February Florida Legal Malpractice Monthly

Reid v. Daley , 276 So. 3d 878 (Fla. 1st DCA 2019),  reh’g denied  (Aug. 21, 2019)
Although the parties on both sides in  Reid v. Daley , 276 So. 3d 878 (Fla. 1st DCA 2019),  reh’g denied  (Aug. 21, 2019) were pro se, at least one issue in the case resonates.
A prisoner filed an amended complaint against his post conviction attorney for money damages and “mental anguish and emotional distress”. The trial court granted a motion to dismiss with prejudice.

Otero v. Arcia , 264 So. 3d 1140 (Fla. 5th DCA 2019)
Whether the underlying legal proceeding at issue had become final was addressed in the case of  Otero v. Arcia , 264 So. 3d 1140 (Fla. 5th DCA 2019).  The dispute pitted clients who were mortgage foreclosure defendants in the underlying case against their former lawyer.
The claim alleged bad advice concerning a consent judgment. At the time the complaint was filed, the consent judgment was not the subject of any appeal. A motion to dismiss was filed by the lawyer alleging the claim was not ripe due to a pending appeal of an order denying a motion to cancel the foreclosure sale.

Law Offices of Fred C. Cohen, P.A. v. H.E.C. Cleaning, LLC , 4D19-1070, 2020 WL 559240 (Fla. 4th DCA Feb. 5, 2020)
In a legal malpractice case, the defendant law firm e-mailed a proposed motion for sanctions pursuant to Fla. Stat.  57.105.  Such notice did not comply with Florida Rule of Judicial Administration 2.516 which requires (1) the e-mail’s subject line contain, in all capital letters, the words “SERVICE OF COURT DOCUMENT” followed by the case number, and (2) the case number, name of the initial party of each side, title of each document served with that e-mail, and the sender’s name and telephone number.
The plaintiff’s attorney withdrew after the 21-day safe harbor provided by Fla. Stat. 57.105 and the corporate client did not obtain new counsel within the court allotted time resulting in a dismissal. In the subsequent evidentiary hearing on the motion for sanctions, the withdrawing attorney defended due to the noncompliance with Rule 2.516.

January Florida Legal Malpractice Monthly

Arch Ins. Co. v. Kubicki Draper, LLP, 266 So. 3d 1210 (Fla. 4th DCA 2019), review granted, SC19-673, 2019 WL 2386336 (Fla. June 6, 2019)
Rejecting federal precedent, ignoring numerous recent cases which relax the privity rule and Florida Bar Rules, the Fourth District Court of Appeal held that an insurer cannot sue a law firm retained to represent its insured.

Three federal court decisions held that the insurer is in privity of contract with the attorney hired to represent insureds or is a third-party beneficiary of the relationship between the attorney and the insured. See Hartford Ins. Co. of the Midwest v. Koeppel, 629 F. Supp. 2d 1293 (M.D. Fla. 2009); Nova Cas. Co. v. Santa Lucia, 2010 WL 3942875 (M.D. Fla. 2010) and U.S. Specialty Ins. Co. v. Burd, 833 F. Supp. 2d 1348 (M.D. Fla. 2011). The Arch Creek court correctly pointed out that these federal cases were merely persuasive authority and went on to state that they were “distinguishable”.

Hitchcock v. USAA Cas. Ins. Co.,2019 WL 719201 (M.D. Fla. 2019)
In ruling upon a Motion to Remand in federal court, Hitchcock addressed whether an insured had a cause of action against the insurer’s lawyer.
A Florida law firm was a Defendant along with an out of state insurance carrier. The Plaintiff was a Florida resident. The Plaintiff argued the Florida law firm defendant destroyed diversity and the case should be remanded to state court. The Defendant insurance carrier responded by alleging that adding the Florida law firm amounted to a fraudulent joinder and there was no possibility a cause of action could be established against the Florida law firm.
The Court explored whether the insured was in privity with the law firm or an intended third party beneficiary.
E.P. v. Hogreve, 259 So. 3d 1007 (Fla. 5th DCA 2018)
This case was decided on December 21, 2018. Nevertheless, I am taking the liberty of dragging it into 2019 and this month’s privity discussion. E.P. was cited by Arch Creek acknowledging the differences in outcomes which were distinguished away by stating E.P. was at the motion to dismiss stage while Arch Creek was on summary judgment.
Whether a child and his adoptive parents had privity to sue the lawyer who handled the adoption and follow on case to terminate the biological father’s rights was one of the issues in E.P.


December Florida Legal Malpractice Monthly

Abate until the underlying case is resolved
Kasowitz Benson Torres LLP v. Mariano, 279 So. 3d 181 (Fla. 4th DCA 2019)

Plaintiff Steven Mariano and his company are being sued in a federal court case in New York resulting from the sale of shares to certain hedge fund investors. Simpson Thacher & Bartlett LLP represented Mariano and his company in connection with the transaction. Kasowitz Benson Torres LLP briefly represented Mariano and his company in the New York litigation. In 2017, Mariano sued Simpson and Kasowitz for legal malpractice in Broward County, Florida. Both firms moved to stay or abate the action arguing that Mariano’s claims were premature because the underlying New York litigation was still ongoing.   Read More


Unliquidated damages require jury trial
Yanofsky v. Isaacs, 277 So. 3d 132 (Fla. 4th DCA 2019)

Attorney Stuart Yanofsky was sued by his former client Andrew Isaacs resulting from alleged malpractice in a dissolution of marriage matter. Mr. Yanofsky represented himself in the appeal and it appears in the trial court proceeding as well. Yanofsky’s pleadings were struck after failing to respond to discovery requests and Yanofsky moved for summary judgment as to both liability and damages. The court reserved ruling and ordered Yanofsky to file a response to the summary judgment in fourteen days. He did not. Isaacs then moved for sanctions and sought a judgment in his favor.   Read More


If the cause of action accrual date is not in the complaint, you cannot obtain a dismissal based on statute of limitations
Enlow v. E.C. Scott Wright, P.A., 274 So. 3d 1192 (Fla. 5th DCA 2019)

The decision does not describe the facts of the malpractice case. The amended complaint was dismissed with prejudice on statute of limitations grounds. This decision was reversed because the accrual date of the legal malpractice case was outside the four corners of the complaint. The date of accrual was not included in the complaint, its attachments or incorporated by reference. Here, the accrual date was included in a document attached to the motion to dismiss. Relying upon data outside the four corners of the complaint to establish the statute of limitations was improper resulting in reversal.   Read More

Buy My Book

Chutzpah is a Yiddish term which is defined as personal confidence or courage that allows someone to do or say things that may seem shocking to others. This term came to mind recently when a lawyer in Tampa, who actively advertises for Plaintiff’s legal malpractice cases, called me with a “legal malpractice question”.   I often respond to questions from legal malpractice defense lawyers who seek out my assistance.  These inquires typically involve areas of Florida law to which there are no answers and I find the exchange intellectually stimulating.  It is also always interesting to see how the dark side is thinking and, yes, my ego is massaged by the phone call.  However, I never assist competitors without compensation.

            When I did not respond to the competitor’s phone call, I thought that would end the matter.  Silly me. In a display of “chutzpah”, the lawyer, or more likely, one of his assistants, contacted me with an inquiry through Martindale Hubbell.  He posted a question which had been asked by a trial court judge during trial.  I did not respond.

            What I wanted to say was buy my book ,Florida Legal Malpractice and Attorney Ethics, it has all the answers.

The wrong way to find the right “expert” for your legal malpractice case

It happens about a dozen times a year, the most recent occasion was about a week ago. I received a phone call from a young lawyer  inexperienced in suing lawyers who was tasked with hiring a legal malpractice “expert” for a legal malpractice case her midsized local firm was involved in.  The  partner in charge of the file told her to go find an “expert”.   When I asked her what the case involved,  she told me it involved a foreclosure case.  When I tried to tell her that she needed an “expert” in foreclosure litigation, she sternly asked me why I could not help her because she perceived me to be an “expert” in legal malpractice.   Rather than educate her, I simply told I would be unable to help her.  Without hesitation, she asked if I knew anybody that could.  I said I did not. For the sake of her client, like the blind chicken who  picks up kernels now and again, I am hopeful she found the right “expert”.

Of course, in a legal malpractice case, the “expert” you need is one who has knowledge in the underlying substantive area, whatever that might be.

What is Legal Malpractice?

What is Legal Malpractice?

Do you know what constitutes legal malpractice?

Legal malpractice is when an attorney falls below the standard of care required of attorneys in a similar situation. Simply stated, it is when an attorney fails to do something he should have done or does something incorrectly. For example, if you hire an attorney and that attorney fails to file your lawsuit within the time period in which such lawsuit must be filed, then that lawyer has committed legal malpractice.

If you have suffered as a result of your attorney’s wrongdoing, contact my firm to arrange a time when we can discuss your case.