Archive for the 'Georgia law' Category


No negligent contempt

What is an appeal worth? In this case, $100 and the removal of a contempt order.

In a story by the Fulton County Daily Report (may require subscription), an attorney that missed an arraignment was fined $100 for contempt of court by the Henry County State Court Judge. The attorney explained that he had calendared the hearing in one electronic devise that, he later realized, did not synch with the calendar on his phone. The Judge found that the attorney had not willfully missed court, but that his conduct was negligent. The Judge found the attorney in contempt and issued a $100 fine.
The attorney appealed.

“I am worth appealing.” – Ben Franklin

The Court of Appeals held that there was no such thing as “negligent contempt” under Georgia law.  Accordingly, the contempt and the fine were reversed.

One lesson from this is to ensure that your multiple electronic calendar devises are properly synchronized.  Missing court can cause your client, and you, problems in both civil and criminal matters.


The Abusive Litigaiton Seminar is Coming February 4

The Georgia ICLE Abusive Litigation Seminar will be held against this year at the State Bar of Georgia, downtown Atlanta at 104 Marietta St. NW, on February 4, 2015.  This is one of the better attended CLE events, and it boasts one of the longest running, in tact, faculty going.

This seminar covers all aspects of abusive litigation in Georgia.

For over a decade, this seminar has boasted a core group of speakers that include Frank J. Beltran, Kim M. Jackson, James W. Penland, Christine L. Mast, and Hugh C. Wood.  The written materials have been used and updated for over a decade, and could be marketed as its own treatise.  The written materials are essentially a hornbook on Georgia attorney fee and abusive litigation law.

In addition, the seminar attracts some of the best and brightest judges in Georgia each year.  This year, the participating judges include Hon. David E. Nahmias, Justice, Supreme Court of Georgia, a Court of Appeals panel consisting of judges Hon. Sara L. Doyle, Christopher J. McFadden, Elizabeth L. Branch, and J.D. Smith, and Fulton County Superior Court Judge Hon. Christopher S. Brasher.

It starts early (8:10) and ends early (3:00).  The schedule is here.

The seminar is presided by Frank J. Beltran and Kim M. Jackson.

If you litigate civil cases, this is a seminar you want to attend.


New Court of Appeals opinions allows for privileged in-house advice under certain circumstances

A law firm is representing a client when an issue arises that might result in a claim against the law firm.  Does the law firm have the right to seek privileged legal counsel from in-house (or even outside) counsel while the attorney-client relationship is ongoing?  Or does such advice arise under a presumptive conflict-of-interest situation in which the client is entitled to discovery the communication and advice given?

How do you make sure this stamp works?

The Georgia Court of Appeals addressed this question in Hunter, Maclean, Exley & Dunn v. St. Simons Waterfront, LLC, A12A0716, 2012 WL 2866299 (Ga. Ct. App. July 13, 2012).  The answer is, of course, it depends.

In this case of first impression, the Court rejected a per se rule prohibiting a law firm from seeking privileged in house legal advice about a potential claim by a current client.   The approach chosen by the Court of Appeals relies heavily upon a law review article by Elizabeth Chambliss, The Scope of In-Firm Privilege, 80 Notre Dame L. Rev. 1721 (2005).

In reversing the trial court, which had held such consultations essentially a per se conflict of interest, the Georgia Court of Appeals concluded “that whether a law firm may claim privilege to legal advice regarding duties to a current client from in-house counsel ‘depends on whether there is a conflict of interest between firm counsel’s duty to the law firm and firm’s counsel duty to the outside client.'”

In order for the communications to be confidential, the Court identified three important factors:  (1) that the attorney not be involved in the representation of the client; (2) that the conflict or potential conflict be disclosed; and (3) client consent to continued representation.

The first factor is best achieved in firms that have a full time general counsel that is salaried and not involved in the representation of outside counsel.  This of course is a luxury for only firms of sufficient size.  The Court permitted the option of a designated general counsel that represents outside counsel but is not involved in the representation of the client at issue.  For those firms that appoint counsel on an ad hoc basis, the firm will bear the burden of establishing “that an attorney-client relationship was established before the in-firm communication occurred” and “to show that the identity and role of ‘firm counsel’ was clearly defined.”

 Under either approach, the key factor is that “in-house counsel . . . remain completely separate from any representation of the [firm’s] client, except for the limited purpose of gathering information” to provide the necessary advice. The firm must also provide “adequate notice to the client of the firm’s potentially adverse interests.”  The firm must then obtain consent to the firm’s ongoing representation, though the opinion suggests that such consent may be implied by the client’s conduct or silence after disclosure.  If these factors are not accomplished, “the firm has no argument for waiver of firm counsel’s imputed conflict.”

The Court of Appeals refused to protect “work product” — the only protections would be to privileged communications within the context of the in-house advice and representation.The Court of Appeals remanded the case to the trial court to make the requisite findings of fact consistent with the opinion.

The case lays out the roadmap for obtaining privileged communications with in-house or outside attorney about potential claims while continuing to represent the client.  First, disclose the conflict or potential conflict to the client and obtain a waiver of that conflict in order to continue the representation.  Preferably this is in writing.  Second, “retain” your in-house or outside counsel with the equivalent of a retention agreement.  This is easiest when the firm has designated general counsel, but if that is not the case, be sure to enter into a written retention agreement and create a file.  Finally, ensure that the in-house attorney is not involved in any work on behalf of the firm’s client.  The counsel should be careful to only put mental impression in privileged communications, as the Court of Appeals declined to recognize a work product protection under even these circumstances.

As the Court of Appeals recognized, these same safeguards can be accomplished by the retention of outside counsel.  The attorneys at Hawkins Parnell Thackston & Young, LLP provide this type of advice to lawyers engaged in the ongoing representation of existing client with potential claims.


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.


While Johnson v. Leibel is pending, Court of Appeals follows the holding in reversal

The Supreme Court of Georgia is currently considering the question of the admissibility of expert testimony on the subject of what a jury would have concluded about the cases within the case.  The Court has heard oral argument on the subject which was argued by Hawkins Parnell Thackston & Young, LLP‘s Christine Mast in Johnson v. Leibel.

We use these to fix mistakes.

Despite the fact that the case is pending in the Supreme Court and already argued, the Court of Appeals has relied upon its own decision in Johnson v. Leibel and reversed a trail court’s decision to exclude expert testimony.

In Tidwell v. Hinton & Powell, A11A2073, decided March 26, 2012, Tidwell hired counsel to bring a wrongful death claim arising out of a school bus incident.  The wrong party was sued and then the statute of limitation expired.  The law firm admitted negligence.  The defense was limited to the question of proximate cause, specifically the value of the case within the case.  In other words, the Plaintiff only had to prove the underlying wrongful death case – liability and damages. 

Despite the law firm’s admitted negligence, the plaintiff offered expert testimony from an attorney that a procedurally correct presentation of the facts would have resulted in a verdict for the plaintiff in excess of $500,000.   The law firm moved in limine to exclude this testimony, and Judge Forsling of Fulton County State Court unsurprisingly agreed, holding that the jury hearing the legal malpractice case could decide the merits and value of the underlying case just as a jury would have had the underlying case not been dismissed.

The Court of Appeals granted interlocutory appeal and reversed.  The Court of Appeal did not explicitly rule the evidence was admissible, but it did instruct the trial court to apply the holding of Johnson v. Leibel.  In Johnson, the Court of Appeals permitted similar testimony in a legal malpractice trial, and the language quoted by the Court Tidwell seemed to suggest that the Court of Appeals expected the evidence to be admitted.

It goes without saying that had the Plaintiff actually tried the underlying case in Tidwell (or in Johnson v. Leibel), it would have been improper to have an attorney testify to that jury who should win and how much should be awarded.  Why is it proper then for an attorney to testify on that subject in a case-within-the-case legal malpractice trial?  Hopefully the Supreme Court will soon clarify this issue and return the case-within-the-case decision to the jury rather than to the experts.


Evidence CLE

Having evidence only helps if you know how to use it!

National Business Institute (NBI) is providing an outstanding CLE on March 23, 2012 called Applying the Rules of Evidence:  What Every Attorney Needs to Know.  The seminar will take place at Cobb Galleria Centre, Two Galleria Parkway, Atlanta, Georgia 30339. 

The outstanding faculty includes Attorney Defender’s own Kim M. Jackson.  Mr. Jackson will provide the ethics hour of the program.  The other speakers include Simon Bloom, Chalmer (Chuck) Detling and David Root.

This should be a solid CLE program for all litigation attorneys.

Sign up for this seminar here.


The Abusive Litigation Seminar Is Coming

Expenses of litigation - the toll for justice

Various trends have made the risk of losing in litigation more than mere disappointment.  Litigation is more expensive than ever, litigants are seeking more ways to recover their payment of litigation expenses, and legislation has provided additional methods of recovering attorney fees for frivolous litigation (among other theories).  Thus, litigators have an increasing need to stay abreast of such rules. 

In early February, attorneys all over Georgia anxiously await the annual Abusive Litigation Seminar

The speakers includes well known attorneys in the professional liability bar, including the Presiding Frank Beltran and Charlotte Perrell, and HPTY attorneys Christine Mast (OCGA 9-15-14) and Kim Jackson (OCGA 51-7-80).  The speakers also includes many repeat speakers, with all of the attorney speakers spending at least 10 years speaking in this CLE program, including the aforementioned and James Penland and his outstanding program on OCGA 13-6-11 and Hugh C. Wood who addresses various fee shifting rules.

The program includes presentations by Robert Benham, Justice of the Georgia Supreme Court; J. D. Smith, Justice of the Georgia Court of Appeals; and T. Bedford Jackson, Judge of the Fulton County Superior Court.

Another large turnout is expected at this popular CLE program.  If you have not seen this CLE, or if you need a refresher course, sign up now here.


Kim Jackson Cleans Up The Mess

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