Court Holds Non-Client Lacks Standing To Sue For Legal Malpractice

MENGLE v. Goldsmith, Dist. Court, MD Florida 2011 – Google Scholar: The Complaint alleged that the defendants committed legal malpractice in connection with six real estate projects in Florida. Plaintiff alleged that the Defendants "provided legal services for each of the projects, and were tasked to draft the operating agreements, term sheets, and subscription agreements. Plaintiff alleges that none of the documents prepared by the defendants were properly executed or in accordance with state or federal law." The Defendants moved to dismiss on the ground that there was no personal jurisdiction and that the Plaintiff failed to allege an attorney-client relationship. The court agreed. The Court held that there was no privity of contract between the Plaintiff and the Defendants. Thus, there was no duty owed by the law firm to the Plaintiff. "In Florida, the general rule is that 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. Espinosa v. Sparber, Shevin, Shapo, Rosen and Heilbronner, 612 So. 2d 1378, 1379 (Fla. 1993); Moss v. Zafiris, Inc., 524 So. 2d 1010, 1011 (Fla. 1988); Angel, Cohen & Rogovin v. Oberon Inv., N.V., 512 So. 2d 192, 194 (Fla. 1987); Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 400 (Fla. 2d DCA 2000); Littell v. Law Firm of Trinkle, Moody, Swanson, Byrd and Colton, 345 F. App'x 415, 418 (11th Cir. 2009). In this context, "privity" describes the relationship of persons who are parties to a contract. Espinosa, 612 So. 2d at 1379-80; Brennan v. Ruffner, 640 So. 2d 143, 145 (Fla. 4th DCA 1994). Establishment of the attorney-client relationship-and thus the attachment of the concomitant rights and duties of each side to the relationship-does not require a written agreement or evidence that fees have been paid or agreed upon. The Florida Supreme Court has said that the test for 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 professional legaladvice. However, this subjective belief must . . . be a reasonable one." It appears that the complaint was filed by an investor in the real estate projects – an investor who may not have had any contact with the lawyers. Mansur v. Podhurst Orseck, P.A., 994 So. 2d 435, 438 (Fla. 3d DCA 2008)(footnote and citations omitted). However, "[t]he subjective belief test is only applied after a putative client consults with an attorney, and is used to emphasize that, following a consultation, it is the belief of the putative client and not the lawyer's actions that determines whether a lawyer-client relationship has developed." Jackson, 372 F.3d at 1281 n.29 (citing Dean v. Dean, 607 So. 2d 494, 496-97 (Fla. 4th DCA 1992)). "[T]he test Florida courts have used to determine if an attorney-client relationship exists is: (1) the putative client consults with an attorney and, subsequently, (2) the client has a reasonable subjective belief that he is consulting a lawyer in that capacity and his manifested intention is to seek professional legal advice." In re Lentek Int'l, Inc., 346 F. App'x 430, 433 (11th Cir. 2009)(citations and internal quotation marks omitted). Additionally, "it is not sufficient merely to show that an attorney-client relationship existed between the parties, it is essential that the plaintiff show that the relationship existed with respect to the acts or omissions upon which the malpractice claim is based." Lane v. Cold, 882 So. 2d 436, 438 (Fla. 1st DCA 2004)." This case was decided on a motion to dismiss. While the Complaint was dismissed, the Court granted Plaintiff leave to amend the complaint. Edward X. Clinton, Jr. 'via Blog this'

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