The recent malpractice verdict against Alston & Bird raised several issues regarding an attorney's duties to his client, the need to be wary of conflicts of interest and how to apportion fault between the firm, a nonparty and a plaintiff under Georgia statute.

In an effort to sort out some of the issues, three lawyers who followed the trial and whose specialties include legal malpractice, agreed to offer their perspectives.

The case involves a family-owned company, Hatcher Management Holdings LLC, that was managed by the oldest sibling, Maury Hatcher, from 2001 through 2009. Alston & Bird senior partner Jack Sawyer, who left the firm last year, drafted the company's operating agreement and served as its lawyer until 2009.

Maury announced his resignation in 2009 and sold his shares. An audit revealed Maury Hatcher overvalued his shares and paid himself excess compensation totaling more than $1.4 million. The company sued Maury in 2009, and a default judgment for $4 million was entered against him after he failed to show for trial. He never paid it.

In 2012, the company sued Alston & Bird for legal malpractice, claiming Sawyer helped Maury Hatcher conceal the value of other members' shares.

Last week, the jury found the firm committed malpractice and breached its fiduciary duty, awarding just over $1.1 million in combined damages and interest and another $1.1 million in attorney fees and expenses after finding the firm engaged in bad faith.

The panel apportioned 60 percent of the fault to Maury Hatcher, 32 percent to Alston & Bird, and 8 percent to the plaintiff, Hatcher Management.

The parties now are disputing what the judgment should be, with the plaintiff saying Alston & Bird must pay all but 8 percent of the damages and interest award and the entire fee award. Alston & Bird says it's only liable for 32 percent of the entire award, including the fees.

Here's what our legal malpractice experts had to say:

Rickman Brown, of counsel at Evans, Scholz, Williams & Warncke, said the argument that Alston & Bird lawyers were targeted for simple judgement calls is one he hears often—and is not one jurors usually find persuasive.

“These are standard defense tactics,” said Brown. “In meritorious cases, juries do not have trouble sorting out the issues and finding that what are being portrayed as judgment calls are breaches of the standard of care.”

“These cases require a lot of scrutiny when the management of a corporate entity and its members become adverse to one another,” he said.

“These cases are fact intensive, but if you're representing the company, that's where the duty of loyalty lies.”

Given the verdict and award, “it doesn't seem the jury had any difficulty finding more than an error in judgment,” he said.

Brown said he could not comment on the apportionment issues.

Linley Jones Firm principal Linley Jones agreed that “the jury has spoken with regard to whether there was a conflict of interest and whether Alston & Bird overstepped their bounds.”

“I think this case highlights the difficulty lawyers face when they fail to remember that their client is the corporate entity, not the person on the other end of the phone,” said Jones. “I think it's a natural human impulse to bond with the person you're communicating with, providing advice to. You can easily lose sight of the fact that he's not your client.”

Jones said the apportionment dispute raises questions regarding litigation expenses but fails to answer them.

“Given that they were awarded against the party who committed the bad faith, it would seem logical that Alston & Bird is responsible for all of them,” Jones said.

“On the other hand, you have this bizarre apportionment statute where expenses may be apportioned to nonlawyers. Counts one and two are professional liability causes of action, and the largest part of fault was apportioned to a nonlawyer.”

Jones said the apportionment statute was designed “with simple negligence cases in mind,” and is geared to parcel out fault among any parties liable for the injury. “How in the world is a layperson liable for legal malpractice and breach of fiduciary duty?” she asked.

“This case just highlights some of the problems with a very problematic statute,” Jones said. “I call it the 'finger-pointing statute' … It's just unfortunate for all involved that it couldn't have been resolved privately.”

Lefkowitz Firm principal David Lefkowitz, a professor of legal malpractice law, ethics and risk management at the University of Georgia Law School, said “judgment call” suits may be more challenging, but they also yield larger verdicts, if successful.

“Claims involving missed deadlines (such as a missed statute of limitations) are generally easy to prove, because the negligence is clear,” said Lefkowitz via email. “In fact, many states do not require expert testimony to prove obvious errors such as those (Georgia does require expert testimony to prove any breach by an attorney).

“On the other hand, claims involving breaches of the ethical rules (such as conflicts of interest) can be more complex and challenging to prove to a jury. However, if you can convince a jury that a lawyer did not merely commit an error, but he also violated the Rules of Professional Conduct, the jury may be inclined to award more significant damages.

Lefkowitz said the the apportionment wrangle is the result of the plaintiff's trial strategy.

“The plaintiffs could have avoided any apportionment of the verdict if legal malpractice had been the only cause of action, as legal malpractice sounds in contract, and apportionment applies only in tort cases,” Lefkowitz said.

“However, the benefit of bringing the tort claim for breach of fiduciary duty is that it can support a claim for punitive damages.This is your classic judgment call: Do you want to avoid apportionment, or do you want to go after punitive damages?”