We have extensive experience in the area of professional liability. Our practice area in this respect primarily involves the defense of claims against lawyers and accountants for malpractice. We have defended cases on behalf of attorneys and accountants in which claims are asserted, among others, that the professional breached the appropriate standard of care in one particular instance or another. Alex Weatherby, our founding lawyer, sits on the board of Professional Liability for the State Bar of Georgia.
How do we approach legal malpractice cases?
In legal malpractice cases, quick action is essential. This includes an immediate meeting with the client to gather all of the facts, circumstances and documents that are relevant to the issues involved. With that input, we develop a detailed strategy and begin implementation.
Before litigation is filed, we work to preserve all relevant materials. We also evaluate the case fully, and attempt to negotiate a resolution.
If a resolution is not possible and a lawsuit is filed, we use all the tools of discovery to get to the bottom of the case. In a lawsuit, written discovery includes requests for production, interrogatories (questions), and requests for admissions. These written requests require that the opposing side provide us with information. We use written discovery to discover all information that the other side believes is relevant or supportive of the claims. We also send written discovery to any relevant third party.
In addition to written discovery, we work to obtain testimony on all relevant issues. This includes the parties involved. It also may include expert testimony. This would be an expert professional (like an attorney) who can provide analysis of the facts and circumstances. We have an extensive directory of accountants and lawyers with enormous experience in their professions who we can call on immediately for assistance on any professional liability claim.
What are the elements of a professional malpractice claim?
In order to be successful in a professional malpractice claim, the plaintiff must prove three things: (1) the existence of a professional-client relationship, (2) breach of the standard care, and (3) that the breach caused the damages claimed by the plaintiff. The plaintiff has a burden of establishing each of these elements.
The existence of a relationship is usually straightforward. It can be established based on an engagement letter or email correspondence setting forth the agreed upon services. Sometimes, though, the relationship is harder to prove. For example, an attorney may end up owing duties to someone not technically their client if they can reasonably anticipate that the person may rely on the attorney’s advice. This can get really complex and a competent legal malpractice attorney must review the facts and circumstances.
In general, the standard of care is the same as a reasonably competent professional would exercise under the same or similar circumstances. Expert testimony is typically used to set the standard of care. Scholarly books and articles can also be used. In order to bring a malpractice case against an attorney, the plaintiff must provide an affidavit of a competent attorney pointing out that the defendant failed to exercise the proper degree of fair.
The third element requires causation, this means proving that the professional act of malpractice actually caused the damages in question. This is a key and difficult element to prove in a malpractice case.
What are defenses in legal malpractice claims?
Legal malpractice cases have many unique defenses. Here are some common defenses to legal malpractice claims.
- Statute of Limitations: Professional malpractice claims are generally governed by a four-year statute of limitations. A six-year statute of limitation may apply if there is a “complete written agreement.” Whether or not a document signed by the parties, such as a retention agreement, constitutes a “complete written agreement” is often a subject of considerable argument between the parties. Regardless of which statute applies, the statute begins running at the moment the breach occurs regardless of whether there are special damages. Therefore, even if the plaintiff did not discover the breach until a later date, the statute continues to run unless the statute is tolled by, for example, fraud under
- Affidavit Requirement. A plaintiff must attach an affidavit of a competent legal expert identifying at least one breach of the standard of care, in order that the complaint not be dismissed. Where a plaintiff sues a lawyer for professional malpractice and fails to attach the required affidavit, the Court must dismiss the Plaintiff’s Complaint with prejudice.
- Judgmental Immunity: Georgia has adopted the doctrine of judgmental immunity, holding that the tactical decisions made during the course of litigation require, by their nature, that the attorney be given a great deal of discretion. Pursuant to this doctrine, Georgia courts have held that an attorney’s decision to (a) call a witness, (b) schedule a pre-trial hearing, (c) produce certain evidence, (d) present a certain case strategy, and (d) exclude evidence may be protected by the doctrine of judgmental immunity.
- Well-Settled Law: Unless the law is well settled, clear, and widely recognized, an attorney acting in good faith and to the best of his knowledge will not be responsible for bad results.
- Intervening Force: If an attorney is replaced by substitute counsel and at the time of his replacement the client’s claims remain pending, the former attorney’s negligence may not be the basis of malpractice claim.
- Withdrawal. When an attorney is authorized to withdraw, his withdrawal cannot form the basis for a malpractice claim.
- Collateral Estoppel/Res Judicata: Collateral estoppel and Res Judicata may form the basis of a defense to a legal malpractice action. But, the actual issue in the legal malpractice case must have been litigated in the underlying case.
- Mere Duplications: Where a plaintiff’s claims, such as breach of fiduciary duty, “merely duplicate their malpractice claim” the defendant is entitled to summary judgment on these claims. Claims are mere duplications where the same factual allegations underlie the claims or where the professional malpractice claim incorporates all of the allegations underlying the other claims.
What areas do we serve?
We practice throughout the state of Georgia. We are prepared to assist you in your legal malpractice case anywhere in the state.