9-3 Attorneys' Fees

• Jurisdiction: United States

9-3 Attorneys' Fees

In Florida, absent a contractual or statutory basis, attorneys' fees normally are not compensable.²¹ However, if a client sues a third party to recover a portion of the damages caused by the negligent attorney, the attorneys' fees incurred in suing that party may be recovered from the lawyer pursuant to the so-called "wrongful act" doctrine,²² which provides:

One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorney's fees and other expenditures thereby suffered or incurred in the earlier action.²³

The client in De Pantosa Saenz v. Rigau & Rigau, P.A.²⁴ alleged that without her authorization, her attorney filled in a blank deed that she had signed at his request with the name of his mother-in-law in return for the mother-in-law's assumption of a mortgage. The mother-in-law agreed to rescind the transaction after reimbursement of her investment in the property. The Second District Court of Appeal permitted a claim for attorneys' fees in the malpractice suit for the attorneys' fees incurred in the litigation against the mother-in-law and noted, "Typically, a plaintiff has the right to recover attorneys' fees incurred in litigation with a third party, as an element of compensatory damages, if that litigation was caused by the defendant's breach of contract or wrongful act."²⁵

In Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner,²⁶ the trial court dismissed the complaint with prejudice for failure (and inability) to plead the necessary privity requirement. The Third District Court of Appeal affirmed, stating that the pre-termitted heir could not maintain the malpractice action.²⁷ However, it reversed as to the estate.²⁸ In doing so, it explained that the law firm was responsible to the estate for the costs of defending the pretermitted heir's lawsuit:

Clearly, the testator's estate should be entitled to a return of the attorney's fee paid by the testator to the lawyer, as well as any costs and fees incurred in defending the estate against any action generated by the lawyer's negligence, such as an action brought by the omitted beneficiary to receive a share of the estate.²⁹

Whether independent expert testimony was necessary to prove the amount of attorneys' fees being sought under the wrongful act doctrine in the context of a legal malpractice case was addressed in...