Richard Waltzer and Allan Detert v. Conrad & Scherer, LLP and William R. Scherer, Jr.

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
RICHARD WALTZER and ALLAN DETERT,
Appellants,
v.
CONRAD & SCHERER, LLP, a Florida limited liability partnership,
and WILLIAM R. SCHERER, JR.,
Appellees.
No. 4D2024-1623
[February 4, 2026]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; David A. Haimes, Judge; L.T. Case No. CACE19-013767.
Matthew P. Leto and Charles P. Gourlis of Leto Law Firm, Miami, and
Paul D. Turner and Oliver Birman of Perlman, Bajandas, Yevoli & Albright,
Fort Lauderdale, for appellants.
Francesca M. Stein and Scott A. Cole of Cole, Scott & Kissane, P.A.,
Miami, for appellees.
PER CURIAM .
Affirmed.
GROSS and S HEPHERD, JJ., concur.
FORST , J., concurs specially with opinion.
FORST , J., concurring specially.
I 	agree 	that 	the 	trial 	court’s 	final 	judgment 	in 	favor 	of
Appellees/Defendants Conrad & Scherer, LLP, and William R. Scherer, Jr.,
(“the law firm”) in this legal malpractice action should be affirmed. 	The
law firm initially represented Appellants/Plaintiffs Richard Waltzer and
Allan Detert (“former clients”) in former clients’ legal action against a third
party (the original defendant sued by former clients). 	After the law firm
withdrew from their representation, former clients settled with the original
defendant and commenced the instant malpractice claim, financed by the
original defendant. 	At various times during the trial, this highly unusual

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arrangement was referenced by the law firm, witnesses, and the trial court.
On appeal, former clients argue the trial court erred by allowing testimony
and argument concerning the post-settlement “Cooperation Agreement”
between former clients and the original defendant, and by permitting
expert testimony beyond the scope of disclosed opinions. 	The impact,
former clients argue, was an “ambush.”
I disagree with former clients. 	As discussed below, the trial court
sufficiently limited its consideration of the Cooperation Agreement, and
former clients generally failed to object to references to this Agreement.
The trial court ultimately resolved this case on traditional malpractice
principles—breach of the standard of care, causation, and damages—and
entered final judgment based on multiple independent findings supported
by competent, substantial evidence. Accordingly, affirmance is warranted.
Background
In 2012, former clients entered into a consulting agreement with Saeed
“Steve” Sirang, under which former clients agreed to assist Sirang in
acquiring the Diplomat Hotel in exchange for either a 1.5% ownership
interest or 1.5% of the cash purchase price at closing. 	Sirang terminated
the agreement in 2013 and ultimately acquired the hotel in 2014 without
former clients’ involvement.
Former clients retained the law firm, on a contingency basis, to file a
lawsuit 	against 	Sirang, 	alleging 	breach 	of 	contract, 	fraud, 	breach 	of
fiduciary duty, unjust enrichment, and conspiracy. 	The lawsuit was filed
in July 2015. 	While former clients relied partially on the consulting
agreement, their lawsuit also alleged the existence of an oral joint venture
agreement that would have entitled them to much more money than the
consulting agreement.
After three years of litigation, Sirang’s counsel filed a June 2018
“Renewed 	Motion 	to 	Dismiss 	or 	to 	Strike 	Plaintiffs’ 	Pleadings, 	For
Sanctions And For Criminal Referral Because Plaintiffs Have Suborned
Perjury, Destroyed Evidence And Their Case Is A Lie And A Fraud on the
Court.” Attached to the motion were affidavits by individuals claiming that
former clients had asked the affiants to lie for them in court in exchange
for monetary compensation. 	The parties dispute when this motion was
brought to former clients’ attention.
Several months after the motion to dismiss was filed, the law firm
moved to withdraw. 	Former clients did not object, and the trial court
granted the motion while providing time for former clients to obtain

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replacement counsel. 	Although former clients and the law firm sought to
identify 	substitute 	counsel, 	former 	clients 	insisted 	on 	contingency
representation. 	Facing numerous pending motions, including the above-
mentioned June 2018 motion for sanctions, and unable to secure new
counsel willing to work on a contingency basis, former clients elected to
settle with Sirang.
In addition to a “Confidential Settlement Agreement” that settled and
released all claims and counterclaims connected to the 2015 complaint
and the subsequent litigation, former clients and Sirang entered into a
separate “Confidential Cooperation Agreement.” That Agreement provided
Sirang would pay former client Waltzer $200,000, fund a contemplated
malpractice action against the law firm, select counsel for that action,
retain discretion over whether the litigation would proceed, and recover
his investment plus 27% of any recovery (after the attorney’s fees and
Waltzer’s payment were deducted).
Funded by Sirang, former clients then filed the present malpractice
action. Former clients’ malpractice complaint was premised on the theory
that, but for the law firm’s alleged negligence, the former clients would
have prevailed in the underlying litigation against Sirang or obtained a
more favorable resolution. 	Former clients alleged the law firm breached
the standard of care by withdrawing at a critical juncture, failing to
respond to pending motions, and leaving former clients without sufficient
time or information to secure replacement counsel. Former clients further
alleged these acts forced a settlement and caused the loss of claims which
they had valued in the hundreds of millions of dollars.
The law firm asserted defenses directed to the elements of malpractice,
including the law firm’s contractual and ethical right to withdraw, lack of
proximate causation, and former clients’ inability to establish that they
would have prevailed in the underlying litigation. 	The law firm did not
plead champerty or illegality of the Cooperation Agreement as affirmative
defenses. 	The law firm’s subsequent motions for summary judgment
likewise focused on traditional malpractice principles. 	The trial court
denied summary judgment and set the matter for trial.
At trial, references to the Cooperation Agreement surfaced early and
repeatedly, without objection. The law firm’s opening statement addressed
the Agreement as part of the factual backdrop. Former clients introduced
the Agreement into evidence and elicited testimony concerning its terms.
Sirang testified extensively regarding his financial interest in the litigation
and his role in funding it, again without objection.

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During trial, the law firm moved for a directed verdict, arguing in part
that the Cooperation Agreement undermined former clients’ causation
theory by demonstrating that their settlement and litigation decisions were
not independently driven. 	Former clients did not object. 	In response to
the law firm’s critical comments regarding the Cooperation Agreement, the
trial court expressly stated that the Cooperation Agreement was “kind of a
separate issue” and “really doesn’t drive this case,” emphasizing that the
dispositive questions were breach, causation, and damages.
Both sides’ closing arguments addressed the Cooperation Agreement.
The law firm argued that, at a minimum, the Agreement bore on credibility
and causation. 	Former clients conceded the Agreement was relevant to
witness credibility while also maintaining the Agreement should not defeat
the malpractice claims.
Thereafter, the trial court entered a detailed final judgment in the law
firm’s favor. Although the court discussed the Cooperation Agreement and
expressed concern about its unusual features, the court weighed the
Agreement 	primarily 	in 	assessing 	credibility 	and 	context, 	and 	then
resolved the case on traditional legal malpractice principles.1
The court found: (1) the law firm had not breached the standard of care
because the law firm’s attorneys had worked hard on the case for three
years, the case was still in the middle of discovery when the law firm
withdrew, and the law firm had both contractual and ethical rights to
withdraw; (2) a lack of proximate causation because no evidence existed
that the timing of the law firm’s withdrawal, rather than the weakness of
the case, had prevented the retention of new counsel, especially because
former clients had not requested an extension of time to obtain new
counsel and former clients independently chose to settle; and (3) a lack of
damages 	because 	former 	clients 	failed 	to 	establish 	they 	would 	have
prevailed in the underlying litigation against Sirang on the merits but for
the law firm’s negligence. 	The trial court explicitly stated it would have
reached the same result regardless of the Cooperation Agreement. 	This
appeal follows.
Analysis
Following a bench trial, the trial court’s factual findings are reviewed to
determine whether those findings are supported by competent, substantial
evidence, while legal conclusions are reviewed de novo. Jasser v. Saadeh,
1 The trial court indicated at several points that The Florida Bar should examine
the ethics of the Cooperation Agreement and the attorneys who had signed it.

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91 So. 3d 883, 884 (Fla. 4th DCA 2012); Acoustic Innovations, Inc. v.
Schafer, 976 So. 2d 1139, 1143 (Fla. 4th DCA 2008). 	Evidentiary rulings
are reviewed for abuse of discretion. 	Nationwide Mut. Fire Ins. Co. v.
Bruscarino, 982 So. 2d 753, 754 (Fla. 4th DCA 2008). 	Even erroneous
rulings do not require reversal unless such rulings result in “a miscarriage
of justice.” 	Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1255–57 (Fla.
2014).
Former clients first argue the trial court erred by permitting the law
firm to advance unpled defenses based on the Cooperation Agreement. 	I
disagree. 	The 	law 	firm 	did 	not 	become 	aware 	of 	the 	Cooperation
Agreement’s 	existence 	until 	Sirang’s 	deposition 	three 	years 	into 	the
lawsuit. 	In any case, issues not raised by the pleadings may be tried by
express or implied consent and treated as if those issues had been raised
in the pleadings. 	Fla. R. Civ. P. 1.190(b); Hemraj v. Hemraj, 620 So. 2d
1300, 1301 (Fla. 4th DCA 1993). 	Here, former clients introduced the
Cooperation Agreement into evidence, addressed the Agreement in their
opening statement, and elicited testimony concerning the Agreement’s
terms. Former clients failed to object to much of the testimony which they
now challenge, thereby waiving any claim of error. 	See Dep’t of Revenue
v. Vanjaria Enters., Inc., 675 So. 2d 252, 254 (Fla. 5th DCA 1996) (“An
issue is tried by consent where the parties fail to object to the introduction
of evidence on the issue.”).
Moreover, 	the 	Cooperation 	Agreement 	was 	relevant 	to 	issues 	of
credibility, motivation, and causation. A trial court sitting as factfinder is
entitled to consider such evidence in weighing testimony. See § 90.608(2),
Fla. Stat. (2023); Williams v. State, 912 So. 2d 66, 68 (Fla. 4th DCA 2005)
(“Matters that demonstrate bias include prejudice, an interest in the
outcome 	of 	a 	case, 	and 	any 	motivation 	for 	a 	witness 	to 	testify
untruthfully.”). 	The 	trial 	court 	here 	did 	not 	err 	in 	considering 	the
Agreement for these limited purposes.
The Cooperation Agreement was also, by any measure, unusual. 	The
Agreement presumed the validity of the malpractice claims, including the
argument on behalf of former clients and Sirang that, but for the law firm’s
negligence, former clients would have prevailed in their lawsuit against
Sirang.2 	The Agreement also vested a former litigation adversary with
control over counsel selection and continuation of the case, and provided
2 “A legal malpractice action has three elements: 1) the attorney’s employment;
2) the attorney’s neglect of a reasonable duty; and 3) the attorney’s negligence as
the proximate cause of loss to the client.” Law Off. of David J. Stern, P.A. v. Sec.
Nat’l Servicing Corp., 969 So. 2d 962, 966 (Fla. 2007).

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for a contingent recovery tied directly to the malpractice action’s outcome.
Under these circumstances, the trial court did not act unreasonably in
questioning witnesses about the Agreement or contemplating whether its
terms implicated ethical concerns. 	Trial judges are not required to ignore
facially troubling arrangements that arise in cases before them.
Relatedly, former clients next challenge the admission of certain expert
testimony 	addressing 	the 	Cooperation 	Agreement. 	Even 	assuming
arguendo that the trial court had erred in permitting testimony beyond the
scope of prior disclosures relating to the Cooperation Agreement, any error
was harmless. 	As discussed below, the trial court did not base its ruling
on expert opinions regarding the Agreement’s ethical propriety,3 but on
former clients’ failure to prove breach, causation, and damages. 	No
reasonable possibility exists that the challenged testimony contributed to
the judgment. 	See Special, 160 So. 3d at 1256.
Critically, the record does not support former clients’ contention that
the trial court allowed the court’s concerns regarding the Cooperation
Agreement to overshadow the merits of former clients’ legal malpractice
action. 	The final judgment reflects that the court retained its focus on
whether former clients proved the essential elements of legal malpractice:
breach, causation, and damages.4
The trial court found no breach of the standard of care. 	The evidence
showed 	the 	law 	firm 	had 	actively 	litigated 	the 	underlying 	case 	for
approximately three years, and withdrew at a time when discovery was
ongoing and no trial date had been set. 	The court found the withdrawal
was both contractually authorized and ethically permissible. 	Horan v.
O’Connor, 832 So. 2d 193, 194 (Fla. 4th DCA 2002).
The court further found former clients had failed to establish causation.
Former clients did not present any evidence that the timing of the law
firm’s withdrawal, rather than the weakness of the underlying claims,
prevented former clients from retaining new counsel. 	Former clients did
not seek an extension of time from the trial court to find replacement
counsel despite having the opportunity to do so. 	See Pennington v.
Caggiano, 723 So. 2d 931, 931 (Fla. 5th DCA 1999) (“Pennington had
ample opportunity, almost 90 days from the lawyers’ motion and over 60
3 Examining the substance of the expert witnesses’ testimony regarding whether
the Cooperation Agreement violated “any ethical rules,” that testimony merely
corroborated the trial court’s concerns expressed several times during the trial.
4 The final judgment presents 128 findings of fact and law. Over eighty percent
of these findings do not relate to the Cooperation Agreement.

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days from the order permitting them to withdraw, to employ replacement
counsel. 	The lawyers were not responsible for Pennington’s failure or
inability to do so.”).
The trial court also found former clients failed to prove damages. 	The
alleged oral joint venture underlying the prior litigation was not credible
and was unsupported by the evidence, and Sirang had the contractual
right to terminate the written consulting agreement. Speculative damages
cannot support a malpractice claim. Silvestrone v. Edell, 721 So. 2d 1173,
1175 (Fla. 1998). 	See also Chipman v. Chonin, 597 So. 2d 363, 364 (Fla.
3d DCA 1992) (“Chipman alleged in his complaint that the defendant’s
withdrawal as counsel caused him to lose monetary damages in an age
discrimination case. . . . Any loss of these damages must be attributable
to Chipman himself, since he chose to voluntarily accept his former
employer’s settlement offer.”)
Because each of the trial court’s findings independently supports the
judgment, former clients were required to demonstrate reversible error as
to all of those findings. 	TropiFlora, LLC v. Fla. Dep’t of Health, 346 So. 3d
1271, 1276 (Fla. 1st DCA 2022); Rsch. & Design, Inc. v. Heico Corp., 566
So. 2d 290, 290 (Fla. 4th DCA 1990). 	Former clients have not done so.
Conclusion
The trial court did not allow collateral ethical issues to supplant the
issues properly before it. Rather, the trial court evaluated the Cooperation
Agreement as part of the broader factual landscape and resolved the case
based on former clients’ failure to establish the essential elements of legal
malpractice. Notably, former clients’ appeal does not indicate any specific
error in the trial court’s factual findings and legal conclusions concerning
the merits of the legal malpractice claim. Because former clients have not
demonstrated reversible error as to each independent ground supporting
the judgment, affirmance is appropriate. 	TropiFlora, 346 So. 3d at 1276;
Heico, 566 So. 2d at 290.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.