1-14 Other Causes of Action Against Attorneys

• Jurisdiction: United States

1-14 Other Causes of Action Against Attorneys

Lawsuits against attorneys frequently include non-legal malpractice claims.³⁵⁵ These typically allege that the attorney failed to honor his or her fiduciary duties or committed fraud.³⁵⁶ Claims also can be based on purported breaches of statutory require-ments,³⁵⁷ such as those found in the Fair Debt Collection Practices Act ("FDCPA"),³⁵⁸ the Racketeer-Influenced and Corrupt Organizations Act ("RICO"),³⁵⁹ and the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA").³⁶⁰ Constitutional violations also have been asserted against attorneys.³⁶¹

Another type of lawsuit sometimes brought against attorneys is a claim for restitution by a non-client. Where the attorney has acted in good faith, restitution will not be ordered.³⁶² In contrast, where the attorney has acted improperly, restitution can be ordered.³⁶³ In In re Williams,³⁶⁴ for example, a law firm obtained a default judgment on behalf of its client, garnished the defendant's funds, and applied a portion of them to its fees. Subsequently, the default judgment was set aside and the law firm was ordered to return the monies it had retained:

Based on the equities in this proceeding, the Court believes that restitution from Simon & Simon Chartered is appropriate. Mr. Udell's state court cause of action against Mr. Williams was weak on both the facts and the law. Simon & Simon Chartered, as the attorneys for Mr. Udell, were well aware of the deficiencies in Mr. Udell's case. The judgment obtained against Mr. Williams was a default judgment attributable to the obvious malfeasance of Mr. Williams' attorneys. The garnished funds were obtained, and Simon & Simon Chartered received its fees, while the judgment was on appeal. Simon & Simon Chartered was obviously aware of the likelihood of reversal when it garnished Mr. Williams' funds and received its fees from these garnished funds. Under these circumstances, turnover from Simon & Simon Chartered is appropriate.
Simon & Simon Chartered is not prejudiced by the Court's decision to require it to return . . . the garnished funds. To the extent that Simon & Simon Chartered earned its legal fees for the work it did for Mr. Udell, Simon & Simon Chartered is free to collect its fees from Mr. Udell. The Court's decision today merely means that Mr. Williams will not be required to pay the attorneys' fees for opposing counsel in a case which he won. Simon & Simon Chartered should look to its own client for its fees.³⁶⁵

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Notes:

^[355] Except as discussed in this section, such claims are beyond the scope of this book.

^[356] See, e.g., Tambourine Comercio Internacional SA v. Solowsky, 312 F. App'x 263 (11th Cir. 2009) (breach of fiduciary duty, civil theft, conversion, and negligent supervision); Goo-din v. Fidelity Nat'l Title Ins. Co., 491 F. App'x 139 (11th Cir. 2012), cert. denied, 569 U.S. 1031 (2013), reh'g denied, 572 U.S. 1010 (2014) (fraud); Weaver v. Mateer and Harbert, P.A., 523 F. App'x 565 (11th Cir. 2013) (breach of contract, breach of fiduciary duty, and unjust enrichment)...