Appeals Court Revives Legal Malpractice Suit, OK's Same-Firm Lawyer's Expert Affidavit
The Court of Appeals said there was no "inherent conflict' in a lawyer providing an expert affidavit for a firm colleague's client in legal malpractice lawsuits.
June 15, 2020 at 04:56 PM
7 minute read
(Correction appended below.)
Ruling in a case of first impression, the Georgia Court of Appeals revived a legal malpractice lawsuit after finding the trial judge improperly dismissed it simply because the expert affidavit supporting the complaint was written by an attorney who also was a law partner of the filing attorney.
The defendants had argued there was an "inherent conflict" in allowing the affidavit, but the Court of Appeals said the lawyer who wrote it met all the requirements of the law.
Far from creating a conflict with the client's interests, the lawyer's affidavit actually "serves to advance those interests," wrote Presiding Judge Anne Elizabeth Barnes, with the concurrence of Judges Elizabeth Gobeil and John Pipkin III on Friday.
Plaintiffs attorney William Ney of Ney Rhein said of the ruling, "It just confirms what the ethics rules are: That members of the same firm can provide pretrial affidavits on behalf of each other's clients and still comply with [the statute]."
Ney's partner, Jacob Rhein, submitted the affidavit at issue. Rhein signed it before the two established their firm, which doesn't appear to have been a factor in the ruling.
"We're happy that the Court of Appeals saw it our way, and our client is going to have his day in court," Ney said.
His client, David Mitchell, accrued more than $200,000 in medical bills and continues to suffer back pain, and is on the hook for more than $1,800 imposed as a sanction for missing three depositions Mitchell claims he was never notified of.
The defendants include R. Cade Parian and Parian Injury Law, and Brian Craig and his firm, Wood Craig & Avery. They are represented by Hawkins Parnell & Young senior partner T. Ryan Mock Jr. and Hall Booth Smith partner Don Brown and associate Bill Daniel.
Mock said the ruling effectively guts the statute requiring an expert affidavit in a legal malpractice case.
The Georgia Supreme Court "has held that a statute is to be construed to give sensible and intelligent effect to all of its provisions, and a court is to refrain from any interpretation which renders any part of the statute meaningless," Mock said.
"The Court of Appeals' decision allowing a lawyer in the plaintiff's law firm to provide the affidavit required by O.C.G.A. 9-11-9.1 renders the statute meaningless in the context of a legal malpractice lawsuit," Mock said.
"In malpractice cases against other professions, the plaintiff cannot just rely upon his counsel's opinion" and "must file the affidavit of an qualified expert with the complaint," he said.
"The Court of Appeals has created an exception for legal malpractice cases that the legislature did not provide in the statute," said Mock, in ruling that "the opinion of the plaintiff's counsel's law firm is all that is required to proceed."
Mock also said the defendants' deny the underlying allegations and are still considering their options regarding the opinion.
As detailed in the opinion and other court filings, the case began in 2011 when Mitchell was leaving his second-floor Marietta apartment and slipped on leaves covering the landing. He stepped onto a lower step in an effort to regain his balance, but the wood was rotten and he fell, injuring his back and head.
Mitchell first filed suit in Fulton County State Court in 2013, then voluntarily dismissed that case. He then he retained Parian to refile the case.
According to Mitchell, Parian referred the case to Craig without his knowledge, and Craig filed a renewal action in 2015.
"Over the next two years, plaintiff communicated with the Parian defendants in an effort to obtain information regarding his case," Mitchell's complaint said. "The Parian defendants assured Plaintiff that his case had been filed and was 'chugging along.'"
"Unbeknownst to plaintiff, his case had been taken over by attorneys with whom he had never met and with whom he had never spoken," it said.
The defendants repeatedly tried to set up depositions with Mitchell but, according to his pleadings, neither Parian nor Craig notified him.
The defendants filed a motion to compel, motion to dismiss and a motion for sanctions. Judge Myra Dixon granted them in 2017 and ordered Mitchell to pay $1,868 for the defense's attorney fees and costs.
Afterward, Mitchell saw the complaint for the first time and realized it had little resemblance to his case: It involved claims against the same defendants for a fall over a shopping cart at a grocery store in south Georgia.
In 2019, Ney filed suit on Mitchell's behalf in Fulton Superior Court, asserting claims for legal malpractice. Rhein submitted an affidavit supporting the claims, and the next day he and Ney formed Ney Rhein.
The defense moved to dismiss the case on the grounds that Mitchell had not complied with the expert affidavit statute, and Judge Jane Barwick granted it, finding an "inherent conflict between Rhein making the affidavit as a witness and being a member of the law firm" representing Mitchell.
In reversing that ruling, Barnes cited the statute's language that a plaintiff is "required to file with the complaint an affidavit of an expert competent to testify," setting forth at least one negligent act or omission.
"The question presented by this case is whether the affidavit given by a lawyer who, although not involved directly in the representation of the plaintiff, is a member of the law firm representing the plaintiff, satisfies the requirements of the statute," Barnes wrote.
The statute is clear that it "requires only that an affiant in a professional malpractice action be 'competent to testify' as to the opinion set forth in his or her affidavit," he said.
Neither the statute nor the Georgia Rules of Professional Conduct regarding attorney-client conflicts serves to bar a member of a firm from testifying for a colleague's client "provided the testimony will not be adverse to or otherwise conflict with the client's interests."
"And here, Rhein's affidavit testimony in support of Mitchell's legal malpractice claim does not conflict with Mitchell's interests; instead, it serves to advance those interests," he said. "Accordingly, the trial court erred in finding that an inherent conflict' rendered Rhein incompetent to provide the affidavit testimony at issue."
Barnes also dismissed defense claims that allowing Rhein to provide the affidavit would defeat the purpose of the statute.
"Georgia's legislative scheme operates to safeguard against the filing of frivolous malpractice suits," he said.
"And here, neither Parian nor Craig has challenged Rhein's qualifications as an expert witness. Nor have they challenged the sufficiency of the contents of Rhein's affidavit. Put another way, none of the defendants have argued, much less established, that Rhein's status as Ney's law partner has resulted in the filing of a frivolous malpractice claim against them," Barnes wrote.
"Thus, it appears that the statutory requirements have worked as intended in this case," he said.
The original version of this article misidentified the author of the Court of Appeals opinion. It has been corrected to state that Presiding Judge Anne Elizabeth Barnes—not Judge Todd Markle—wrote the opinion.
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