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What is Legal Malpractice?

Posted By Joette Melendez, Friday, March 2, 2018

Most people have heard or read about “medical malpractice” claims, which arise from the negligence of a doctor, nurse, or other health care professional. But what if the professional whose conduct has fallen below the applicable standard of care is a lawyer?


Clients hire attorneys to represent their interests. As a client’s representative, an attorney is not bound to use extraordinary efforts on behalf of their client, but all lawyers should be competent and must exercise ordinary care, skill, and diligence in the performance of tasks which they undertake. Because of the fiduciary relationship between an attorney and client, lawyers are obligated to show their clients the utmost good faith and loyalty and act solely for the benefit of the clients they represent. Joel v. Chastain, 254 Ga. App. 592 (2002). (81)


Does the client have a remedy if the lawyer does not do the job he or she was hired to perform? The answer is “yes,” with some well-grounded qualifications, including: 


* The elements of a cause of action for legal malpractice are: a) employment of defendant; b) defendant's failure to exercise ordinary care, skill and diligence; and c) defendant's negligence was the proximate cause of plaintiff's damage. Duke Galish, LLC v. Arnall Golden Gregory, LLP, 288 Ga. App. 75 (2007). 


* Neither contractual formalities nor payment of a fee are required to establish an attorney-client relationship. Guillebeau v Jenkins, 182 Ga. App. 225 (1987). 


* An act of negligence alone does not create a cause of action for legal malpractice. The plaintiff in a legal malpractice lawsuit must show that but for the lawyer’s act or omission, the client would have obtained a better result. Rogers v Norvell, 174 Ga. App. 453 (1985). 


* Attorneys are not insurers of the results of their efforts on behalf of clients. They will not be held to have breached the applicable standard of care except in cases of willful or negligent failure to apply well known and accepted legal principles and procedures, either because they are ignorant of them, or because they have failed to act reasonably to protect the client’s interests. Littleton v. Stone, 231 Ga. App. 150 (1998). 


* Where further litigation of the underlying claim may lead to a favorable result at the time the allegedly negligent attorney is terminated, the plaintiff may be precluded from proving his malpractice case if he settles the underlying claim. Jim Tidwell Ford, Inc. v. Bashuk, 335 Ga. App. 668 (2016).


* A legal malpractice plaintiff generally must produce opinion testimony of an expert witness in order to prevail. O.C.G.A. § 9-11-9.1.


* If the lawyer has committed a violation of the ethical duties set forth in the Georgia Rules of Professional Conduct, the client can file a grievance with the State Bar’s Office of General Counsel. The purpose of a disciplinary proceeding is not to seek financial compensation for the client but, rather, help regulate the legal profession and protect the public.


This content was written by one of our panel members, Warren Hinds, an attorney in Roswell, Georgia.


***If you or someone you know is faced with tort issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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