
to submit to binding arbitration and the appointment of one or three arbitrators to avoid the expense and publicity
surrounding a legal malpractice case may be an attractive resolution. Strong consideration should be given to selecting a
nonlocal attorney. Retired judges, experienced civil trial lawyers, or lawyers experienced in the area of law involved in the
controversy should also be considered as arbiters. As with the decision whether to have a jury or nonjury trial, clients must be
consulted before decisions are made with respect to alternative dispute resolution.
See Fla.R.Civ.P. 1.700- 1.830, setting forth the available procedures for mediation, nonbinding arbitration, and voluntary
binding arbitration.
X. DEFENSES
A. [§ 4.19] In General
Fla.R.Civ.P. 1.140(b) permits, by responsive pleading or by motion at the option of the pleader, the assertion of the following
seven defenses: “(1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue,
(4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and (7) failure to join
indispensable parties.”
B. [§ 4.20] List Of Defenses
The following is a list of potential defenses and affirmative defenses in a legal malpractice case:
· Defenses permitted by Fla.R.Civ.P. 1.140(b).
· Statutes of limitations ( F.S. 95.11; see §§ 4.2-4.4).
· Comparative negligence (see Cousins Construction Co. No. III, Inc., of Florida v. Black, Crow & Eidsness, Inc., 488
So.2d 838 (Fla. 2d DCA 1986); Michael Kovach, P.A. v. Pearce, 427 So.2d 1128 (Fla. 5th DCA 1983); Solomon v.
Meyer, 116 So.2d 37 (Fla. 3d DCA 1959); see also § 4.23).
· Assumption of risk. S
· Estoppel, waiver, and acquiescence (see Robbins v. Hess, 659 So.2d 424 (Fla. 1st DCA 1995); Chadwick v. Corbin, 476
So.2d 1366 (Fla. 1st DCA 1985); Solomon).
· Reliance on court orders or existing law (see Kizer v. Martin, 132 So.2d 14 (Fla. 1st DCA 1961)).
· Direction, instructions, or consent of client (see George v. Cigna Insurance Co., 691 So.2d 1209 (Fla. 3d DCA 1997);
Chipman v. Chonin, 597 So.2d 363 (Fla. 3d DCA 1992); Maillard v. Dowdell, 528 So.2d 512 (Fla. 3d DCA 1988);
Boyd v. Brett-Major, 449 So.2d 952 (Fla. 3d DCA 1984)).
· Intervening cause.
· Unclean hands doctrine.
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· Ratification.
· Res judicata and collateral estoppel (see Zeidwig v. Ward, 548 So.2d 209 (Fla. 1989), in the criminal-to-civil context;
see also Keramati v. Schackow, 553 So.2d 741 (Fla. 5th DCA 1989); Verhagen v. Arroyo, 552 So.2d 1162 (Fla. 3d
DCA 1989)). But see E.C. v. Katz, 731 So.2d 1268 (Fla. 1999); Stogniew v. McQueen, 656 So.2d 917 (Fla. 1995)
(not in the criminal-to-civil context).
· Laches.
· Release (see Pontier v. Wolfson, 637 So.2d 39 (Fla. 2d DCA 1994)).
· Recoupment (see Kellogg v. Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., 807 So.2d 669 (Fla. 4th DCA
2001); Cherney v. Moody, 413 So.2d 866 (Fla. 1st DCA 1982)).
· Judgmental immunity (see Crosby v. Jones, 705 So.2d 1356 (Fla. 1998); Stake v. Harlan, 529 So.2d 1183 (Fla. 2d
DCA 1988); Kaufman v. Stephen Cahen, P.A., 507 So.2d 1152 (Fla. 3d DCA 1987); Daytona Development Corp. v.
McFarland, 505 So.2d 464 (Fla. 2d DCA 1987); Willage v. Law Offices of Wallace & Breslow, P.A., 415 So.2d 767 (Fla.
3d DCA 1982); Dillard Smith Construction Co. v. Greene, 337 So.2d 841 (Fla. 1st DCA 1976)).
· Termination of employment (see Mitrani v. Druckman, 576 So.2d 406 (Fla. 3d DCA 1991); Frazier v. Effman, 501
So.2d 114 (Fla. 4th DCA 1987)).
C. [§ 4.21] Comparative Negligence
In almost all legal malpractice cases, the lawyer/defendant asserts the defense of comparative negligence. Comparative
negligence has been recognized as a valid defense to a legal malpractice action. See Segall v. Segall, 632 So.2d 76 (Fla.
3d DCA 1993); Cousins Construction Co. No. III, Inc., of Florida v. Black, Crow & Eidsness, Inc., 488 So.2d 838 (Fla.
2d DCA 1986); Devco Premium Finance Co. v. North River Insurance Co., 450 So.2d 1216 (Fla. 1st DCA 1984);
Michael Kovach, P.A. v. Pearce, 427 So.2d 1128 (Fla. 5th DCA 1983); § 4.22. The defense has been recognized in other
jurisdictions as well. See, e.g., Ishmael v. Millington, 50 Cal.Rptr. 592 (Ct.App. 1966) (contributory negligence as bar);
Hill Aircraft & Leasing Corp. v. Tyler, 291 S.E.2d 6 (Ga. Ct.App. 1982); Kurtenbach v. TeKippe, 260 N.W.2d 53 (Iowa
1977); London v. Weitzman, 884 S.W.2d 674 (Mo. Ct.App. 1994); Rapuzzi v. Stetson, 145 N.Y.S. 455 (App.Div. 1914)
(contributory negligence).
In addition, as set forth in Hill Aircraft & Leasing Corp., 291 S.E.2d at 10, a duty is imposed on a client once the client “is
engaged as a party in a lawsuit.” In defining this duty, the court stated that the client has a duty “to attend and look after his
interest and is charged with the legal duty of keeping advised of the progress of the litigation in which he is a party,
regardless of the fact that he has employed counsel to act for him.” Id.
XI. DISCOVERY
A. [§ 4.22] Attorney-Client Privilege
If the underlying case or transaction giving rise to the legal malpractice claim has not been concluded, and the client has
obtained new counsel for representation in that underlying case or transaction, the client’s second attorney may have
knowledge of certain confidential information about the client’s malpractice claim. Before releasing any information, even if
subpoenaed, the second lawyer should assert the attorney-client privilege if the client’s consent has not been obtained
(because only the client has the right to waive the attorney-client privilege) or wait until a court order compelling discovery is
entered. The defendant’s counsel generally counters that the filing of the legal malpractice lawsuit by the former client is an
implied waiver of the attorney-client privilege with respect to all matters relative to the claim.
In Del Prado v. Robert K. Estes, P.A., 532 So.2d 1101 (Fla. 3d DCA 1988), the court held that the attorney-client or
work-product privilege could not bar a former client’s request for discovery of the former attorney’s files in the underlying
litigation handled for the former client.
The attorney who represented the other party in the client’s initial transaction or litigation may also assert the attorney-client
privilege on behalf of that attorney’s client. The courts generally will not require discovery of attorney-client matters
involving the opposing party to the transaction. However, there are many gray areas concerning transactions and
communications that may or may not be privileged. For example, discussions with third parties may constitute a waiver of
the privilege, and the opposing attorney may be required to testify concerning communications or discussions with third
parties, including the defendant attorney who represented the former client.

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B. [§ 4.23] Court Orders In Underlying Case; Judge And Opposing Counsel As Witnesses
Generally, any information the attorney considered or had available for consideration is relevant in a legal malpractice case.
Consequently, court orders in the underlying case are generally relevant for the purpose of showing what was considered or
should have been considered by the defendant attorney. Opinions of opposing counsel concerning whether the defendant
attorney met the standard of care for handling that type of case are also generally permitted. Judges may be called as
witnesses in appropriate cases. See §§ 5.7-5.8 and 5.18 of this manual.
C. [§ 4.24] Tactical Considerations Of Deposing Plaintiff’s New Attorney
If the plaintiff’s present attorney was involved in the underlying case (e.g., the present attorney finished the representation in
the underlying case and later serves as plaintiff’s counsel in the malpractice action), the defendant’s attorney should consider
deposing and obtaining all the files of that attorney. How the attorney completed the matter for the client may be pertinent to
the standard of care required. Also, the point at which the present attorney told the client that the initial lawyer breached a
duty to the client may be extremely important with respect to the defense of statute of limitations. Whether the second
attorney’s actions were the intervening cause may also be extremely important, depending on the circumstances. If the
plaintiff’s present counsel is not an experienced trial lawyer, it may be preferable to forgo discovery of the attorney so the
attorney will remain in the case as plaintiffs counsel. Otherwise, the attorney may be precluded from handling the case, which
may give the plaintiff three advantages:
· The attorney may make an excellent witness on behalf of the plaintiff.
· The plaintiff may obtain able trial counsel more experienced than the present attorney in handling legal malpractice cases.
· The innuendo that might have been made by defendant’s counsel at trial that plaintiffs present counsel was the intervening
cause of the client’s damage (with the plaintiffs attorney possibly being unable, under Rule Reg. Fla. Bar 4-3.7, to testify
concerning an explanation to that aspect and remain on the case) is no longer available.
Plaintiff’s counsel should carefully consider whether it is in the client’s best interest to have the attorney as a witness or as an
attorney in the litigation. Plaintiff’s counsel should, of course, thoroughly discuss this matter with the client and confirm in
writing the client’s decision to maintain the attorney as counsel rather than as a witness on the client’s behalf.
D. [§ 4.25] Other Considerations
The parties in a legal malpractice case are generally faced with the same strategy decisions concerning discovery as are
parties in other litigation matters. The exception, however, relates to claims of legal malpractice arising out of litigated
matters. In these instances, the court case file and depositions taken in the underlying case will be admitted for the purpose of
showing what the defendant attorney considered or should have considered. If a deposition in the underlying case supports a
party, and only discrepancies or confusion may arise from taking a new deposition, obviously another deposition should not
be taken. If, however, an opinion concerning the handling of the underlying case is desirable, or explanations must be
obtained concerning strategy or other matters not apparent from the record, a new deposition may be required.
It is also desirable from the plaintiff’s perspective to take depositions to show what was or was not accomplished and
considered by the defendant attorney. Generally, the plaintiff will then retain better experts, more thoroughly investigate the
facts, and more thoroughly research the law so the judge or jury can see that the actual handling of the underlying case by the
defendant attorney was poor in comparison with the way the case should have been handled; i.e., the way it is presently being
handled by the plaintiff’s new counsel.
XII. EXPERT WITNESSES
A. [§ 4.26] Local Or Out-Of-Town Experts
If the plaintiff sues the defendant attorney in the latter’s hometown, it may be difficult to find local attorneys to testify
concerning the defendant’s deviation from the standard of care. The less reputable the local attorney, however, the easier it is
to find experts who may believe it is in the best interest of the bar and society to weed out attorneys of bad repute.
Attorneys defending the legal malpractice action should, of course, seek out local experts, but must be careful not to choose
close friends of theirs or their clients. Attorneys who represented the opposing party in the underlying lawsuit or transaction
and attorneys who are not socially or professionally involved with the defendant generally make the most effective witnesses.
It may also be advantageous to present an out-of-town attorney who has never met the defendant, so the jury will not believe
that the witness is just protecting a fellow local attorney. The plaintiff is usually successful in getting a more objective
opinion from an out-of-town expert and may imply to the jury that the conspiracy of silence makes it difficult to find local
attorneys who will testify against fellow members of the bar.
B. Standard Of Care
1. [§ 4.27] In General
The standard civil jury instruction on professional negligence adopted by the Florida Supreme Court sets forth the standard of
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care as follows:
Negligence is the failure to use reasonable care. Reasonable care on the part of a [lawyer] is that degree of care which a
reasonably careful [lawyer] would use under like circumstances. Negligence may consist either in doing something that a
reasonably careful [lawyer] would not do under like circumstances or in failing to do something that a reasonably careful
[lawyer] would do under like circumstances.
Fla. Std. Jury Instr. (Civ.) 4.2c. See Keramati v. Schackow, 553 So.2d 741, 746 (Fla. 5th DCA 1989) (describing attorney’s
breach of duty as “failure on the part of an attorney to measure up to the standard of reasonable service expected of members
of [T]he Florida Bar in handling that kind of litigation”); Daytona Development Corp. v. McFarland, 505 So.2d 464 (Fla. 2d
DCA 1987).
As stated by the court in Dillard Smith Construction Co. v. Greene, 337 So.2d 841, 843 (Fla. 1st DCA 1976), an attorney is
bound to exercise “the degree of knowledge and skill ordinarily possessed by other lawyers similarly situated.” This standard
is consistent with the standard of care applicable to professionals generally, as stated in Miriam Mascheck, Inc. v. Mausner,
264 So.2d 859 (Fla. 3d DCA 1972), in which the court held that professionals are obligated to possess and exercise that
reasonable degree of learning, skill, and experience ordinarily possessed by others in their professions.
Implicit in the attorney’s duty is the principle that an attorney is not bound to possess and exercise extraordinary knowledge,
skill, and diligence, but rather is judged based on the skill, knowledge, and diligence ordinarily possessed and exercised by
attorneys under similar circumstances. Dillard Smith Construction Co.; Mazer v. Security Insurance Group, 53 F.R.D. 617
(E.D. Pa. 1971); Kurtenbach v. TeKippe, 260 N.W.2d 53 (Iowa 1977); Procanik by Procanik v. Cillo, 502 A.2d 94 (N.J.
Super.Ct. Law Div. 1985), rev’d on other grounds 543 A.2d 985; Glenn v. Haynes, 66 S.E.2d 509 (Va. 1951), 26 A.L.R.2d
1334. It is also clear that legal malpractice cannot be inferred merely from the obtaining of a bad result for the client. Willage
v. Law Offices of Wallace & Breslow, P.A., 415 So.2d 767 (Fla. 3d DCA 1982); Dillard Smith Construction Co.
2. [§ 4.28] Other Jurisdictions
The standard that has been held applicable to attorneys in Florida finds much support in other jurisdictions. See, for example,
the following cases:
Mazer v. Security Insurance Group, 53 F.R.D. 617 (E.D. Pa. 1971).
Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 491 P.2d 421 (Cal. 1971).
O’Neil v. Bergan, 452 A.2d 337 (D.C. 1982).
Kurtenbach v. TeKippe, 260 N.W.2d 53 (Iowa 1977).
Watkins v. Sheppard, 278 So.2d 890 (La. Ct.App. 1973).
Rorrer v. Cooke, 329 S.E.2d 355 (N.C. 1985).
Sheets v. Letnes, Marshall & Fiedler, Ltd., 311 N.W.2d 175 (N.D. 1981).
Procanik by Procanik v. Cillo, 502 A.2d 94 (N.J. Super.Ct. Law Div. 1985), rev’d on other grounds 543 A.2d 985.
Lenius v. King, 294 N.W.2d 912 (S.D. 1980), 14 A.L.R.4th 162.
Walker v. Bangs, 601 P.2d 1279 (Wash. 1979).
A compilation of the standards set forth in the cases listed above results in the following standard of care: that degree of
knowledge and skill ordinarily possessed and exercised by attorneys engaged in the same line of practice in the same or
similar locality under similar circumstances.
3. [§ 4.29] Generalists Or Specialists
Legal malpractice lawsuits sometimes involve a general practitioner handling a case in an area of the law in which there are
known specialists in the community. The defendant lawyer will contend that the attorney’s license to practice law in Florida
permits the attorney to practice in any area, if the attorney is competent in that area or becomes competent through study or
otherwise. The plaintiff will counter that the client’s matter should have been handled by a knowledgeable attorney who was
particularly familiar with that area of the law. Generally, the plaintiff will present specialists to testify concerning the
standard of care for handling that type of case in Florida. The defendant attorney will usually present both a general
practitioner and a specialist concerning the standard of care for that type of legal matter.
With respect to the standard of care to be applied to an attorney specializing in a particular area of law, case law suggests that
a higher standard of care is required. In Wright v. Williams, 121 Cal.Rptr. 194, 199 (Ct.App. 1975), the court specifically
held:
One who holds himself out as a legal specialist performs in similar circumstances to other specialists but not to general
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practitioners of the law. We thus conclude that a lawyer holding himself out to the public and the profession as specializing
in an area of the law must exercise the skill, prudence, and diligence exercised by other specialists of ordinary skill and
capacity specializing in the same field.
See also Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 491 P.2d 421 (Cal. 1971); O’Neil v. Bergan, 452 A.2d
337 (D.C. 1982); Rodriguez v. Horton, 622 P.2d 261 (N.M. Ct.App. 1980), 13 A.L.R.4th 86; Walker v. Bangs, 601
P.2d 1279 (Wash. 1979).
This more stringent standard for specialists is consistent with the general principles of tort law as stated in the
RESTATEMENT (SECOND) OF TORTS § 299A (1965), comment d:
An actor undertaking to render services may represent that he has superior skill or knowledge, beyond that common to his
profession or trade. In that event he incurs an obligation to the person to whom he makes such a representation, to have,
and to exercise, the skill and knowledge which he represents himself to have.
When specialists testify concerning the standard of care of a general practitioner (a lower standard of care), defense counsel
should make certain that they admit that they hold themselves out as experts in the relevant area of law and that such experts
are held to the same degree of knowledge and skill ordinarily possessed by other experts in that particular specialty. Once
this is clearly established, defense counsel should make clear that the specialist is not a general practitioner and should then,
through the testimony of a generalist, define the standard of care for the general practitioner.
See § 7.16 of this manual for discussion of specialization.
C. [§ 4.30] Other Considerations
Witnesses or attorneys involved in the underlying case may make the best factual and expert witnesses in the legal
malpractice case, because of their knowledge of the facts and circumstances surrounding the case and their ability to render a
firsthand opinion concerning the standard of care. However, there may be a lack of credibility when an expert used in the
underlying case had already “taken sides.” Therefore, it is sometimes wise to supplement an expert in the underlying case
with a fresh expert who was not involved in the underlying matter.
XIII. [§ 4.31] SUMMARY JUDGMENT
Motions for summary judgment are appropriate vehicles for determining at an early stage of the litigation such legal matters
as duty, intervening cause, the “judgment rule,” and statutes of limitation defenses. In several instances in Florida, defendants
have prevailed in obtaining summary judgments. See, e. g., George v. Cigna Insurance Co., 691 So.2d 1209 (Fla. 3d
DCA 1997); Sharpe v. Howell, 629 So.2d 314 (Fla. 1st DCA 1993); Voutsinas v. Stutin, 626 So.2d 300 (Fla. 5th DCA 1993);
Pennsylvania Insurance Guaranty Ass‘n v. Sikes, 590 So.2d 1051 (Fla. 3d DCA 1992); Danciu v. Cohn, 492 So.2d 1106
(Fla. 4th DCA 1986); Hatcher v. Roberts, 478 So.2d 1083 (Fla. 1st DCA 1985). When appropriate, motions for summary
judgment may be filed to “smoke out” positions and facts that may be offered by the opposing party.
See Williams v. Beckham & McAliley, P.A., 582 So.2d 1206 (Fla. 2d DCA 1991), for a discussion of the parties’ burdens of
proof.
XIV. [§ 4.32] BIFURCATION
The “case within a case” concept requires legal malpractice plaintiffs to prove that they would have been successful in the
underlying legal matter. That is, the elements of a cause of action (including damages) in the underlying case must be proved
first, and then the elements in the legal malpractice case against the defendant attorney must be proved. One approach to the
two-case problem is to bifurcate the action, first having a trial on the issue of whether there was a breach of duty by the
attorney, and then, if so, having a second trial on the issue of the damages sustained as a result of that breach. The same trier
of fact may or may not sit for both trials. If the attorney prevails on the first issue, there is no need to have a second trial. If
the client prevails, the case generally is settled or, at the very least, the issues are limited in the second trial to the client’s
damages.
Bifurcated trials offer advantages and disadvantages to both parties. If the same jury continues to sit on the second trial, the
advantage appears to accrue to the plaintiff because causation becomes obscured. The first trial generally does not concern
the issue of whether the attorney’s breach of the duty actually caused any damage. If the jury has already determined that the
attorney breached a professional duty to the plaintiff, the second trial generally deals only with the evaluation of the
underlying claim.
Defendant’s counsel, on the other hand, may want a bifurcated trial if the defendant has a strong case on the liability issue.
The jury will not hear the plaintiff’s damages, which otherwise might influence its decision on liability. Plaintiff’s counsel,
however, may nevertheless present the damage question if the expert witness for the plaintiff is permitted to testify that the

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breach of the duty is related to the failure of the defendant attorney to recognize that the plaintiff’s case had a million-dollar
value. These gray areas may permit the plaintiff to present, through a back door, references to damages. What invariably
occurs in bifurcated trials is that the effort to simplify the case within a case generally results in novel approaches by counsel
for both parties in an attempt to present all available favorable evidence in the first trial, defeating the very reason for having
a bifurcated trial.
XV. [§ 4.33] OFFERS OF JUDGMENT/PROPOSALS FOR SETTLEMENT
When the attorney handling a legal malpractice claim believes a reasonable offer of settlement should be made to the
opposing party, an offer of judgment or demand for judgment, as defined in F.S. 768.79, should be considered. Under
F.S. 768.79, a plaintiff who makes an offer that is rejected by the defendant, and who ultimately obtains a judgment that is
at least 25% greater than the rejected offer, may be entitled to reasonable costs and attorneys’ fees from the date the offer was
filed. Likewise, a defendant who makes an offer under the statute that is rejected by the plaintiff, and who ultimately obtains
a defense verdict or a judgment for the plaintiff that is at least 25% less than the offer, may be entitled to reasonable costs and
attorneys’ fees. Because most lawsuits between clients and attorneys do not involve claims that could entitle either party to
the recovery of attorneys’ fees, a carefully analyzed offer can be extremely effective. It places the ball in the opposing party’s
court and forces that party to evaluate the claim realistically.
Fla.R.Civ.P. 1.442 sets forth the specific procedures necessary for all proposals for settlement, including time requirements,
form and content of proposals, manner of service and filing, withdrawal of an offer, acceptance and rejection, sanctions, and
costs and fees. No proposal, for example, may be served later than 45 days before the date set for trial. Rule 1.442 was
amended in 1996 in an attempt to reconcile F.S. 768.79 with F.S. 44.102 (regarding court-ordered mediation and
offers of settlement after an impasse has been declared), F.S. 45.061 (civil practice and procedure statute regarding offers
of settlement), and F.S. 73.032 (regarding offers of judgment in eminent domain proceedings), as well as the decisions of the
Florida Supreme Court in Timmons v. Combs, 608 So.2d 1 (Fla. 1992), TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606
(Fla. 1995), and Knealing v. Puleo, 675 So.2d 593 (Fla. 1996).
XVI. FORMS
A. [§ 4.34] Complaint For Breach Of Contract And Negligence
IN THE CIRCUIT COURT FOR .................... COUNTY
Case No. ....................
...................., Plaintiff,
vs.
...................., Defendant.

COMPLAINT

Plaintiff, ...................., sues defendant, ...................., and alleges:

1. All causes of action alleged herein seek damages in excess of $15,000, exclusive of interest and costs.
2. Plaintiff, ...................., resides in .................... County, Florida.
3. Defendant, ...................., is licensed to practice law in the state of Florida and maintains an office in ....................
County, Florida.
4. On or about ..... (date) ....., plaintiff employed defendant at defendant’s offices with regard to [set forth underlying
matter].

COUNT I — BREACH OF CONTRACT

5. On or about ..... (date) ....., plaintiff and defendant executed an agreement for legal services, a copy of which is
attached hereto as Exhibit “A”.
6. Defendant breached the contract with plaintiff in the following respects:
[set forth allegations pertaining to breach]
7. As a result of defendant’s breach of contract, plaintiff sustained monetary damages as follows:
[set forth allegations pertaining to damages]
8. Plaintiff has complied with all conditions precedent required under the contract with defendant.
WHEREFORE, plaintiff demands judgment against defendant for damages in an amount in excess of $15,000,
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together with interest and costs.

COUNT II — NEGLIGENCE

9. Plaintiff incorporates by reference herein Paragraphs 1 through 4, inclusive.

10. As a result of the attorney-client relationship, defendant had a duty to represent plaintiff with reasonable care,
skill, and diligence as ordinarily possessed and exercised by other attorneys in this state.
11. Defendant breached the duty to plaintiff in the following respects:
[set forth allegations pertaining to negligence]
12. As a result of defendant’s breach of duty to exercise reasonable care, skill, and diligence, plaintiff [set out
consequences, such as “did not prevail,” “lost the right to file suit because of the expiration of the applicable statute of
limitations,” or “was unsuccessful in presenting a defense at trial”].
13. As a result of defendant’s breach of duty, plaintiff sustained the following damages:
[set forth allegations pertaining to damages]
14. The damages sustained by plaintiff were proximately caused by defendant’s breach of duty.
WHEREFORE, plaintiff demands judgment against defendant for damages in an amount in excess of $15,000,
together with interest and costs.
Attorney for Plaintiff
(address and phone number)
Florida Bar number ....................
B. [§ 4.35] Answer, Defenses, And Affirmative Defenses
(Party Designation)
(Title of Court)

ANSWER, DEFENSES, AND AFFIRMATIVE DEFENSES

Defendant, ...................., files this answer, defenses, and affirmative defenses to the complaint of plaintiff, ....................,
and responds as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Denied.
5. Denied.
6. Denied.
7. Denied.
8. Denied.
9. Defendant incorporates by reference herein the answers to Paragraphs 1 through 4, inclusive, as an answer to
Paragraph 9.
10. Denied.
11. Denied.
12. Denied.
13. Denied.
14. Denied.
15. Each cause of action, claim, and item of damages did not accrue within the time prescribed by law for them before
this action was brought.
16. Plaintiff is estopped and has waived the right to maintain this action because the cause of action, if any, arose more
than two years before the commencement of this action, to the knowledge of plaintiff, by reason of [describe acts of
defendant giving rise to action]. Plaintiff did not complain of those acts and defendant was not advised of plaintiff’s
intention to assert any rights until [describe notice and time of notice], and defendant has relied on the delay [or other
descriptive words] of plaintiff and will be injured if relief is granted to plaintiff because [allege what defendant has
done or how defendant will be injured].
17. Plaintiff was negligent [describe the negligence] and that negligence contributed to plaintiff’s damages.

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PLEADINGS AND PRACTICE, PLLF FL-CLE 4-1

18. Plaintiff instructed defendant to [describe the instruction] and defendant was required to follow the direction and
instruction of the client.
19. Plaintiff terminated the attorney-client relationship with defendant and retained substitute counsel. This
intervening cause precludes recovery from defendant.
Attorney for Defendant
(address and phone number)
Florida Bar number ....................
C. [§ 4.36] Motion For Change Of Venue
(Party Designation)
(Title of Court)

DEFENDANT’S MOTION TO ABATE FOR IMPROPER VENUE

Defendant moves to abate this action for improper venue and transfer it to .................... County because:
1. Defendant was retained by plaintiff in defendant’s office in .................... County, and all allegations concerning
breach of contract and negligence occurred in that county.
2. Plaintiff’s cause of action accrued in .................... County when plaintiff allegedly suffered damages in that county.
3. Under F.S. 47.011, venue is proper in .................... County and not in .................... County.
Attorney for Defendant
(address and phone number)
Florida Bar number ....................
D. [§ 4.37] First Request For Production Of Documents
(Party Designation)
(Title of Court)

PLAINTIFF’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT

Plaintiff, ...................., requests that defendant, ...................., produce the following documents at the offices of
.................... on ..... (date) ....., for the purpose of inspection, copying, testing, or sampling:
1. All insurance policies and other documents relating to coverage, policy limits, disclaimers, reservation of rights,
additional, concurrent, or umbrella coverage, and notification by you to your insurance carrier of any claim or
potential claim by plaintiff, from the date of the initial attorney-client relationship with plaintiff to the date of this
Request for Production of Documents.
2. Your entire office file relative to your representation of plaintiff with respect to [set forth underlying matter],
including originals and copies of all communications, memoranda, telephone messages, docket sheets, time sheets,
billing statements, receipts evidencing payment of the account, legal research, attorney’s notes and memoranda,
pleadings and other papers filed with any court and/or served on opposing counsel, writings provided to you by
plaintiff, and all documents obtained from other sources relative to plaintiff’s claim or defense.
Attorney for Plaintiff
(address and phone number)
Florida Bar number ....................
E. [§ 4.38] Request To Produce From Defendant To Plaintiff
(Party Designation)
(Title of Court)

DEFENDANT’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF

Defendant, ...................., requests that plaintiff, ...................., produce the following documents at the offices of
.................... on ..... (date) ....., for the purpose of inspection, copying, testing, or sampling:
1. Originals and copies of all documents relating to your underlying claim against ..... (opposing party in underlying
claim) .....
2. Originals and copies of all documents relating to your claim against defendant.

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PLEADINGS AND PRACTICE, PLLF FL-CLE 4-1

3. All invoices, canceled checks, accounting and bookkeeping records, financial information, and any other writings
relating to damages allegedly claimed in the underlying lawsuit involving ..... (opposing party in underlying lawsuit)
..... and in this lawsuit against defendant.
4. Originals and copies of all writings in any way related to the underlying lawsuit and this lawsuit against defendant
subsequent to your termination of defendant, including all writings provided to you or in the custody or possession of
attorneys subsequently retained by you after termination of defendant.
Attorney for Defendant
(address and phone number)
Florida Bar number ....................
FNa1
. J.D., 1994, University of San Diego. Mr. Bean is a member of The Florida Bar and the American and Jacksonville bar
associations. He is admitted to practice before the United States Supreme Court, the United States Court of Appeals for the
Eleventh Circuit; the United States District Court for the Northern, Middle, and Southern Districts of Florida; the Florida
Supreme Court; and the Court of Appeals for the Armed Forces. Mr. Bean is a partner in Holland & Knight in Jacksonville
and also serves as an adjunct professor at Florida Coastal School of Law. He gratefully acknowledges the assistance of
Georgianna E. Gaines, a law student at Washington and Lee University, J.D. anticipated May 2006, in the preparation of this
chapter.
End of Document © 2020 Thomson Reuters. No claim to original U.S. Government
Works.

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