Legal Malpractice – Plaintiffs’ Attorneys Play On Causes Of Action, Is It Breach Of Fiduciary Duty Or Breach Of A Duty Of Care,Or Is It Both?


 In the Courtroom the Plaintiffs’ attorneys routinely prefer to characterize lawyers as having the utmost duty of “loyalty”, “honesty”, “good faith”, “forthrightness”, “trusted advisor”, essentially describing lawyers as being the “ultimate protector of a client’s interest!” To that end, Plaintiff lawyers tend to advance these alternate theories of liability in a legal malpractice case, asserting an attorney’s breach of a fiduciary duty which concerns the duty of loyalty, and a cause of action for negligence, which allows for broad expert testimony to establish the breach of a standard of care. Nevertheless, the duty of loyalty and duty of care are distinct duties, and Courts generally assess each claim separately. Breach of Fiduciary Duty - As a subset of legal malpractice, “[t]he elements of a claim for breach of fiduciary duty are: the existence of a fiduciary duty, and the breach of that duty such that it is the proximate cause of the plaintiff’s damages.” Gracey v. Eaker, 837 So. 2d 348, 353 (Fla. 2002). A claim of breach of fiduciary duty is based on a breach of the duty of loyalty. The duty of loyalty confers upon an attorney a duty at all times to represent his client and handle his client’s affairs with the utmost degree of honesty, forthrightness, loyalty and fidelity. Resolution Trust Corp. v. Holland & Knight, 832 F. Supp. 1528, 1531 (S.D. Fla. 1993). Put another way, an attorney must deal with his or her client in good faith. Fernandez v. Cunningham, 268 So.2d 166, 168 (Fla. 3d DCA 1972). Generally, an attorney breaches the duty of loyalty when he/she obtains a personal advantage from the client or when circumstances arise indicating that the lawyer’s personal interests are averse to those of the client in the same matter. A breach of fiduciary duty complaint is much easier to prove than fraud as there is no need to prove fraudulent or criminal intent. To win a breach of fiduciary duty complaint, the claimant only has to prove that one was in a fiduciary position and the fiduciary breached that duty for personal gain. Plaintiffs’ lawyers often try to show that if there was a bad result, then the Insured was not acting fairly and honestly with their client, but advanced their own agenda with increased fees, with no regard to the interests of their client. Professional Negligence - A claim for professional negligence is based on a breach of an attorney’s duty of care. The standard of care requires an attorney to have the knowledge and skill necessary to competently manage the circumstances of each case. As a subset of legal malpractice, professional negligence claims require four elements: (1) existence of a legal duty; (2) breach of that duty; (3) proximate causation; and (4) actual loss. Curd v. Mosaic Fertilizer, 39 So.3d 1216, 1227 (Fla. 2010). To prevail on a professional negligence, claim at the motion to dismiss stage, a client must allege that it would not have suffered harm “but for” the attorney’s negligence. See KJB Village Property, LLC v. Craig M. Dorne, P.A., 77 So. 3d 727, 730 (Fla. 3d DCA 2011). In essence, a claimant must plead two cases: one alleging that the attorney performed its representation negligently and a second “case within a case” alleging that the client had a meritorious claim that it lost due to its attorney’s negligence. United States Telesis, Inc. v. Ende, 64 F. Supp. 3d 65, 68 (D.D.C. 2014) aff'd sub nom. U.S. Telesis Inc. v. Ende, No. 14-7146, 2015 WL 653325 (D.C. Cir. Feb. 5, 2015). Plaintiffs’ lawyers tend to focus on finding sloppy work, incomplete work, and lack of responsiveness to show the insured lacks professionalism and that such behavior would be indicative of the effectiveness of their representation. Legal malpractice claims often arise from attorney client relationships gone awry, and follow suit by the attorney for unpaid legal fees. However, charging of excessive legal fees and otherwise violating the Rules of Professional Conduct fail to state claims upon which relief can be granted. See Dadic v. Schneider, 722 So. 2d 921, 923 (Fla. 4th DCA 1998) (“No authority supports a cause of action” for excessive legal fees); Pressley v. Farley, 579 So. 2d 160, 161 (Fla. 1st DCA 1991), cause dismissed, 583 So. 2d 1036 (Fla. 1991) (“A violation of the Rules of Professional Conduct ... does not create a legal duty”); Rios v. McDermott, Will & Emery, 613 So. 2d at 544, 545 (Fla. 3d DCA 1993) (“alleged violation of the Code of Professional Responsibility does not state a cause of action for legal malpractice.”). We at Shendell & Pollock have handled numerous legal malpractice cases throughout Florida, New York and New Jersey, with over 30 years of experience. If you would like to discuss this alert or any concerns regarding defense of legal malpractice claims, contact Gary R. Shendell at or Diran V. Seropian at

 |  Copyright © 2020  Shendell & Pollock

Download Firm Brochure



Join Our Mailing List