1-3 First Predicate: Attorney's Employment

• Jurisdiction: United States

1-3 First Predicate: Attorney's Employment

1-3:1 Proof Where Engagement Letter Exists

The first element that a legal malpractice plaintiff must plead and prove is that there had been an attorney-client relationship.²⁶ This requirement normally is satisfied by submitting into evidence the engagement letter that was signed when the client first hired the attorney.²⁷

1-3:2 Proof Where No Engagement Letter Exists

Where there is no engagement letter, the existence of an attorney-client relationship must be determined as a threshold matter.²⁸

The court in Bartholomew v. Bartholomew²⁹ found the evidence insufficient to establish an attorney-client relationship in the context of an attorney disqualification motion.³⁰ The test adopted was subjective and turned on the "client's belief that he is consulting a lawyer in that capacity and his manifested intention to seek professional advice."³¹ However, the belief must "be a reasonable one."³²

In another disqualification case, Eggers v. Eggers,³³ the weakness of the evidence supporting an attorney-client relationship was one of the reasons the trial court's ruling denying disqualification was affirmed.³⁴

The liquidating trustee in In re Lentek International, Inc.³⁵ was stymied in his efforts to establish an attorney-client relationship for a malpractice case due to the testimony of the only corporate representatives empowered to retain counsel. They both testified that the lawyer and the law firm in question had not been retained.³⁶ Relying on Jackson v. BellSouth Telecommunications,³⁷ which adopted the Bartholomew test, the Lentek court held that "an actual consultation is a prerequisite to forming a reasonable belief supporting an attorney-client relationship. Post-consultation, the subjective, reasonable belief of the putative client is the paramount consideration in determining whether or not an attorney-client relationship is present, not the lawyer's actions."³⁸

In JBJ Investment of South Florida, Inc. v. Southern Title Group, Inc.³⁹ the Fourth District Court of Appeal expanded the consultation requirement set forth in Bartholomew and Jackson by stating that "[t]he consultation requirement can . . . be met when an agent of the client consults with an attorney on the client's behalf."⁴⁰

In JBJ, a closing agent (Goenaga) contacted an attorney (Burgess) to prepare a note and mortgage on five properties. When the borrower defaulted, the lender JBJ) discovered that the mortgage covered only one of the properties. Although it was undisputed that JBJ had had no interactions with Burgess, the court reversed a summary judgment in Burgess's favor because "a reasonable jury could find that an attorney-client relationship existed between JBJ and the Burgess Defendants by virtue of Ms. Goenaga consulting with Mr. Burgess in her capacity as JBJ's title agent and referring to him the work of preparing the note and mortgage."⁴¹

Whether the appellants were at any time "clients" of the law firm was addressed in Mansur v. Podhurst Orseck, P.A.⁴² There was no engagement letter between the law firm and the Mansur family, which the law firm had represented for 20 years. Two Mansur brothers sued for legal malpractice. The law firm claimed they were never clients and was granted summary judgment. On appeal, this decision was overturned in light of a series of writings that had been authored by attorneys of the law firm suggesting they were representing the two brothers.⁴³

After acknowledging that a written agreement is not necessary, and determining the existence of an attorney-client relationship "is a subjective one and hinges upon the client's belief that he is consulting a lawyer in that capacity and his manifested intention is to seek professional legal advice,"⁴⁴ the court noted:

A relationship of client and lawyer arises when: (1) a person manifests to a lawyer the person's intent that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services; or (2) a tribunal with power to do so appoints the lawyer to provide the services.⁴⁵

There likewise was no engagement agreement in E.P. v. Hogreve.⁴⁶ Nevertheless, the appellate court found that an attorney-client relationship existed:

[T]he establishment of the attorney-client relationship does not always require a written agreement or evidence that fees have been paid or agreed upon. Mansur v. Podhurst Orseck, P.A., 994 So.2d 435, 438 (Fla. 3d DCA 2008). In the absence of a formal agreement, the test for an attorney-client relationship "is a subjective one and hinges upon the client's belief that he is consulting a lawyer in that capacity and his manifested intention is to seek professional legal advice. However, this subjective belief must . . . be a reasonable one." Id. (quoting The Fla. Bar v. Beach, 675 So.2d 106, 109 (Fla. 1996)).
Here, Appellants alleged sufficient facts to demonstrate their reasonable belief that they were consulting with Appellee to obtain legal advice. Appellants alleged in their second amended complaint that they wrote to, telephoned, and met with Appellee seeking legal advice on the termination proceedings against M.P.'s biological lather. According to the second amended complaint and its attachments, in his responses to Appellants, Appellee repeatedly referred to himself and Appellants as "we" and "us" and to the termination proceeding as "our case." Appellee also gave Appellants legal advice and counseled Appellants on the status of the legal proceedings, legal filings, and legal strategy and asked Appellants whether they wanted to appeal any adverse ruling in the termination proceedings. Likewise, in an e-mail, Appellee seemingly acknowledged an attorney-client relationship with Appellants, stating "As for your request for me to CC everyone, as an attorney and with confidentiality issues I will send my e-mails/responses only to you and [the Agency], as I'm sure you can understand." Appellee also billed Appellants directly for his services and referred to Appellants as his "clients" in those billings. And, Appellee allegedly prepared and delivered to Appellants a "Legal Opinion Letter on Status of Termination of Parental Rights in Florida." As such, we conclude the second amended complaint sufficiently alleged an ongoing attorney-client relationship and that the legal malpractice action arose out of Appellee's legal services in the termination and related adoption proceedings.⁴⁷

Just as a written engagement letter is not necessary to prove the existence of an attorney-client relationship, neither is the payment of a fee required. In Florida Bar v. King,⁴⁸ the Florida Supreme Court observed:

A fee is not necessary to form an attorney-client relationship. Dean v. Dean, 607 So.2d 494, 500 (Fla. 4th DCA 1992) (also explaining that payment of fee is not required to create attorney-client privilege), review dismissed, 618 So.2d 208 (Fla. 1993). If a fee were required to establish an attorney-client relationship, a lawyer could never perform work pro bono for a client.⁴⁹

1-3:3 Lawyer with Multiple Clients

If the lawyer had multiple roles in the underlying matter, the plaintiff must establish that the lawyer was acting as the client's attorney at the time of the allegedly errant act.⁵⁰

In Ginsberg v. Chastain,⁵¹ the case turned on whether attorney Ginsberg's one-time representation of Chastain in a real estate matter entitled Chastain to believe that Ginsberg also was representing him at a meeting between Chastain and Ahlers, one of Ginsberg's long-time clients.

Where the record is devoid of any evidence indicating that an attorney-client relationship existed for legal services relating to the particular meeting at issue, the element is not proved.⁵² Chastain testified at trial that he never discussed the subject of the meeting with Ginsberg, never asked Ginsberg to perform any services in connection with drafting the agreement between the parties, Ginsberg never billed Chastain for any services in connection with the agreement, Chastain never requested a bill, and the parties had no fee agreement. Chastain thus failed to establish employment of the attorney and had no cause of action for legal malpractice.⁵³

Whether an attorney-client relationship existed in Giedzinski v. Palmer⁵⁴ was deemed to be a factual issue resulting in summary judgment being reversed.⁵⁵ Palmer claimed that attorney Giedzinski breached his fiduciary duty and confidential relationship to her when she purchased an interest in a land trust from him. Giedzinski claimed he was not acting as Palmer's attorney or as an attorney for the land trust when Palmer purchased her interest. Due to the disputed issues of fact, the case was "simply not a case that lends itself to disposition via summary judgment."⁵⁶

Datwani v. Netsch⁵⁷ also involved a land trust. The appellate court ruled that the original beneficiaries under the land trust maintained their right to sue the attorney who closed the transaction after they had already sold their interest in the land trust.⁵⁸ The trial court abused its discretion in not allowing an amendment to the complaint to add as plaintiffs the original trust beneficiaries even though the statute of limitations had expired because the amendment related back to the original complaint.⁵⁹

1-3:4 Requirement of Privity of Contract

With some exceptions discussed below,⁶⁰ a cause of action against an attorney for legal malpractice requires privity of contract.⁶¹ In Angel, Cohen and Rogovin v. Oberon Investment, N.V.,⁶² the Florida Supreme Court set forth the general controlling law as to who may bring an action for legal malpractice. In pertinent part, it stated, "Florida courts have uniformly limited attorneys' liability for negligence in the performance of their professional duties to clients...