1-1 Introduction

• Jurisdiction: United States

1-1 Introduction

In every legal malpractice case in Florida, a plaintiff must plead and prove: (1) the attorney's employment; (2) the attorney's neglect of a reasonable duty; and (3) the attorney's negligence as the proximate cause of the plaintiff's loss.² If these three requirements are met, a malpractice case can be pursued even if the client's objective ultimately was met.

In E.P. v. Hogreve,³ for example, a couple sought to adopt a child. Because the matter took longer, and cost more, than it should have, the couple sued their lawyer. Citing out-of-state cases recognizing that successful adoptions do not bar a claim for malpractice, the appellate court reversed a summary judgment in the lawyer's favor:

Here, Appellants alleged sufficient facts to demonstrate their reasonable belief that they were consulting with Appellee to obtain legal advice. . . . Appellants have also plausibly alleged the other two basic elements of legal malpractice, i.e., Appellee neglected a reasonable duty to Appellants and his negligence prox-imately caused a loss to Appellants even though the adoption was eventually successful.⁴

As discussed below, certain types of legal malpractice plaintiffs face special hur-dles.⁵ Moreover, because Florida lawyers are not required to carry insurance,⁶ many otherwise meritorious legal malpractice cases are never pursued, or cannot be collected on, because the lawyer is judgment-proof.⁷

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Notes:

¹ In addition to this book, see 4 Fla. Jur. 2d Attorneys at Law §§ 521-564 (2015 & 2019 Cum. Supp.), and Patrick John McGinley, Florida Elements of an Action ch. 1408 ("Legal Malpractice") (2018-19 ed.). Although dated, Professional Liability of Lawyers in Florida (4th ed. 2006), published by The Florida Bar, remains another useful summary. See also David B. Edau, "State of Florida," in The Law of Lawyers' Liability: Fifty-State Survey of Legal Malpractice 100-06 (Merri A. Baldwin et al. eds. 2012).

Portions of the present book first appeared in Warren R. Trazenfeld, Legal Malpractice: A Framework for Assessing Potential Claims, 70 Fla. B.J. 38 (Jan. 1996), and Warren R. Trazenfeld, Legal Malpractice in Florida, 27 Nova L. Rev. 85 (2002).

^[2] Redus Fla. Comm., LLC v. College Station Retail Ctr., 777 F.3d 1187 (11th Cir. 2014); Federal Deposit Ins. Corp. v. Martin, 801 F. Supp. 617 (M.D. Fla. 1992); Shaw v. Broad and Cassel, 2011 WL 6372321 (S.D. Fla. 2011); Janssen v. Malin Haley DiMaggio Bowen & Lhota, P.A., 2012 WL 2054932 (s.D...