Warren R. Hinds, P.C.

Avoiding Malpractice

Simple Steps to Avoid Malpractice Claims and Disciplinary Complaints

(December 2, 2008)

by: Warren R. Hinds, Esq.
1303 Macy Drive, Roswell, GA 30076

[email protected]

  1. Read the Bar Rules:The ethical conduct of members of the State Bar of Georgia and those attorneys authorized to practice law in Georgia is governed by the Georgia Rules of Professional Conduct (“the Bar Rules”). The Bar Rules and related provisions concerning enforcement thereof can be found at pages H-22 through H-66 in the 2008-2009 Georgia Bar Journal Directory & Handbook, or at State Bar of Georgia website (www.gabar.org.)

    Comment [1A] to Bar Rule 1.1 states: “The purpose of these Rules is not to give rise to a cause of action nor to create a presumption that a legal duty has been breached. These Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability.”

    Although the Bar Rules “standing alone” will not serve as the sole basis for a civil action for money damages, Allen v. Lefkoff, Duncan, Grimes & Dermer, 265 Ga. App. 374, 453 S.E.2d 719 (1995); they are relevant and admissible to be considered along with other facts and circumstances as evidence of the standard of care for attorneys. Id.; Clough v. Richelo, 274 Ga. App. 129, 135, 616 S.E.2d 888 (2005); and David C. Joel, Attorney at Law, P.C. v. Chastain, 254 Ga. App. 592, 597, 562 S.E.2d 746 (2002) (It is not error to instruct the jury on the State Bar Rules in effect at the time of the wrongdoing if the Rule is intended to protect a client in the plaintiff’s position from the type of harm she suffered and is relevant to the jury’s consideration of whether these actions constituted a violation of a duty to the client.)

    In addition to the Rules of Professional Conduct, lawyers’ duties are shaped by case law, court rules, and statute. The Bar Rules and grounds for civil liability can overlap in some instances. A particular transgression may be considered an ethical violation, it may serve as a basis for civil liability, or both. One difference between an ethical violation and civil responsibility is that, under the former, damage to the client is not a required element. In other words, an attorney cannot successfully defend a grievance by arguing “no harm, no foul.”

  2. Document the File:There is an old saying often used in the medical field: “if it’s not documented, it was not done.” The same adage can be applied to the legal profession. In dealing with a charge of professional wrongdoing, a written record is invaluable. Lawyers are well advised to document a file at all stages, from pre-engagement through the termination of an attorney-client relationship.

    Lawyers use the internet, yellow pages, referral services, and other means to promote their practices. The central purpose of the marketing is to attract prospective clients. But not every call from – or meeting with – a potential client results in the lawyer being retained. Many lawyers are not aware that significant risk may accompany the rejection of a case, and that defensive measures need to be used to avoid liability to those persons who never formally become the lawyer’s client. The use of nonengagement letters can help minimize exposure.

    One goal of a nonengagement letter is to prevent the mistaken belief of the prospective client that the lawyer has agreed to provide legal services with respect to a specific matter. Other goals would include clarifying that the attorney has not offered a definitive opinion as to the merits of the claim and/or that other attorneys may reach a different conclusion. The individual should be warned that the passage of time may adversely affect their rights. Although most commentators advise that is preferable to mention statutes of limitation in a general sense, if a deadline is set to expire in the near future, the non-client should be so warned. It is also appropriate to recommend that the prospective client consult with other legal counsel.

    One case that shows the dangers associated with interactions with prospective clients is Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980). In Togstad, a 45-60 minute meeting with a possible client regarding a potential medical malpractice claim resulted in a judgment against the law firm for approximately $650,000.00. No medical records or authorization were provided to the attorney, no fee arrangements were discussed, and the client was not billed for the meeting. At the conclusion of the meeting, the attorney stated he did not believe there was a case, but that he would discuss it with his partner.

    Although the testimony was disputed as to whether the plaintiff had been advised to consult with other counsel or that she needed to act promptly, there was no nonengagement letter. By the time the plaintiff decided to seek a second opinion, a year had passed and the statute of limitations had expired. The plaintiff testified that she had gone to the attorney for legal advice as to what to do, and that when she left the meeting she understood that she had been given a qualified legal opinion that she did not have a case. The jury found, and the appellate court agreed, that this was sufficient evidence to support the existence of an attorney-client relationship.

    In a civil suit for legal malpractice, the elements of the cause of action are usually summarized as: a) employment of the defendant attorney; 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, 76, 653 S.E.2d 791 (2007). Thus, “it is generally held that an attorney-client relationship must be demonstrated before a plaintiff may recover in a legal malpractice suit…” Guillebeau v. Jenkins, 182 Ga. App. 225, 355 S.E.2d 453 (1987).

    But an attorney-client relationship may be implied from the conduct of the parties and contractual formalities are not essential to the creation of the relationship. Id., supra. The payment of a fee is an important factor in determining the existence of an attorney client relationship. Mays v. Askin, 262 Ga. App. 417, 419, 585 S.E.2d 735 (2003). But, the fact that a party pays attorney fees does not automatically lead to the conclusion that an attorney-client relationship exists; nor does the fact that a party is not charged a fee by an attorney pre-clude a finding of an attorney-client relationship. Calhoun v. Tapley, 196 Ga. App. 318, 395 S.E.2d 848, 849 (1990); Guillebeau, supra. “All that is necessary is a ‘reasonable belief’ on the part of the would-be client that he or she was being represented by the attorney.” Calhoun, supra. But see Cleveland Campers, Inc. v. R. Thad McCormack, P.C., 280 Ga. App. 900, 635 S.E.2d 274 (2006) (attorney-client relationship not found to exist where belief not reasonable). Proper use of a nonengagement letter can relieve a lawyer from responsibility. See Hansell, Post, Brandon & Dorsey v. Fowler, 160 Ga. App. 732, 288 S.E.2d 227 (1991).

    In cases like Togstad and Calhoun, liability was found on the part of the attorneys because there was sufficient evidence to establish an attorney-client relationship. However, under certain circumstances, an attorney may be found to owe a duty to a party who is not his client, but who is a third-party beneficiary to an agreement between the attorney and his client, if it clearly appears from the contract that it was intended to benefit the third-party. See e.g. Young v. Williams, 285 Ga. App. 208, 645 S.E.2d 624 (2007) (will beneficiary owed duty by preparer of will); Kirby v. Chester, 174 Ga. App. 881, 331 S.E.2d 915, 919 (1985) (lender allowed to sue customer’s attorney); Home Insurance Co. v. Wynn 229 Ga. App. 220, 493 S.E.2d 622 (1997) (attorney who represents wife for wrongful death of her husband owes a duty of reasonable care to the sons). Also, by telling an adversary that he would take care of filing of the papers, an attorney did not create an attorney-client relationship with the adversary, but could be liable under a “voluntary agency” theory. Simmerson v. Blanks, 149 Ga. App. 478, 479, 254 S.E.2d 716 (1979). (“One who by a gratuitous promise or other conduct which he should realize will cause another reasonably to rely upon the performance of definite acts of service by him as the other’s agent, causes the other to refrain from having such acts done by other available means is subject to a duty to use care to perform such service or, while other means are available, to give notice that he will not perform.” Id. quoting Restatement 2d Agency, 378 (1958).)

    A professional’s duty to third persons can be effectively limited by disclaimers which alert those not in privity that they act at their own peril. Badische Corp. v. Caylor, 257 Ga. 131, 356 S.E.2d 198 (1987)(accounting malpractice). For instance, in Williams v. Fortson, Bentley & Griffin, 212 Ga. App. 222, 441 S.E.2d 686 (1994), the plaintiffs (home buyers) claimed that the closing attorney told them she was their attorney and would take care of their interests. However, a written disclaimer the plaintiffs signed confirming that the attorney represented the lender and was not providing legal services to the buyers was found to preclude their claim as a matter of law. “Under certain circumstances a professional who supplies information has a duty of reasonable care and competence to foreseeable third parties who rely upon the information. [Cit.] The reliance must be justifiable, and this additional duty may be limited by appropriate disclaimers which would alert those not in privity with the supplier of the information that they rely upon it only at their peril.” Id. at 223.

    A social acquaintance who employs an attorney to represent him is nevertheless a client irrespective of the parties’ prior relationship or of the fact that the representation was agreed to at some place other than the attorney’s office. In the Matter of Sliz, 246 Ga. 797, 802, 273 S.E.2d 177 (1980) (attorney first met client’s administrator socially and agreed to accept collection cases at a basketball game).

    In the context of State Bar Disciplinary proceedings, there is no “standing” requirement for the filing of a grievance. Complaints can be filed by clients, opposing parties or their counsel, Judges, witnesses, medical providers, etc. It is not uncommon for the Investigative Panel of the State Disciplinary Board to initiate a grievance on its own motion after it has received information which suggests that the attorney may have violated the Georgia Rules of Professional Conduct. Bar Rule 4-203(a)(2).

    When an agreed to lawyer-client relationship is formed, it is equally important to document the terms of the agreement. The Bar Rules specifically mandate that “a contingent fee agreement shall be in writing” and include the method by which the fee is to be determined, including whether the percentage is determined on the gross recovery, or net of expenses. Bar Rule 1.5(c)(1). The Rules also provide that, when a lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client before or within a reasonable time after commencing the representation, preferably in writing. Bar Rule 1.5(b). The better practice, however, is to put the terms of all engagements in writing in order to prevent misunderstandings between the lawyer and client.

    An issue that frequently arises is the scope of representation. Lawyers should document what is being handled and, in some cases, what is not being undertaken. For example:

    1. The client is seriously injured in an on-the-job automobile accident. The attorney is hired to pursue lost income and medical benefits in a workers’ compensation proceeding. If the attorney is not going to handle any potential third-party liability case, the client should be advised of this fact in writing (and be given the other warnings appropriate in a typical nonengagement situation).
    2. The client hires the attorney to defend a criminal case for a flat fee. Does the representation include a possible appeal of the verdict? Does the fee differ if the matter is resolved in pre-trial negotiations?
    3. The attorney is handling the client’s collection case on a contingency fee basis. If a counterclaim is filed, is the attorney entitled to charge an hourly rate for legal representation related to the counterclaim?

    With respect to a client’s obligation to pay litigation costs and expenses, there is a recent decision which addressed responsibility for post-representation copying charges. In Adams v. Putnam County, 290 Ga. App. 25, 658 S.E.2d 805 (2008), the Court of Appeals held that, absent a prior agreement that the client will pay for copies necessitated by termination of the attorney-client relationship, the client is entitled to the file and the attorney can make copies at his own expense. Of note, the Court found that a prior agreement that the client is responsible for costs of copies during the course of representation does not apply to post-termination costs and, further, that there is no difference between open and closed files.

    During the course of representation, it is a lawyer’s duty to keep the client reasonably informed about the status of the matter and to explain things to the extent reasonably necessary to permit the client to make informed decisions. Bar Rule 1.4. Clients should be copied on all relevant correspondence, pleadings, etc.

    One common error made by attorneys that can lead to having to defend a Bar Complaint or civil lawsuit is failing to obtain the client’s written consent to settlement terms before presenting an offer to opposing counsel or advising the other side that their proposal has been accepted. It is not unusual for a client being represented in a divorce, civil case, or criminal matter to have “buyer’s remorse” after verbally authorizing a proposed resolution of their case.

    An attorney has apparent authority to settle a case on a client’s behalf, and the settlement will generally be enforceable against the client by the other settling party. Ligon v. Bartis, 243 Ga. App. 328, 530 S.E.2d 773 (2000). Where the client later refuses to consummate the settlement claiming that it was unauthorized, the settlement will stand and the client’s recourse will be against his counsel. An attorney will be well served to have the client’s written authority before communicating acceptance to avoid problems stemming from the client’s change of heart.

    If a lawyer commits an error during the course of a client’s representation, proof that the client was properly and timely advised as to the status of the case is essential. Otherwise, the lawyer may find himself defending a breach of fiduciary duties cause of action. An attorney’s “subsequent bad acts” committed after he becomes aware of his negligence may subject the attorney to extra-contractual relief. See e.g. Holmes v Drucker, 201 Ga. App. 687, 411 S.E.2d 728 (1991) (cover-up following negligence in allowing the statute of limitations to expire).

    At the conclusion of a client’s representation, whether because the attorney has decided to withdraw, has been terminated by the client while the matter remains pending, or upon completion of a trial or appeal, a disengagement letter should be sent to the client. To prevent any misunderstanding, the client should be expressly advised that the lawyer will be taking no further action on the client’s behalf in any matters.

    Further, if a lawyer leaves a firm and will not be continuing with cases in which he was previously involved, this fact should be confirmed to the client in writing to avoid any confusion as to whether there exists a continuing duty to provide legal representation.

    Under Bar Rule 1.16(d), upon termination of representation, a lawyer must take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice, allowing time for employment of replacement counsel, providing a copy of the file when needed, and refunding any unearned fees in the lawyer’s possession. If the representation has ended at the conclusion of a case, it is also a good idea to address file retention policies if the firm will be maintaining copies of documents.

  3. Be Diligent and Do Not Procrastinate:Time is often of the essence in legal representation. “A lawyer shall act with reasonable diligence and promptness in representing a client.” Bar Rule 1.3. “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.” Bar Rule 3.2. Even if a client’s legal rights are not adversely affected by the passage of time, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness. Bar Rule 1.3, Comment [2]. Anxious clients become complainants in disciplinary and civil proceedings brought against attorneys.

    It is axiomatic that an attorney’s duty to his client includes the duty to ensure that the client’s cause of action is timely filed and diligently prosecuted. Some courts have even treated a missed statutory time requirement as negligence per se. 3 Mallen R. & Smith J. Legal Malpractice (2007 ed.), § 23.3, p. 497.

    “Without doubt it is fundamental in the legal profession that it is the duty of counsel who have cases pending in court to keep themselves informed as to the progress of that case so that they may take whatever action may be necessary to protect the interests of their client.” Venable v Block, 138 Ga. App. 215, 218-219, 225 S.E.2d 755 (1976) (personal injury case dismissed when lawyer failed to appear). See also Hipple v Brick, 202 Ga. App. 571, 415 S.E.2d 182 (1992) (client alleged that attorney failed to monitor status of case in trial court and timely inform him so appeal could be taken).

    Although a substantial number of the decisions dealing with counsels’ lack of diligence arise from civil cases, there are also numerous examples of sanctionable procrastination from other areas of law. For example:

    • an attorney files a petition for dissolution on marriage, but takes no further action
    • a criminal defense attorney waits years to seek post-conviction relief on client’s behalf
    • an attorney fails to complete adoption proceedings
    • a real estate closing attorney waits months to record deeds
    • an immigration attorney does not timely seek change of status