What Constitutes Legal Malpractice?
Legal malpractice occurs when an attorney fails to provide the client with the standard of service and care that’s expected of other attorneys, causing the client some type of harm. Withholding information that could be crucial to the outcome of a case or misreading or misrepresenting the law or evidence are both forms of legal malpractice. While such actions may not seem like a bother when practiced on an occasional client, the fact that they result in many lawsuits for legal malfeasance. In fact, it’s estimated that there are between 100,000 and 400,000 legal malpractice lawsuits brought up each year in the United States .
Legal malpractice can take many forms beyond these, but most of them come down to the attorney breaking the legal rules and boundaries that should exist even when it’s likely that you would have lost your case anyway. If you want to think of a good example of legal malpractice that should be avoided, you can consider the attorney who overcharges you for legal services or fails to do the adequate research needed to win your case-even if you were in the wrong anyway. In Georgia, for example, if an attorney was on retainer but never did any work for a client, that client would have a case for legal malpractice if he or she paid the attorney like they did. Every jurisdiction has its own rules of professional ethics, and violating them is one of the first signs of legal malpractice.
Georgia’s Statute of Limitations
Georgia’s Statute of Limitations
A statute of limitations is a law that sets the maximum time period that one can wait before initiating a legal proceeding or filing a lawsuit. The purpose of a statute of limitations is to provide all parties—both the defendant and plaintiff—a definitive time frame within which to prepare for trial. The statute of limitations for legal malpractice in the state of Georgia is four years; meaning a legal malpractice claim must be made within four years of when the action occurred. If one fails to file a claim within the four-year window, the statute of limitations is said to have run out. In this case, the defendant may plead the statute of limitations in their defense (although they are not required to), and the suit will likely be dismissed.
It is important to note that there are some exceptions to the four-year statute of limitations rule in Georgia. For instance, if the client did not learn of the malpractice until a later date, and the attorney either failed to inform their client of the issue until after the statute of limitations ran out or did not attempt to correct their action, there are grounds to possibly extend the statute of limitations to the date that the client learned of the malpractice.
Statute of Limitations for Legal Malpractice
The statute of limitations or time limit to file a legal malpractice claim in Georgia is generally four years after the attorney’s negligent acts or omissions, or one year after the date of discovery, whichever occurs first. Ga. Code Ann. § 9-3-33. "Many times the aggrieved client does not know that he has a cause of action until years later, long after the four years has passed." Turner v. Clayton Financial Company, 278 Ga. App. 62, 63, 623 S.E.2d 221 (2005). Thus, Georgia’s statute of limitations for attorney malpractice cases allows the one-year tolling provision to apply, when the "plaintiff does not know and, by exercising ordinary care, should not have known that he has a right of action." Id. In other words, the one year period starts running at the beginning of the second year after the attorney’s malpractice actually occurred. The limitations within this statute are made applicable to all actions for damages for the wrongful conduct of an attorney, who no longer is the plaintiff’s attorney and the action is brought against him or her as a nonattorney. Brenner v. Barrett & Walters, 248 Ga. App. 415, 416, 546 S.E.2d 877 (2001).
On occasion, though, the statute of limitation is extended due to the "preventive suspension rule" or "continuous representation" doctrine. This rule allows for the extension of the statute of limitations beyond the expiration under the provision of § 9-3-33, when the attorney and client continue to work together. If the attorney continues to represent the plaintiff in other matters after the alleged malpractice occurred, the statute of limitations does not start to run until the day after the ‘last day’ of his continued representation of the plaintiff on the subject matter of the claim. In cases where the attorney was on a retainer agreement, the continuous representation rule "will apply only where it is established that the successive conduct was in furtherance of the same objective and wholly dependent on the existence of the attorney-client relationship." White v. Jordan, 211 Ga. App. 576, 577, 440 S.E.2d 486 (1993). On the other hand, if the client delivers an express termination letter to the attorney as to the specific case of the alleged misconduct, and the attorney continues to act on the client’s behalf with regard to that specific matter, the statute of limitation does not terminate on the date of the notice of termination, but rather the statute will terminate on the last day of the final act by the attorney. McCoy v. Fussell, 267 Ga. App. 548, 550-551, 600 S.E.2d 394 (2004). Yet after two years, the amount of continuing relation between the client and attorney is insufficient to extend the statute of limitations, and in that event, the statute of limitations will commence to run at the end of that third year. Parker v. Brown, 179 Ga. App. 796, 798, 348 S.E.2d 471 (1986). The statute is tolled until the client was released from the "implied agreement to prosecute" the case, and then begins to run the next day. Jaeger v. Cavender, 236 Ga. App. 601, 603, 512 S.E.2d 648 (1999).
Exceptions to the Statute of Limitations
Any exceptions to the statute of limitations for legal malpractice in Georgia are not obvious or easily understandable. As with most other areas of law, until a claim is fully asserted or litigated, "no harm no foul" is a common refrain. But, in the area of legal malpractice, where the harm equation is fulfilled before the cause of action accrues, the plaintiffs have a problem. Does the client have time to bring a malpractice claim?
First, the statute of limitations for legal malpractice in Georgia is O.C.G.A. §9-3-33(a), which states that "actions for breach of a duty or K arising out of the attorney-client relationship must be brought within 4 years". The newest case stating this rule is Williams v. Lloyd & Associates, P.C., , __ Ga. App. __, __ S.E.2d __, 2006.A11.0135 (Oct. 2, 2006).* Exceptions to the 4 years limitation are few and far between, and, to make matters worse, very difficult to decipher. Based on the cases that dealt with these exceptions, it appears that "trickley-dicklette" conduct is necessary on the part of defendants in order to apply the exceptions. For example, if an attorney clearly reveals negligence then the statute of limitation will begin to run immediately, as there is no surprise or concealment. However, if the attorney attempts to calendar the matter, take an alternative position, lie about what they did, or performs other acts, such as extending the statute of limitations, then the statute of limitation may not begin to run. Because of this, the cases discussing the exceptions have to be read very closely to ascertain the circumstances and behaviors of the attorneys, and therefore the exceptions are not readily apparent.
The most important exception has its basis in fraudulent concealment. The case which is cited for this exception is Cornett v. First American Trust Co., 249 Ga. App. 347, 347 S.E2d 589 (1983) which held that "The statute of limitation may be tolled by proof that the defendant fraudulently concealed the existence of a claim from the plaintiff. The defendant has a duty to disclose, and is liable for failure to make disclosure [citations] if he has affirmatively misled the plaintiff or did not disclose to his client material information he had a duty to communicate. Having induced or affirmatively done some act to prevent the client’s knowledge of his cause of action, he will be held estopped to take advantage of the statute of limitations if the client does not otherwise have knowledge of the facts sufficient to place him upon inquiry as to the existence of a potential cause of action, or those facts are of such character as to keep a reasonable man in ignorance of their existence." While there has been some debate over whether the exception applies to legal malpractice actions, the Supreme Court of Georgia has held that the fraudulent concealment tolling rule applies to any action and that the statute of limitations may be tolled during the period when the defendant fraudulently concealed the existence of the plaintiff’s claim from the plaintiff.
Consequences of Failing to Abide by the Statute of Limitations
Failure to File Within The Statute of Limitations Implies Dismissal
If the statute runs, that is it. Plaintiff’s attorney in legal malpractice case faces grim consequences. A failure to "bring" the case within the statute means that the case is over and the Plaintiff will likely not be able to recover anything from the attorney. In Lively we explained that the case is over as well. This Womble case is a prime example.
"First, we note that a claim for legal malpractice must be brought within four years after the date on which the "right to institute" the action "accrue[s]." See [Riley v. Bernard, 265 Ga. 183, 186 (454 SE2d 769) (1995); OCGA § 9-3-33 (2). "Normally, under OCGA § 9-3-33 (2), a plaintiff’s right to sue for legal malpractice on behalf of a client of a lawyer accrues when the underlying case in which the lawyer represented the plaintiff/claimant is terminated adversely to the plaintiff/claimant." Bituminous Cas. Corp. v. Jernigan & Palmer, 265 Ga. App. 780 , 783 (595 SE2d 392) (2004). An exception to this general rule is that the cause of action for legal malpractice does not accrue until the conclusion of any appeal of the underlying tort case if the attorney was not hired to prosecute the underlying suit. Dickerson v. Baggage Airline Gilbraltar, 267 Ga. App. 728 (602 SE2d 282) (2004). Having been fired by Darnell as the merchandise shipper’s attorney, it was the final resolution of the dire situation created by Ranson’s career-ending accident that set in motion the four-year statute of limitation for Fath’s cause of action for legal malpractice against Womble. Thus, it was not until the final outcome of the tort suit that the injury inflicted by Womble on the Mayfair owners "be[came] a complete and present cause of action for damages." See Cape v. Rahmen, 269 Ga. App. 371, 372 (604 SE2d 207) (2004). It follows that Womble’s reliance on Riley is misplaced because the factual situation in that case – in which a claim for legal malpractice was filed prior to an award in the underlying case – is distinguishable. See Riley, 265 Ga. at 184-185.
Legal Actions: Following the Claim
1. Filing a Complaint
Once you have consulted legal counsel, the next step is to file a complaint containing your legal claims against the attorney with the appropriate court. The complaint must state your claims in a 2-3 page synopsis and be supported by 10-15 exhibits.
2. Emergency Motions
First order of business is to get the attorneys served so that you can present any emergency motion to the court. If the attorney is practicing law and has not been adjudicated as ineligible to practice law, then the Rule 2-403 requires you to serve the attorney and give him or her 30 days to answer the complaint and in the meantime get your 10-15 exhibits together so that the court can rule on the emergency motion.
3. Discovery
If the attorney responds to your complaint, then discovery would commence. (Rule 2-403 – In Case of Emergency.)
4. Trial or Settlement
If the attorney contests the allegations or if he or she prevails on the motion to dismiss, then a trial date may be set, or the parties may agree to mediation or participate in arbitration. At this point the parties have determined what is at stake and what it is going to cost to get to the finish line. In my experience the attorney usually settles for substantially more than the amount of fees in question.
5. Appeal
If the attorney is found negligent and his negligence was a cause of damages (it must be a proximate cause under Georgia law) then you will recover the fees lost because of his negligence. If you recover a significant amount, then you may be thinking about an appeal. I would argue that the courts need to discourage appellate practices that only tend to cost the client more fees.
Consulting with an Attorney and Representation
When embarking on a legal malpractice lawsuit in Georgia, it is imperative to seek professional legal advice and representation. While this article provides valuable information about the statute of limitations and tolling in a general sense, the legal field is complex, and each case is unique. An experienced legal malpractice attorney can offer guidance tailored specifically to an individual’s circumstances, including determining if there are valid grounds for a lawsuit or if there are alternative avenues to explore.
Accidents happen, even among legal professionals, and there are times when a client may have been wronged. However, like all cases, there is a statute of limitations, so if a client fails to act quickly, while there are times when a case can be salvaged, there are many instances where it cannot . It is always recommended that if someone feels that they are not receiving the representation that they deserve from a legal professional, that they seek out legal help while there is still time. If there is a disagreeance in billing with an attorney or law firm, there is time to hire another attorney to review the bills for charges that are unjustified. For bad faith insurance denial, there is time to consult with another attorney to ensure that a client has grounds for a lawsuit.
The simple truth is that the violation of fiduciary duty is complicated and the case becomes complex when the statute of limitations becomes an issue of whether the case is lost or not. It is always advisable to seek out professional legal advice and representation if a client is thinking about pursuing a legal malpractice lawsuit in Georgia.
No Responses