Justia Professional Malpractice & Ethics Opinion SummariesArticles Posted in Supreme Court of Georgia
Coe, et al. v. Proskauer Rose, LLP
In 2002, Douglas Coe, Jacqueline Coe, and GFLIRB, LLC (collectively the “Coes”) were involved in the sale of a company in which they held a substantial interest. Their accountants, BDO Seidman, LLP (“BDO”), advised them of a proposed tax strategy in which the Coes could invest in distressed debt from a foreign company in order to offset their tax obligations. In connection with the proposed tax strategy, BDO advised the Coes to obtain a legal opinion from an independent law firm, Proskauer Rose LLP (“Proskauer”). The Coes followed BDO’s advice, obtained a legal opinion from Proskauer, and claimed losses on their tax returns as a result. But in 2005, the Internal Revenue Service (“IRS”) initiated an audit, which ultimately led to a settlement in 2012. After settling with the IRS, the Coes filed suit against Proskauer in December 2015, asserting legal malpractice, breach of fiduciary duty, fraud, negligent misrepresentation, and other claims. After limited discovery on whether the statute of limitation barred the Coes’ claims, the trial court concluded that it did and granted summary judgment in favor of Proskauer, and the Court of Appeals affirmed. The Georgia Supreme Court concluded the Court of Appeals erred in determining that the Coes failed, as a matter of law, to exercise reasonable diligence to discover Proskauer’s allegedly fraudulent acts. Judgment was reversed and the matter remanded to the trial court for further proceedings. View "Coe, et al. v. Proskauer Rose, LLP" on Justia Law
Inquiry concerning Judge Terrinee Gundy
At issue before the Georgia Supreme Court in this case was an agreement between the Director of the Judicial Qualifications Commission (“JQC”) and the City of Atlanta Municipal Court Judge Terrinee Grundy. The agreement would resolve formal charges against Judge Gundy, alleging excessive tardiness and absenteeism, with a suspension of 30 to 90 days and a public reprimand, pursuant to Rule 23 of the JQC’s Rules. The Supreme Court accepted the agreement and ordered Judge Gundy be suspended without pay for 90 days and publicly reprimanded. View "Inquiry concerning Judge Terrinee Gundy" on Justia Law
In re: Formal Advisory Opinion No. 20-1
In 1994, the Georgia Supreme Court approved State Bar of Georgia Formal Advisory Opinion (“FAO”) 94 -3, which addressed and provided guidance concerning former Standard of Conduct 47 in on whether a lawyer could properly contact and interview former employees of an organization represented by counsel to obtain information relevant to litigation against the organization. In 2000, the Supreme Court issued an order adopting the Georgia Rules of Professional Conduct (“GRPC”) found in Bar Rule 4-102 (d), which replaced the Standards of Conduct. The State Bar’s Formal Advisory Opinion Board (“Board”) determined that the substance and conclusion reached in FAO 94 -3 remained the same under the applicable GRPC. The Georgia Defense Lawyers Association (“GDLA”) raised concerns over FAO 20-1, contending that former employees fall within the “three types of agents or employees of a represented organization who may not be contacted on an ex parte basis by an opposing lawyer[.]” The Supreme Court retracted Formal Advisory Opinion 94-3 and approved Formal Advisory Opinion 20-1, with modifications. View "In re: Formal Advisory Opinion No. 20-1" on Justia Law
Inquiry concerning Judge JaDawnya Baker
The Judicial Qualifications Commission (JQC) sought approval of the discipline by consent agreement between the Director of the JQC and JaDawnya Baker, Judge of the Municipal Court of Atlanta, to resolve the formal charges brought against Judge Baker with the issuance of a public reprimand. The agreement, entered into between the JQC Director and Judge Baker, was submitted to the JQC’s Hearing Panel, which approved the agreement and filed it with the Supreme Court for approval. Because Judge Baker’s admitted violations of periodically dismissing cases without the legal authority to do so justified the recommended, and agreed-to, discipline of a public reprimand, the Court approved the agreement. The Court approved the agreement with reservations "about whether, based on the substance of the allegations within the consent agreement, all of the agreed-to violations constitute violations of the Georgia Code of Judicial Conduct." View "Inquiry concerning Judge JaDawnya Baker" on Justia Law
Inquiry Concerning Judge Cary Hays, III
An agreement between the Director of the Judicial Qualifications Commission (“JQC”) and Cary Hays III, Chief Magistrate of Crawford County, Georgia, was filed with the Georgia Supreme Court. The agreement was to resolve formal charges brought against Judge Hays arising from a physical altercation with a defendant that appeared before him. The agreement called for Judge Hays to serve an unpaid, 30-day suspension to be followed by a public reprimand. Pursuant to JQC Rule 23, the agreement was submitted to the JQC’s Hearing Panel, which voted 2-1 to accept it, and then filed it with the Supreme Court. Because the record and the limited relevant precedent the Court had found supported the proposed discipline, it accept the agreement and ordered that Judge Hays be suspended for 30 days without pay and be publicly reprimanded for his violations of the Georgia Code of Judicial Conduct. View "Inquiry Concerning Judge Cary Hays, III" on Justia Law
Alston & Bird, LLP v. Hatcher Management Holdings, LLC
The version of the apportionment statute at issue in this appeal, OCGA 51-12-33, was enacted as part of the Tort Reform Act of 2005. Subsection (b) required damages to be apportioned “among the persons who are liable according to the percentages of fault of each person.” Subsection (b) had a critical textual difference from subsection (a): although subsection (a) applied “[w]here an action is brought against one or more persons,” subsection (b) applied only “[w]here an action is brought against more than one person . . . .” Although the Georgia Supreme Court previously decided at least one case in which the provisions of subsection (b) were applied in single-defendant cases, the Court expressly left open the question of whether such an application was proper. In this case, the Court of Appeals answered that open question by determining that the apportionment by percentage of fault directed by subsection (b) did not apply in single-defendant cases. The Supreme Court granted certiorari on the question of whether subsection (b) applied in single-defendant cases and also on the question of whether an expenses-of-litigation award under OCGA 13-6-11 was subject to apportionment. Although the Supreme Court reversed the Court of Appeals on the latter question and held that such expenses were not categorically excluded from apportionment, the Court concluded the Court of Appeals was correct on the scope of application of the apportionment directed by subsection (b): it applied only in cases “brought against more than one person,” not in single-defendant lawsuits like this one. Thus, the Supreme Court affirmed in part, reversed in part, and remanded for further proceedings regarding the trial court’s apportionment of the expenses-of-litigation award. View "Alston & Bird, LLP v. Hatcher Management Holdings, LLC" on Justia Law
Inquiry Concerning Judge Robert M. Crawford
The Hearing Panel of the Judicial qualifications Commission ("JQC") recommended that Judge Robert "Mack" Crawford be "removed from office" for violating Rule 1.1 of the Georgia Code of Judicial Conduct ("CJC") which said "Judges shall respect and comply with the law." Judge Crawford resigned as Superior Court judge of the Griffin Judicial Circuit upon investigation by the JQC. The complaint alleged that Crawford violated CJC Rule 1.1 in two ways: (1) by “impermissibly converting money from the registry of the Superior Court of Pike County . . . when he ordered the Pike County Clerk via handwritten note to disburse $15,675.62 in funds from the court registry to him via check” and “then cashed and used a portion of the check for his personal benefit and deposited the remainder of this money in his personal checking account,” although he later returned the funds; and (2) by “failing to follow the proper procedure for the disbursement of funds, even if the money had been his, as required by law,” noting the certification requirement for withdrawal of funds from a court registry contained in Uniform Superior Court Rule 23. In 2002, when Crawford was in private practice, he had deposited the funds into the registry from his client trust account in connection with a lawsuit. The JQC complaint acknowledged that Crawford claimed that at least some of the money was owed to him as attorney fees and expenses.The Hearing Panel did not recommend that Crawford be permanently barred from seeking or holding judicial office. The JQC Director did not file a notice of exceptions, thereby accepting the Hearing Panel’s recommendation. Under rules promulgated by the Georgia Supreme Court, the Court had to file a written decision either dismissing this matter or imposing a sanction. The Court elected to dismiss. View "Inquiry Concerning Judge Robert M. Crawford" on Justia Law
Georgia v. Copeland et al.
Former sheriff's deputies Henry Lee Copeland, Rhett Scott, and Michael Howell were indicted by grand jury for the felony murder (and other offenses) of Eurie Lee Martin. Each defendant sought immunity from prosecution under OCGA 16-3-24.2, claiming that his actions resulting in Martin’s death were in defense of himself or others. Following a hearing, the trial court issued an order granting immunity to Deputies Copeland, Scott, and Howell, and the State appealed. The Georgia Supreme Court determined that, in granting immunity, the trial court made findings of material fact that were inconsistent with its legal conclusions regarding the deputies’ encounter with Martin, conflated principles regarding the reasonable use of force by law enforcement with self-defense and immunity, made unclear findings of material fact with respect to whether any or all of the deputies used force intended or likely to cause death, and did not address the facts pertinent to each of the three deputies individually. For these reasons, the Supreme Court vacated the trial court’s ruling and remanded the cases for further consideration. View "Georgia v. Copeland et al." on Justia Law
Innovative Images, LLC v. Summerville et al.
Innovative Images, LLC sued its former attorney James Summerville, Summerville Moore, P.C., and The Summerville Firm, LLC (collectively, the “Summerville Defendants”) for legal malpractice. In response, the Summerville Defendants moved to dismiss the suit and to compel arbitration in accordance with the parties’ engagement agreement, which included a clause mandating arbitration for any dispute arising under the agreement. The trial court denied the motion, ruling that the arbitration clause was “unconscionable” and thus unenforceable because it had been entered into in violation of Rule 1.4 (b) of the Georgia Rules of Professional Conduct (“GRPC”) for attorneys found in Georgia Bar Rule 4-102 (d). The Court of Appeals reversed, holding that the arbitration clause was not void as against public policy or unconscionable. The Georgia Supreme Court concluded after review that regardless of whether the Summerville Defendants violated GRPC Rule 1.4 (b) by entering into the mandatory arbitration clause in the engagement agreement without first apprising Innovative of the advantages and disadvantages of arbitration, the clause was not void as against public policy because Innovative did not argue, and no court has held, that such an arbitration clause could never lawfully be included in an attorney-client contract. For similar reasons, the Supreme Court held the arbitration clause was not substantively unconscionable, and on the limited record before it, Innovative did not show the clause was procedurally unconscionable. Accordingly, the Court affirmed the appellate court's judgment. View "Innovative Images, LLC v. Summerville et al." on Justia Law
Hill, Kertscher & Wharton, LLP v. Moody et al.
“Under longstanding Georgia law,” when a client sues his former attorney for legal malpractice, the client impliedly waives the attorney-client privilege with respect to the underlying matter or matters to the extent necessary for the attorney to defend against the legal malpractice claim. The issue this case presented for the Georgia Supreme Court’s review was whether the implied waiver extended to the client’s communications with other attorneys who represented the client with respect to the same underlying matter, but whom the client chose not to sue. The trial court held that the waiver did not extend to such other counsel and therefore denied a motion for a protective order in this legal malpractice case. The Court of Appeals reversed. The issue presented was a matter of first impression for the Supreme Court, which held that when a client sues his former attorney for legal malpractice, the implied waiver of the attorney-client privilege extends to the client’s communications who represented the client with respect to the same underlying transaction or litigation. View "Hill, Kertscher & Wharton, LLP v. Moody et al." on Justia Law