Third District Court of Appeal holds that mother of developmentally disabled child has no standing to sue university legal clinic for malpractice.

The mother of Brittany Oliver, a developmentally disabled person, appealed the trial court’s final order dismissing the second amended complaint with prejudice against the University of Miami School of Law’s Children & Youth Law Clinic for failure to state a cause of action. At issue was the mother’s disagreement with the characterization of Brittany’s disability in the verified Petition for Appointment of Co-Guardian Advocates, the mother’s disagreement with the educational program Brittany was enrolled in, and law clinic’s failure to provide Ms. Driessen with notice of the March 11, 2014, evidentiary hearing wherein Brittany’s co-legal advocates were appointed.

The court affirmed the trial court’s dismissal at the pleadings stage because Ms. Driessen: (a) is not Brittany’s legal guardian; (b) did not retain the clinic to represent Brittany or the co-legal guardians (Brittany’s sister or grandfather); and (c) was not and is not the intended beneficiary of the clinic’s representation of the legal guardians.

The court explained that while Ms. Driessen, as Brittany’s next of kin, may have legitimate concerns regarding some of the decisions made by Brittany’s guardians, those concerns do not provide her with standing to sue the law clinic for legal malpractice in its representation of her daughter’s guardians. The court cited Angel v. Cohen & Rogovin v. Oberon Inv. N.V., 512 So. 2d 192, 194 (Fla. 1987), which held that an attorney’s liability for negligence in the performance of his/her professional duties is generally limited to clients with whom the attorney shares privity of contract. The exception to this general rule being when the plaintiff is the third-party beneficiary of the services performed by the attorney. Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So. 2d 1378, 1380 (Fla. 1993).

The court concluded that the ward (i.e., Brittany), and not the ward’s next of kin, is the intended beneficiary of the clinic’s services, citing to two recent cases from the 4^th DCA wherein the well-being of the ward was considered to be the whole purpose and “the very essence” of a guardianship proceeding. See Saadeh v. Connors, 166 So. 2d 959, 964 (Fla. 4^th DCA 2015) and Zelman v. Zelman, 175 So. 3d 871, 879 (Fla. 4^th DCA 2015). Accordingly, the court affirmed the dismissal with prejudice of Ms. Driessen’s second amended complaint for legal malpractice against the clinic. 

_{Case Law Alerts, 2nd Quarter, April 2019}

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