There is a very recent Broward County, Florida (appeals) case, decided December 11, 2013, about……. money…… and Florida real estate, developers, investors, and the developers suing a #Florida attorney for #lawyer malpractice.
Years ago, a #Florida attorney described the Florida real estate market as “always either boom or bust.” And while the South Florida real estate market has survived the #Great Recession, and seems to be on an uptick, there remains a few #Florida lawsuits, and stories of deals that didn’t happen. Here are the facts of a case involving #Florida lawyer malpractice, and #Florida conflicts of interest:
- A #Florida attorney evidently represented both the developers of a real estate project and also investors.
- The investors were to provide money, and the developers were to build the real estate project.
- They never agreed on a written contract.
- Evidently, the #Florida lawyer never got the developer and the investors to consent to the #Florida lawyer representing them both.
- A potential, or, perhaps, actual, #Florida conflict of interest was at issue.
Should a #Florida lawyer he able to represent opposite sides to a deal?
How do you feel if your lawyer is representing you, and also the person on the other side of the table?
The developer sued the #Florida lawyer for legal malpractice in a Broward County, Florida lawsuit. The #Florida jury found for the developers.
On the #Florida lawyer malpractice issue, the jury found:
- a #Florida attorney-client relationship existed between the developers and the #Florida attorney
- there was zero damages.
After the trial, the developers filed a motion with the Broward County, Florida court, requesting more in damages than just zero. The trial court in Fort Lauderdale, Florida, agreed and gave the developers $10 of damages. The #Florida attorney appealed to the #Florida appeals court for Broward County, Florida – – Florida’s #Fourth District Court of Appeals, which also hears #West Palm Beach appeals.
Here are six important points to take away from this #Broward County lawsuit if you are involved in a #Florida attorney malpractice lawsuit.
- To sue your #Florida attorney for lawyer malpractice, you actually need an attorney-client relationship. Do you have a written contract for legal services? Have you paid your lawyer?
- your #Florida attorney had to breach his or her duties to you.
- The Florida attorney’s #malpractice had to cause you damage
- You need to prove damages. You just can’t argue it.
* Introduce evidence
* call witnesses
* get testimony
* use documents
* hire a damage expert or CPA early on
* back up the damages argument with data and facts early when you start your #Florida lawsuit
- #Florida lawyers can’t wear two hats — they can’t serve two masters. Conflicts of interest by #Florida lawyers need to be disclosed !
- Clients can waive conflicts of interest —but you don’t have to.
FOR ATTORNEYS, REFERRAL SOURCES, LITIGATORS AND DAMAGE EXPERTS
For a complete copy of this recent Florida opinion, or for related opinions on the issue of legal malpractice, email michelle@pankauskilawfirm.com. Legal malpractice in Florida is a subspecialty of the legal profession and a law practice. The best practice for Florida lawyers is to
- have each and every client retain you, in writing, with a signed legal services contract
- just say no – – don’t take both sides of the deal: avoid situations, potential clients, and circumstances that even appear to have a conflict of interest
- if a conflict of interest arises, disclose it in writing and ask your clients if they want you to stay on— if they don’t want you to, or if they are silent, resign in writing, but
- protect your Florida clients and look out for their best interests. If you can’t serve them, then you need to resign. Remember – – the #Florida Bar says that we are fiduciaries, and #Florida juries feel the same. They both hold us to a very high standard.
Trying a Florida #legal malpractice case is sometimes like a “case with in a case”. You have to
- prove causation
- prove breach, and you need to
- quantify damages in an easily understandable way.
A number of cases on negligence which made it to the #Florida appeals court often reveal that a plaintiff has failed to prove damages, which is the last element of a cause of action which is necessary to win your #Florida lawsuit. With #Florida attorney malpractice, you also need to demonstrate that had a Florida lawyer done what he or she was supposed to have done, then you would still have prevailed or succeeded. An interesting subspecialty of the law of Florida legal malpractice is the standing issue — who has the legal ability to sue a #Florida lawyer for legal malpractice? This Florida legal issue often arises in #Florida estates and trusts, when #beneficiaries, or family members, want to sue a #Florida estate planning lawyer, or a #Florida probate lawyer, over the relationship the #Florida lawyer had with a deceased Florida relative.
John Pankauski, www.johnpankauski.com, is the author of The Trustee’s Book – An Individual’s Guide To Money, Misfits, Marriages, and Mismanagement , and the upcoming The $41 Trillion Inheritance War. He is an estate and trust litigator in West Palm Beach, Florida. www.pankauskilawfirm.com .