What is Legal Malpractice in Georgia
Legal Malpractice, often termed as legal negligence, occurs when an attorney or law firm fails to perform their legal duties to a client. Georgia law requires attorneys to exercise the same amount of care and skill that would be expected from any other reasonable attorney in similar circumstances. If an attorney’s negligence results in damages to the client, the client has a legal malpractice claim.
Essentially, an attorney acts as an agent for a client, and the attorney owes a fiduciary duty to the client. If the client suffers harm as a result of the attorney’s breach of that duty, then a legal malpractice action may result.
Georgia codified its "lawyer’s responsibility" statute 10-6-1, which lays out the basis of legal malpractice claims: A lawyer is liable to a client for damages caused by professional negligence if the lawyer does not exercise that degree of skill, care and diligence which is commonly employed by lawyers in this state. Every action in this state based on negligence of a lawyer shall be subject to Code Section 9-3-97.2(a) and shall be commenced within four years after the date on which the negligent or incompetent act or omission occurred.
The term "professional negligence" refers to an attorney’s failure to properly handle a client’s case , which results in damages to the client. Professional negligence is the same as legal malpractice, and is grounds for a legal malpractice action. A legal malpractice plaintiff must prove an attorney-client relationship, a breach of the standard of care, and that the negligence was the proximate cause of the plaintiff’s damages.
Common types of legal malpractice claims may arise in areas such as:
For an attorney to be liable for legal malpractice, the attorney must have made a mistake or an omission. An attorney’s strategic decisions regarding the execution of a client’s case are generally protected by the doctrine of "judgmental immunity." Judgments about the law, strategy, and the manner in which a case is handled are solely within the lawyer’s discretion, as it is the attorney’s job to learn about the law, and to foresee the possible strategies of opposing counsel. Advice that falls far below the standard of a reasonable attorney is actionable.
Most Common Legal Malpractice Cases
Legal malpractice cases in Georgia often involve misunderstandings about the scope of representation. Each legal-malpractice claim is different, and while individual claim analyses will be unique, most fall within one of three categories: negligence, breach of contract, or breach of fiduciary duty.
Negligence is commonly used to refer to a legal-malpractice claim. When a legal malpractice claim is based on negligence, it usually consists of the following four elements: the existence of an attorney-client relationship, breach of the applicable standard of care (the negligence), damages, and a casual connection between the breach of the standard of care and the damages. Negligence is the most common legal-malpractice cause of action. If I use the term "legal malpractice," I usually mean "legal malpractice based on negligence." Breach of contract and breach of fiduciary duty are the bases for many legal malpractice claims in Georgia. However, these causes of action are less frequently called "legal malpractice." Instead, "breach of contract" or "breach of fiduciary duty" (sometimes called "fiduciary duty breach") are more commonly used negotiation and consummation.
When a breach of contract forms the basis for a legal-malpractice claim, the plaintiff usually alleges that the subject legal work was beyond the uncontested scope of representation, and that the attorney failed to complete a matter within the contested scope of representation. A breach of contract legal-malpractice claim also alleges that the client sustained money damages because of the negligence of the attorney.
A breach of fiduciary duty allegation contends that the attorney-client relationship was a special one in which the attorney made a fiduciary commitment with compounding layers of meaning. Assuming the existence of an attorney-client relationship, the fiduciary relationship between a lawyer and a client can range from a mere agency relationship to one involving heightened levels of reasonable care. The attorneys owed the client a duty of loyalty, full disclosure, and the accounting for profits. However, there are specific instances that require the attorney to put the interests of the client above his or her own.
Elements of Proving Legal Malpractice
Proving legal malpractice in Georgia requires the Plaintiff to prove four elements:
- (1) An attorney-client relationship,
- (2) Negligent performance by the attorney,
- (3) A causal connection between the negligent act and the actual damages that the Plaintiff suffered, and
- (4) Actual damages.
Evidence of these four elements must come from expert, documentary or testimonial evidence. The attorney-client relationship may be in evidence from an express attorney-client agreement, such as a letter or retainer agreement. In some cases, the attorney-client relationship may be implied from the facts. For example, if an attorney or law firm began work on behalf of the client, but the attorney then quit or was fired before completing the work, a court may determine that the attorney-client relationship existed at least at that time, even without a written agreement. An attorney can be held responsible for his or her failure to follow through on a contract of employment even if the attorney-client relationship ended partway through the contract’s term.
The second element, negligent performance by the attorney, must be established by expert testimony or certificate. This means that the client must produce an affidavit from an expert in legal malpractice, which states that, to a reasonable degree of certainty, the attorney’s performance fell below what is expected from attorneys in similar circumstances. Technical, legal opinions about the standard of care in these cases, including the duty and breach of that duty, are generally required because the evidence is obtained first hand by individuals who are not attorneys. Therefore, the jury needs clarification about the requirements of the underlying case. The expert must also affirmatively state that the attorney’s negligence was the legal cause of the client’s damages.
Time Limit for Malpractice Cases
Clients have two years from the date on which a claim accrues to bring a suit without an extension. O.C.G.A. § 9-3-33. For the claim to "accrue," the client must know or reasonably should have known of the error and its effect. The date of the error is not enough to count as the date of actual knowledge. Under some circumstances, clients have a right to "toll," or extend the statute of limitations. O.C.G.A. § 9-3-96 provides that clients may not know they have been harmed yet because of:
1) The continuing representation rule . For malpractice that takes place during a representation, clients may wait until the termination of the representation (or one year after the firm files a Certificate of Closed Case in the Clerk’s office) to bring a claim.
2) Fraudulent concealment. To use this rule, plaintiffs must show that the wrongdoer hid the wrongdoing with the intent to deceive. If there is evidence of fraudulent concealment, the statute of limitations may be tolled for an additional six months from the date on which the plaintiff discovered the wrongdoing.
Hiring A Legal Malpractice Lawyer
Choosing the right legal malpractice attorney in Georgia is crucial to successfully navigating a legal malpractice claim. When faced with the difficult decision of hiring an attorney, clients should consider several factors, such as experience, specialization, and track record of handling legal malpractice cases.
When choosing a legal malpractice attorney, experience is a key factor to keep in mind. Legal and professional malpractice is a specialized area of the law, and it is important that the attorney you choose understands the nuances of these cases. As the Georgia Court of Appeals has stated, "Attorneys are expected to comply with the rules governing the practice of law." One way to ensure that your attorney has the necessary experience is to look for an attorney who has dedicated their practice to handling legal malpractice cases. A lawyer who focuses on this area of the law will be better equipped to handle the complexities of a legal malpractice case.
In addition to experience, it is also important to look for an attorney who specializes in legal malpractice. Specialization in legal malpractice cases ensures that your attorney is familiar with the issues and challenges that arise in these cases. Experienced attorneys understand the law and are better equipped to handle any number of mal-occurrences.
Finally, it is important to choose an attorney with a track record of handling legal malpractice cases. A lawyer who has a proven track record of winning legal malpractice cases will be better equipped to handle your case and achieve a successful outcome. Additionally, attorneys who have handled legal malpractice cases in the past are familiar with the arguments that will need to be made in order to win the case.
When faced with a legal malpractice claim in Georgia, it is important to carefully consider your options when hiring an attorney. By choosing an experienced attorney who specializes in legal malpractice, you will be better equipped to handle the complexities of a legal malpractice case and increase your chances of achieving a successful outcome.
Possible Results of Malpractice Cases
The outcome of a legal malpractice lawsuit can vary significantly. Clients should be aware that there are four possible outcomes to their lawsuit. The first option is to win your case and receive a settlement. After a legal malpractice lawsuit is won, a settlement will be negotiated between you and the attorney’s insurance company. A settlement is a guarantee that the attorney will pay your damages that were caused by the prior action that gave rise to the legal malpractice lawsuit. The terms of the settlement will depend on the severity of the damages that were incurred as a result of the attorney’s negligence. The funds from the settlement will also depend on the extent of your losses.
The second possibility is that the lawsuit may end in a verdict in your favor. In this situation, the court will decide how much the negligent attorney owes you. Your legal team will go over the facts of your case and argue about how much your losses were. The jury will then decide the settlement amount . However, a verdict is not the only possibility after your legal malpractice lawsuit. There are two additional options that could occur after a verdict. First, the court could go through the ruling to determine if it was just and lawful. If it was not, the court could set aside your verdict. If this happens, you will have to go through the legal process all over again to determine how much the negligent attorney owes you. A second possibility for the outcome of a legal malpractice case is an appeal. Although it is rare, your attorney could end up losing the case and you find yourself back in court again.
Another possible outcome of a legal malpractice lawsuit is to lose the case. This is the fourth and final result of a legal malpractice case. Unfortunately, it’s not the desired outcome for any client. If you lose your case, you will not receive any compensation. It’s important to have a skilled legal team that knows your rights and the law in Georgia to help you fight your case. If you’re facing a legal malpractice lawsuit, contact your lawyer immediately.