Florida’s Third DCA Reaffirms: Legal Malpractice Claims Are Not Assignable
Florida’s Third DCA Reaffirms: Legal Malpractice Claims Are Not Assignable
The decision reinforces long-standing policy concerns about protecting attorney-client confidences and preventing a market for legal malpractice claims.
On August 19, 2026, Florida’s Third District Court of Appeal reinforced the state’s long-standing rule that legal malpractice claims cannot be assigned. In Carnevale v. Krinzman Huss & Lubetsky, LLP, the Third DCA held that even where a bankruptcy court approves of an assignment of legal malpractice claims, such an assignment does not confer standing on the assignee to pursue the claim in a Florida state court.
Background
Dario and Flavia Carnevale obtained large money judgments in litigation against former clients of several law firms. When those judgment debtors filed for bankruptcy, the bankruptcy trustees declined to pursue the debtors’ potential legal malpractice claims against the firms that had represented them. Instead, the trustees assigned those claims to the Carnevales “AS IS, WHERE IS and WITH ALL FAULTS, if any.” The bankruptcy court approved the assignments, but neither the trustees nor the court made any warranty regarding the validity of the assignments or the Carnevales’ standing to pursue them in Florida state court. The Carnevales then filed a legal malpractice action against the law firms in circuit court. The defendants moved to dismiss, and the trial court granted dismissal with prejudice on the grounds that the claims were non-assignable under Florida law.
The Court’s Holding and Reasoning
The court grounded its analysis in the well-established Florida rule that legal malpractice claims are personal torts and cannot be assigned. The opinion cited the Florida Supreme Court’s decision in Law Offices of David J. Stern, P.A. v. Security National Servicing Corp., 969 So. 2d 962, 969 (Fla. 2007), which identified two major policy concerns justifying this prohibition: (1) protecting attorney-client confidences, and (2) preventing a market for legal malpractice claims.
The court further relied on National Union Fire Insurance Co. v. Salter, 717 So. 2d 141, 143 (Fla. 5th DCA 1998), which distinguished between assignable causes of action (those derived from contract or statute) and purely personal tort claims like legal malpractice, which “cannot be assigned because of the personal nature of the legal services which involve highly confidential relationships.” The court also noted the privity requirement articulated in Horowitz v. Laske, 855 So. 2d 169, 173 (Fla. 5th DCA 2003).
Critically, the Third DCA rejected the Carnevales’ argument that the bankruptcy court’s approval of the assignments preempted Florida’s long-standing common law prohibition. The court emphasized that while the assignments’ validity was “expressly qualified”, the bankruptcy court’s approval did not clothe the Carnevales with standing to pursue claims that Florida law deems non-assignable. In a footnote, the court also distinguished the Fourth DCA’s decision in Northcutt v. Robert J. Bryan, P.A., 775 So. 2d 976 (Fla. 4th DCA 2000), noting that Northcutt addressed the binding effect of a bankruptcy order on the judgment debtor who failed to appeal, which is a distinct issue with no bearing on the substantive assignability question.
Practical Implications
This decision serves as a cautionary tale to judgment creditors and other parties who may seek to acquire legal malpractice claims through bankruptcy proceedings. The the mere fact that a bankruptcy trustee assigns a legal malpractice claim and a bankruptcy court approves the assignment does not guarantee that a Florida state court will recognize the assignee’s standing. Parties contemplating such assignments should conduct thorough due diligence on state-law assignability before investing resources in pursuit of these claims.
The decision underscores the tension between federal bankruptcy proceedings and state substantive law governing the assignability of particular causes of action. Practitioners advising clients in bankruptcy contexts should not assume that a bankruptcy court’s approval will override state-law limitations on what can be transferred.
On the other hand, the opinion provides continued assurance that Florida’s prohibition on the assignment of legal malpractice claims remains robust. Firms facing potential exposure should be aware that this defense remains viable even where the assignment has received judicial approval in another forum.
Reprinted with permission from the October 7, 2026, edition of Daily Business Review © 2026 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.
