Archive for January, 2011


Professional Liability Section Added to State Bar of Georgia

The professional liability bar is ready

The State Bar of Georgia approved on January 15 a new section – the Professional Liability Section

This section is focused on professional liability litigation dealing with claims against attorneys, accountants, architects, brokers, and other non-medical professionals. 

This new section is a nice addition to the State Bar of Georgia and came about thanks to the hard work of several attorneys.

The chair of the new section will be one of those persons, Stephanie Wright.

The first professional liability CLE event will come in April or May.


What is the Statute of Limitation for Legal Malpractice Cases In Georgia?

Does the sand run out in 4 or 6 years?

It has been considered fairly settled law in Georgia that the statute of limitations for legal malpractice type claims was either four or two years, depending on the type of damages being sought.

If the plaintiff seeks to recover general damages, emotional distress, or punitive damages, then the statute of limitations is two years as these are tort types of damages.  If the plaintiff seeks damages to reputation, the limitations period is one year.  If the plaintiff was trying to recover simple damages proximately caused by the breach of the standard of care, then the statute of limitations was considered four years pursuant to Georgia’s breach of implied promises limitations period, OCGA 9-3-25.  Cheeley v. Henderson, 197 Ga. App. 543, 547, 398 S.E.2d 787, 791 (1990), revd on other grounds, 261 Ga. 498, 405 S.E.2d 865 (1991) (applying a two-year limitations period to certain tort claims and a four-year limitations to breach of contract claims); Hamilton v. Powell, Goldstein, Frazer & Murphy, 167 Ga. App. 411, 306 S.E.2d 340 (1983), affd 252 Ga. 149, 311 S.E. 2d 818 (1984) (also clearly stating the rational for treating professional liability claims as oral contracts).

In Newell Recycling of Atlanta, Inc. v. Jordon Jones and Goulding, Inc.,  the Georgia Supreme Court recently held in an engineering malpractice case that the six-year rule for written contracts applied to a professional liability claim where there was a writing that was sufficient to create a written agreement between the parties.  Under this scenario, the claim was subject to the six-year limitation period of OCGA 9-33-24 applying to written contracts. 

The attorneys that bring legal malpractice claims against attorneys are already looking to apply this holding to legal malpractice claims where there is any type of written retainer, fee agreement or other writing.

It is not at all clear that the Supreme Court meant to change the general rule for legal malpractice cases. In fact, the Court cited with approval Jankowski v. Taylor, Bishop & Lee, 154 Ga. App. 752, 269 S.E.2d 871 (1980), a legal malpractice claim involving a written fee agreement in which the Court of Appeals applied the oral contract four-year period (the case was affirmed by the Supreme Court, though the length of the limitations period was not part of the opinion).

This matter will likely be the subject of an appellate decision before the end of 2011.


2010 Year In Review

In the first few months of Attorney Defender, we have been less than perfect in making posts every week as planned.  That said, we believe that the information being provided at Attorney Defender, and that we plan to continue providing, is important and practical to the practicing attorney and legal malpractice professionals such as E&O adjusters.  The following is a short summary of significant developments in the law of practicing law in 2010.

Georgia Supreme Court holds that attorneys are not regulated by the Fair Business Practices Act:

State ex rel. Doyle v. Frederick J. Hanna & Associates, P.C., 287 Ga. 289, 695 S.E.2d 612 (Ga. 2010):  The Supreme Court held that it had the exclusive power to regulate the practice of law.  Thus, the Executive Branch was denied the power to investigate a debt collecting law firm accused of abusive practices.

Failure To Appear For Reprimand Results in Suspension:

In an attorney discipline matter, an attorney fought for and obtained an order of public reprimand following a bar complaint.  The attorney did not, however, appear for his reprimand.  The Supreme Court suspended the license until the reprimand was provided.

Justice Nahmias won his first contested election in 2010.

Short Voluntary Suspensions Not Always Accepted:

The Georgia Supreme Court is not a rubber stamping Court when it comes to attorney discipline.  In one grievance, the Supreme Court rejected two voluntary suspension requests before accepting the attorney’s surrender of his license.    In another recent matter, the Supreme Court rejected a Special Master’s recommendation for 3-month suspension for an attorney accused of splitting fees with a non-lawyer and initially misleading the bar in its investigation.  The Court also rejected an attorney’s request for review panel reprimand after providing a court with fabricated medical records in support of a personal injury claim.  See also, Bar recommended reprimand, but Court issued 60 day suspension.

Court of Appeals Allows Real Estate Closing Claim To Go To Jury Based on Privity Dispute:

In a discussion about Jenkins v. Pierce, Attorney Defender described the role that a representation disclaimer can have in helping defend claims arising out of real estate closings.  In Jenkins, the Court found a question of fact existed about whether the attorney represented a party to the real estate closing.  As a result, the plaintiff was even excused for not reading the documents signed at a closing.

Expert Witness Created Conflict Regarding Appeal:

In a patent case, a big firm attorney testified as an expert for the plaintiff on the issue of fees.  Later, the defendant retained different lawyers in the firm to handle the appeal.  The plaintiff objected to the representation.  In Outside the Box Innovations, LLC v. Travel Caddy, Inc., (Fed. Cir. 2010), the Federal Circuit Court of Appeal held that the firm was disqualified.  Although the attorney/expert was not in an attorney client relationship with the plaintiff, the court nonetheless held that the possibility that the firm needed to challenge its own attorney could materially limit the firm’s representation of defendant.  The firm had failed to present evidence that the defendant had received written notice of the material risks, given an opportunity to consult with independent counsel, or had waived the conflict. 

As a general rule, an attorney-client relationship is not created when an attorney acts as an expert witness.  Thus, the need to attack the firm’s own attorney as expert is the primary fact supporting this opinion.

Get your judgmental immunizations here!

Judgmental Immunity Extended In Negligent Settlement Advice Case:

In Mosera v. Davis, the Court of Appeals held that judgmental immunity protected a law firm from a malpractice claim based upon a claim that a client had been given insufficient advice about the risks of the settlement.  The holding in Mosera makes the application of judgmental immunity to “negligent settlement” cases a little easier and supports generally the strong public policy in favor of the finality of settlements.  Given the trend in some states to liberally allow “negligent settlement” cases to proceed, Georgia remains a state that stands behind its public policy in favor of settling litigation. 

O.C.G.A. 9-11-9.1 Constitutional; Subject to Renewal Statute Unless Motion To Dismiss Timely:

The constitutionality of Georgia’s affidavit of merit statute was upheld by the Georgia Supreme Court following a “kitchen sink” challenge.  The opinion was summarized nicely here.  The plaintiffs filed a petition for cert to the United States Supreme Court which was denied.

In another opinion, the Court affirmed that if a defendant fails to file a motion to dismiss for failure to file an affidavit of merit with a complaint at the time of the first defensive pleading, the plaintiff may dismiss the case without prejudice and fix the omission in a refiled action without penalty.

We look forward to bringing you the news of significant developments in Georgia law throughout 2011.

Kim Jackson Cleans Up The Mess

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