Archive for the 'Legal Malpractice' Category


Not all breaches of confidence are equal

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Typically when an attorney breaches a duty of confidentiality to a client, the downside to the client is embarrassment and a loss of money.  The downside to the attorney is bar discipline and civil liability.

In a case out of Maryland, however, it is alleged that the breach of trust and revealing of information lead to the hired murder of the client.

As reported at The Legal Profession Blog and picked up by the ABA, a Maryland attorney learned that his client was being investigated about a mail and bank fraud scheme.  Although there appears to be some disagreement about some of the facts, it is undisputed that the attorney spoke to one of the co-conspirators about the investigation.

The client’s family claims that these communications were without authorization and informed the co-conspirator that the police were interested in getting the attorney’s client to cooperate with the investigation.  The co-conspirator then hired someone to kill the attorney’s client.

The attorney has suffered the “normal” consequences of such breaches.  He has been indefinitely suspended and settled a civil claim.

What is not typical in a legal malpractice type of action is for it to be called a “wrongful death” lawsuit.  This is a tragic case, and especially unusual in the legal malpractice world.


ABA Legal Malpractice Seminar coming to Boston

The ABA Spring 2014 National Legal Malpractice Conference will take place in Boston, MA on April 30 through May 2, 2014.  Hawkins Parnell Thackston & Young, LLP is a sponsor and a major contributor to the conference.  The conference will be attended by Kim M. Jackson, Christine L. Mast and Ryan Mock, all partners in the firm that represent attorneys in professional liability matters.

If you are an adjuster and plan on attending, let us know.  We would love to see you there.


Plaintiff’s Attorneys No Longer the Most likely defendant

Real estate is #1 in lawyer liability claims.

For the first time since such surveys were conducted of legal malpractice claims (beginning in 1985), plaintiff’s  attorneys were not the highest generator of lawyer liability claims.  The ABA reported that the most recent survey showed that real estate matters generated the most lawyer liability claims.  The top three:  (1)  real estate matters; (2) personal injury plaintiff’s claims; and (3) divorce actions.

The most likely types of activity to give rise to a claim:  (1) “preparation, filing, and transmittal of documents,” and (2) “advice.”

These results continued a trend reflected in the last survey.


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.


Oral Argument in Johnson v. Liebel

In an important legal malpractice appeal before the Georgia Supreme Court, Hawkins Parnell Thackston & Young, LLP’s Christine Mast told it how it was.  Rich Harris represented the plaintiff, Dr. Johnson.

Christine Mast and Joe Wieseman following today's oral argument.

See the oral arguments here.

Read about the case here.


Supreme Court to hear important legal malpractice case Tuesday, Jan 24, 2012

Hawkins Parnell Thackston & Young, LLP attorney Christine L. Mast will be arguing the appeal of Johnson v. Libel before the Supreme Court of Georgia. 

In Johnson, the claim was a typical “case within the case” legal malpractice claim.  Thus, the jury had to decide that the standard of care was breached, and also had to find that the case within the case – the underlying discrimination claim – was valid and what it’s value was. 

Christine L. Mast, Esq.

Under such circumstances, it is proper for the plaintiff to use an expert to opine that the attorney breached the standard of care and put up evidence that would be sufficient to allow the jury to rule in plaintiff’s favor in the underlying case.  During the legal malpractice trial (handled by a different law firm), the trial court allowed the expert to go even further.  Plaintiff’s expert was permitted to testify about the strength of the evidence in Plaintiff’s favor.  The expert was permitted to testify that certain witnesses were unbiased and commented on the evidence in several particulars.  The witness even opined on how the jury in the underling case would have ruled had it heard the evidence at a trial.  That same evidence, however, was presented to the jury in the legal malpractice trial, as it would have been in the underlying case.  This evidence was permitted under the guise of proximate cause. 

The Court of Appeals upheld the use of the evidence under the rationale that an expert may testify about the legal complexities of a legal malpractice case.  The Court did not address the fact that the underlying case would have been tried without a lawyer to testify about how they jury should rule on the same legal complexities.  Instead, the hypothetical jury of the underling case would have simply issued a verdict on the evidence and the Court’s instructions.  Christine Mast will urge the Supreme Court of Georgia to reverse the Court of Appeals and order a new trial with proper evidentiary instructions.

The appeal addresses the very scope and role of expert evidence in the standard case within a case legal malpractice claim. 

The confusion in the lower courts arose from a poorly written Pattern Jury Charge on legal malpractice.

A client suing his/her attorney in a case not only must prove by expert legal testimony that the claim was valid and would have resulted in a judgment in the client’s favor, but also that the judgment would have been collectible in some amount, for therein lies the measure of damages.

(Emphasis added.)  The charge does not appear to be an accurate statement of Georgia law, especially in a “case within the case” legal malpractice claim.  No Georgia case states the law the way the jury charge is written.  The charge cites two cases:  Riddle v. Driebe, 153 Ga. App. 276 (1980), and Hughes v. Malone, 146 Ga. App. 341 (1978).  In Riddle, the word expert is not even mentioned in the opinion. The Court of Appeals in Hughes discussed the use of experts in malpractice cases only to establish the parameters of acceptable professional conduct, i.e., the standard of care.  Hughes, 146 Ga. App. at 345.  Hughes mentions nothing to support the charge that an expert must opine on whether the underlying claim would have been successful (actually, it suggests the opposite).  The charge is probably the result of a similarly worded charges in medical malpractice cases where experts must opine on how the medical outcome would have been different had the malpractice not occurred.

In certain types of legal malpractice cases, expert evidence addressing proximate cause may be appropriate.  For example, the failure to include a certain type of clause in a contract and the legal impact of what the proper clause would have done for the plaintiff may be an example of how a legal malpractice expert could testify on proximate cause.  The case within the case form of legal malpractice, however, is not an appropriate case for allowing an expert to opine on how the underlying case would have been different had the malpractice not occurred.  It is the duty of the jury to rule on the merits of the underlying case by listening to the evidence that would have been presented absent a breach of the duty of care.  If an expert would not have been permitted to testify in the underlying case on how the case should have been decided, no such testimony should be presented in the legal malpractice case.

The oral argument by Christine Mast is an important case for the clarification of legal malpractice jury charges and the scope of expert testimony.  Cases of this magnitude, especially in the professional liability arena, are often handled by Hawkins Parnell Thackston & Young, LLP attorneys.

Kim Jackson Cleans Up The Mess

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