How to sue your lawyer in Florida.

The statute of limitations for professional malpractice other than medical malpractice is Fla. Stat. § 95.11(5)(b). It applies whether you frame the claim as negligence or breach of contract. In Florida, a legal malpractice lawsuit must be filed within 2 years from when the cause of action was discovered or should have been discovered with the exercise of due diligence.

That built-in discovery rule helps, but it is not open-ended. Once you know, or a reasonable person would know, that the lawyer's error cost you something, the 2 years are running.

Mistakes made during a lawsuit

In Silvestrone v. Edell, 721 So. 2d 1173 (Fla. 1998), the Florida Supreme Court adopted a bright-line rule: when malpractice is based on errors in litigation that goes to judgment, the limitations period does not start until the litigation is concluded by final judgment. In Larson & Larson, P.A. v. TSE Industries, Inc., 22 So. 3d 36 (Fla. 2009), the court held that where there is an appeal, the clock starts when the final judgment becomes final, and that a separate sanctions award can have its own, later start date.

No continuous representation tolling

Some states pause the deadline while the same lawyer keeps representing you on the matter. Florida does not. In Larson, the court declined to adopt the continuing representation doctrine, finding it inconsistent with Florida's tolling statute, Fla. Stat. § 95.051, which lists the only grounds that pause a limitations period. Florida courts will not pause the 2-year malpractice deadline just because you stayed with the lawyer who made the mistake.

Transactional mistakes

For mistakes outside litigation, such as a bad deed or contract, the Florida Supreme Court in Law Office of David J. Stern, P.A. v. Security National Servicing Corp., 969 So. 2d 962 (Fla. 2007), treated a malpractice claim as not ripe until the related litigation over the lawyer's work ended and the client's loss was established. Timing in these cases turns on the facts, so do not wait to find out. There is no separate statute of repose for legal malpractice in Florida. See the 50-state deadline table to compare.

Florida courts describe legal malpractice in three elements, restated in Larson and Stern: a Florida legal malpractice plaintiff must prove the lawyer's employment, the lawyer's neglect of a reasonable duty, and that the negligence was the proximate cause of the client's loss.

• Employment. An attorney-client relationship, shown by a retainer agreement, emails, or invoices.
• Neglect of a reasonable duty. The lawyer fell below the standard of care of an ordinary, competent lawyer in that field. A judgment call that simply did not work out is not enough.
• Proximate cause of loss. You would have done better without the mistake.

The case within a case

When the mistake was in a lawsuit, you usually prove the case within a case: that you would have won, or won more, in the underlying matter. If the other side could never have paid, the lost judgment may be worth little. Our guide to the case within a case walks through it.

Experts and certificates

Florida generally expects an expert witness, usually an experienced Florida lawyer, to explain the standard of care and how it was breached. Courts have excused expert testimony where the negligence is so obvious a juror could see it without help. Florida has no certificate of merit requirement for legal malpractice; the presuit rules in chapter 766 apply to medical claims. More on experts: legal malpractice expert witnesses.

In Steele v. Kehoe, 747 So. 2d 931 (Fla. 1999), the Florida Supreme Court held that a convicted defendant in Florida must obtain appellate or postconviction relief before suing criminal defense counsel for malpractice. The same opinion held that the limitations period does not begin until that relief is obtained, so the 2 years do not run while you are still fighting the conviction.

In practice this means the first step is usually a direct appeal or a Rule 3.850 motion, often raising ineffective assistance of counsel. See criminal defense malpractice and ineffective assistance vs. legal malpractice.

Many complaints about lawyers are really about money, and a malpractice suit is often the wrong tool for them.

Fee Arbitration Program

The Florida Bar runs a free Fee Arbitration Program for disputes over what a lawyer charged. It is voluntary: both the client and the lawyer must consent in writing before a Florida Bar fee arbitration can go forward, and the arbitrators' award is binding. Disputes of $15,000 or less go to one arbitrator; larger disputes go to a three-member panel that includes at least one non-lawyer. The only question is the fair and reasonable value of the lawyer's services. See attorney fee dispute arbitration and overbilling and fee disputes.

Clients' Security Fund

If a lawyer took your money, the Clients' Security Fund may reimburse you. The Florida Bar's Clients' Security Fund pays up to $250,000 for misappropriated funds and up to $5,000 for fees paid when no useful work was done. The catch: the fund will not consider a claim against a lawyer in good standing. The lawyer must be suspended, disbarred, or deceased, and claims are due within 3 years of the final disciplinary action or the lawyer's death. The fund does not pay for negligence. See stolen client funds.

The Florida Bar's lawyer regulation division acts as an arm of the Florida Supreme Court. Consumers start through the Attorney/Consumer Assistance Program (ACAP) at 866-352-0707, which may try informal resolution before a formal complaint is opened.

A Florida Bar grievance can lead to discipline up to disbarment, but it does not award you damages for what the lawyer's mistake cost you. Only a civil lawsuit or settlement does that. A grievance can matter, though: suspension or disbarment is what opens the door to the Clients' Security Fund. A bar grievance also does not pause your 2-year malpractice deadline. Compare the two in legal malpractice vs. a bar complaint.

Florida does not require lawyers to carry malpractice insurance, and no rule requires them to tell clients whether they have it. Whether your lawyer is insured can decide whether a judgment is collectible.

1. Find your date. Write down when you first learned of the mistake and when the underlying case became final. In Florida, 2 years can pass quickly.
2. Get your file. Request your complete client file in writing. See how to get your case file.
3. Sort the problem. Fee fight: fee arbitration. Stolen money: grievance plus the Clients' Security Fund. Lost case or bad advice: a malpractice review.
4. Do not wait on the bar. A grievance will not stop the clock.

If you think your lawyer's mistake cost you, a free case review takes about two minutes and can connect you with an independent attorney in Florida who handles legal malpractice claims.