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March 29, 2004 | Publication| Danger Zone: Planning Ahead To Avoid Legal Malpractice

Danger Zone: Planning Ahead To Avoid Legal Malpractice


Claims for legal malpractice are exploding. Malpractice insurance is getting more difficult to obtain, and when you can find a carrier, rates are, in some cases, prohibitive. Claims of legal malpractice have no bounds: they cut across many different practice areas. Real estate, transactional lawyers, trial lawyers, general practitioners – all have been (and will continue to be) targets for legal malpractice actions.

The stress of obtaining the best possible result for your client is only heightened by the worry over time deadlines, keeping up with the latest law, or client relations.

This article will discuss how to recognize potential legal malpractice pitfalls, how to avoid being the target of a legal malpractice claim, and how to recognize areas where legal malpractice more frequently occurs. If lawyers are more aware of these routine errors, they will have the ability to spot problems before they happen. In order to do this, they must learn how to screen both the case and the client, how to limit the scope of the retention and, most importantly, how they can use effective communication with their clients to build a strong client relationship. In so doing, lawyers will also gain the advantage of avoiding misunderstandings which lead to legal malpractice actions. The development of internal controls within an office not only lessens the specter of a legal malpractice claim but leads to a more efficient handling of legal matters entrusted to the lawyer.

This paper will also deal with frequently made errors by lawyers who take cases that they are not competent to handle. When the large case, the "sexy" issue or the revered client comes calling, a lawyer is often enticed by the challenge of the issues involved and/or the potential rewards that may result from the case. Such issues overshadow a matter which may be beyond the abilities of that lawyer.

As in other situations, the best way to avoid legal malpractice is to acknowledge that legal malpractice can happen to you. In today's legal marketplace, the specter of the legal malpractice action is no longer a vague possibility but a definite reality. Acknowledging that legal malpractice could happen to any lawyer, no matter his or her skill or experience level, makes a lawyer more acutely aware of the pitfalls involved in modern-day legal practice. Once this has been acknowledged, the lawyer can seek to immunize himself/herself from the infection of a legal malpractice claim.

A. Recognizing Areas Of Potential Legal Malpractice

There is an often-expressed view espoused by many lawyers that "the practice of law would be much more fun without having to deal with clients." That may be the feeling now more than ever. But we have to deal with clients, and the way we deal with them might be the difference between a satisfied client or a malpractice case. Just as doctors can avoid medical malpractice claims by improving their bedside manners, improving client relations should be a priority for all practitioners – with or without the threat of malpractice claims.

While each lawyer has his or her favorite clients, all clients must be treated with the same level of communication and respect that befits the competent practice of law. From a lawyer's standpoint, a good client is one who is reasonable, pays on time, both listens and responds to the lawyer's advice and is cooperative and responsible when the lawyer needs the client's support. A client who understands the demands and challenges of the legal process is prized indeed. From the client's perspective, however, a good lawyer is one who relates to them in a way that is cognizant of the client's needs. For instance, if a client is one who demands constant information and explanation, then a lawyer needs to provide the level and type of information that fits those particular needs. If a client needs short, plain statements of the legal issues and principles involved, then a lawyer should be willing to tailor his or her communication accordingly. In short, the client wants a lawyer who is reasonable in his or her billing, explains their work and listens to the client's wishes and opinions. A client wants a lawyer who is available when the client calls, who understands the client's personal or business demands and who completes work on time.

1.   How To Identify Routine Errors

If a lawyer views legal services from the perspective of the client, many legal malpractice claims can be avoided. Clients who have been surveyed by independent third parties indicate that they are more likely to pursue legal malpractice claims when lawyers exhibit the following traits:

1.   Their lawyers are inflexible – either as to time demands or billing practices.

2.   Their lawyers insist that each interaction with the client occurs in the lawyers' office at a time to fit their schedule.

3.   Their lawyers procrastinate because they are juggling too many tasks or handling too many clients.

4.   Their lawyers reschedule appointments many times because of the demands of other clients.

5.   Their lawyers do not appear interested in the client's opinion on the case.

6.   The bills that their lawyers present are unpredictable.

7.   Their lawyers are not available when the client calls.

8.   Their lawyers seem disinterested in the client's personal or business demands.

9.   Their lawyers seem ignorant of the client's personal or business demands or objectives and do not relate these goals to the way the case or matter is resolved.(1)

There have been a number of studies completed dealing with how the relationship between the lawyer and client impacts the filing of legal malpractice claims. Studies indicate that the strength of the relationship between the attorney and the client has a tremendous ability to impact whether a malpractice action is filed.(2)

In the American Bar Association's Lawyer's Guide To Preventing Legal Malpractice, 2nd Edition, the authors list the "top ten malpractice traps." They are:

1.   Missing deadlines;

2.   Stress and substance abuse;

3.   Poor client relations;

4.   Ineffective client screening;

5.   Inadequate research and investigation;

6.   Conflicts of interest and conflicts of matter;

7.   Inappropriate involvement in client interests;

8.   Lack of adequate documentation of work;

9.   Zealous efforts to collect a fee; and

10.   Unwillingness to believe you may be sued for malpractice.

According to this guide, personal injury cases generated the most malpractice cases filed from 1990 through 1995 (21.65%). The next highest number of malpractice cases involve real estate transactions (14.35%).

Even though these numbers appear high, there was actually a drop in personal injury malpractice claims from the previous period (1983 through 1985). It is believed that the decrease in claims based upon personal injury suits is directly related to improved calendar and docket control systems as a result of technology advances.

a.   Calendaring System

One of the most common errors that lawyers make is a missed deadline. As a lawyer who defends legal malpractice claims, I believe that missed deadlines represent the primary area of concern in defending a legal malpractice claims. When a deadline is missed – a deadline which terminates a right or privilege that the client may have had – a case of legal malpractice is established. While this is only one element of a legal malpractice claim, it proves to be the most troubling. Even though a missed deadline (in and of itself) does not establish a prima facie case,(3) the missing of a deadline, in all practicality, provides the most commonly traveled road toward success in a legal malpractice action.

To avoid missing deadlines, most experts suggest that lawyers record time-sensitive matters on at least two calendars. Not only should the time-sensitive deadline be recorded on two separate calendars, but reminders, backed up from that time-sensitive date, should also be calendared. A lawyer should designate someone in his or her office (other than himself/herself) as the person who is responsible for entering and updating time deadlines that are established. For instance, when a pre-trial order is issued by the court, there are numerous time deadlines that are established by the order which require a lawyer to do certain acts by certain dates. These orders routinely come into an office, are opened by a secretary and are then forwarded to the lawyer. If a system is not developed which automatically begins the calendaring system on the date the letter hits the lawyer's secretary's desk, the first opportunity to begin the calendaring system is lost.

2.   The More Esoteric Malpractice
a.   Duties Upon Discharge

Often, attorneys believe that once they are discharged from a case by a client, they have no further obligations to that client. This is not necessarily true in the "brave new world" of legal malpractice. When a client elects to discharge his or her counsel and retain other private representation, the attorney who is discharged must act to minimize the harm that might befall the client after he or she is discharged. This could include items such as cooperating with the new counsel, providing the new counsel some insight in the case and working to make the transition to the new lawyer smooth. When a lawyer does not do this, the lawyer can be subject to disciplinary action. The Florida Bar v. Grusmark, 544 So. 2d 188 (Fla. 1989).(4)

b.   Paralegal Or Secretarial Review Of Documents With Clients

Often, attorneys prepare documents and have their secretaries or paralegals present those documents to clients. An attorney who acts in this manner does it at his or her own peril. An attorney who prepares or re-drafts a document has a duty to read it before allowing it to be turned over to his or her client, although the attorney was not present when a secretary or paralegal gave the re-drafted document to the client to execute. Arnold v. Carmichael, 524 So. 2d 464 (Fla. 1st DCA 1988), rev. denied, 531 So. 2d 1352.

c.   Business Relationship With Clients

Another area that is expanding with regard to attorney liability involves attorneys who have business relationships with their clients. If an attorney who enters into a transaction with a client obtains any advantage, the client can void the transaction and seek redress against the attorney for malpractice. If this occurs, the attorney has the burden of showing not only that he or she used no undue influence over the client but that he or she gave the client all the information and advice which would have been his or her duty to give the client if the attorney had not been interested in the transaction. The attorney has the burden to show that the transaction is as beneficial to the client as it was to the lawyer and would have been beneficial to the client had the client been a stranger – had there been no attorney-client relationship. This is a very difficult and strict standard. See Gomez v. Hawkins Concrete Constr. Co., 623 F. Supp. 194 (N.D. Fla. 1985).

d.   Provable Damages

Another area where there has been an expansion of liability in legal malpractice cases has been the area of damages. A good example of this expansion is evident in the case of Fernandez v. Barrs, 641 So. 2d 1371 (Fla. 1st DCA 1994). That case involved a cause of action where an attorney was retained to seek a personal injury claim against a governmental entity. As most know, governmental entities in Florida have liability against them capped by statute. In a case against a governmental entity, the statute caps the liability at $100,000 per person. If the claimant hopes to collect a judgment above the $100,000 statutory cap, they must seek a claims bill in the state legislature. In the Fernandez case, the lawyer who was retained to pursue the claim against the governmental entity allowed the statute of limitations to run. When he was sued for malpractice, the lawyer asserted that the most he was liable for was $100,000. The court found otherwise. They held that in a situation where an attorney allows an action against a governmental entity to be barred because he failed to file the case within the statutory limitations period, the burden shifts to the lawyer to establish that the claimant would not be able to collect the judgment through a claims bill. In effect, the court expanded the liability beyond the $100,000 – putting the burden on the lawyer to show that the claimant, through the claims bill process, could not collect in excess of the statutory cap.

3.   The New, Expanding Third-Party Practice

The general rule in Florida (as in most states) is that there must be a direct attorney-client relationship between the lawyer and the client before a legal malpractice action can be brought. A lawyer who does not directly represent a party cannot be liable for legal malpractice.

There are, however, some exceptions to this rule. For instance, in a case where an individual who alleged that he, rather than a corporation, was the owner of funds subject to an interpleader action, the court held that this individual was able to state a cause of action in a third-party complaint against the attorney who was allegedly negligent in representing the corporation as to those funds. The individual was allowed to allege that the lawyer exposed them to the loss of their funds to the corporation if the attorney's negligent advice was the direct reason that the funds were lost. The court ruled that the individual had the right to seek indemnity against the attorney despite the lack of a direct attorney-client relationship. Oliverieri v. Fla. Ass'n of Pub. Employee Pension Trustees, Inc., 627 So. 2d 1335 (Fla. 4th DCA 1993).

The major exception to the rule that a lawyer is not liable to a party not in privity of contract with him is a situation where the client apparently intended the lawyer's action to benefit a third party. Such is the situation where the client is a testator and he intends the lawyer to draft a will in such a way that it specifically benefits certain persons. Where the testator intends third-party beneficiaries and hires a lawyer to draft a will, the third-party beneficiaries have been held to have standing against the lawyer in the legal malpractice action. Angel, Cohen & Rogovin v. Oberon Investments, N.V., 512 So. 2d 192 (Fla. 1987); McAbee v. Edwards, 340 So. 2d 1167 (Fla. 4th DCA 1976); Espinoza v. Sparber, Chevin, Shapo, Rosen & Heilbronner, 612 So. 2d 1378 (Fla. 1993).

The extension of liability to third parties, however, is not unlimited. In a situation where a real estate transaction involves a lending institution which requires the purchaser to pay the lender's law firm's fee for examination of a title, the extension of the liability has been held not to apply. The court's reasoning was that a purchaser of real property paying that fee did not establish an attorney-client relationship between the purchaser and that law firm, and therefore, the law firm's alleged malpractice in examining the title did not provide a right of action in favor of the purchaser. Amy, Inc. v. Henderson Franklin Starnes & Holt, P.A., 367 So. 2d 633 (Fla. 1979). Similarly, the Third District Court of Appeal ruled that a city attorney was not liable to victims who were injured in an automobile accident involving a city-owned vehicle where the city attorney failed to inform the city of an order requiring it to preserve the evidence of that accident and the city destroyed the vehicle. The court ruled that the victims were not the intended beneficiaries of a direct representation by the city attorney of the city. Therefore, no cause of action for legal malpractice arose. Vargas v. Reinert, 547 So. 2d 264 (Fla. 3d DCA 1989). See also, Moss v. Zafiris Inc., 524 So. 2d 1010 (Fla. 1988), where the attorney for a sublessor was not subject to liability to a sublessee where it was discovered that the attorney negligently advised the sublessor that he had the authority to sublease the property.

Disciplinary proceedings have also tracked the expansion of liability to attorneys who are not technically in privity with a client. The cases which have expanded the responsibility of an attorney in a disciplinary matter deal with two major issues: the duty of the lawyer to supervise and vicarious liability.

The Indiana Supreme Court publicly reprimanded a lawyer in a case where he had no direct involvement and, in fact, never spoke nor met with a client. That case involved a client who entered into a contingency fee arrangement with a law firm to pursue an employment discrimination case. The reprimanded lawyer's partner signed a contingency fee agreement on behalf of the firm. That partner then prepared a civil complaint and the summonses which were to be filed in federal court. The disciplined attorney co-signed these pleadings. After co-signing these pleadings, the disciplined lawyer had no further direct involvement in the case. He did not speak with nor meet with the client. All notices in the litigation had his name on them but were routed directly to his partner who handled the case. The Indiana Supreme Court found that once the lawyer had appeared in the case, he had the responsibility of keeping abreast of the litigation. He did not monitor the litigation, counting on his partner to adequately supervise the case. His partner failed to handle the case, and the lawsuit was dismissed. Sometime later, the disciplined attorney found out about the dismissal and informed the client. Citing Disciplinary Rule 5.1(c)(2), the Indiana Supreme Court publicly reprimanded the lawyer for failing to ensure that the client's case was adequately prosecuted. They held that he had this responsibility because he signed the initial pleadings in the matter. The court noted:

When a partner in a law firm jointly appears in a case or other legal matter with another partner in the firm, each is responsible for the prosecution of the case or the legal matter and should take steps to ensure that the matter does not languish in the hands of the other.

In re Anonymous, 624 N.E.2d 1101 (Ind. 2000), (emphasis supplied).

In a case recently decided by the Fifth District Court of Appeal, the court narrowly construed the extension of liability to third-party beneficiaries of a will. In the case of Chase v. Bowen, the Fifth District Court of Appeal held as a matter of law:

[T]hat an attorney who merely drafts the will of one who changes his or her mind and excludes from a later will a beneficiary who had been included in an earlier one cannot be found to have intentionally interfered with the inheritance of such beneficiary. Drafting a will in accordance with the instruction of the testator or testatrix is simply not tortious conduct.

25 Fla. L. Weekly D244 (Case No. 5D99-890, Oct. 6, 2000). The court so held even though the person excluded from the will had also been a client of the lawyer. The court reasoned that the representation of a former beneficiary of the will did not involve a conflict of interest and if the lawyer prepares the wills for various members of the family, he assumes no obligation to oppose the will of the testator or testatrix from changing his or her mind. The court further ruled that the lawyer was not precluded from assisting the testator or testatrix from redrafting the will even when the redrafting excluded a beneficiary from the earlier will who also happened to be represented by that lawyer.

B.   How To Avoid Being The Target Of A Legal Malpractice Claim

1.   Screening The Case And Client

The best place to prevent legal malpractice from occurring is the first time the lawyer meets the prospective client – when the client or prospective client contacts the lawyer seeking his or her representation. The appropriate screening of both the case and the client will go a long way toward preventing legal malpractice from occurring later. If the lawyer is unfamiliar with the client, he or she should determine how the client got his or her name and obtain some information about the client prior to undertaking the representation. The lawyer should check the client's business or personal contacts and, if the client was referred to the lawyer, check on references. Often, clients have been to three or four lawyers prior to showing up at the fifth lawyer's office – there is generally a reason why the client is on the fifth interview for prospective legal representation. It is better to find this out sooner rather than later.

It is also important for the lawyer to screen the case. Is there adequate factual basis for the claim? Is this an established area of law? Does the client have a novel legal approach? Could the representation of the client lead to sanctions against the lawyer if the claims are not proven? A great example of this occurred in a disciplinary proceeding in Missouri which concluded on December 21, 1999. In re Kylar W. Broadus, Case No. 81920. Broadus was retained to represent a client in a modification of child custody and support matter. His client was the mother. Broadus filed a motion for change of venue and change of judge, alleging in the motion that the judge before whom the motion was pending should not hear the case because the judge was involved in a divorce in which the issues of his wife's lesbianism and child custody were present. Broadus made the allegation based on what he had heard "through the grapevine." The court, after briefing and argument, publicly reprimanded Broadus for failing to investigate adequately the allegations made in his motion – which proved unfounded. Prior to undertaking representation, the lawyer should investigate the facts of the case. In fact, the failure to investigate facts is itself evidence of malpractice.

When an attorney-client relationship is established, a client has a duty to inform his or her lawyer of all relevant facts. Correspondingly, the attorney has a duty to investigate those facts in the representation of that client. The failure to properly investigate facts can subject the lawyer to a malpractice action. See, e.g., In re McEnzie, 135 B.R. 869 (Bankr. S.D. Fla. 1991).

When a case and a client are screened, it is important to delineate specifically how the representation is to be undertaken. Special consideration should be given by a lawyer where he or she is representing an organization. For example, when a lawyer is representing a corporation, the lawyer must explain the identity of the client when it is apparent that the organization's interests are possibly adverse to its directors, officers, employees, shareholders or other members of the organization. In that type of situation, a lawyer must explain that he or she is retained by the organization acting through its duly authorized representatives, not the representatives themselves. A lawyer can only represent the organization and one or more of its directors if the organization and the director consent to the dual representation and the person giving consent is not the same as the officer or director being represented in that dual capacity. See Rules Regulating The Florida Bar, Rule 4-1.13(a) and (e).

2.   Scope Of Retention

Once a lawyer screens the case and the client, the scope of the legal representation must be established, and it should be established in writing. There are some circumstances where the agreement must be in writing and some situations where it should be in writing. It is recommended, however, that those distinctions not be recognized and that all relationships between the attorney and client be in writing in order to avoid the pitfalls and traps that can befall an attorney when undertaking the representation.

The test which delineates the existence of an attorney-client relationship is the strongest reason the agreement be in writing. The test in Florida is the client's "reasonable, subjective belief" that he or she is retaining a lawyer or consulting a lawyer in a certain capacity with the intention of seeking professional advice. Unless an agreement is in writing, the existence of the attorney-client relationship is subject to the later determination of the client's reasonable, subjective belief. Keepsake Inc. v. PSI Industries Inc., 33 F. Supp. 2d 1033 (M.D. Fla. 1999). The existence of an attorney-client relationship depends upon the intent of the prospective client, not the actions of the lawyer. Black Hawk Tenn. Ltd. Partnership v. Waltemeyer, 900 F. Supp. 414 (M.D. Fla. 1995).

It is the commonly held belief with most practitioners in Florida that the existence of an attorney-client relationship depends upon the payment for fees. Nothing can be further from the truth! Make no mistake about it, a fee is not necessary to form an attorney-client relationship. The Florida Bar v. King, 664 So. 2d 925 (Fla. 1995), reh'g denied. When a client consults a lawyer with the reasonable, subjective belief that he or she is retaining that lawyer and a lawyer provides some type of advice to the client,(5) an attorney-client relationship is established.

In order to avoid the "phantom client" problem, a lawyer who consults with a prospective client and who does not believe he or she is retained by that client should send a letter to the client verifying the fact that he or she has not been retained by that client and has not provided legal advice to the client. This letter should be sent contemporaneous with the meeting or discussions with the client. While this is not a "cure-all," it is a necessary inoculation to document the lack of an attorney-client relationship at the time the consultation is made. This should be a standard routine practice of all lawyers. It is an excellent way to avoid a potential legal malpractice claim.(6)

Once a matter is accepted, it is very important that an attorney specifically delineate the work that is to be performed. This, again, should be done in writing. There are many instances where a client will allege that the attorney agreed to provide services in one area where the attorney alleges that he or she was only retained for another specific purpose. This, of course, creates a question of fact which will, in turn, require the matter to be resolved by a jury. For example, a client brought a cause of action against his attorney for failure to provide legal services as agreed. The attorney indicated that the services the client alleged were promised to be provided (the filing of a foreclosure action) were never agreed upon. When this case was brought to court, the court ruled that where the client can establish that it was the client's reasonable, subjective belief that a foreclosure action would have been filed and where the action was not, in fact, filed, a question of fact existed as to whether or not the attorneys were liable for legal malpractice in failing to pursue that avenue of redress. This was so even where the attorneys actually performed work in another area for that client. Weiner v. Prudential Mortgage Investors Inc., 557 So. 2d 912 (Fla. 3d DCA 1990).

An attorney hired to do one task for a client should be aware of the requirements of law that may be associated with that task – even if those requirements do not fall within the specialty area or expertise of the attorney. In a case from the First District Court of Appeal of Florida, an attorney was hired by a homeowner to assist the homeowner and advise concerning a general contract in connection with the construction of a home. The attorney offered advice to the client only as to the client's rights and duties in connection with the possible termination of the general contract for the construction of the home. The court ruled, however, that the attorney had a duty, when advising the client concerning the termination, to further advise his client to ensure that if the client broke the contract with the general contractor, an affidavit of intention to recommence construction and a new notice of commencement be filed. Even though the attorney did not have any expertise in mechanic's lien law, the attorney had the duty to advise his client that they should consult an attorney specializing in that area of (mechanic's lien) law. The attorney's failure to see that the requirements of the mechanic's lien statute were complied with was legal malpractice, even though he was not hired to deal with questions involving that area of law. McCurry v. Eppolito, 506 So. 2d 1110 (Fla. 1st DCA 1997).

3.   Effective Communication With Clients

The single greatest immunization against malpractice may be communication. A client who is well informed from the beginning of the representation through its conclusion is less likely to file a legal malpractice action – even when things go wrong. Prompt, regular communication throughout the matter is the most important tool that an attorney has at his or her disposal in avoiding legal malpractice.

Communication, quality service and a thoughtfully constructed client relationship are key ingredients [in lowering the risks of legal malpractice]. Statistics repeatedly show that well-informed, happy clients who trust their lawyers are less likely to become adversaries in a legal malpractice claim. . . while returning phone calls is important, proper communication with a client involves much more.

A lawyer should define up front the type and frequency of communication a client expects in a case. . . .  [A lawyer should always remember that] a case is not the property of the lawyer, the court or the law firm. The case belongs to the client. . . .  [I]t is the client – not the lawyer – who decides how important case decisions are made and who makes them. . . .  Informed clients are less surprised when results are not as expected and less likely to blame their lawyers.(7)

In their article, "Tips on Client Communication," Sally Field and Cal Watson of the Great American Insurance Companies, Legal Professional Liability Division, advise that lawyers should:

1.   Listen actively to clients.

2.   Understand their clients' goals.

3.   Establish and maintain reasonable expectations.

4.   Report status of cases and matters regularly.

5.   Share the work that you have done with your client.

6.   Discuss fees during the first meeting.

7.   Put the fee agreement in writing.

8.   Avoid surprises (by keeping the client informed as to current status and to future expectations).

9.   Adjust your client's expectations promptly.

10.   Provide for changed circumstances.

11.   Bill periodically and promptly.

12.   Return all phone calls.

13.   Acknowledge all correspondence.

14.   Take time to educate your client.

15.   Show that you care about your client as a person.

16.   Show that you are committed to helping your client achieve the goals for which you have been engaged.(8)

Keeping clients informed serves not only to avoid legal malpractice, but it also serves to avoid disbarment. Lawyers have been routinely disbarred for failing to keep their clients apprised of the progress of a matter.(9)

4.   Use And Implementation Of Internal Controls Within The Office

As noted in the introduction, calendaring and tickler systems have become vital tools for avoiding legal malpractice. With the advent of technology, the calendaring of items has become (somewhat) automated. In a recent article by Richard Susskind published in Law Technology News,(10) he states:

By and large, lawyers are poor project managers. While some display some natural talent in this direction, very few are formally trained in the discipline. It is immensely regrettable. Many matters are highly complex, sophisticated, human resource-intensive and lengthy processes, which need tight control. . . .(11)

Managing a matter entrusted to the lawyer is important to ensure that the client receives a high quality of legal service in a cost-effective, timely and, more importantly, nonstressful way.

One of the ways to ensure that there are internal controls within the office so as to avoid legal malpractice is to consider the following checklist. Ask these questions of yourself and your staff – the answer may possibly be an indication of whether or not you or your firm is ripe for malpractice.

1.   Are the client's expectations of the lawyer and, vice versa, defined up front and in writing by an engagement letter?

2.   Is the lawyer's staff polite and helpful when dealing with clients?

3.   Are phone calls promptly returned by the lawyer or, in his or her absence, by an associate, paralegal or a secretary?

4.   Are all costs and expenses justified and thoroughly explained?

5.   Is the client consulted before an associate or paralegal is assigned to the file?

6.   Are associates and paralegals properly educated about the files so that the client's questions can be answered completely and competently?

7.   Does the lawyer genuinely listen to the client's ideas and concerns?

8.   Does the lawyer do what he or she promises within the time frames set by the client and agreed upon by the lawyer?

9.   Are billing questions answered properly?

10.   Does the lawyer take an interest in the client, taking care that the client is met promptly during appointments and otherwise comfortable?

11.   Does the law firm have internal policies and procedures that make the quality of client service a priority?(12)

Another example of an internal control to avoid legal malpractice is the client's bill. If a lawyer adequately describes the work done for a client on a particular matter on a particular date, legal malpractice claims involving what the lawyer did or did not do may be avoided. A bill for services rendered should read like a summary of the case. If a client is billed regularly and the bill reflects what went on in the case and why, a client is kept informed and is less likely to institute malpractice actions. Billing statements should be clear and understandable. As a practical matter, no one, including a client, likes to pay bills that do not make sense or are too generic or do not convey much information.

5.   Avoiding Legal Malpractice By Only Taking A Case That The Lawyer Is Competent To Handle

While everyone must start somewhere, a client does not want to retain a lawyer who has to educate himself or herself on an area of the law while a matter is under way. A lawyer who accepts a case without a level of competency in the matter entrusted to him or her is inviting a legal malpractice claim. This involves situations not only where a lawyer fails to possess the competency to handle a matter when the matter is originally entrusted, but in situations where a lawyer fails to recognize the needs for representation of a client outside his or her area of expertise during the handling of the matter for a client.

In the case of Parker v. Graham & James, 715 So. 2d 1047 (Fla. 3d DCA 1998), reh'g denied, an attorney was accused of malpractice for failing to preserve rights his clients had to survivor benefits under a government pension fund when that lawyer was handling a marital settlement agreement. Unless the marital settlement agreement specifically delineates how the survivor benefits under the government pension fund are to be handled, the client may be denied those rights by the government after the death of the person to whom those government pension funds are owed. A lawyer who does not recognize the intricacies of the federal pension system can run afoul of his duties when he is representing the spouse of a government pension participant in a dissolution marriage action. Parker v. Graham & James, 715 So. 2d 1047 (Fla. 3d DCA 1998), reh'g denied.

As pointed out earlier, a lawyer who fails to properly supervise and manage his or employees or associates can be responsible for either legal malpractice or disciplinary proceedings even though the area of expertise for the matter entrusted is outside the lawyer's competency.(13)

C.   Conclusion: Acknowledging This Can Happen To Me

It has been said that the Internet is making instant consumers of all of us. It is also depersonalizing and systematizing services so that they are becoming a commodity. What this means for lawyers is that clients are expecting faster and more efficient service, more immediate communication and the type of "value added" service that comes with this new "Internet economy."

As with most problems, opportunities are created for those who are creative. It is my belief that lawyers can use this new way of thinking to their benefit, while at the same time preventing legal malpractice actions from occurring. In an article by Sally Field, the President of the Legal Professional Liability Division of Great American Insurance Companies, she notes the following suggestions (with my comments in brackets):

1.   Call each new client before the first bill is sent to explain the bill and invite questions and call existing clients before a large bill is sent.

2.   Read what the client reads. Understand their business. [Think like the client thinks and provide the type of legal services that you would expect if you were the client.]

3.   Prepare budgets and timetables for all matters (whether the client asks for them or not), then live up to them.

4.   Underpromise and overdeliver. Live and die by the sword.

5.   Communicate! [Keep the client fully informed of everything that goes on in a case and explain to them the significance of everything that transpires. This way, the client can be informed not only of what is happening but the significance of what is happening.]

6.   Meet with the client on their own turf. Suggest and insist that you meet the client at their location so that you can understand how best to serve your client. [If you really want to market this client as a future source of business, do not charge for your travel to their location at least for the initial meeting.]

7.   Know and monitor the client's objectives. Always ask where the client wants the case to end up and continue to ask this question as the objectives in the case change.

8.   Use the calendaring system in your office and set ticklers for client follow-up.

9.   [Be direct with your client.] The Socratic method of human interaction does not work with the client.(14)

In conclusion, be direct, honest and forthright. When all else fails, this approach will work. It could never get as bad as it did for Joseph Habib Hobika Jr., a lawyer from New York who was suspended for three years due to his handling of a matter. Mr. Hobika was the managing attorney in a firm that employed his brother, Luke. He negotiated a lump-sum settlement on behalf of a claimant in a workers' compensation case and assigned the file to his brother for the handling of the final hearing. When Luke learned that the client was suffering from cervical cancer and was unable to appear at the hearing, he solicited the client's sister to impersonate the client and give sworn testimony at the hearing. Mr. Hobika acknowledged that he was aware that the claimant's sister intended to appear on her behalf. Because of this, Mr. Hobika was convicted in state court of criminal solicitation in the fourth degree. The court suspended him for three years despite the fact that the court recognized that his misconduct was attributable to inattentiveness resulting from the stress of his workload rather than the intent to perpetrate a fraud upon an administrative tribunal.(15)

Legal malpractice claims do not only get filed against the Joseph Habib Hobikas of this (legal) world, they get filed against some of the best lawyers and the best firms. Once we acknowledge this fact, we can take measures to avoid the pitfalls discussed herein. Facing this fact is the first step, the rest is up to you!


1. "The Client's Perspective," by Sally Field, Divisional President, Legal Professional Liability Division, Great American Insurance Companies, www.greatamericanlawyer.com.

2. "Profile of Legal Malpractice: A Statistical Study of Determinative Characteristics of Claims Asserted Against Attorneys," American Bar Association Journal, May 1986. "Communication, quality service and a thoughtfully constructed client relationship are key ingredients to lower the risks. Statistics repeatedly show that well-informed, happy clients who trust their lawyers are less likely to become adversaries in a legal malpractice claim."

"Avoiding Legal Malpractice – An Outside Counsel Perspective," J. Calhoun Watson for the Great American Insurance Companies, Legal Professional Liability Division, www.greatamericanlawyer.com.

3. A client must still prove that as a result of the missed deadline, they have been damaged. If, for instance, a statute of limitations deadline is missed, the client must still prove that if a case was filed within the statutory limitation, the client would have been able to recover and, if so, how much. As a practical matter, however, a jury tends to look at the per se nature of the missed deadline as the most important factor in a case.

4. See also Florida Bar Rule 4-1.16(a)(3), Disciplinary Rule 2-110(b)(4).

5. As viewed from the perspective of the client.

6. Don't forget, however, to keep these letters!

7. Supra, "Avoiding Legal Malpractice: An Outside Counsel's Perspective." www.greatamericanlawyer.com.

8. "Tips on Client Communications," Great American Insurance Companies, Legal Professional Liability Division, www.greatamericanlawyer.com.

9. See, e.g., In the Matter of David Lee Judah, No. S99Y0779 (Ga. May 2, 2000); People v. Elliott, 99PDJ059, 99PDJ086 (Col. Mar. 1, 2000); People v. Hotle, 99PDJ038 (Col. Oct. 16, 1999).

10. "Trends in Online Legal Practices," Law Technology News, Jan. 29, 2001, www.law.com.

11. Supra, "Trends in Online Legal Practices."

12. "Avoiding Legal Malpractice – An Outside Counsel's Perspective," J. Calhoun Watson, www.greatamericanlawyer.com.

13. See, e.g., In re James Mark Heldenbrand, No. SB-99-0089-D (Ariz. Jan. 13, 2000).

14. "Avoiding Legal Malpractice: The Client Perspective," Sally Field, Divisional President, Legal Professional Liability Division, Great American Insurance Companies, www.greatamericanlawyer.com.

15. In re Joseph Habib Hobika Jr., 707 N.Y.S.2d 279 (N.Y.A.D. 3 Dept., May 10, 2000).

September 24, 2018 PublicationFla. High Court Bolsters Policyholders in Bad Faith Cases

Partner Kathy Maus was featured in a Law360 article titled "Fla. High Court Bolsters Policyholders in Bad Faith Cases".

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August 21, 2018 PublicationJohn Garaffa "Business Interruption and Damage Claims"

Partner John Garaffa wrote a chapter titled "Business Interruption and Damage Claims" for the 5th Edition of The Complete Guide to Economic Damages.

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July 10, 2018 PublicationButler Quarterly - Summer 2018
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September 20, 2017 PublicationFlorida Insurance Litigation (2017 Edition)

LexisNexis Practice Guide: Florida Insurance Litigation provides the practitioner with immediate access to knowledge and strategy on every aspect of insurance practice in Florida. The publication concisely presents the terms, conditions and exclusions that govern coverage offered against the risks under each line of insurance. This approach provides a comprehensive exploration of key concepts, policy language and insight for litigation of common and esoteric disputes under those policies. Each chapter also provides task-oriented checklists, examples, strategic points, and cross-references to governing statutory and case law.

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Sun-Tzu is a well-recognized and oft-quoted Chinese general, military strategist and philosopher. He is also credited as the author of The Art of War.1 While the title clearly identifies that book as having much to do with actual war, Sun-Tzu’s philosophy translates to many different fields of application. One such field of application is the preparation for and litigation involved with a jury trial. Most specifically applicable is the Sun-Tzu quote that “every battle is won or lost before it’s ever fought.” Before your jury trial even begins, the actions that most impact the results obtained are the preparation of the jury instructions, the preparation of the pretrial stipulation, the preparation of motions in limine, and the intricacies involved in the jury selection process.

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July 14, 2017 PublicationFlorida Water Loss Claims: What's Owed, And When?

Water loss lawsuits have spiked dramatically in Florida during the past few years. Insurers simply cannot resolve the unusually large differences in water damage estimates. Scope of estimated matching work usually explains the disparity. And litigation ensues over this hypothetical question: Can the water-damaged or tear out items be replaced and then matched to undamaged adjoining items; and if not, what is the proper scope of the matching work?

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June 27, 2017 PublicationButler Quarterly - Spring
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June 16, 2017 PublicationLiterature for Life

What does reading literature have to do with the mission of DRI for Life? Some might suggest reading that we read mostly as pleasurable respite or for entertainment. That certainly is true in the cases of, say, mystery stories or romance novels. But I say reading real literature is more, and more essential to life, than that.

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April 21, 2017 PublicationTort Trial & Insurance Practice Law Journal, Winter 2017

View Bill Lewis, John Garaffa, and Sarah Burke's newest contributions to the ABA's Tort Trial & Insurance Practice Law Journal. This comprehensive PDF explains recent developments in property insurance law.

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February 23, 2017 PublicationIs It Hot in Here? Significant Recovery Opportunities with Boiler Failures

Water boiler failures provide significant recovery opportunities. By understanding how these relatively simple systems work, one can realize that recovery potential and identify the probable failures modes, skillfully directing the recovery investigation, and asserting the proper legal theories that afford recovery.

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February 22, 2017 PublicationPennsylvania – VOIDED Terms and Conditions: Unlawful and Unconscionable Exculpatory Clauses

How many of your subrogation claims have been closed because of the subrogation killing terms and conditions of a contract? A recent decision in the Eastern District of Pennsylvania, United States District Court found in favor of a subrogating insurance carrier and held that the terms and conditions barring recovery were both unlawfully drafted and unconscionable, thus allowing the subrogating carrier to move forward with its subrogation claim. State Farm Fire & Cas. Co., a/s/o Sara Rivera v. Petroleum Heat & Power Co., Inc., 2016 WL 5816182 (E.D. Penn. October 5, 2016).

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February 06, 2017 PublicationThe Confession-of-Judgment Doctrine: No Good Deed Goes Unpunished

Virtually every jurisdiction in the United States has a statute on the books that provides for prevailing-party attorney fees in favor of insureds when they are successful in coverage suits against insurers.

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January 27, 2017 PublicationWhen Pipes Go Pop

Although we may not see the historic low temperatures associated with the polar vortex of 2014, the winter season always brings with it an influx of freeze-related claims. Notably, the involvement of Mother Nature does not automatically preclude a subrogation recovery, and these types of claims should be triaged promptly and efficiently in order to avoid overlooking subrogation potential.

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January 26, 2017 PublicationDamages Proof in Subrogation Cases

In the past few years, savvy defense lawyers have taken a more inquisitive approach on the valuation of subrogation damages across all lines of insurance. Gone are the days of assuming the damages must be right because no carrier wants to pay more than they should.

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January 03, 2017 PublicationIf you invade someone's privacy with a drone, your insurance might not cover it

Drones, also known as unmanned aerial vehicles or unmanned aerial systems, can be equipped with cameras, thermal scanners, license plate readers and facial-recognition software.

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November 21, 2016 PublicationBoom! Maximizing Recoveries in Catastrophic Explosions

An explosion is an extraordinary event that forever changes the psyche of those affected. The bigger the scale of the explosion, the bigger the challenges are to move forward and to develop viable recovery claims. It is a dilemma that requires sophisticated leadership and seasoned subrogation counsel, forensic consultants, and loss adjusters.

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October 18, 2016 PublicationFollow Up on Assignment of Benefits Litigation in Florida

In the summer of 2016, SLA published an article titled "Assignment of Benefit Litigation in Florida." The article was an introduction to the topic of assignments of benefits ("AOB") in Florida and how they are being used in insurance claims and litigation. Many readers asked for a follow up article that would provide some additional information and analysis on certain AOB topics. This article will spotlight four of those topics and give the reader some additional information and analysis on each of them.

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October 10, 2016 PublicationWho, What, When, and How Much? Key Questions to Ask When Faced With a Potential Sovereign Immunity Defense

With each new claim we navigate a myriad of potential obstacles to recovery.  As subrogation professionals, we work to quickly identity these issues and evaluate the best recovery strategy.  In doing so, some obstacles may first appear insurmountable, but later give way to the ever diligent subrogation professional.  One such obstacle is the concept of sovereign immunity.

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September 08, 2016 PublicationAdjuster Tools for Water Losses

Hmm, a water loss claim. Lots of those lately. She looked further and saw it was actually two claims. Two water loss claims within one week of each other. One, a loss in the bathroom when a pipe underneath the sink burst and the other was a kitchen loss from a broken p-trap.

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August 11, 2016 PublicationIn Hot Pursuit: Strategies for Pursuing Subrogation Against Wildfire Damages

Each year, wildland fires scorch millions of acres of brush and timber, damage tens of thousands of homes and commercial properties, cost federal and local governments billions of dollars in suppression efforts, and cost insurance companies hundreds of millions in property insurance proceeds.

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June 27, 2016 PublicationHistoric Hotel, Restaurant & Nightclub Fires Provide Common Threads for Developing Significant Subrogation Recoveries

Countless fires occur every year. They cause billions of dollars in property losses, and sometimes result in bodily injuries and deaths. Public assembly fires arising out of hotels, restaurants and nightclubs are prone to significant calamities, given the fire risks, types of use, occupancy, and human factors. While fires are frequently avoidable, the fires themselves would oft be smaller in scope “but for” the failures of fire suppression, detection and alarm systems; lack of effective containment; material flammability; and other failures. This article discusses the common thread of historic hotel, restaurant and nightclub fires—many of which are iconic.

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June 24, 2016 PublicationAssignment of Benefits Litigation in Florida

Over the past five years, first-party property insurers in Florida have been experiencing a wave of claims and lawsuits by contractors who obtain insurance rights from insureds through document called an assignment of benefits ("AOB"). This article is intended to introduce the reader to this topic and explain some of the challenges facing insurers in dealing with AOBs in Florida. The reader is welcome to contact the author to learn more.

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June 21, 2016 PublicationThe Inadequacies of the Diminution of Value Approach to Damages to Real Property in Tort Claims

Generally speaking, the purpose of tort damages is to make an injured party whole and restore the injured party, as nearly as reasonably possible, to the position in which he or she would have held absent the injury. When dealing with damages sustained to real property, most jurisdictions provide that the cost to repair the property is the proper measure of damage so long as the cost to repair does not exceed the diminution in value, which is the difference between the fair market value immediately before and immediately after the damages are sustained.

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As one of the nation’s most preeminent jurists put it, domestication of horses did not give rise to a “law of the horse,” and the rise of the Internet era did not give rise to a “law of cyberspace.”1 Likewise, the proliferation of drones will not give rise to a new area of law called “drone law.” What will happen instead is much more complex.

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March 07, 2016 PublicationGood Faith, Bad Faith: A Legal View

The purpose of Good Faith/Bad Faith is to serve as a compendium of general information insurers may wish to use as part of the development of their own individual claims-handling procedures; however, Good Faith/Bad Faith neither sets forth any particular practice or policy as a recommendation or best practice nor does it represent a compilation of widely followed procedures.

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September 28, 2015 PublicationKeep The Faith: Whether The Attorney-Client Privilege Applies In Third-Party Bad Faith Actions

One of the most rapidly developing issues in Florida and in courts around the country is whether the attorney-client privilege can be relied on by an insurer in a third-party bad faith action. The attorney-client privilege is one of the oldest confidential communication privileges in Florida.

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July 07, 2013 PublicationLow Liability vs. High Demand: Overcoming the Aggressive Plaintiff Attorney's Delusions of Grandeur for Policy Limits" Primerus Corporate Client e-Newsletter,

For a copy of the publication please contact Josh Golembe.

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July 01, 2013 PublicationCorporate Tort Liability under the Alien Tort Statute Post-Kiobel, 21 U. Miami Bus. L. Rev. 281

ATS cases.' The court entered into uncharted and controversial territory' though, as it attempted to deal with a claim made by a group of Nigerian plaintiffs who alleged that "Dutch, British, and Nigerian corporations engaged in oil exploration and production aided and abetted the Nigerian government in committing violations of the law of nations"' so as to promote their exploratory efforts.' In ultimately determining that corporate liability does not exist under the ATS,' the Second Circuit majority misconstrued its own precedent and that of other circuits, the Supreme Court's interpretation of the ATS in Sosa v. Alvarez-Machain,o the principles and goals of international law, scholarly commentary, and the earliest available interpretations of the ATS. The plaintiffs sought review in the Supreme Court of the United States.

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January 01, 2010 Publication"Alien Smuggling: Do Not Be an Alien to the Law!" Florida Defender, Volume 23, No. 3, Fall 2010

For a copy of the publication please contact Josh Golembe.

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September 01, 2006 PublicationMost Favored Nation Clauses – "The Ultimate Double Edged Sword"

Until a few years ago, the term “Most Favored Nation” was a phrase restricted primarily to the world of international trade. However, with the upsurge in both class action and mass tort lawsuits, Most Favored Nation clauses (MFN), are increasingly used as a tool to encourage settlement.

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November 01, 2002 PublicationThe Contagion of Example: Attacking the Root of the Problem in Lawyer Professionalism

Now is the time to stop talking and start acting! In the legal professionalism debate, many scholars hope, through their own unique contributions, to spark some universal epiphany that will initiate pervasive change. But a workable solution remains amorphous; the context of the problem is in constant flux and scholars feel the need to continually approach it in a “modernized” framework. Admittedly, unique perspective is an important tool for learning the intricacies of any problem, but incessantly approaching an old problem with fresh insight becomes tiresome and counterproductive . . . especially when there is no evidence of change. If we continue to merely discuss professionalism, then we will remain mired in tautology disguised as intellectual insight.

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PublicationThe Future of Defending Lawsuits: E-Business Enters the Civil Litigation Arena

What do FedEx, Northern Trust Bank, Ford Motor Co. and ACE USA have in common? Each is turning to a new browser technology, the Extranet, to advance their business through the use of electronic communication. The primary tool that will be used for the efficient and cost­effective transmission of all information associated with the handling of claims in the future (the future is now) is an Extranet. Extranets have been driven to the forefront of attention in and surely qualify as one of the Internet buzzwords du jour.

If the use of an Extranet, however, does not save time and expense in the defense of civil litigation while at the same time improving the quality of the legal representation provided, it should not be considered as a "tool" whose time has come.

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January 01, 2000 PublicationEvaluating Expert Testimony With Respect to Medical Causation: The Use of Epidemiological Studies in Court

In toxic tort cases, medical causation is often the plaintiff's most difficult element of proof. The first hurdle a plaintiff faces is proving general causation, that the substance at issue is capable of causing the disease or condition from which the plaintiff suffers. Special causation is generally more challenging to prove.

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