This is an appeal by the Plaintiffs G. Douglas Paul, Sharon V. Paul, Catspaw Productions, Inc., Catspaw, Inc., Atlanta Catsco, Inc., and Recording Studio, Inc. from the partial grant of summary judgment in a legal malpractice action against their former law firm Smith, Gambrell & Russell n/k/a Smith, Gambrell & Russell, LLP. In the underlying commercial litigation, Ralph Destito, their former partner, sued the Plaintiffs for fraud, negligent misrepresentation, conspiracy to breach fiduciary duty, negligent breach of fiduciary duty, and alter ego liability, and the jury found in writing that the Plaintiffs committed all of these tortious acts with the specific intent to harm Destito, awarded general damages and awarded punitive damages in excess of the statutory limit. This judgment was affirmed in Paul v. Destito , 250 Ga. App. 631, 640 7 550 SE2d 739 2001. In the case now before the Court, the trial court found that the Plaintiffs’ own conduct and not legal malpractice was the sole cause of the award of punitive damages in the underlying case and that such sum for punitive damages could not be recovered as a matter of public policy from their lawyers in this subsequent legal malpractice action. At the trial of the underlying action after Destito’s expert accounting witness testified, as a matter of discretion and judgment, the Defendants decided not to call the Plaintiffs’ expert witness on accounting, because the expert witness was not a fact witness and was an expert witness only as to opinions on accounting. In this case, the trial court granted partial summary judgment as to the alleged legal malpractice claims based on not calling the opinion expert, because the Defendants believed this to be an honest exercise of professional judgment, giving rise to judgmental immunity. We affirm as to the grant of partial summary judgment as to the issue of punitive damages in the underlying case; we reverse as to the grant of partial summary judgment as to the exercise of honest professional judgment, because only a jury can decide such issue under the facts and circumstances of this case in light of evidence of conflicts of interest. Smith, Gambrell & Russell had represented the Plaintiffs for fifteen years. Defendants represented both Plaintiffs and Destito in various corporate matters leading up to the suit that involved the issues raised in this suit. The Defendants represented the Plaintiffs in the defense against the suit by Destito; this raised issues of conflict of interest. In fact, counsel for Destito raised the issue of the conflict of interest in the underlying suit and pre-suit activities. In Paul v. Destito , supra, a full description of such relationship between Destito and the Plaintiffs is set forth.
1. Plaintiffs contend that the trial court erred in granting partial summary judgment to the Defendants under the defense of judgmental immunity. We agree under the peculiar facts of this case where an issue of conflicts of interest exists.
