ARLENE KAUFMAN, APPELLANT,
v.
STEPHEN CAHEN, P.A. AND KEITH CHASIN, APPELLEES
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An attorney is not liable for legal malpractice for failing to accurately predict a change in the law on an unsettled point, provided they acted in good faith.
[1] An attorney is not liable for legal malpractice for failing to anticipate a change in the law on a point that is unsettled and subject to reasonable doubt among informed…
[2] A legal malpractice claim cannot be founded on an attorney's failure to accurately predict the outcome of a controversial point of law that is subsequently decided by an…
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Join FLexlaw to unlock all legal intelligencePlaintiff retained attorneys to pursue a wrongful death claim based on alleged medical malpractice. At the time, the statute of limitations appeared t…
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NESBITT, Judge.
Kaufman appeals a final summary judgment finding that the law firm of Stephen Cahen, P.A., and Keith Chasin are not liable for legal malpractice. Kaufman also appeals the trial court’s judgment awarding costs to the firm and Chasin. For purposes of this appeal, the two have been consolidated. Finding that the trial court properly granted summary judgment for the appellees, we affirm both judgments under review.
On July 2, 1980, the doctor treating Mrs. Kaufman’s husband allegedly misdiagnosed a cancerous mole on Mr. Kaufman’s foot. Kaufman alleges that on June 7, 1982, both she and her husband learned of the doctor’s negligence for the first time. On November 17, 1983, Mr. Kaufman died of cancer. Sometime in December 1983, Kaufman retained Steven Cahen, P.A., and Chasin to represent her in a wrongful death action against her husband’s doctor. Chasin continued to represent her until sometime in March 1985.
During the period that the firm represented Kaufman, case law in this district held that the wrongful death statute of limitations, section 95.11(4)(d), Florida Statutes (1981), applied to claims such as Kaufman’s, namely, claims for a patient’s wrongful death which allegedly results from medical malpractice. See Lipshaw v. Pinosky, 442 So. 2d 992 (Fla. 3d DCA 1983); Stella v. Ash, 425 So. 2d 122 (Fla. 3d DCA 1982). Under this law, Kaufman’s claim could have been filed as late as November 16, 1985, some time after the firm and Chasin were discharged. The Supreme Court of Florida subsequently reversed this district’s holding, deciding that claims such as Kaufman’s must comply with the medical malpractice statute of limitations, section 95.11(4)(b), Florida Statutes (1983), and must be filed within two years of discovery of the negligent act, but no later than four years after the negligent act. Wagshul v. Lipshaw, 464 So. 2d 551 (Fla.1985); Ash v. Stella, 457 So. 2d 1377 (Fla.1984). By the time these decisions were released, the statute of limitations under section 95.-11(4)(b) had already run on Kaufman’s claim.
Kaufman alleges that the firm and Cha-sin were negligent in failing to anticipate the change in the law and, as a result, negligently failed to file suit before the statute of limitations under section 95.-ll(4)(b) had run on her claim. Kaufman further contends that since material issues of fact remained disputed, the trial court erred in entering a summary judgment. The firm and Chasin contend that their failure to accurately predict a change in the law cannot serve as a foundation for a legal malpractice action, and that the court correctly granted their motion for a summary judgment. We agree with the latter position.
“[T]he rule has been followed in many jurisdictions that an attorney is not liable for reaching a conclusion as to a controversial point of law which by subsequent authoritative decision is proved to be erroneous. 7 C.J.S. Attorney and Client § 142, p. 979; cases cited at pp. 15-17 of annotation to 45 A.L.R.2d....” Collins v. Wanner, 382 P. 2d 105, 109 (Okla.1963). Furthermore, it has been said that:
[a]n attorney who acts in good faith and in an honest belief that his advice and acts are well founded and in the best interest of his client is not answerable for a mere error of judgment or for a mistake in a point of law which has not been settled by the court of last resort in his State and on which reasonable doubt may be entertained by well-informed lawyers.
Hodges v. Carter, 239 N.C. 517, 80 S.E. 2d 144, 146 (1954) (citations omitted). It was not disputed that Chasin acted in honest belief that, under the law in effect at the time of his representation of Kaufman, he had until November 15, 1985, to file Kaufman’s claim. Since an attorney’s failure to accurately predict changes on an unsettled point of law is not actionable, even if we accept Kaufman’s allegations as true, the firm and Chasin may not be held liable for failing to file Kaufman’s claim as a result of their inaccurate prediction of which statute of limitations our supreme court would ultimately find applicable to a claim such as Kaufman’s. See Smith v. Lewis, 13 Cal.3d 349, 530 P. 2d 589, 118 Cal.Rptr. 621 (1975); Howard v. Sweeney, 27 Ohio App.3d 41, 499 N.E. 2d 383 (1985); Collins, 382 P. 2d at 109; cf. Dillard Smith Constr. Co. v. Greene, 337 So. 2d 841 (Fla. 1st DCA 1976) (attorney’s contractual interpretations are not actionable in professional negligence simply because a court rules against client so long as attorney exercised judgment, good faith, and reasonable skill).
Consequently, the trial court correctly entered a summary judgment for Stephen Cahen, P.A. and Chasin. Accordingly, the judgments under review are
Affirmed.
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Crosby v. Jones, 705 So. 2d 1356 (Fla. 1998)…ould decide whether attorney Samuel G. Crosby had exercised reasonable judgment in providing legal services to his client in an unsettled area of the law. We have jurisdiction based on express and direct conflict with Kaufman v. Stephen Cahen, P.A., 507 So. 2d 1152 (Fla. 3d DCA 1987), in which the court determined that such an issue was appropriately resolved as a matter of law. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. For the reasons expressed, we conclude that the issue should have been decided a…1 / 2
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Proto v. Graham, 788 So. 2d 393 (Fla. 5th DCA 2001)…that an attorney acts as an insurer of the outcome of a case. Good faith tactical decisions or decisions made on a fairly debatable point of law are generally not actionable under the rule of judgmental immunity. In Kaufman v. Stephen Cahen, P.A., 507 So. 2d 1152 (Fla. 3d DCA 1987), the court stated: An attorney who acts in good faith and in honest belief that his advice and acts are well-founded and in the best interest of his client is not answerable for a mere error in judgment or for a mistake in a poin…
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Stake v. Harlan, 529 So. 2d 1183 (Fla. 2d DCA 1988)…lity, if he fails to employ in the work he undertakes that reasonable knowledge and skill exercised by lawyers of ordinary ability and skill. See also 4 Fla.Jur.2d Attorneys at Law § 168 (1978). Defendant argues that Kaufman v. Stephen Cahen P.A., 507 So. 2d 1152 (Fla. 3d DCA 1987), supports the trial court’s dismissal because Kaufman held that a lawyer has no duty to predict accurately a change in the law. That holding reflected the principle that “[a] lawyer does not guarantee the efficacy of his advice.”…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- ASH v. Stella, 457 So. 2d 1377 (Fla. 1984)
- Dillard Smith Constr. Co. v. Greene, 337 So. 2d 841 (Fla. 1st DCA 1976)
- Lipshaw v. Pinosky, Pinosky, P.A., 442 So. 2d 992 (Fla. 3d DCA 1983)
- Stella v. ASH, 425 So. 2d 122 (Fla. 3d DCA 1982)
- Wagshul v. Lipshaw, 464 So. 2d 551 (Fla. 1985)