Legal Malpractice Law Review : Professional Responsibility Case Summaries & Commentary : Bennett J. Wasserman : LegalMalpractice.com : Lawyer Malpractice & Legal Ethics

Wilson v. McNeely, Court of Appeals of Georgia, January 24, 2011.

Facts: McNeely represented Wilson in the purchase of a parcel of real property.  Shortly thereafter, Wlson brought a malpractice action against McNeely and presented his brother as an expert witness with regard to an attorney's standard of care in a real estate closing.  McNeely moved to bar this testimony on the basis that Wilson's brother was not a practicing lawyer during the relevant time period.

The trial court granted McNeely's motion and Wilson appealed.

Issue: Must an expert witness in a legal malpractice action be a practicing attorney?  

Ruling: Yes.  

Here, the Appellate Division excluded Wilson's brother even though he contended that he was actively engaged in the practice of law as "corporate counsel" for a family owned business.  The Court found that, although an attorney may practice law while representing the interests of a single client, as many in-house corporate attorneys do, the record in this case did not support the purported expert's contention that he was actively engaged in the practice of law because he did not: 

1. Represent entities or individuals in court; 
2. Draft or file pleadings in judicial proceedings; or 
3. Prepare the type of documents or perform the legal tasks at issue in the litigation.

Accordingly, the Appellate Division affirmed the lower court's directed verdict in favor of McNeely.

Lesson: In Georgia, an expert witness in a legal malpractice action must be actively engaged in the practice of that area of the law in which he purports to give an opinion.

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Levine v. Television Cablecasting, Inc., 581 S.E.2d 734 (2003)

GA: Underlying divorce action

Student Contributor: Farah Shahidpour

Facts: Wife inherited title to a farm. She later transferred title to Television Cablecasting (TCI), a company wholly owned by her husband. Wife sues husband for divorce, seeking title to the farm. Husband asked his longtime friend, Attorney to represent TCI in the divorce proceeding. The court dismissed TCI from the case. Husband asked Attorney to represent him personally in the divorce. Attorney filed a lien against the farm for TCI’s attorney’s fees. Wife was awarded all of TCI’s stock, including the farm as part of her alimony. Attorney billed TCI for $42,765.35 for his legal services. Attorney drafted a backdated letter that forced TCI to pay his attorney’s fees. Attorney had not tried to collect any fee from his client for his work in the divorce case. Wife transferred her interest in the farm to Suncoast, a company owned by her new husband. Suncoast sued Attorney, seeking removal of the lien he had placed on the farm and for damages for slander of title to the farm. Attorney lost and was ordered to pay $33,929.60. Attorney then sued TCI for breach of contract for failing to pay his legal fees in the divorce case. TCI counterclaimed for legal malpractice and breach of fiduciary duty and alleged that Attorney had operated under a conflict of interest while representing it. Attorney moved for summary judgment on TCI’s counterclaims. TCI sought summary judgment on Attorney’s claims. The trial court granted TCI’s motion, concluding that Attorney was bound by the divorce decree, stating that husband was liable for his attorney fees. Attorney now argues that the decree does not bind him because he was not a party to the action.

Issue: Whether Attorney is entitled to summary judgment on TCI’s counterclaims for legal malpractice and breach of fiduciary duty when it was found that TCI was not liable for Attorney’s legal fees?

Ruling: Yes. TCI is not liable for Attorney’s fees because Attorney was hired by husband to act in the husband’s best interest. Attorney worked to preserve the farm for husband, not TCI. Attorney must look to husband for payment of legal fees. Attorney is entitled to summary judgment on TCI’s counterclaims for legal malpractice and breach of fiduciary duty because TCI has no such alleged damages.

Lesson: Attorneys must look to whoever hired them to act in their own best interest for payment of his legal fees. If it is found that a company or person is not liable for Attorney’s fees, then that company or person has no such alleged damages and Attorney will be entitled to summary judgment on that company or person’s counterclaims.

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Crosby v. Pittman, Court of Appeals of Georgia, August 20, 2010. 

Facts:  Crosby retained Pittman to represent him with respect to a traffic citation.  Pittman advised Crosby that he would need to pay $350 to resolve the citation.  Crosby gave Pittman $350, only to learn that the citation was for $300 and it had never actually been paid.  

Crosby then sued Pittman for fraud and breach of fiduciary duty.  The lower court dismissed Crosby's complaint for failure to file an affidavit of merit pursuant to OCGA Section 9-11-9.1.  Crosby appealed.

Issue:  Is an affidavit of merit necessary for claims against an attorney other than legal malpractice, ie. fraud and breach of fiduciary duty?

Ruling:  No.  

The applicable Georgia statute requires that any complaint alleging professional malpractice against an attorney be accompanied by an expert affidavit setting forth at least one negligent act or omission claimed to exist and the factual basis for each such claim.  The appellate court, therefore, held that by its very language, the statute was only applicable to professional malpractice actions. The Court further noted: 

Additionally, claims for breach of fiduciary duty do not require an expert affidavit as they are not based on negligence involving the performance of the professional's services.

Accordingly, the appellate court reversed the dismissal of Crosby's complaint. 

Lesson:  In Georgia, plaintiffs need not obtain an affidavit of merit to pursue claims of fraud or breach of fiduciary duty against their former attorney.

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Walker v. Burnett,  241 Ga. App. 105,526 S.E.2d 109 (1999)

Underlying Action: Discrimination Action (Georgia)

Student Contributor: Candice L. Deaner

Facts:  Legal malpractice action against attorney who represented Plaintiff in federal employment discrimination action, in which summary judgment was entered in favor of Plaintiff's employer. The Superior Court, granted summary judgment for Defendant attorney. Client appealed.

Issue: Whether an Attorney is permitted to pursue a claim of malicious prosecution against a former client who brought a legal malpractice case against them?

Ruling: The Court of Appeals held that client failed to present any evidence to raise jury issue on element of proximate causation.
1) Plaintiff failed to show that he would have prevailed in underlying racial discrimination action against his employer but for Defendant's alleged negligence.
2) The order granting summary judgment for employer was based not on counsel's legal representation or alleged lack thereof, but rather, on client's failure to show that any discrimination had occurred.
3) Plaintiff failed to present any specific evidence to rebut Defendant attorney's assertion that there was no deposition testimony that court could consider due to attorney's failure to ensure that such depositions had been filed in record; plaintiff's few references to allegedly favorable evidence were vague and unsupported by specific evidence in record.

Lesson: When clients sue their attorneys for legal malpractice, courts require them to prove that, but for their attorneys’ negligence, their claims would have been resolved more favorably. This standard has come to be known as the 'case within a case.' When a showing cannot be made that the client’s attorney ruined an otherwise successful claim, the courts will grant summary judgment on the issue of causation. If a Plaintiff had lost their case due to the merits (or lack thereof) of the cause of action and not due to the actions of the attorney, then a subsequent legal malpractice action will be dismissed. Only if the Plaintiff lost their case based on the attorney’s actions would the Plaintiff have been successful.

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