Monthly Archives: April 2014

Surprising Facts about Legal Malpractice

Most providers of services are covered by some type of malpractice or liability insurance, giving their clients some measure of comfort that there is a means for recovery in the event of a mistake. Unfortunately, one cannot make this assumption about attorneys.  In Florida, as in almost every other state, attorneys are not required to carry legal malpractice insurance. Furthermore, attorneys in Florida, as in many other states, are not even required to inform clients that they do not carry such insurance. The only way to know if your Florida attorney is insured against legal malpractice claims is, quite simply, to ask.

But My Attorney Carries Malpractice Insurance…Won’t My Claim be Covered?

The purpose of professional liability insurance, another term for malpractice insurance, is to protect providers of professional services from having to face the full cost of defending against claims of negligence from clients and from bearing the full cost of damages that may be awarded in a malpractice lawsuit.

Legal Malpractice Attorney Florida

Do not assume that an insured attorney means that your particular claim will be covered, however. Listed below are a few of the reasons why your attorney’s malpractice insurance policy, assuming he even has one, may not be very helpful at all to you. (Note: The list is not exhaustive.)

  • You filed a claim when the policy was not in effect – Unlike other insurance coverage types, where claims are covered based on when an incident occurs, malpractice insurance only covers claims that are made during the term of the insurance policy. This means that even if the attorney had a policy in effect at the time he or she performed the negligent act, your malpractice claim will not be covered if the policy is no longer in effect at the time the claim is actually made.
  • The policy does not cover the type of legal work performed by your attorney – Some policies will not cover every area of law in which an attorney practices. Practically every legal malpractice insurance policy, for example, excludes coverage for claims involving alleged securities violations. The exclusions for coverage will be specific to each policy.
  • Your attorney committed a criminal act – Malpractice insurance was designed to cover an attorney’s mistakes…not his blatantly illegal acts. When your attorney fails to file a lawsuit on your behalf within the statute of limitations or fails to discover necessary information for use at a trial, a malpractice insurance policy may cover such mistakes. When, however, your attorney steals money from clients’ accounts, the policy will not cover such criminal acts.

The bottom line – your claim may not be covered by your attorney’s malpractice insurance, meaning that  any damages that you may be entitled to would have to be recovered from the attorney himself. In other words, even if you have suffered damages at the hands of your attorney and even with a verdict in yourfavor, you may never actually be able to recover your damages.  Without an insurance policy to make a payout or with an insurance policy that does not cover that particular claim, the attorney will be responsible for the judgment. While you may be able to reach some of the attorney’s assets and recoup a portion of your damages, it is unlikely that you would recover the entire amount of your damages. Furthermore, if the attorney’s assets are not in his name (for example, the attorney may have put assets in a spouse’s name) you would not be able to reach those assets.

Let Our Attorneys Examine Your Options

Legal malpractice cases can be very costly to prosecute. The availability of means of recovery should be considered as early as possible if you believe you have a potential claim for malpractice. It is important to contact an attorney who will openly and honestly discuss the merits of your claim. The attorneys at the Law Offices of Craig R. Zobel have worked diligently to protect the rights of their clients for almost three decades. We have a wealth of knowledge and experience in representing clients in legal malpractice cases. Call us today at (561) 277-1819 to get started with a free consultation.

Legal Malpractice Cases

Statute of Limitations for Legal Malpractice Cases

One of the reasons attorneys are sued for legal malpractice is because of the attorney’s failure to meet a deadline, such as filing a lawsuit within the statute of limitations. But what about when the client wants to file a lawsuit against his own attorney – what are the statute of limitations to sue your attorney for malpractice?

Every state has its own laws regarding the time limits for filing a lawsuit. Section 95.11(4)(a) of the Florida Statutes spells out the statute of limitations for legal malpractice:

  • 95.11 Actions…shall be commenced as follows:

○        (4) Within two years –

■         An action for professional malpractice, other than medical malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.

Unfortunately, this two year period is not always as straightforward as it may appear. The determining factor for the statute of limitations for legal malpractice actions is whether or not a case is actually in litigation. In the case of Silvestrone v. Edell, 721 So.2d 1173 (Fla. 1998), the Florida Supreme Court held that the two year statute of limitations begins to run when the final judgment became final, i.e. when there are no more appeals remaining or when the time to make an appeal has expired. The Silvestrone rule, then, necessarily applies to cases that are in litigation. If, however, the client’s dispute is settled prior to any complaint being filed at all, the statute of limitations necessarily must change, as Florida’s Fourth District Court of Appeal distinguished in Glucksman v. Persol North America, Inc., 813 So. 2d 122 (Fla. 4th DCA 2002). In this instance, a client who believes that his attorney has committed malpractice has two years from when the parties executed the settlement agreement to file a lawsuit.

At the beginning of 2014, the Fourth District Court of Appeal faced a situation where neither the rule from Silvestrone nor Glucksman seemed to fit. In Arrowood Indemnity Co. v. Controy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A. (Fla. 4th DCA Jan. 8, 2014) 2014 WL 51692, a complaint had been filed, but the case had not yet proceeded to trial. The parties eventually reached a settlement before the trial began, and agreed to a dismissal of the litigation. The plaintiff filed a legal malpractice claim against his attorney just over 2 years past the date the settlement agreement in the original dispute was executed. The attorney moved to dismiss on the grounds that the holding from Glucksman should control; in other words, the plaintiff had missed the two year deadline from when the parties executed the settlement agreement. The circuit court agreed with the attorney, and the plaintiff appealed.

The Florida Fourth District Court of Appeal reversed the Arrowood decision, holding that the rule from Silvestrone applied. The Court rationalized that the plaintiff could not have known that the settlement was final until the trial court formally dismissed the litigation and there was no appeal by either party of the court’s dismissal. As in Silvestrone, the statute of limitations does not begin until the case has become final, as long as a complaint has been filed, and regardless of whether the case ends up proceeding to a trial or not.

The following sums up the statute of limitations for the filing of legal malpractice claims in the state of Florida:

  • Before a complaint has been filed? Two years from the execution date of any settlement agreement.
  • After a complaint has been filed but before a trial? Two years from the date of final judgment.
  • After a trial? Two years from the date of final judgment.

 Think You Have a Malpractice Claim? Don’t Wait!

Legal malpractice claims can be complicated and may require a lengthy amount of investigation. There needs to be enough time remaining on the statute of limitations for your attorney to investigate your claim. Therefore, if you believe you have a claim for legal malpractice, it is best to contact a reputable malpractice attorney as soon as possible. The attorneys at the Law Offices of Craig R. Zobel are dedicated to helping clients affected by legal malpractice. Call (561) 277-1819 today for a free, confidential consultation.