Archive for June, 2012


Special Master Recommendation of 18 Months Followed

The Georgia Supreme Court followed the recommendation of the Special Master in a disciplinary case that involved client abandonment, failure to return an unearned fee, and false representations to the Bar.  The only mitigating factor noted was a lack of prior disciplinary history.  In aggravation, the attorney was involved in multiple violations, failed to follow the disciplinary procedural rules, failed to acknowledge the wrongness of her conduct, and had substantial experience in the practice of law.

Despite going down the Wrong Way, the attorney received “only” an 18 month suspension.

The recommended 18 month suspension included a condition that attorney receive a psychological analysis with an opinion that the attorney was competent to return to the practice of law prior to reinstatement.

While it is still expected that the Supreme Court would follow a Special Master’s recommendation, the Supreme Court has proven that it is no rubber stamp.  The facts of this case could have supported a harsher discipline, but the Court provided leniency.


The Supreme Court sets it right

In Leibel v. Johnson, a unanimous Georgia Supreme Court reversed the Court of Appeals’ decision in Johnson v. Leibel, 307 Ga. App. 32, 703 S.E.2d 702 (2010).  This important appeal, which was handled and won by Michael Goldman and Christine Mast at Hawkins Parnell Thackston & Young, has been discussed at this site previously (here, and here).

Christine Mast argued Leibel v. Johnson before the Supreme Court.

In Leibel, the Supreme Court, in a short and simple opinion, reaffirmed the general rules about the proper subject of expert testimony in the typical “case-within-the-case.”  At the trial court level, the expert for the plaintiff was permitted to testify about more than just the breach of the standard of care.  The expert also testified that the evidence that should have been presented to the jury but for the malpractice would have resulted in a verdict for the plaintiff.  This goes beyond the scope of permissible expert testimony in about every state, and permits experts to testify about what the jury was already expected to do, i.e., judge the merits of the case-within-the-case to determine whether the alleged breach proximate caused damages. 

The Supreme Court held simply that the jury in the malpractice case determined the merits of the underlying suit “by independently evaluating the evidence in the underlying case as it should have been presented to determine whether it believes that the plaintiff had a winning case….”  This does not require the testimony of an expert.  The malpractice jury simply does what the underlying jury would have done.

This is an important case and clearly establishes the proper scope of expert testimony in Georgia.  Under the reversed opinion, the merits of the underlying case became in part a speculative battle of experts.  While the appeal was pending, the Court of Appeals followed the now reversed Johnson v. Leibel, and my firm had several malpractice cases come close being tried.  This issue was relevant in several of them. 

This was not only a big victory for HPTY, but it ensured a fairer, more just trial for lawyer accused of legal malpractice.

Kim Jackson Cleans Up The Mess

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