12-4 Other Protection Methods

• Jurisdiction: United States

12-4 Other Protection Methods

Other than purchasing legal malpractice insurance, few means exist for lawyers to protect themselves from the consequences of their mistakes.

Florida lawyers are permitted to organize their practices as either limited liability companies or professional service corporations. Although utilizing one of these structures will not insulate a lawyer from liability for his or her own errors,³⁵ it may allow the lawyer to escape liability for the malpractice of others.³⁶

A lawyer also can ask a client to agree to waive future malpractice claims. As a practical matter, a client is unlikely to agree. Even if the client is willing to consider the idea, the ethics rules impose specific conditions that are not easily met: "A lawyer is prohibited from making an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement."³⁷

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Notes:

^[35] See, e.g., Fla. Stat. § 621.07, which provides: "Nothing contained in this act shall be interpreted to abolish, repeal, modify, restrict, or limit the law now in effect in this state applicable to the professional relationship and liabilities between the person furnishing the professional services and the person receiving such professional service and to the standards for professional conduct[.]"

^[36] It is unclear whether Florida courts will allow a lawyer to avoid liability for a partner's or associate's malpractice based on the fact that the lawyer has incorporated his or her practice. While case law to this effect exists in other jurisdictions, no Florida decision addressing the issue has been found. However, Fla. Stat. § 621.07 certainly appears to abolish such vicarious liability: "[A]ny officer, agent, member, manager, or employee of a corporation or limited liability company organized under this act shall be personally liable and accountable only for negligent or wrongful acts or misconduct committed by that person...