1-4 Second Predicate: Attorney's Neglect of a Reasonable Duty

• Jurisdiction: United States

1-4 Second Predicate: Attorney's Neglect of a Reasonable Duty

The second element that a legal malpractice plaintiff must plead and prove is that the attorney neglected a reasonable duty.²⁰⁶ A cause of action exists against an attorney who neglects to perform the services that he or she explicitly or impliedly agrees to when accepting employment.²⁰⁷ However, an attorney does not owe a duty in a real estate closing to any party other than the attorney's client,²⁰⁸ or in a will drafting case to a previous beneficiary when an attorney omits the beneficiary at the request of the testator or testatrix.²⁰⁹

In Southern California Funding, Inc. v. Hutto,²¹⁰ an attorney acted as a bank's closing agent. When the borrowers defaulted on the loan, the bank sued the attorney for failing to tell it about their past problems. In affirming a summary judgment for the attorney, the appellate court wrote:

[W]e can find no breach of duty on Hutto's part in failing to disclose a pending mortgage foreclosure action against the borrowers (which was later dismissed), nor the fact of Hill's prior income tax evasion conviction. These were matters of record, within the knowledge of Rayner [the mortgage broker] as well as of common knowledge in the community, and were matters such as would routinely be discovered in a reasonably thorough credit investigation.²¹¹

1-4:1 Failure to Abide by Rules of Professional Conduct

"[V]iolation of the Rules of Professional Conduct [is not] negligence per se[; however, a violation] may be used as some evidence of negligence."²¹² Generally speaking, the ethics rules do not create legal duties.²¹³ However, where an attorney fails to conduct himself or herself as a reasonably prudent attorney would in similar circumstances, there presumptively is a failure to use due care.²¹⁴

1-4:2 Failure to Predict Changes in Law

An attorney's failure to accurately predict changes on unsettled points of law is not actionable. Thus, a cause of action against the attorneys in Kaufman v. Stephen Cahen, P.A.²¹⁵ for their failure to timely file a wrongful death claim did not exist because the law regarding the statute of limitations for such actions was changed by a Florida Supreme Court decision during the course of the representation.²¹⁶

However, Stake v. Harlan²¹⁷ holds that an attorney has a duty to inform his or her clients of a possible change in the law known to the attorney that could have a materially adverse effect on the clients.²¹⁸ In Stake, the attorney had actual knowledge of the certification of a question to the Florida Supreme Court, evidenced by his citation of the pending case in a letter he wrote to the client. The Second District Court of Appeal held that the attorney breached his duty to make his clients aware of the implications of the certified question, and thereby denied them the opportunity to make an informed decision on whether to transact the subject real estate closing in the manner suggested by the attorney.²¹⁹

1-4:3 Failure to Pursue Specific Parties

An attorney has no duty to pursue faultless or judgment-proof parties. For example, during the investigation of a potential lawsuit arising from an automobile accident, the law firm that was sued in Williams v. Beckham & McAliley, P.A.²²⁰ had determined that no liable party had insurance or assets. The law firm had filed a lawsuit prior to the expiration of the statute of limitations for the purpose of preserving the cause of action. When no action was taken in the lawsuit, the court dismissed the suit for lack of prosecution. Affirming the summary judgment in favor of the law firm, the appellate court held that the law firm had no duty to pursue any party it felt, after investigation, was not culpable or collectible.²²¹

1-4:4 Refusal to Engage in Futile Acts

An attorney's duty does not require him or her to take futile action on behalf of a cli-ent.²²² In Hunzinger Construction Corp. v. Quarles & Brady General Partnership,²²³ the client claimed that its lawyers should have submitted a claim to its...