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THE ATTORNEY WHO SUES LAWYERS AND ACCOUNTANTS

Most South Florida lawyers and accountants do a good job in representing their clients’ interests, says Miami attorney Warren R. Trazenfeld. But when things go wrong due to a professional’s negligence or misconduct and you suffer a loss, filing a malpractice lawsuit can provide financial relief to the client.

“Usually, the damages involve an underlying case or transaction that has been ruined or harmed by a professional’s errors,” said Trazenfeld, whose firm focuses on legal and accounting malpractice cases throughout Florida.

For example, an attorney might miss a filing deadline, and your lawsuit gets tossed out of court. An accountant might prepare an inaccurate audit or make a serious mistake in providing tax advice.

A native of Miami who graduated from the University of Florida School of Law in 1980, Trazenfeld is board certified in legal malpractice by The American Board of Professional Liability Attorneys. He is a co-author of “Florida Legal Malpractice and Attorney Ethics” and has spoken on the topic at numerous seminars and conferences.

“Neither you nor your professional wants to wind up in a malpractice lawsuit,” Trazenfeld said. “So do your homework, choose the right attorney or accountant, and stay in touch as your matter proceeds so there are no damaging surprises along the way.”

SELECTING THE RIGHT PROFESSIONAL

Avoiding a legal or accounting malpractice lawsuit begins with establishing a clear and effective professional relationship right from the start, according to Trazenfeld. “Defining your relationship up front provides a solid foundation for handling a legal or financial matter.”

Trazenfeld suggests asking the following questions when considering an attorney to handle your case.

  • What is the attorney’s background? An attorney who did a good job with your cousin’s real estate closing may not have the knowledge or skills to defend you against a criminal charge.
  • How often does the attorney handle your type of case? “A lawyer’s experience is important because you don’t want someone who is learning at your expense,” Trazenfeld said.
  • Do you feel “chemistry” with the attorney? Many lawyers view clients only as a source to fill up their required bucket of billable hours rather than acting as a legal counselor to assist in solving a legal issue. “If an attorney does not show an understanding and interest in your matter, that’s probably not the right lawyer for you,” he said.
  • Does the attorney have malpractice insurance? Like most states, Florida does not require attorneys to carry malpractice insurance, nor do they have to disclose if they have a policy or not.

Trazenfeld views this as an important issue and is critical of the Florida Bar for not protecting the consumer of legal services. “The only way to find out about insurance coverage is to ask the attorney up front,” Trazenfeld said. “You should understand the risk involved in retaining a lawyer who is not insured, because if something goes wrong, it can be very difficult for you to recover your losses.”

UNDERSTAND THE ENGAGEMENT

After choosing a professional, both you and your attorney or accountant should have a clear understanding of your relationship. “Make sure that the lawyer spells out the scope of the services to avoid future misunderstandings,” Trazenfeld said. For instance, if you hire a real estate lawyer for a residential or commercial transaction, does the engagement focus only on researching the title to the property, or does it include zoning-related issues as well?

“It’s also important that both the client and the lawyer have realistic expectations about what can be achieved, particularly in a lawsuit,” he said. “Clients often have unrealistic expectations as to the value of their case. Far too many lawyers fail to properly manage those expectations. Prior to settlement discussions, the lawyer suddenly tells this client what the case is really worth, which creates great disharmony in the attorney client relationship.”

You should also ask how an attorney or accountant charges for services and what the total fee is likely to be. For some matters, such as preparing a will, a professional should be able to provide you with a fixed fee for the service. Litigation costs are harder to predict, but an attorney should be able to provide an estimate.

“Many clients are hesitant to ask about billing when meeting a lawyer or accountant for the first time,” Trazenfeld said. “That’s a mistake for both parties. You should talk about fees from the very beginning to avoid any surprises.”

Finally, insist on receiving an engagement letter from the professional. Be sure that it accurately covers everything you have discussed, Trazenfeld said. “An attorney or accountant who is negligent in fulfilling the responsibilities set out in the engagement letter may be subject to a malpractice suit if you have suffered a financial loss.”

BUILD A RELATIONSHIP

Poor communication is one of the biggest causes of friction between attorneys, accountants and their clients. “Good attorneys are always busy, but a client should be able to talk with someone in the office who can provide regular updates on the matter,” Trazenfeld said. “Otherwise, the client can get frustrated with how the matter is being handled.”

An attorney should also provide plenty of lead time when asking for documents such as tax returns, shareholders’ agreements or other legal materials. “Attorneys often call clients at the last minute before a deposition or a discovery deadline, rather than giving the client advance notice,” Trazenfeld said. “That doesn’t help the relationship.”

If you are not happy with your attorney or accountant, arrange a meeting as soon as possible and try to work things out. “In my experience, a bad professional relationship is unlikely to get better,” Trazenfeld said. “If you can’t resolve things, then fire the professional and find another one.”

You should also get copies of the legal work performed by the lawyer. “Keep your own file of important documents,” he added. “If you need to change lawyers, having those documents will help bring your new lawyer up to speed on your matter and prevent battles with your former lawyer to get a copy of your file.”

Finally, if you feel your attorney or accountant was negligent in handling your matter, you should explore filing a malpractice suit, Trazenfeld said. “It may be the only way you can recover your losses.”

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