Can I get a copy of my file?

Florida courts have stated that the file of a client is considered the personal property of the lawyer. Unless the client's contract with the lawyer provides otherwise, the lawyer has no obligation to provide the client their file. As stated by the court in Donahue v. Vaughn, 721 So.2d 356 (Fla. 5th DCA 1998):

[T]here is no duty upon a private attorney to give any of his files to a client, save documents which are solely those of the client and held by the lawyer. Pleadings, investigative reports, subpoena copies, reports and other case preparation documents are property of the lawyer."

As stated by this court, a lawyer must return to the client any original documents that are property of the client. However, if the client owes a fee to the lawyer, the lawyer may retain the client's documents and other property until the fee is paid. If the client disputes that the lawyer is entitled to the fee, the dispute must be resolved in court. Also, there may be some circumstances where the lawyers office file may contain information about a client's affairs concerning which attorney may have an ethical duty to communicate to a successor counsel. See Dowda & Fields, P.A. v. Cobb, 452 So.2d 1140 (Fla. 5th DCA 1984).

Because of these rules, a client who wishes to be fully informed should request to receive copies of all correspondence and other important documents that are created during the representation. Once the the attorney's representation has terminated, the lawyer is under no obligation to provide these items. If a lawyer still represents the client, the lawyer is ethically required inform the client of all significant developments that occur during the representation. However, this may not require that all matters in the file are sent to the client. Some clients may not feel the need to review each and every document generated in their case. It is the client's responsibility to request specific information regarding the file. The client and the lawyer should have an understanding of what information will be provided to the client during the representation. In most cases, once the the attorney's representation is terminated, the lawyer is under no obligation to provide contents file that do not consist of the client's original documents.

Should I have a written agreement with my lawyer?

Every attorney client relationship should begin with a written agreement that clearly spells out the terms of representation by the lawyer. The written agreement should explain what the lawyer is hired to do. It should also explain the professional fee that will be charged by the lawyer for the representation. The written agreement should also address other issues, such as who will be responsible for the payment of certain costs associated with the case, or whether other lawyers may be working on the client's case.

The Florida Bar Rules that regulate attorneys to not require that all fee agreements between lawyers and their clients be in writing. However, if a fee is contingent on the outcome of the case, it must be in writing.

In personal injury cases where the fee is to be paid as a percentage of the client's recovery, the Florida Supreme Court requires that the fee agreement be in writing. The contingent fee agreement must explain in detail the percentage fee that the lawyer will paid. The Florida Supreme Court has specified the percentage fees for contingency personal injury cases. The amount of the fee depends upon how much the lawyer recovers for the client and when the recovery is obtained. For example, if the lawyer is able to obtain a settlement without having to prosecute a lawsuit, the lawyer's fee must be no more than 33 1/3 % of the amount recovered, exclusive of costs. If the lawyer is required to prosecute a lawsuit, then the fee may increase to 40% of the recovery. If the lawyer appeals the case, the fee may increase an additional 5%. These percentages decrease as the amounts of recovery increase, starting at recoveries in excess of one million dollars. If the lawyer and the client agree to a fee higher than these amounts, the fee agreement must be approved by the court.

Here is a link to the Florida Bar Rule regarding fee agreements between lawyers and their clients: Florida Bar Rule

A good relationship between the lawyer and client begins with a written agreement. Any one hiring a lawyer should thoroughly understand the terms of representation in that agreement
Labels: Questions about attorney-client relationship
Link: http://www.floridabar.org/divexe/rrtfb.nsf/8bf68c7a6fda323085256bc800648cce/d879f37d40cdf92485256bbc004b2fc3?

Is there a deadline for filing a lawsuit against a lawyer?

In Florida, there are statutes that establish deadlines for filing lawsuits. These are known as statutes of limitation. These statutes of limitations establish different deadlines for different kinds of lawsuits. Lawsuits against lawyers must be filed within a two year period. When this two year period begins is not always clear and this question has been the subject of many court decisions. In situations involving the malpractice of a lawyer representing a client in a lawsuit, the Florida Supreme Court has ruled that the two year period does not begin to run until the lawsuit has concluded. See Silvestrone v. Edell, 721 So.2d 1173 (Fla. 1998).

It is best to seek advice concerning the possibility of a legal malpractice claim early, after it has become apparent that the lawyer's conduct may have been the cause of a loss. Once the two year period passes, a lawsuit against the lawyer will be barred forever.

What is Legal Malpractice?

The laws of our society hold individuals accountable for their actions. (There are exceptions to this, but that is the subject of another discussion.) Professionals are accountable, and this includes lawyers. When an attorney's mistake causes a loss to the client, the lawyer may be held accountable to the client in a lawsuit for legal malpractice.

Florida law requires proof of three elements to establish a lawsuit for legal malpractice: (1) The lawyer's employment by the client; (2) the lawyer's neglect of a reasonable duty; and,(3) a loss that is caused by the breach of duty. See Law Offices of David Stern, P.A. v. Security National Servicing Corporation, 969 So.2d 062 (Fla. 2007). Legal malpractice can occur in a variety of situations involving the relationship between attorneys and their clients. This can include a lost lawsuit, the loss of property or money, the loss of legal rights, or even the loss of liberty. In almost every situation involving legal malpractice, the lawyer's mistake has created a loss that would not have occurred if the lawyer had practiced the law in a careful and knowledgeable manner.

Not every mistake a lawyer makes gives the client the right to sue for malpractice. As professionals, lawyers deal with matters that are complex. They may involve factors that are not within the lawyer's control. Lawyers are entitled to exercise professional judgment, so long as they do so with their client's best interests in mind. The law does not require lawyers to guarantee or predict the outcome of a client's lawsuit or transaction. But when a lawyer's mistake is serious enough to be considered a breach of a reasonable duty of care, then the lawyer may be held accountable for the client's loss.