Ethics For Florida Probate Lawyers

Ethics For Florida Probate
Lawyers
(1 CLE Ethics Credit)
with John Pankauski, Esq.
(561) 514 – 0900
www.phflorida.com

Issues which we, as
litigators, come
across

Discussion Outline
I. Introduction
II. Recent Florida Cases
III. Recent Non-Florida Cases
IV. Estate Planning & Probate Malpractice
V. Conclusion

#2- Increased
Likelihood of
Litigation

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)

#3-Doing the Right Thing is
Not a Title, It’s a Promise

#4-Our Basic Duties as
Lawyers

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).

Air Turbine Tech., Inc.
165 so. 3d 816
(Fla. 4th dca, 2015)
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)

Is there a concern about non-litigators
litigating

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)

A. Did you get all of
your arguments in?

B. Unless raised, most
positions/defenses/claims
are waived

“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 Fla. 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)

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. )

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

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 of 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 the common law of contracts
and used to describe the relationship of persons who 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, alternatively, the plaintiff must be an intended third-party beneficiary. In
the instant case…..” at 1379,1380.

“ 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.

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.

But………………………….

“ 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)

• 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 of 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 survive the M2D

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.”

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 FE ES/COSTS )

“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.

“ 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.

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)

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)

REJECTED SETTLEMEnt offers
&
PROPOSALS FOR SETTLEMENT

Air Turbine Tech., Inc.
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)

RULE 4-1.5 FEES AND COSTS FOR LEGAL SERVICES
(a) Illegal, Prohibited, or Clearly Excessive Fees and Costs. An attorney shall not enter
into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or
cost, or a fee generated by employment that was obtained through advertising or
solicitation not in compliance with the Rules Regulating The Florida Bar. A fee or cost is
clearly excessive when:
(1) after a review of the facts, a lawyer of ordinary prudence would be left with a
definite and firm conviction that the fee or the cost exceeds a reasonable fee or cost for
services provided to such a degree as to constitute clear overreaching or an
unconscionable demand by the attorney; or
(2) the fee or cost is sought or secured by the attorney by means of intentional
misrepresentation or fraud upon the client, a nonclient party, or any court, as to either
entitlement to, or amount of, the fee.

Legal Service Contracts?
Charging Liens?

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)

RULE 4-1.8 CONFLICT OF INTEREST; PROHIBITED AND
OTHER TRANSACTIONS
(e) Financial Assistance to Client. A lawyer shall not provide financial assistance to a client in connection with pending or contemplated
litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on
the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the
client.
(f) Compensation by Third Party. A lawyer shall not accept compensation for representing a client from one other than the client
unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by rule 4-1.6.

Is mother or father or rich aunt paying your client’s fees ?
Has client OK’d it ?
In writing ?

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.

RULE 4-1.6 CONFIDENTIALITY OF INFORMATION
(b) When Lawyer Must Reveal Information. A lawyer must reveal confidential information to the extent the lawyer
reasonably believes necessary:
(1) to prevent a client from committing a crime; or
(2) to prevent a death or substantial bodily harm to another.
(c) When Lawyer May Reveal Information. A lawyer may reveal confidential information to the extent the lawyer
reasonably believes necessary:
(1) to serve the client's interest unless it is information the client specifically requires not to be disclosed;
(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client;
(3) to establish a defense to a criminal charge or civil claim against the lawyer based on conduct in which the client was
involved;
(4) to respond to allegations in any proceeding concerning the lawyer's representation of the client;
(5) to comply with the Rules Regulating The Florida Bar; or
(6) to detect and resolve conflicts of interest between lawyers in different firms arising from the lawyer’s change of
employment or from changes in the composition or ownership of a firm, but only if the revealed information would not
compromise the attorney-client privilege or otherwise prejudice the client.
(d) Exhaustion of Appellate Remedies. When required by a tribunal to reveal confidential information, a lawyer may first
exhaust all appellate remedies.

Why are you giving a client’s estate
planning documents to adult children
and spouses who are not clients ?

#1- Defined/Elements
of Cause of Action

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)

KJB Village Property, LLC v. Craig M.
Dorne, P.A., 77 So.3d 727 (Fla. 3rd DCA,
2011), rehear. den. Feb. 2, 2012
“Gotta” have damages !!

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.

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).

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 )

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?

“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 Fla. 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)

“ 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

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)

See also:
Air Turbine Tech., Inc. v. quarles & brady, llc, 165 so.
3d 816 (fla. 4th dca, 2015)

“…….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)

Conclusion
Florida Bar Course # 1608415 N
1 hour Ethics Credit
1 hour General Credit

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

Ethics For Florida Probate Lawyers

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