Outline: Introduction Why do we care? $56 Trillion wealth shift Increased litigation What is Malpractice? Defined/ elements of cause of action Privity requirement Exception to privity requirement Estate planning malpractice Fact Pattern: requested change to estate plan not completed by attorney; client passes away Who can sue? Castleberry case and spendthrift trusts Limitations of DCA opinions Statute of limitations When does cause of action accrue? Can’t I draft around it/limit my liability? (no) Ethics Ethical Rules How doe Ethical Rules impact practice? Legal services contracts Charging liens Conclusion

1. ADVISING THE ESTATE PLANNING
ATTORNEYFLORIDA BAR-APPROVED 2.5 CLE ETHICS CREDITS
WITH JOHN PANKAUSKI, ESQ.
(561) 514 – 0900
www.phflorida.com

2. DISCUSSION OUTLINE
I. Introduction
II. What is Legal Malpractice?
III. Florida Legal Malpractice Cases, Issues &
Potential Traps for the Unwary: 20 Things You
Need to Know
IV. Non-Florida Legal Malpractice Cases
V. Ethics
VI. Conclusion

4. RULE 4-1.1 COMPETENCE
A LAWYER SHALL PROVIDE COMPETENT
REPRESENTATION TO A CLIENT. COMPETENT
REPRESENTATION REQUIRES THE LEGAL
KNOWLEDGE, SKILL, THOROUGHNESS, AND
PREPARATION REASONABLY NECESSARY FOR
THE REPRESENTATION.

5. AIR TURBINE TECHNOLOGY, INC. V. QUARLES
& BRADY, LLC 165 SO. 3D 815 (FLA. 4TH DCA,
2015)
AN ATTORNEY MAY BE HELD LIABLE FOR
DAMAGES INCURRED BY A CLIENT BASED ON
THE ATTORNEY’S FAILURE TO ACT WITH A
REASONABLE DEGREE OF CARE, SKILL AND
DISPATCH @ 822, CITING CROSBY V. JAMES,
705 SO.2D 1356,1358 (FLA, 1998).

6. WHY ARE WE HERE
TODAY ???

7. The number of lawsuits against estate planning attorneys has increased
over the last several years. Statistics indicate that the estate planning and
probate area is the third largest category of malpractice claims in the legal
profession. The most recent American Bar Association Standing Committee
on Lawyers' Professional Liability study, Profile of Legal Malpractice Claims
2000-2003 (2005), found that, although the number of claims filed in most
areas of the law remained stable, the frequency of probate and trust claims
had risen since the ABA's previous study.
-- The Modern Estate Planning Lawyer Avoiding the Maelstrom of Malpractice Claims, 20 Probate &
Property, Nov./Dec. 2008 (Stephanie B. Casteel, Letitia A. McDonald, Jennifer D. Odom, Nicole J. Wade)

8. $56 TRILLION

10. Perspective

11. Issues which we,
as litigators, come
across

12. Best Practices

13. Highway to ……
Heartburn

15. # 1 - LEGAL MALPRACTICE OR PROFESSIONAL
NEGLIGENCE DEFINED : WHAT ARE THE ELEMENTS OF
THE CAUSE OF ACTION ?

16. 1. attorney’s employment
(a) attorney was employed by or in
privity with the plaintiff (See McLeod v.
Bankier, 63 So. 2d 858, 860 (Fla. 4th DCA,
2011)
2. neglect of reasonable duty
3. proximate cause of
4. client’s loss (damages)
– Larson & Larson, P.A. TSE Indus. Inc., 22 So 3d 36,
39 (Fla. 2009)

17. CAUSATION
“If the client cannot show that it would not
have suffered harm “but for” the attorney’s
negligence, the client will not prevail.”
-- KJB Village Property, LLC v. Craig M.
Dorne, P.A., 77 So.3d 727 (Fla. 3rd DCA,
2011), rehear. den. Feb. 2, 2012.

18. CAUSATION
The client must win a “case-within-a-case”:
must demonstrate that client would have won
on the underlying matter but for the attorney’s
negligence.
-- see Hanson v. Fowler, White, Burnett,
P.A., 117 So. 3d 1127, 1134 (Fla. 3rd DCA, 2012).

19. KJB VILLAGE PROPERTY, LLC V. CRAIG M.
DORNE, P.A., 77 SO.3D 727 (FLA. 3RD DCA,
2011), REHEAR. DEN. FEB. 2, 2012
BLUTH V. BLAKE, 128 SO.3D 242 (FLA. 4TH
DCA, 2013) REHEAR. DEN. JAN. 9, 2014
“Gotta” have damages !!

20. “The test for determining when a cause of action for attorney
malpractice has accrued is whether the existence of
redressable harm has been established. Peat, Marwick,
Mitchell & Co. v. Lane, 565 So.2d 1323 (Fla.1990). See also Coble
v. Aronson, 647 So.2d 968, 970 (Fla. 4th DCA 1994) “The test for
determining when a cause of action for attorney malpractice has
accrued is whether the existence of redressable harm has been
established.” See Bluth at 970.
This concept typically cited for litigation-related matters.

21. DEFENSES
1. NO A/C PRIVILEGE
2. NO PRIVITY
3. SOL -- 95.11 (4)(A) (“…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..”)
4. SETTLEMENT ( ALSO CALLED
ABANDONMENT )

22. DEFENSES
5. YOU ARE NOT A PLAINTIFF -- (NO ASSIGNMENT
OF LEGAL MALPRACTICE ACTIONS. COWAN,
LIEBOWITZ & LATMAN, P.C. V. KAPLAN, 902 SO. 2D
755 (FLA. 2005))
6. PROXIMATE CAUSE –WHAT IF YOU ARE FIRED? OR
A/C RELATIONSHIP ENDS? DID YOU PROXIMATELY
CAUSE DAMAGE?

23. DEFENSES
7. JUDGMENTAL IMMUNITY

25. “Florida has long held that an attorney may be held liable for damages
incurred by a client based on the attorney's failure to act with a
reasonable degree of care, skill, and dispatch. Weekley v. Knight, 116
721, 156 So. 625 (1934); Riccio v. Stein, 559 So.2d 1207 (Fla. 3d DCA
1990). This does not mean, however, that an attorney acts as an
insurer of the outcome of a case. Good faith tactical decisions or
decisions made on a fairly debatable point of law are generally not
actionable under the rule of judgmental immunity. Meir v. Kirk,
Pinkerton, McClelland, Savary & Carr, P.A., 561 So.2d 399 (Fla. 2d DCA
1990) “
Crosby v. Jones, 705 So.2d 1356, 1358 (Fla. 1998)

26. “ BEFORE AN ATTORNEY CLAIMING THE DEFENSE OF
‘JUDGMENTAL IMMUNITY’ MAY PREVAIL, THE ATTORNEY
MUST SHOW THAT (1) THE LEGAL AUTHORITY SUPPORTING
THE ASSERTED CAUSE OF ACTION WAS “FAIRLY DEBATABLE”
OR “UNSETTLED,” AND (2) THAT SHE OR HE ACTED IN GOOD
FAITH AND MADE A DILIGENT INQUIRY INTO THE
UNSETTLED AREA OF LAW. CROSBY V. JONES, 705 SO.2D
1356, 1358 (FLA.1998).”
Haisfield v. Fleming, Haile & Shaw, P.A., 819 So. 2d 182 (Fla. 4th DCA, 2002) rehear.
den. June 20, 2002

28. FOR A DETAILED DISCUSSION OF HOW
FLORIDA’S APPELLATE COURTS INTERPRET
THE DOCTRINE OF JUDGMENTAL IMMUNITY,
SEE INLET CONDO. ASSOC., INC., V.
CHILDRESS DUFFY, LTD, INC., 615 FED. APPX.
533 (JUNE 19, 2015)

29. SEE ALSO:
AIR TURBINE TECH., INC. V. QUARLES &
BRADY, LLC, 165 SO. 3D 816 (FLA. 4TH DCA,
2015)

30. # 2 – PRIVITY REQUIREMENT

31. “…….However, the limitation of
actions herein for professional
malpractice shall be limited to
persons in privity with the
professional.”
-- Fla. Stat. ∫ 95.11 (4) (a)

32. Is the area of will drafting unique?

33. Negligent Will Drafting?
Babcock v. Malone, 760 So. 2d 1056 (Fla.
4th DCA, 2000) (Would-be “inheritors” of
now deceased uncle file suite against
uncle’s lawyer for not preparing will fast
enough? They would have inherited, but
for the new, contemplated will was not
drafted and executed.)

34. Negligent Will Drafting?
Babcock v. Malone:
Uncle retained counsel to prepare a new
will, naming 9 nieces/nephews as bene’s –
who were NOT bene’s under prior will.
Lawyer knew client’s health was failing
Time was of the essence
Draft will prepared but uncle died

35. Negligent Will Drafting?
Babcock v. Malone
 Citing Espinosa
 Dismissal of complaint upheld, order
affirmed

36. Espinosa v. Sparber, Shevin, Shapo, Rosen and Heilbronner, 612 So. 2d 1378 (Fla. 1993)
“An attorney's liability for negligence in the performance of his or her
professional duties is limited to clients with whom the attorney shares privity
contract. Angel, Cohen & Rogovin v. Oberon Investments, N.V., 512 So.2d 192
(Fla.1987). In a legal context, the term “privity” is a word of art derived from
common law of contracts and used to describe the relationship of persons
are parties to a contract. Baskerville-Donovan Engineers, Inc. v. Pensacola
Executive House Condominium Ass'n, Inc., 581 So.2d 1301 (Fla.1991). To bring
a legal malpractice action, the plaintiff must either be in privity with the
attorney, wherein one party has a direct obligation to another, or,
the plaintiff must be an intended third-party beneficiary. In the instant
at 1379,1380.

37. “ In the area of will drafting, a limited exception to the strict privity
requirement has been allowed where it can be demonstrated that the
apparent intent of the client in engaging the services of the lawyer was to
benefit a third party. Rosenstone v. Satchell, 560 So.2d 1229 (Fla. 4th DCA
1990); Lorraine v. Grover, Ciment, Weinstein & Stauber, P.A., 467 So.2d 315
(Fla. 3d DCA 1985).
-- Espinosa at 1380.

38. But…..Do Florida Courts limit their gaze to
the will or estate planning document and
prohibit extrinsic evidence to
demonstrate what the decedent wanted?

39. “If extrinsic evidence is admitted to explain testamentary intent, as
recommended by the petitioners, the risk of misinterpreting the testator's intent
increases dramatically. Furthermore, admitting extrinsic evidence heightens the
tendency to manufacture false evidence that cannot be rebutted due to the
unavailability of the testator. For these reasons, we adhere to the rule that
standing in legal malpractice actions is limited to those who can show that the
testator's intent as expressed in the will is frustrated by the negligence of
the testator's attorney. Although Rene did not express in his will and codicils any
intention to exclude Patricia, his will and codicils do not, unfortunately, express
any affirmative intent to provide for her. Because Patricia cannot be described as
one in privity with the attorney or as an intended third-party beneficiary, a lawsuit
alleging professional malpractice cannot be brought on her behalf.”
-- Espinosa at 1380.

40. No extrinsic evidence
Just look to the will
Privity issue for will drafting is clearly
different than contract drafting

41. “Ordinarily, intent is a question
of fact that should not be
decided on a summary
judgment.”
Hodge v. Cichon, 78 So. 3d 719 (Fla. 5th DCA, 2012)
(failure by estate attorneys to create FLP during life
of decedent)

42. But …………!

43. The estate of the Decedent has a
malpractice claim as the estate is
always in privity with the
attorney.
-- Espinosa at 1380.

44. What about tortious interference
with an expectancy lawsuit by the
nieces/nephews ?
Can you get over the duty-owed
hurdle?

45. See Gallo v. Brady, 925 so. 2d 363, 364 (Fla. 4th
DCA, 2006) rehear. den. April 25, 2006 declining
to follow Espinosa “…we reject appellees’ claim
that Florida law prohibits resort to extrinsic
evidence under the circumstances of this case.”
(allegations of “bad” estate planning, failure to
create valid CRT under regs, charitable
deduction denied )

46. Gallo v. Brady, 925 so. 2d 363, 364 (Fla.
4th DCA, 2006) says that Espinosa only
stands for prop that extrinsic evidence
not available to would-be beneficiary to
demonstrate that he/she was intended
to benefit under will.

47. # 3 - EXCEPTION TO PRIVITY REQUIREMENT

48. Hodge v. Cichon, 78 So. 3d 719 (Fla. 5th DCA, 2012), citing
Angel, Cohen & Rogovin, v. Oberon Inv., N.V., 512 So.2d 192,
194 (Fla. 1987); Espinosa, 612 So. 2d 1378,1380 (Fla. 1993).
“A limited exception to the privity requirement in the area of will drafting allows an intended
beneficiary to file a legal malpractice claim for losses resulting form a lawyer’s actions or
inactions, where it was the apparent intent of the client to benefit that third party. “
Comment As late as 2012, Florida appellate courts are only granting standing to those
intended bene’s who are “in” the will, the prior, or existing, will. Never mind what the
Decedent asked you to do, and which you promised to do, and which you were even paid to
do. All that matters is what the prior will says – the one which the decedent wants changed.

49. “ A party is an intended beneficiary only if
the parties to the contract clearly express, or
the contract itself expresses, an intent to
primarily and directly benefit the third party
or a class of persons to which that party
claims to belong.
Dingle v. Dellinger, 134 So. 3d 484, 488 (Fla.
5th DCA, 2014)

50. In light of Dingle, can you “draft around” it?
“The services which you have retained Law Firm for
are personal to you. There are no third party
beneficiaries of this legal services contract.”
( probably not )

52. “…. it is NOT necessary that the third-party
beneficiary is named in the contract. “
Dingle v. Dellinger, 134 So. 3d 484, 488 (Fla.
5th DCA, 2014)

53.  Dingle v. Dellinger was not a will drafting
case.
 It was a deed case.
 It was a “you didn’t draft the deed and I
didn’t get the real estate case.”
, 134 So. 3d 484, 488 (Fla. 5th DCA, 2014)

54. Are Florida DCA’s more relaxed on the
privity exception in FLP or gift cases rather
than “ My mom wanted you to put me in
the will and you didn’t do it and now my
mom’s dead and I’m not in the will.” cases ?

55. # 4 - LIMITATION OF
DCA OPINIONS

56. When the intent is thwarted
(because no intent is “visible” in the
prior will), the short-changed bene
must open an estate, get appointed
PR, and file the malpractice action.
In 2 years. ∫ 95.11 (4)(a).

57. # 5 - STATUTE OF LIMITATIONS

58. Fla. Stat. ∫ 95.11 (4)(a)

59. # 6 - WHEN DOES CAUSE OF ACTION ACCRUE ?

60. “ GENERALLY, “[A] CAUSE OF ACTION ACCRUES
WHEN THE LAST ELEMENT CONSTITUTING THE
CAUSE OF ACTION OCCURS.” § 95.031(1), FLA.
STAT. (2008).”
-- ARROWOOD INDEMNITY COMPANY,
V. CONROY, SIMBERG, GANON, KREVANS, ABEL,
LURVEY, MORROW & SCHEFER, P.A, 134 SO.3D 1079
(FLA. 4TH DCA, 2014) REHEARING DENIED FEB. 24, 2014

61. “For statute of limitations purposes, a cause of action for legal malpractice does
not accrue until the underlying adverse judgment becomes final, including
exhaustion of appellate rights. See Silvestrone v. Edell, 721 So.2d 1173, 1175 n. 2
(Fla.1998). That is the first point at which there is a redressable harm. Id. at 1175.
Until then, a malpractice claim is “hypothetical” and damages are “speculative.”
Id.; see also Hold v. Manzini, 736 So.2d 138, 142 (Fla. 3d DCA 1999) (“mere
knowledge of possible malpractice is not dispositive of when a malpractice action
accrues”).
-- LAW OFFICE OF DAVID J. STERN, P.A., v. SECURITY NATIONAL SERVICING
CORPORATION, 969 So.2d 962, 966 (Fla, 2007), rehear. den Dec. 3, 2007.

62. SEE ALSO …………..
PEAT, MARWICK, MITCHELL & CO., V. LANE,
565 SO.2D 1323,(FLA, 1990)

63. # 7 - CAN’T I DRAFT
AROUND IT/
LIMIT MY LIABILITY??
NO!

64. We are not accountants, or consultants,
or civil engineers, or other service
providers. We can’t, by contract, limit
our liability. The public places too
much trust and reliance in us, and upon
us.

66. # 1 - CASSELBERRY
&
SPENDTHRIFT TRUSTS

67. ∫ 736.0503 EXCEPTIONS TO SPENDTHRIFT
PROVISION
…………………………..(2) TO THE EXTENT PROVIDED IN SUBSECTION (3),
SPENDTHRIFT PROVISION IS UNENFORCEABLE AGAINST: (A) A
BENEFICIARY’S CHILD, SPOUSE, OR FORMER SPOUSE WHO HAS A
JUDGMENT OR COURT ORDER AGAINST THE BENEFICIARY FOR
SUPPORT OR MAINTENANCE.

68. BERLINGER V. CASSELBERRY
133 SO.3D 96 (FLA. 2ND DCA, 2013) REHEAR. DEN. MARCH 12, 2014
NEITHER STATUTE MAKING A SPENDTHRIFT PROVISION
OF A TRUST UNENFORCEABLE AGAINST CERTAIN
CREDITORS, NOR STATUTE LIMITING SUCH CREDITORS'
CLAIMS AGAINST A DISCRETIONARY TRUST, PROTECTS A
DISCRETIONARY TRUST FROM GARNISHMENT BY A
FORMER SPOUSE WITH A VALID ORDER OF SUPPORT.
F.S.A. §§ 736.0503, 736.0504.

69. #2 - EVIDENTIARY HEARINGS

75. MOST OF THE “FACTS” GIVING RISE TO THE
TRIAL COURT’S ORDER FINDING WAIVER OF THE
WIFE’S PRIVILEGE WERE OBTAINED THROUGH
ARGUMENTS MADE BY HUSBAND’S COUNSEL.
AS WE HAVE EXPLAINED, WE REJECT THE USE
OF UNSWORN ASSERTIONS MADE BY
ATTORNEYS AS EVIDENCE. LEON SHAFFER
GOLNICK ADVER., INC. V. CEDAR, 423 SO.2D
1015 (FLA. 4TH DCA 1982).
-- SMITH V. SMITH, 64 SO. 3D 169, 171
(FLA. 4TH DCA, 2011) (NO ADMISSIONS, NO
TESTIMONY WAS RECEIVED)

76. #3 - WAIVER/DROPPING THE BALL
NON-LITIGATORS LITIGATING ( SORT OF )

77. A. DID YOU GET ALL OF
YOUR ARGUMENTS IN?

78. B. UNLESS RAISED, MOST
POSITIONS/DEFENSES/CLAIMS
ARE WAIVED

79. “ Florida Rule of Civil Procedure 1.140(b) provides that every
defense in law or fact to a claim for relief in a pleading shall be
asserted in the responsive pleading, if one is required. However, the
rule identifies seven defenses that a defendant may raise by motion
before pleading. Fla. R. Civ. P. 1.140(b). “A motion making any of
these defenses shall be made before pleading if a further pleading is
permitted.” Id. Furthermore, “[a]ny ground not stated shall be
deemed to be waived except any ground showing that the court lacks
jurisdiction of the subject matter may be made at any time.” Id.
Accordingly, defenses are generally waived if not raised by pre-answer
motion or responsive pleading. Fla. R. Civ. P. 1.140(h)(1). “
--

80. Most Common Mistake re: Affirmative Defenses ?
Standing
Ask yourself: why or how can this petitioner bring this
claim?
“ We have previously explained that lack of standing is an
affirmative defense that must be raised by the defendant
the failure to raise it generally results in waiver. See Glynn v.
First Union Nat'l Bank, 912 So.2d 357, 358 (Fla. 4th DCA
2005)” -- PHADAEL v. DEUTSCHE BANK TRUST
AMERICAS as Trustee for RALI 2007QS9 83 So.3d 893 (Fla.
DCA, 2011) rehear. den. April 12, 2012

81. BUT, SEE………..
HANSON. V.
FOWLER, WHITE,
BURNETT, P.A., 117
SO, 3D 1127 (FLA. 3RD
DCA, 2012)

82. C. YOU CAN’T RAISE AN ISSUE
ON APPEAL THAT WASN’T
PRESENTED AT
THE PROBATE COURT

84. D.
ARE YOU, A NON-LITIGATOR,
FILING NON’S & ANSWERING THE
PETITION TO REVOKE?

85. E. WILL CONTESTS: ARE YOU
RAISING THE DOCTRINE OF
DEPENDENT RELATIVE
REVOCATION & STANDING?

88. # 4 - WHO IS YOUR CLIENT?

89. 989 So.2d 1242
District Court of Appeal of Florida, Fourth District.
Susan VALLIERE and A. James Valliere, Petitioners,
v.
FLORIDA ELECTIONS
COMMISSION, Respondent.
No. 4D08–1709.
|
Sept. 10, 2008.

90. THE DETERMINATION OF AN ATTORNEY CLIENT
RELATIONSHIP IS A QUESTION OF FACT. “[T]HE
TEST FOR DETERMINING THE EXISTENCE OF [AN
ATTORNEY-CLIENT] RELATIONSHIP IS A SUBJECTIVE ONE
AND ‘HINGES UPON THE CLIENT'S BELIEF THAT HE IS
CONSULTING A LAWYER IN THAT CAPACITY AND HIS
MANIFESTED INTENTION IS TO SEEK PROFESSIONALLEGAL ADVICE.’ ” GREEN V.
MONTGOMERY COUNTY, 784 F.SUPP. 841, 845–46 (M.D.ALA.1992)
(CITATIONS OMITTED). HOWEVER, “[T]HIS SUBJECTIVE
BELIEF MUST ... BE A REASONABLE ONE.” ID. SEE ALSO
BARTHOLOMEW V. BARTHOLOMEW, 611 SO.2D 85,
86 (FLA. 2D DCA 1992). --- VALLIERE V. FLORIDA ELECTIONS COMMISSION, 989 SO. 2D
1242, 1243 (FLA. 4TH DCA, 2008)

91. # 5 - WHO DO YOU OWE A DUTY TO?

92. • Dingle v. Dellinger was a case regarding whether a duty was owed
to a non-client
• Non-client = a grantee of a deed
• An intended grantee of real estate
• Deed was prepared by a Florida lawyer based upon a foreign
power of attorney
• The POA was later found to be insufficient to permit the grantor
the real estate to transfer the realty to the grantees (the Dingles)
• Who challenged the deed?
• The surviving spouse did, after the grantor died
• Plaintiffs/Dingles conceded there was no A/C relationship BUT
• Alleged that they were third party beneficiaries of the contract
between the Florida law firm and the (now deceased) client who
hired the law firm to prepare the deed. Summary: plaintiffs
the M2D

93. Third-Party Beneficiary Claim
1. A contract
2. An intent that the contract primarily and directly benefit the
third party
3. Breach of the contract
4. Resulting damages to the third party
--- Dingle v. Dellinger, 134 So. 3d 484, 488 (Fla. 5th DCA, 2014)

94. • Does Dingle v. Dellinger create an end-run
around the privity requirement ?
• How is a deed drafting retention different than
a “I want to put my nephew Johnny in my will”
retention ?

95. • Hodge v. Cichon, 78 So. 3d 719 (Fla. 5th DCA,
2012)
• Intended 3rd party bene’s sue decedent
• How is a deed drafting retention different than
a “I want to put my nephew Johnny in my will”
retention ?

96. • Does a guardian’s attorney owe a duty to the AIP or Ward?
• Was the AIP or Ward an intended third party bene of the a/c
relationship between the guardian and the guardian’s
• 4th DCA: “ yes “
• Saadeh v. Connors, 166 So. 3d 959, 964, (Fla. 4th DCA 2015).

97. # 6 -ARE THERE THIRD PARTY BENEFICIARIES

98. # 7 -WHAT DOES THE LEGAL SERVICES
CONTRACT SAY ?

99. # 8 - WHAT DOES A PROPER
“ NO REPRESENTATION ” LETTER INCLUDE ?

100. # 9 -END OF WORK LETTERS

101. # 10 - LIEN ON FILES & CHARGING LIENS

102. # 10 - LIEN ON FILES & CHARGING LIENS
1. Rebecca J. Covey, P.A. v. American Import Car Sales, 944 So. 2d 1202 (Fla. 4th DCA,
2006)
2. Montgomery v. Larmoyeux, 14 So. 3d 1067 (Fla. 4th DCA, 2009), rehear. den. July 21,
2009
3. Jaffe & Hough, P.C. v. Baine, 29 So, 3d 456 (Fla. 2nd DCA, 2010)
4. Santini, M.D. v. Cleveland Clinic Florida, 65 So. 3d 22 (Fla 4th DCA, 2011) rehear. den.
July 26, 2011.
5. Walther v. Ossinksy & Cathcart, P.A., 112 So. 3d 116 (Fla. 5th DCA, 2013)
6. Fox v. Widjaya, 201 So. 3d 26 (Fla. 3rd DCA, 2013)
7. CK Regalia, LLC v. Thornton, 159 So, 3d 358 (Fla., 3rd DCA, 2015)
8. Christopher N. Link, P.A. v. Rut, 165 So. 3d 768 (Fla. 4th DCA, 2015)
9. Conde & Cohen, P.L. v. Grandview Palace Condo. Assoc., Inc., 201 So. 3d 64 (Mem)
(Fla. 3rd DCA, 2015)

103. # 11 -BLIND FAITH & PRECONCEIVED NOTIONS

104. # 12 -DID A CLIENT/ PETITIONER LIE TO YOU?
WHAT IF THEY LIED BY SWEARING THAT
THERE WERE NO SURVIVING HEIRS?

105. # 13 -EXPLAINING THINGS TO CLIENTS LIKE
A GOOD & CONSCIENTIOUS ATTORNEY WOULD

106. Let’s talk settlement
………..
and settlement agreements

108. Opportunity Cost & Risk
Failing to advise client of risks of not
accepting settlement proposal.
See Sauer, v. Flanagan and Maniotis, P.A.,
748 So. 2d 1079 (Fla. 4th DCA, 2000).
( offer of judgment was rejected, loss at trial,
judgment for fees/costs )

109. Takeaway:
Yes, you can get sued even
when you settle the case !
Read Sauer at 1082.

110. The X Factor – Attorneys Fees !
(and fee shifting statutes)
What does your Legal Services
Contract say?
Your ongoing communications
to client?

111. Responsibility to pay opposing party fees or and/or costs.
Note that you may be responsible for paying others’
attorneys’ fees and costs, especially in probate, trust,
guardianship, and family law matters. Where applicable under
certain laws, statutes, rules, or contracts, the court may
require you to pay attorneys’ fees incurred by another party.
Similarly, certain costs are almost always paid by the losing
party. You understand this risk and accept it. Similarly, you
may have the right to recover fees or costs from another
party. Attempting to recover fees and costs for you, if
possible, is part of the services that we provide in litigation.
However, there is no guarantee that you will be reimbursed
from others for attorneys’ fees which you pay to Firm or for
costs incurred.

112. But………………………

113. See Air Turbine
Technology, Inc. v.
Quarles & Brady,
LLC, 165 So. 3d
816 (Fla, 4th DCA,
2015)

114. A. COMPLYING WITH COMMANDS
& ORDERS

116. C. THE COMMAND IS NOT
“LESSENED” BECAUSE IT’S ON
PAPER & NOT IN A MORE FORMAL
SETTING LIKE A COURT OF LAW

117. D. SHOULD YOU EXPLAIN THE
CONSEQUENCES OF NOT
COMPLYING WITH THE ORDER OR
COMMAND?

118. # 1 4 - GUARDIANSHIP MATTERS: WHO IS
YOUR CLIENT?

119. # 15 -DON’T GIVE
YOUR FILES, ESTATE
PLANS, DRAFTS, OR
OTHER DOCUMENTS TO
NON CLIENTS!

120. DON’T GIVE CLIENT DOCUMENTS TO NON-CLIENTS !
ADULT CHILDREN AND SPOUSES ARE OFTEN NON-CLIENTS !!
RULE 4-1.6 CONFIDENTIALITY OF INFORMATION
(A) CONSENT REQUIRED TO REVEAL INFORMATION. A
LAWYER MUST NOT REVEAL INFORMATION RELATING TO
REPRESENTATION OF A CLIENT EXCEPT AS STATED IN
SUBDIVISIONS (B), (C), AND (D), UNLESS THE CLIENT GIVES
INFORMED CONSENT.

121. # 16 -ATTORNEY
CLIENT PRIVILEGE

122. F. S. 95.11……..(4) There is no lawyer-client privilege under this section when:
…………………………….
(b) A communication is relevant to an issue between parties who claim through the same
deceased client.

123. # 17 -WILL
SIGNING/ EXECUTION
CEREMONY

124. # 18 –
MORE SETTLEMENTS &
SETTLEMENT
AGREEMENTS ---
YOU THINK YOU HAVE
A DEAL ?

125. MONDAY MORNING
QUARTERBACKING ??
20/20 VISION IN THE REAR VIEW MIRROR ?
NOT SO FAST !
PIERCE V. PIERCE, 128 SO.3D 204 (FLA. 1ST DCA, 2013)

126. ARE YOU SETTLING MATTERS ORALLY,
ON THE RECORD IN THE COURTROOM ?
WITHOUT A WRITTEN AGREEMENT ?
READ RICHARDSON V. KNIGHT, 197 SO.3D 143 (FLA. 4TH
DCA, JULY 27, 2016)

127. “LATER-FOUND” ASSETS ?

128. REJECTED SETTLEMENT OFFERS
&
PROPOSALS FOR SETTLEMENT

129. AIR TURBINE TECH., INC., VS. QUARLES & BRADY, LLC
165 SO. 3D 816 (FLA. 4TH DCA, 2015)
CASE STARTED WITH:
-- $20 -$50 MM IN DAMAGES AND A
-- $500,000 OFFER ( REJECTED)
ENDED WITH:
-- LOSS AT TRIAL
-- SUMMARY JUDGMENT LOSS
-- MOTION FOR $4.7 MM IN FEES
-- $850,000 SOUGHT IN COSTS
-- AND THE ATTORNEY’S ADVICE ABOUT LEGAL FEES
WAS CORRECT !
(ALSO A JUDGMENTAL IMMUNITY CASE)

130. # 19 -ADVISING
CLIENTS OF
OUTSTANDING FEES &
COSTS PRE MEDIATION

131. # 20 -CREDITOR
CLAIMS

132. ARE YOU ASKING
YOUR BENEFICIARY
CLIENT IF THE
DECEDENT OWED
THEM ANYTHING ?

133. CONFIRMING IT IN
WRITING?

134. DID SURVIVING
SPOUSE HAVE A
PRENUP ?
IS THERE A MSA OUT
THERE?

139. #1-
ETHICAL
RULES

141. # 2 -
HOW DO ETHICAL
RULES IMPACT OUR
PRACTICE?

142. COMMUNICATIONS
RULE 4-1.4 COMMUNICATION
(a) Informing Client of Status of Representation. A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed
consent, as defined in terminology, is required by these rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows or
reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or
other law.
(b) Duty to Explain Matters to Client. A lawyer shall explain a matter to the extent reasonably necessary to permit
the client to make informed decisions regarding the representation.

144. • Strategy
• Decisions made
• Issues discussed
• But also……………..don’t over-promise
“Sauer stated in her deposition that her attorneys repeatedly told her that there
was no way they were going to lose at trial and that she was going to win more
than a million dollars. According to Sauer, Maniotis discussed the offer with her, telling
her that after she paid her attorney's fees and paid back worker's compensation, she'd be
“stuck with pennies,” and that it would be ridiculous to take the offer.”
-- Sauer at 1080.

145. “ The importance of settlement to clients and to society mandates that we recognize that an
attorney has a duty to utilize ordinary skill and knowledge in advising the client. See Rizzo v.
Haines, 520 Pa. 484, 555 A.2d 58, 64 (1989); see also Thomas v. Bethea, 351 Md. 513, 718 A.2d
1187, 1194 (1988)(“The principle that a lawyer may be held liable for negligence in handling of
a case that was ultimately settled by the client, whether based on deficiencies in preparation
that prejudiced the case and more or less required a settlement or on a negligent evaluation of
the client's case, has been accepted by nearly every court that has faced the issue.”);
Ziegelheim v. Apollo, 128 N.J. 250, 607 A.2d 1298, 1304 (1992)(reversing summary judgment
for the lawyer, the court opined “[a]lthough we encourage settlements, we recognize that
litigants rely heavily on the professional advice of counsel when they decide whether to
accept or reject offers of settlement, and we insist that the lawyers of our state advise clients
with respect to settlements with the same skill, knowledge, and diligence with which they
pursue all other legal tasks.”
--- Sauer @ 1082.

146. SO………….
Don’t dump a settlement agreement in the lap
of a client and write an email that says “Here’s
the latest offer, if you have any questions, let
me know. Otherwise, I assume that you
understand it. Let me know what you want to
do.”

147. #3-
LEGAL SERVICES
CONTRACT

148. RULE 4-1.2 OBJECTIVES AND SCOPE OF REPRESENTATION
(c) Limitation of Objectives and Scope of Representation.
If not prohibited by law or rule, a lawyer and client may agree
to limit the objectives or scope of the representation if the
limitation is reasonable under the circumstances and the
client gives informed consent in writing. If the attorney and
client agree to limit the scope of the representation, the
lawyer shall advise the client regarding applicability of the
rule prohibiting communication with a represented person.

149. #4-
CHARGING LIENS

150. LIENS ON FILES AND PROPERTY OBTAINED IN CONNECTION WITH YOU MATTER.
YOU ACKNOWLEDGE A LIEN THAT APPLIES TO FUNDS HELD IN TRUST AS SECURITY FOR PAYMENT, AND TO
ANY ASSETS THAT ARE RECOVERED FOR YOUR BENEFIT BY THE FIRM IN LITIGATION.
YOU GRANT TO FIRM AN ONGOING AND EXCLUSIVE CHARGING LIEN.
SO LONG AS YOU HAVE AN OUTSTANDING BALANCE DUE TO THE FIRM, YOU AGREE THAT THE FIRM MAY
……….
THE LIEN MAY BE RESOLVED BY THE COURT IN WHICH THE SUBJECT LITIGATION IS PENDING. IF YOU DO NOT
UNDERSTAND THESE LIENS, DO NOT SIGN THIS, BUT SEEK INDEPENDENT LEGAL ADVICE.
YOU AUTHORIZE FIRM TO GIVE NOTICE OF THE FIRM’S LIEN(S), DESCRIBED ABOVE, TO ANY COURT OR PERSON,
FIRM OR CORPORATION. THE LIENS CREATED HEREIN ARE FOR ALL FEES AND COSTS OWED BY YOU TO FIRM
WHETHER THEY ARISE IN CONNECTION WITH THIS OR ANY OTHER MATTER. IN THE EVENT FIRM IS
DISCHARGED OR IS REQUIRED TO WITHDRAW AS YOUR ATTORNEYS BEFORE COMPLETION OF YOUR MATTER,
YOU AGREE THAT A NOTICE OF LIEN MAY BE FILED TO PROTECT THE FIRM’S RIGHT TO A RETAINING LIEN
AND/OR CHARGING LIEN. YOU AGREE THAT ANY DISPUTE OVER THE PROPRIETY OF THE LIEN, INCLUDING THE
AMOUNT OF FEES AND COSTS TO BE PAID TO SATISFY THE LIEN, MAY BE SUMMARILY DETERMINED BY THE
COURT IN THE SAME ACTION IN WHICH WE APPEARED ON YOUR BEHALF, OR THAT THE FIRM MAY FILE AN
INDEPENDENT ACTION.

152. Course Number: 1608416N
Course Name: Advising the Estate
Planning Attorney
CLE CREDITS
2.5 hours Ethics
2.5 hours General
2.5 hours Certification (Wills, Trusts and
Estates)

153. IN CONCLUSION, REMEMBER THAT IT IS
IMPORTANT TO CONSIDER THE FOLLOWING
:
II. What is Legal Malpractice?
III. Florida Legal Malpractice Cases, Issues
& Potential Traps for the Unwary
IV. Non-Florida Legal Malpractice Cases
V. Ethics
VI. Conclusions

154. John Pankauski, Esq.
(561) 514-0900 Ext.105
john@phflorida.com
Robert Hauser, Esq.
(561) 514-0900 Ext.102
hauser@phflorida.com