Archive for July, 2010


Attorneys Fees Upheld Thanks To Good Record Keeping

Jumping For Joy

In Abrams v. Putney, (10A1054), the Georgia Court of Appeal upheld two awards of attorneys’ fees for a plaintiff’s attorney that sued his former client for fees after he was discharged and the case was settled with another attorney.  The fee agreement provided for a contingency award, but if the attorney was terminated prior to resolution, the attorney was entitled to an hourly rate for his work on the case.  According to the opinion, the attorney maintained good records of his time spent on the case which supported the trial court’s award in the attorney’s favor.   

The attorney also recovered attorneys’ fees for the fee dispute itself.  Again, the Court of Appeals identified a solid evidentiary record in support of the trial court’s award.  

This case stands for lesson that all attorneys handling litigation should maintain reasonably specific billing records, even if they are operating under a contingency fee agreement.  There are several reasons why this is a good idea.  (1)  If the claim includes a claim for attorneys’ fees pursuant to OCGA 13-6-11 or 9-15-14 (or some other provision), the reasonableness of the fees needs to be supported by billing records.  (2) If the attorney is terminated, as in this case, the billing records supports the claim for quantum meruit or an alternative hourly rate recovery.  (3)  If a claim is made against the attorney sounding in malpractice, the fees may be helpful evidence in support of a defense that would otherwise lack sufficient documentation.   

*  *  *  *  


In another OCGA 13-6-11 opinion, the Supreme Court of Georgia reversed an award of summary judgment for attorney fees for the claimant.  The Court held that since “both the liability for and the amount of attorney fees pursuant to OCGA 13-6-11 are solely for the jury’s determination, a trial court is not authorized to grant summary judgment in favor of a claimant therefor.”  See Covington Square Assocs., LLC v. Ingles Markets, Inc.  

The Supreme Court could not have made this pronouncement more clearly.  An award under OCGA 13-6-11, which may be awarded if the defendant acted in bad faith, was stubbornly litigious, or caused the plaintiff unnecessary trouble and expense, may only be found by the trier of fact.


Recent Discipline Decision Vacated By Georgia Supreme Court

The Supreme Court seldom vacates its own ruling, but it did just that after initially issuing an opinion disbarring an attorney for violations of Rules 1.3 and 1.4 of the Georgia Rule of Professional Conduct.   

Mistakes happen.

Several years ago, I represented an attorney in a similar situation.  In my case, the Supreme Court rejected the State Bar’s Notice of Discipline for private reprimand, but the rejection order was not served on either the State Bar’s counsel nor on the responding attorney.  After not receiving a new Notice of Discipline for several months, the Supreme Court issued a lengthy suspension based on the record before it.  I was hired by the attorney after the suspension (he has been pro se up until then) and filed a motion to reconsider based on the failure of the Supreme Court to serve its order on the parties.  Like the subject case, the Supreme Court vacated its own opinion and remanded the matter back to the State Bar.  After developing the record and trying the case before a special master, my client was given a Review Panel Reprimand rather than the original suspension.  

The Supreme Court rarely vacates its disciplinary decisions, but it will in those situations in which there has been a procedural issue that has caused confusion.  The case is rarely over at that point, however.  The matter is simply remanded to the State Bar.  In some cases, this can be a great opportunity to supplement the record to support a reduction in discipline.  

Voluntary Discipline Of Review Panel Reprimand Accepted By Supreme Court  

In another interesting discipline case, the Supreme Court unanimously approved a petition for voluntary discipline for Review Panel reprimand by an attorney that admitted to violating Rule 1.3, 1.16 and 9.3.  The complaint arose out of a pro bono representation.  The attorney became overwhelmed when the case was spotlighted in the national media.  She admittedly exercised poor judgment, was not properly diligent, and failed to timely respond to the notice of discipline.  Mitigating factors identified by the court were cooperation with replacement counsel and deep remorse.  The Bar approved the requested Review Panel Reprimand.


HPTY Listed In Atlanta Business Chronical As Top 50 Law Firm of 2010

Hawkins Parnell Thackston & Young LLP was listed on the Atlanta Business Chronicle’s Top 50 Law Firms of 2010.

Some of the Firm’s key practice areas covered by this blog were highlighted, specifically Legal Malpractice and Professional Negligence.  HPTY was the only law firm recognized in the area of Legal Malpractice and one of only 3 firms recognized in Professional Liability.

Other highlighted HPTY practice areas: 

Business Litigation

Toxic Tort and Environmental Litigation

Labor & Employment

Medical Malpractice

Premises Liability (again, the only firm recognized) and 

Product Liability

See Atlanta Bus. Chronicle- Top Law Firms 2010  for a copy of the article.


Constitutionality of Georgia’s Affidavit of Merit Statute upheld

On June 28, 2010, the Georgia Supreme Court issued a unanimous opinion upholding the constitutionality of an early Georgia tort reform measure, OCGA 9-11-9.1 (“9.1”). Passed in 1987, 9.1 requires a claimant for professional negligence, including legal malpractice, to file an affidavit of a like expert that opines that the allegedly negligent professional committed at least one act of professional negligence.  The case is being defended by Hawkins Parnell Thackston & Young LLP attorneys Kim M. Jackson and Matthew G. McLaughlin.  The appeal was successfully handled by Kim M. Jackson and HPTY appellate specialist Robert GilbreathKim M. Jackson handled oral argument.         

Justice Benham authored the Walker opinion

In Walker v. Cromartie, Mr. and Mrs. Walker filed a complaint alleging legal malpractice and breach of fiduciary duty against a former attorney.  The trial court granted partial summary judgment as to the legal malpractice claim based upon the Walkers’ failure to file the expert affidavit required by 9.1.  The Walkers challenged the statute on constitutional grounds, asserting that because of their financial indigence, they could not afford to pay an expert to provide the necessary affidavit.  The Walkers asserted that 9.1 violated their right to “access to courts,” equal protection, due process and the right to a jury trial.  The Supreme Court rejected most of the Constitutional challenges based upon a lack of state action.         

Nothing in OCGA 9-11-9.1 imposes a cost or fee for filing or obtaining an expert affidavit.  The “costs” appellants object to are created by private actors, not any state actor.  Since no state actor has exacted the harm of which appellants complain, the statute does not violate the right to due process.         

The Court also disposed of the other constitutional challenges by recognizing the rational basis for the affidavit of merit statute.          

Likewise, the statute does not violate equal protection.  … Here, the statute makes no distinction between any class of citizens since it requires any person or entity that brings an action for professional negligence to file an expert affidavit. Since appellants cannot show any disparate treatment, their equal protection argument cannot be sustained on that basis.         

Poverty alone is not a suspect classification for the purpose of equal protection analysis [] and appellants have failed to set forth a fundamental right they have been denied. When neither a suspect classification nor a fundamental right is at stake, a rational relationship test is applied to determine whether the statute violates equal protection.  That is, the statute must bear a direct relationship to the legitimate legislative purpose. The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice lawsuits being filed against professionals. The requirement of filing an expert affidavit at the time the complaint is filed serves this stated purpose because it requires plaintiffs to find an expert who will attest that at least one act of professional negligence has occurred, thereby reducing the number of frivolous claims filed.  [Citations omitted.]         

Robert Gilbreath assisted with the appellate briefing.

The Walkers also asserted a procedural issue and argued the separation of powers doctrine and the Georgia constitutional prohibition against “special laws” were violated by 9.1.  The Court easily disposed of these issues as well.  The Walkers have filed a motion for reconsideration and threatened to appeal the case to the “highest court in the land.”         

UPDATE:  Walkers motion for reconsideration was denied by Georgia Supreme Court.      

UPDATE:  Walkers filed a notice of intent to petition the United States Supreme Court for cert.     

Affidavit of merit statutes have been passed by legislatures as part of tort reform measures in numerous states.  They take many forms and have different scopes.  For example, some states have affidavit of merit statutes that only apply to medical malpractice claims.  The fact that Georgia’s statute applies to all professionals strengthened its constitutional merit.  Affidavit of merit statutes have been overwhelmingly upheld to state and federal constitutional challenges nationwide.  The appellate courts of two states, Arizona and Oklahoma, had declared unconstitutional narrower affidavit of merit statutes based upon state constitutional provisions that are not contained in Georgia’s constitution.  These rulings were based upon laws that were significantly distinguishable and relied upon state constitutional provisions that have no parallel provision in Georgia law.  Arizona later upheld a redrafted affidavit of merit statute.  The Walkers relied heavily upon these cases, but the Georgia Supreme Court rejected the argument and joined the large majority of state appellate courts in upholding similar affidavit of merit statutes.         

From a practice perspective, nothing has changed.  Claimants are still required to comply with Georgia’s affidavit of merit statute.  While it was surprising that it took 23 years for a constitutional challenge to get to the Georgia Supreme Court, the ruling confirmed this reasonable and valuable provision.


Georgia Legal Community Mourns Loss Of Judge Debra Bernes

Judge Bernes loved interpreting the law.


Court of Appeals Judge Debra Bernes passed away Tuesday after a two-year battle with cancer.  She was 54. 

At one point in my life, I might have been dismayed that I sometimes have to use a wheelchair, that I sometimes have to use a walker, and that I sometimes walk with a limp.  But I have come to realize that whatever my means of locomotion, the important fact is that I am moving forward. 

She will be missed as a professional and as a person.  Our prayers go out to her family.


Lawyers Serving Lawyers

I am a partner at the national litigation law firm of Hawkins Parnell Thackston & Young, LLP (HPTY). I call the Atlanta, Georgia, office home, though I handle or am responsible for lawyer liability claims or coverage matters in Kentucky, Texas, and California, where my firm has offices. I am licensed in Georgia and Kentucky and have a license application pending in Texas.

Although I have a broad litigation practice history, my practice has developed into a specialty of defending attorneys in various claims of liability, defending attorneys in bar complaints, defending other professionals in claims and licensing matters, and representing insurance carriers in coverage disputes and declaratory judgment and bad faith litigation. For a more complete overview of my practice history, go to my bio at the HPTY law firm web site.

This blog is focused on lawyer liability claims and insurance coverage issues. Although I will discuss national cases and trends, my focus will be on Georgia law.

As my practice is largely devoted to defending attorneys, this blog is devoted to the issues that affect attorneys. This is the site for attorneys to visit to keep abreast of trends in attorney liability and ethics issues in Georgia. My goal is to make this blog interesting and interactive, with participation by my firm’s deep roster of outstanding professional liability attorneys (including multiple Super Lawyers and Rising Stars) as well as other leading attorneys, insurance providers and other related professionals in the state.

What ethical or lawyer liability issues are on your mind? Let me know.

My Professional affiliations

Some Of My Honors

Some CLE Presentations I Have Done

“Winning Your First Trial,” presentation on voir dire and ethics, BNI CLE (March 2010)

“Abusive Litigation: Defending Abusive Litigation Claims”, Georgia ICLE Seminar (February 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010)

“Specialty Ethics in Georgia (Eliminating Bias and Building Credibility): The Impact of Religious Orientation in Performance of One’s Professional Duties and Ethical Obligations”, NBNR Seminars (November 2004)

“Gaining the Competitive Edge: Litigating to Win Through Advanced Trial Advocacy in Georgia: Using Jury Selection To Increase Your Success At Trial”, NBI Seminars (April 2006)

“Litigation Skills: A Short Course For Legal Assistants: Understanding Georgia Civil Courts and Procedure”, Half Moon Seminars (April 2006, 2007)

“Depositions A-Z: Ethical Challenges in Depositions and Deposition Reflections”, BNI Seminars (August 2007, Internet Seminar December 2007)


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