When you select a lawyer, you are placing your faith in them as an experienced, knowledgeable professional. Depending on the specifics of your case, your freedom, future, and financial interests are likely to be at stake, and are dependent on your attorney’s competence. If he or she mishandles your case, the consequences could be dire.
Here’s the thing, though: it may not just be your lawyer that you need to worry about.
Generally speaking, legal malpractice occurs when your attorney breaches the duty of care he or she owed to you under the law. A legal malpractice claim can be made when they are negligent, or otherwise breach their fiduciary duty to you.
In most cases, it is your lawyer who will be held directly liable for legal malpractice. However, it is possible for others to be liable as well.
Who are the possible candidates?
Your Florida Attorney
As mentioned above, if your lawyer breaches the duty of care owed to you as a client by acting more carelessly than a reasonable attorney would have acted in the same situation, or by acting in a way that was not in accordance with your best interests, it may be possible to hold them liable for legal malpractice.
Your Florida Law Firm
In some cases, it may be possible to sue an entire law firm for legal malpractice. How does this work?
Law firms can be held accountable for legal malpractice under the doctrine of vicarious liability, which means that employers are responsible for their agents. Under vicarious liability, the law firm can be sued if one of its employees breaches a duty owed to you while acting within the scope of his or her employment. Importantly, a legal malpractice claim likely requires that at least one attorney in the firm is also being sued for malpractice.
When the law firm is sued for malpractice, both the firm and the attorneys can be held liable for damages. In some cases, each party is individually responsible for paying up to the total amount of damages awarded, while in other situations they would split the amount owed.
Paralegals in Florida
In most cases, paralegals operate under the employment of a law firm, so the employer would be held liable for any negligence on the part of paralegals under vicarious liability.
However, some paralegals perform legal services for the public without the supervision of an attorney. In fact, more and more paralegals are working directly for the public these days, which makes them responsible for the legal work they perform.
While these types of cases are currently rare, it is quite likely that malpractice claims made directly against paralegals will become more common in the future.
Paralegals can be sued for breaching their duty of care to you as a client, and potentially for unauthorized practice of law. This is because Florida prohibits paralegals from forming an attorney-client relationship and giving legal advice.
However, paralegals are able to give legal information, and determining the difference between advice and information can be tricky.
Complicated?
Absolutely. Suing a legal professional is never a simple matter.
However, if you are the victim of legal malpractice, you owe it to yourself to fight back and recover damages experienced due to their negligence.
About the Author:
Andrew Winston is a partner at the personal injury law firm of Winston Law. For over 20 years, he has successfully represented countless people in all kinds of personal injury cases, with a particular focus on child injury, legal malpractice, and premises liability. He has been recognized for excellence in the representation of injured clients by admission to the Million Dollar Advocates Forum, is AV Preeminent Rated by the Martindale-Hubbell Law Directory, enjoys a 10.0 rating by AVVO as a Top Personal Injury Attorney, has been selected as a Florida “SuperLawyer” from 2011-2017 – an honor reserved for the top 5% of lawyers in the state – and was voted to Florida Trend’s ”Legal Elite” and as one of the Top 100 Lawyers in Florida and one of the Top 100 Lawyers in the Miami area for 2015, 2016, and 2017.
