Legal Alert - Privity is Essential to a
Legal Malpractice Claim in Florida
The Fourth District Court of Appeals recently reaffirmed that in order to maintain a claim for legal malpractice, one must be in privity with the attorney or law firm. See Arch Ins. Co. v. Kubicki Draper, LLP, 4D17-2889, 2019 WL 318466, at *3 (Fla. 4th DCA Jan. 23, 2019. This concept has long been established in Florida, which is highlighted by two Florida Supreme Court cases, which held that “[a]n 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.” See generally Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So. 2d 1378, 1379 (Fla. 1993) and Angel, Cohen & Rogovin v. Oberon Inv., N.V., 512 So. 2d 192, 194 (Fla. 1987). The concept of privity in order to have standing to bring a legal malpractice claim, is extremely important where there exists contractual privity between an attorney/law firm and an insured but no privity of contract between the attorney/law firm and the insurance carrier.
Currently, there are no cases in Florida that recognize an attorney-client duty owed by a defense firm to an insurance carrier where the law firm is hired to represent an insured for an alleged legal malpractice claim. Yet, in a recent line of Florida Federal Court cases, there appears to be a push towards expanding the concept of strict privity by permitting an insurer to pursue a claim of malpractice against the attorney/law firm hired to represent their insured. Specifically, in Hartford Ins. Co. of Midwest v. Koepell, the Court held that “. . . this Court guesses that Florida courts would extend the strict privity exception and recognize an insurer’s legal malpractice claim against an attorney retained to represent its insured.” 629 F. Supp. 2d 1293, 1301 (M.D. Fla. 2009). In Koeppel, while the Court acknowledged there is no controlling Florida precedent on this issue, in an effort to permit the carrier to sustain a cause of action, speculated that there should be an exception to the concept of strict privity. Additionally, the Court in Nova Cas. Co. v. Santa Lucia, went one step further in saying since neither Florida appellate courts nor the Supreme Court of Florida have ruled on this issue, it was “forced to predict how the Florida courts would rule if they were presented with the issue” specifically finding an exception to strict privity. 809CV1351T30, 2010 WL 3942875, at *2 (M.D. Fla. Oct. 5, 2010). Finally in U.S. Specialty Ins. Co. v. Burd, the Court relied on Koeppel and Nova’s “guess” and “prediction” and extended the strict privity exception to allow an insurer to file a legal malpractice claim against a law firm it retained to represent its insured.
Most recently, the Florida state court in the Fourth District Court of Appeals held that it “. . . will not adopt new expansive precedent that is based on “guesses” and “forced predictions” when the Florida Supreme Court to date has so severely limited exceptions in this area of law.” Arch Ins. Co. v. Kubicki Draper, LLP, 4D17-2889, 2019 WL 318466, at *3 (Fla. 4th DCA Jan. 23, 2019). The Court in Arch considered the line of Florida Federal Court cases attempting to expand the privity requirement and recognized a limited exception to this rule, specifically when the third party is an intended beneficiary of the relationship between the law firm and the insured, i.e., when counsel drafts a will or a private placement situation. In both instances, the lawyer owes a duty to the third-parties who rely on the will drafting or private placement statement. Under the attorney-client/insured-insurer relationship, the insurer is not an intended third-party beneficiary of the attorney/law firm’s services, rather, counsel’s duty is to their client, the insured. Therefore, unless there is privity of contract, or one of these narrow exceptions apply, a third party does not have standing to bring a legal malpractice claim.
Florida state courts continue to observe the requirement of privity as an element of a claim for legal malpractice. The Arch court so states. This outcome limits potential exposure to insured attorneys/law firms as it bars claims for legal malpractice, absent contractual privity and/or intended third-party beneficiaries. Accordingly, in instances where the insured has a legal malpractice claim filed against them by a party that is neither in contractual privity with them nor is an intended third-party beneficiary, the defendant attorney will likely prevail on a motion for summary judgment.
At Shendell & Pollock we have over 30 years in defending legal malpractice claims. If you have any questions, or we can assist you, please contact Gary R. Shendell, Esq, at firstname.lastname@example.org and Diran V. Seropian, Esq. at email@example.com or (561) 241-2323.