Archive for December, 2011


If it quacks like a duck …

A number of cases have found exceptions to the application of OCGA 9-11-9.1 in lawsuits against professionals, e.g., this one.  The primary exception is the allegations of “intentional” torts such as fraud or breach of fiduciary duty. 

I know ducks and sailors when I see them!

In a recent Court of Appeals decision, the trial court dismissed a lawsuit against a law firm on the basis that the Plaintiff failed to include an affidavit of merit as required by OCGA 9-11-9.1 even though the complaint alleged fraud, RICO and negligent misrepresentation.  This was not a change in the law however.  The Court held that although Plaintiff labeled his claims as intentional torts, the asserted facts alleged solely professional negligence claims.

Significantly, all of the allegations in [Plaintiff’s] complaint … concern [Defendants’] legal advice and actions taken as [Plaintiff’s] legal representative in the underlying lawsuit and bankruptcy.  …  Although [Plaintiff’s] complaint purports to state various causes of action, the substance of his allegations raise only claims of professional negligence against [Defendants].

The Court further held that the allegations in the Complaint failed to state a claim of fraud.  The new case was defended by Hawkins Parnell Thackston & Young, LLP, including the author here

At times, the distinction between what claims must comply with OCGA 9-11-9.1 seem trivial.  Nonetheless, there is case law that provides for a basis of obtaining dismissal despite the effort to raise intentional torts as exceptions to the affidavit of  merit statute. 

This opinion provides the first legal malpractice application of the holding in Goodin v. Gwinnett Health Sys., Inc., 273 Ga. App. 461, 615 S.E.2d 129 (2005).  In that case, the Court of Appeals held that OCGA 9-11-9.1 applied to an intentional tort claim of false imprisonment against a psychiatrist where the basis for the claim was the application of medical judgment in having a patient committed.

An argument may be made that despite labeling claims as something other than professional negligence or malpractice, OCGA 9-11-9.1’s affidavit requirement still applies where the alleged facts assert only a claim based on the application of professional judgment.  If it walks like a duck and quacks like a duck ….



On November 30, 2011, the Georgia State Bar won its almost decade-long fight to disbar two attorneys for using so-called runners to send clients to the attorneys’ personal injury business during the 1990s.

Using runners are unhealthy to your practice.

The case against the attorneys had been litigated since 2002 as the two attorneys had fought to keep their licenses. In the end, the Georgia Supreme Court agreed with the State Bar and ordered the attorneys to be disbarred from the practice of law.

The two attorneys – who were law partners – had been paying, among others, chiropractors to send personal injury clients to their firm. The chiropractors were being paid $200 or more per referral. Although the Bar and the attorneys did not come to a consensus on exactly how much had been paid to these “runners,” the amount exceeded $250,000 by the attorneys own admission and could have approached $400,000 (based on the Bar’s calculations).

The attorneys argued that they were remorseful and that their lack of any disciplinary history entitled them to leniency.  They sought instead a one-year suspension from the practice of law. The attorneys pointed the Court to its own history and the fact that the Court had never disbarred an attorney for using runners when that attorney had no disciplinary history.

At the end of the day, the Court was unmoved. The Court cited the “egregious” nature of the attorneys’ conduct and the fact that their violations spanned approximately 1300 cases. The Court did not, in fact, believe that the attorneys were remorseful but that their only real motivation was their own greed.

Two justices dissented supporting a three-year suspension rather than disbarment.  The dissenters cited the lack of precedential support for disbarment, the fact that the attorneys had no disciplinary history, and the fact that the neither the pubic nor clients were harmed by the unethical behavior.

Obviously, this new case shows that the Supreme Court will continue to be tough on ethics violations.  The opinion also gives a warning to those that would engage in unethical client development.  Disbarment is a real risk – even in the absence of harm to clients or a past disciplinary history.

Kim Jackson Cleans Up The Mess

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