In addition, he frequently consults with and lectures to lawyers regarding best practices and avoidance of claims; testifies as an expert witness in legal malpractice and breach of fiduciary duty cases; and represents lawyers in legal malpractice cases, non-litigation disputes with former clients, and proceedings before the State Bar of Georgia regarding alleged violations
of ethics rules.
Under Georgia law, the essential elements of a legal malpractice claim are: (1) existence of an actual attorney-client relationship; (2) failure of the lawyer to exercise ordinary care, skill and diligence; and (3) proximate causation of harm to the client.
The exercise of ordinary care, skill and diligence is the minimum accepted standards of professional service and level of competence expected of lawyers in representing clients. Examples of negligent mistakes or violations of the “standard of care” that can result in liability include the following: failing to recognize meritorious claims; failing to identify or properly name defendants in lawsuits; missing filing or recording deadlines;failing to comply with other statutory requirements or court rules; failing to file necessary pleadings; and mishandling of client funds.
Recoverable damages for legal malpractice typically include, but are not necessarily limited to the amount of money that the client should have been able to successfully recover if the lawyer had provided competent legal services, or the value or amount of other losses sustained by the client due to the lawyer’s mistakes.
In order to establish both the element of causation and the extent of damages, it is often necessary to prove the so-called “case within the case.” A specific example is that in a situation of a lawyer being hired with respect to a personal injury claim arising out of an automobile collision and then failing to timely file a lawsuit within the two year legal deadline known as the statute of limitations, proving the “case within the case” evidence would include evidence of how the wreck occurred, who was at fault, and what injuries and other losses were sustained in the wreck. In other words, as part of the legal malpractice claim, evidence would have to be presented as to each element of the underlying road wreck case, in addition to evidence that the lawyer had actually been hired and was negligent in failing to timely file the wreck case.
The mere fact that a lawyer was unsuccessful in representing a client is generally not sufficient, standing alone, to even suggest the possibility of legal malpractice. This is because lawyers cannot guarantee specific outcomes and because many decisions made by lawyers are tactics, strategy, or other “judgment calls” as to which there is simply not a clear right or wrong answer. A legal malpractice claim cannot generally be based on such choices, but instead needs to involve a more straightforward mistake or a failure to comply with an established requirement or precedent in the law, or some other broadly accepted standard of reasonable practice.
Similarly, fee disputes with lawyers are relatively common, but generally will not warrant litigation or provide a valid basis for a legal malpractice claim. The State Bar of Georgia offers free arbitration services for settling fee disputes if the amount in dispute is greater than $750.00. In relatively rare and unusual situations, a fee dispute will justify a claim on the basis of breach of contract, fraud, or fiduciaryviolation theories of liability.
The State Bar of Georgia also has a Consumer Assistance Program that helps people with other common problems such as lawyers not returning telephone calls or providing copies of requested documents.