The attorney’s action in giving legal advice to his client regarding a potential attorneys’ fees exposure in a contract case venued in  Federal District Court was not malpractice, and was protected by the judgmental immunity defense.


 At the outset of the case, the client signed an engagement letter which contained this paragraph:


•Either at the commencement or during the course of our  representation, we may express opinions or beliefs concerning the litigation or various courses of action and the results that might be anticipated. Any such statement made by any partner or employee of our firm is intended to be an expression of opinion only, based on information available to us at the time, and should not be construed by you as a promise or guarantee.



 The complaint asserted six counts: patent infringement, violation of the Lanham Act, 15 U.S.C. § 1125(a), breach of contract, fraud, breach of confidential relationship, and common law unfair competition.  The lawyer assured the client that it had no exposure for attorneys’ fees under the contract between the litigants as it referenced legal expenses and costs, but not attorneys’ fees.  Under settled Florida law, that was a correct legal analysis and opinion.  However, the federal district judge applied federal law, and awarded attorneys’ fees exceeding $1M, which was affirmed on appeal by the Eleventh Circuit Court of Appeals.


 The legal malpractice suit followed, predicated on the legal advice to the client that it would not be exposed to attorneys’ fees in the litigation, and the lawyer’s failure to hire an attorneys’ fees expert to testify at the fees hearing.  In the legal malpractice action, the trial court granted a partial summary judgment on a portion of the case based on the statute of limitations, and another partial summary judgment based on judgmental immunity that resolved the remainder of the case. The trial judge commented that there was no showing that a fee expert would have made any difference in the outcome of the case, based on the fact that under federal practice, a fees expert is not essential to an award of fees, contrary to practice in state court.


  Judgmental Immunity in Florida


 It is well-settled in Florida "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." Crosby v. Jones, 705 So. 2d 1356, 1358 (Fla. 1998). However, an attorney does not act "as an insurer of the outcome of a case." Id. Accordingly, "[g]ood faith tactical decisions or decisions made on a fairly debatable point of law are generally not actionable under the rule of judgmental immunity." Id. (citation omitted). This rule "is premised on the understanding that an attorney, who acts in good faith and makes a diligent inquiry into an area of law, should not be held liable for providing advice or taking action in an unsettled area of law." Id.


  In order for an attorney to prevail on a claim of judgmental immunity, "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." Haisfield v. Fleming, Haile & Shaw, P.A., 819 So. 2d 182, 185 (Fla. 4th DCA 2002)(citing Crosby, 705 So. 2d at 1358). An issue of law is unsettled if it "is one that has not yet been determined by the state's court of last resort and on which reasonable doubt may be entertained by well-reasoned lawyers." Id. The determination of whether "legal authority is 'unsettled' is a question of law, not an issue of fact." Id. at 185.  Judgmental immunity is a flexible doctrine that protects attorneys who act in good faith from claims brought solely with the clarity of hindsight.


 Here, the attorney’s advice on the fee exposure was fairly debatable, and judgmental immunity applied. Similarly, the lawyer made the tactical decision not to hire an expert witness on the issue of reasonableness of attorney's fees, taking into consideration that (1) federal law did not require an independent expert; (2) federal judges have considerable discretion in making a fee award; (3) Judge Marra had served for years as a judge in Florida and "would be familiar with local rates and practices"; (4) Judge Marra was familiar with the underlying litigation, having presided over it through trial; and (5) hiring a fee expert would have been expensive for the litigant. The wisdom of the lawyer’s decision was borne out by the ultimate fee award, which was just 21 percent of what the adverse party sought in fees. The decision not to call a fee expert in federal court was the essence of a good faith tactical decision that protected by judgmental immunity.


 If you have any questions on any particular matters involving these or similar issues, please do not hesitate to contact Gary R. Shendell at gary@shendellpollock.com or Diran V. Seropian at diran@shendellpollock.com.


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