4-1 Introduction

• Jurisdiction: United States

4-1 Introduction

Florida legal malpractice claims are subject to numerous affirmative defenses.¹ The availability of any particular defense, however, is highly fact-dependent.² In addition, a given defense must be raised in a timely manner and sufficiently pled.³

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Notes:

^[1] A good example of this fact is Garofalo v. Proskauer Rose LLP, 253 So. 3d 4 (Fla. 4th Dist. Ct. App. 2018), review denied, 2019 WL 1320547 (Fla. 2019). In that case, Fla. Stat. § 95.031(2) (a), which acts as a statute of repose and cuts off fraud claims after 12 years, was held to apply to a law firm's opinion letter regarding the legality of a tax shelter. The court rejected the plaintiff's argument that the law firm owed it a continuing duty to disclose errors in the letter.

At one time, the economic loss rule was thought to be a possible defense to a legal malpractice suit. See Emily M. Usow, Redefining the Professional Service Contract: The Evolution and Deconstruction of Florida's Economic Loss Rule, 8 U. Miami Bus. L. Rev. 1 (1999); Paul J. Schwiep, The Economic Loss Rule Outbreak: The Monster That Ate Commercial Torts, 69 Fla. B.J. 34 (Nov. 1995). In Tiara Condo. Ass'n, Inc. v. Marsh & McLennan Cos., Inc., 110 So. 3d 399 (Fla. 2013), however, the Florida Supreme Court made it clear that the rule applies only to products liability cases. See further Bornstein v. Marcus, 169 So. 3d 1239 (Fla. 4th Dist. Ct. App. 2015). Similarly, although an attorney-client relationship is contractual in nature, the statute of frauds will not bar a legal malpractice claim. B & C Investors, Inc. v. Vojak, 79 So. 3d 42 (Fla. 2d Dist. Ct. App. 2011).

^[2] In Abecassis v. Eugene M. Cummings, P.C., 467 F. App'x 809 (11th Cir. 2012), for example, the lawyer's retainer agreement required the client to give the lawyer notice and 30 days to cure any deficiency in the lawyer's performance. Because the client failed to do so, its l egal malpractice claim was deemed waived. Similarly, in Devault v. Isdale, 2015 WL 5915819 (M.D. Fla. 2015), the court...