Legal Malpractice in Florida
In Florida, legal malpractice occurs when a lawyer fails to competently perform their obligations to the client under the terms of a contract or the Florida Rules of Professional Responsibility. Legal malpractice usually involves allegations of negligence — the absence of the degree of care, knowledge, and skill ordinarily exercised by members of the profession. A legal malpractice action can therefore entail everything from a breach of contract claim, to a negligence claim, to a breach of fiduciary duty claim, all of which can be brought as a legal malpractice claim when necessary. There are some common legal malpractices that attorneys make in Florida that may give rise to a claim for legal malpractice.
A common type of legal malpractice is a failure to file important documents in a timely manner, such as a complaint, notice of appeal, or motion to set trial. Due to the delays in the court system, legal malpractice cases will often center on the issue of reasonably diligent representation . If an attorney fails to diligently represent the client within the bounds of the Florida Rules for Professional Responsibility, the court will likely and on many occasions, grant them mercy, but if this conduct is habitual the attorney will likely end up facing a legal malpractice suit.
Attorneys also frequently run into the problem of billing clients without sufficient proof of time and expenses worked. Fla. Bar v. Fredericks, 437 So. 2d 672, 681 (Fla. 1983) made it clear that an attorney may not:
To help avoid such scenario, attorneys must not only keep sufficient time records detailing the time and the work done the claimed amount of "legal work," but also detail the costs that went towards the attorney’s work that the client is alleged to have agreed to pay. This of course, can be difficult as some work done for clients cannot always be easily valued accurately; however, the lack of diligence can help establish that your attorney may have committed legal malpractice.
Florida’s Statute of Limitations and Legal Malpractice
Legal malpractice lawsuits in Florida are subject to a four-year statute of limitations under Section 95.11(4)(a) of the Florida Statutes. The clock starts to run on the date the wrongful act, neglect, omission, or breach occurs, but may be tolled if there is fraud on the part of the attorney or when the client is not aware, and could not, by the exercise of due diligence, be aware, of both the injury and the appropriate person to sue. In other words, the statute of limitations begins to run when the attorney ceases to represent the client and the client can reasonably discern the injury.
A common exception that comes up is when the attorney continues to represent the client both during and after the representation in the underlying matter. When this occurs, an attorney’s continuing representation or failure to act in a timely manner may equitably toll the statute of limitations until the attorney relationship has been officially terminated. Unfortunately, this does not apply when the attorney submits an affidavit that the representation is over, as in the case of Estate of Jacobson v. Francis, 896 So. 2d 1272 (Fla. 2005). In this case the Florida Supreme Court held that an affidavit by the attorney, even one sworn to under oath, did not qualify as formal termination of the attorney-client relationship, and therefore did not toll the statute of limitations. The Florida Supreme Court held that the factual circumstances of the relationship must also be taken into account, even though this seems to cut against the clear text of the statute, which focuses on written notice of withdrawal.
Exceptions to the four-year statute of limitations apply in cases where the plaintiff was compelled to forbear filing a malpractice suit and was actually engaged in litigation over the malpractice suit no later than Florida’s two-year statute of limitations deadline. Similarly, if the plaintiff was prevented by the opposing party from filing a malpractice claim in the first place, then Florida’s four-year statute of limitations is tolled for the period of time the plaintiff was out of court.
Some scholars have opined that there is a tendency for courts to apply a standard six-month discovery provision to all types of legal malpractice claims, which would, in effect, create a six-month statute of limitations. However, this runs contrary to the legislative intent behind the statutory provision and the case law interpreting it. The statutory provision, by its own terms, is triggered only after a four-year statute of limitations has expired. Thereafter, the statute tolls the limitation for six months or 30 days (whichever is longer) to allow the plaintiff to file the action. Thus, Florida courts logically should not impose a six-month statute of limitations on a legal malpractice claim because the statute of limitations is already four years and at that point, the statute turns to his or her tolling period to give the plaintiff a chance to file the action.
The Discovery Rule for Florida Malpractice
Under the Florida legal malpractice statute of limitations, a legal error is not deemed to have occurred until the operation of the rule is correct, as in, the area of law is known, but an error is made with regard to when Plaintiffs discovered that error. For example when the applicable statute of limitations runs: "From the time the cause of action was accrued, except that when the facts giving rise to the cause of action are concealed, the cause of action does not accrue until the facts are discovered or should have been discovered with the exercise of due diligence." F.S. 95.031 The "discovery rule" refers to a logic which links the accrual of a cause of action to the time of discovery of the injury that has created that cause of action. When the injury is discovered may extend the time within which a legal malpractice action must be commenced. It is based upon the notion that when the plaintiff does not have reason to know of its injury, the statute should not begin to run until it does. However, once the plaintiff is on notice of a potential injury, it has a duty to investigate and discover the extent of the injury; thus, the plaintiff will not be rewarded for its own neglect. Starting the statute of limitations clock at the time of injury in cases of attorney malpractice would mean that some plaintiffs would have no recourse at all if the full extent of their injuries was not felt for many years after an injury had occurred. Such a rule would create an unfair benefit to the defendants and would violate the doctrine of meritorious defense.
Statute of Limitations Tolling
Essentially, a statute of limitations is a method to deter claimants from filing stale lawsuits and to avoid evidentiary uncertainties. Florida’s legal malpractice statute of limitations is governed by Florida Statute Section 95.11(4)(a) which states that a claim for legal malpractice must be brought within two years from the date of the injury, or four years from the date of the act forming the basis of the alleged error, whichever date gives rise to a cause of action. This "four year rule" is truly a bar and not a prescriptive time period.
A legal malpractice plaintiff may seek to avoid the bar provided by the four year rule on the basis of "tolling," which effectively pauses the running of the statute of limitations clock . In the Florida legal malpractice context, there are several reasons that can lead to a tolling of the applicable limitation period, including:
- Prematurity leading to a failure of the cause of action. A legal malpractice claim may be premature if the plaintiff has not had an opportunity to cure or mitigate its damages;
- Florida Rule of Civil Procedure 1.540(f). Under this Rule, a set aside order may equate to a date in state court that permits tolling; or
- The filing of a legal malpractice claim in federal court, if subsequent to the dismissal of the claim in the federal court, the plaintiff files an amended complaint in state court. Under Florida law, the statutory statute of limitations clock is tolled while the case is pending in federal court.
Implications of Missing the Florida Statute of Limitations
Unfortunately, the failure to file a legal malpractice case within the statute of limitations does carry with it severe consequences. It usually means an end to the case. It is a bar to filing the case. In the vast majority of cases, there will be no exceptions which serve to "toll" (or extend the time) to bring the case, no matter how persuasive the excuses or reasons are not to have filed the case in time. Usually, if litigation begins after the statute of limitations has expired, the court will never look at the merits of the case. This is so even if the error set forth in the claim is serious and even if the plaintiff’s claim against the defendant attorneys has merit. There is a case to be made for that result, even if it seems unjust in some circumstances.
If the litigant cannot get around the expired statute, then there is always a chance that the attorney may "toll" the statute (extend the statute) by simply bringing the matter to his or her attention, although that is completely up to the discretion of the attorney and the circumstances involved. The escaped statute of limitations may also be extended in some limited circumstances because of equitable considerations, such as fraud. But in the majority of cases, the attorney has only his or her malpractice coverage to fall back on.
Tips for Preserving Your Legal Rights
Those who believe they have been victims of legal malpractice in Florida should be aware of the importance of taking action promptly to protect their rights. Here are some practical tips for doing so:
1- Be aware of the time limits: Florida’s legal malpractice statute of limitations is two years. However, there may be circumstances in which the time period is longer or shorter, depending on specific facts of the case. For example, if the plaintiff in a legal malpractice action was under a disability (such as incapacity by reason of mental illness or being a minor), the two-year time period would not begin until the disability is removed.
2- Consider tolling your claim: If you’re concerned that your claim is near the end of the statute of limitations, a tolling agreement with the attorney involved in the potential legal malpractice may make sense. A tolling agreement is a legal mechanism under which parties agree to suspend the running of a statute of limitations for a designated period of time . Such an agreement is often used when, for example, the client believes he or she has suffered legal malpractice, but has not yet decided whether or not to file suit against the attorney. An agreement granting the attorney an additional 90 days to resolve the issue may make sense, especially considering that an ethical obligation might require the attorney to notify the client of a potential claim and may trigger a never-expiring statute of limitations in certain situations.
3- Put the attorney on notice: When it appears that legal malpractice may have occurred, a letter should be sent to the attorney in question putting him or her on notice of the error or omission. Any written communications regarding the putative claim, including the date of any relevant communication with the attorney in question, should be preserved.
4- Seek legal counsel: Not every attorney is equipped to handle legal malpractice claims. If the error or omission is obvious, it’s advisable to seek immediate legal counsel from an attorney specializing in legal malpractice claims to determine the best course of action.