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Keywords

plaintiffdefendantattorneylawyerliabilityappealtrialtestimonymalpracticelegal malpracticeadmissibility

plaintiffdefendantattorneylawyerappealtrialverdicttestimonymalpracticeexpert witnesslegal malpractice

Related Cases

Greenwald v. Eisinger, Brown, Lewis & Frankel, P.A., 118 So.3d 867, 38 Fla. L. Weekly D1514

Facts

Allen and Jill Greenwald, the plaintiffs, filed a legal malpractice claim against their attorney Gary Brown and his law firm, Eisinger Brown Lewis & Frankel, P.A. They contended that the trial court made evidentiary errors by excluding their expert's testimony about violations of the Rules of Professional Conduct. During the trial, the plaintiffs' expert was not allowed to opine on these violations, and the plaintiffs did not preserve the issue for appeal by failing to make a proffer of the specific rules and testimony they sought to introduce.

Allen and Jill Greenwald, Plaintiffs below, appeal from a final judgment entered after a jury verdict in favor of defendants below, Gary Brown and Eisinger Brown Lewis & Frankel, P.A., on plaintiffs' claim for legal malpractice.

Issue

Did the trial court err in excluding the testimony of the plaintiffs' expert regarding alleged violations of the Rules of Professional Conduct, and did this exclusion warrant a new trial?

Rule

The preamble to the Rules of Professional Conduct states that a violation of a rule does not itself give rise to a cause of action against a lawyer, nor does it create any presumption that a legal duty has been breached. The admissibility of evidence regarding such violations is within the discretion of the trial court.

Violation of a rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.

Analysis

The court determined that the plaintiffs failed to preserve the issue for appeal by not making a proffer of the specific rules and testimony they sought to introduce. Even if the claim had been preserved, the court found that the trial court did not abuse its discretion in excluding the reference to the Florida Rules of Professional Conduct, as the rules are not designed to establish civil liability and the issues at trial focused on the factual questions surrounding the defendants' actions.

Even were this claim adequately preserved, our review of the record leads us to conclude that plaintiffs failed to establish the trial court abused its discretion in excluding the reference to the Florida Rules of Professional Conduct, or that this exclusion, if error, was harmful.

Conclusion

The District Court of Appeal affirmed the trial court's judgment, concluding that the exclusion of the expert testimony was not an abuse of discretion and any alleged error was harmless.

Finding no error in the other claims raised by plaintiffs on appeal, we affirm the judgment below.

Who won?

Gary Brown and Eisinger Brown Lewis & Frankel, P.A. prevailed because the court found no error in the trial court's decision to exclude the expert testimony, which was not adequately preserved for appeal.

The District Court of Appeal, Emas, J., held that: 1 preamble to rules of professional conduct did not mandate admission into evidence of testimony of clients' expert witness concerning alleged violations of the rules by attorney and law firm, and 2 trial court did not abuse its discretion by excluding the testimony.

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