McLeod v. Bankier, Fla. Dist. Ct. of App., 4th Dist., 2011
Facts: McLeod hired Attorney Tew to file a claim against Fidelity for allegedly executing a wrong margin call which led to the liquidation of his account. The case settled and McLeod signed a release in favor of Fidelity. His account balance, however, was never restored.
In December, 2002, McLeod hired Attorney Bankier who represented him in an unsuccessful NASD arbitration against FIdelity. In November, 2003, Bankier advised McLeod to pursue a malpractice action against Tew and referred him to another attorney who advised that he had no valid action against Tew.
In 2004, McLeod consulted Attorney Isenberg who again recommended a claim against Tew. McLeod ignored this advice, but ultimately filed a claim against Bankier in 2008 for, allegedly, negligently allowing the two-year statute of limitations for a claim against Tew to expire.
Issues: Was McLeod’s claim against Bankier valid?
The Florida Supreme Court recognize[s] that "[g]enerally, a cause of action for negligence does not accrue until the existence of a redressable harm or injury has been established and the injured party knows or should know of either the injury or the negligent act.
This case presents three possible scenarios, any one of which results in McLeod’s claim for legal malpractice against Elk Bankier being barred. Under the first scenario, if the claim against Tew accrued at the point when he advised McLeod he was no longer going to represent him (March 2000), then McLeod had two years from that date to sue Tew (March 2002). McLeod did not retain Elk Bankier until December 2002, which was beyond the two-year statute of limitations period. Therefore, no malpractice claim against Elk Bankier for failure to file an action against Tew can be shown as a matter of law.
Under the second scenario, the limitations period to file an action against Tew potentially began to run in 2003 when the NASD decision became final. Under this scenario, McLeod would have had until 2005 to sue Tew, and, in fact, he was advised of his potential claim against Tew by at least two attorneys before the expiration of the limitations period in 2005. As such, any action against Elk Bankier based on its failure to commence a proceeding against Tew would have expired in 2007. McLeod did not file his action until 2008.
Finally, even if one assumes that Elk Bankier had an obligation to advise McLeod of his potential malpractice claim against Tew, despite the fact that the firm was retained solely to pursue a claim against Fidelity, McLeod’s action against Elk Bankier accrued no later than 2004, which is the latest date that McLeod was definitively advised of the potential claim against Tew. McLeod did not commence his action against Elk Bankier until almost four years later, well beyond the two-year limitations period when he knew or should have known of his claims against his former attorneys.
Lesson: The Florida Statute of Limitations requires that a legal malpractice claim be brought within two years of the time the former client knows or should know of the injury or negligent act on the part of the attorney.