by Chris Graham and Joseph Kelly

Greenwald v. Eisinger, Brown, Lewis & Frankel, P.A., et al, Case No. 3D12-1181 (Fla. 3d DCA July 10, 2013)

Legal malpractice plaintiffs appealed judgment affirming jury verdict in favor of defendant lawyers and law firm arguing the trial court committed evidenciary errors.

Before trial, the judge reserved ruling on a motion in limine regarding whether violations of the Florida Rules of Professional Conduct were admissible to establish an attorney’s standard of care. The judge stated he would “rule before we get into the substantive part of the trial.” Plaintiffs didn’t seek a ruling on that motion in limine before or during trial.

The trial judge sustained defendants’ objections when plaintiffs tried to ask their legal expert about the Florida Rules of Professional Conduct. Plaintiffs made no proffer or other preservation of claimed error for appeal.

The appeals court found that plaintiffs didn’t preserve any claimed error, but even so, the court was within its discretion to exclude the legal expert’s testimony. Plaintiffs cited to the preamble to the Florida Rules of Professional Conduct in support of its position. The preamble provides in pertinent part:

“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. In addition, violation of a rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule. Accordingly, nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such duty. Nevertheless since the rules do establish standards of conduct by lawyers, a lawyer’s violation of a rule may be evidence of a breach of the applicable standard of conduct.”

Plaintiffs argued that the last sentence required admission of the rules violation. The appeals court disagreed, stating:

“…[P]laintiffs have failed to provide any case to support the proposition that the trial court had neither the discretion to determine the admissibility of this evidence, nor the authority to assess, if admissible, whether the “probative value of such evidence was substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403, Fla. Stat. (2012). We do not agree that the preamble language or the caselaw mandates the admission of such evidence; rather, the decision to admit or exclude such evidence remains vested in the broad discretion of the trial court, and will not be disturbed absent an abuse of that discretion.”