Allen v. Lefkoff, Duncan, Grimes & Dermer, P.C.

• Decision Date: 27 February 1995
• Docket Number: No. S94G1071,S94G1071
• Citation: 453 S.E.2d 719,265 Ga. 374
• Parties: , 50 A.L.R.5th 839 ALLEN v. LEFKOFF, DUNCAN, GRIMES & DERMER, P.C., et al.
• Court: Georgia Supreme Court

Page 719

453 S.E.2d 719

265 Ga. 374, 50 A.L.R.5th 839

ALLEN v. LEFKOFF, DUNCAN, GRIMES & DERMER, P.C., et al.

No. S94G1071.

Supreme Court of Georgia.

Feb. 27, 1995.

Reconsiderations Denied March 20, 1995 and May 5, 1995.

William R. Hurst, Dunwoody, Taylor W. Jones, Rebecca A. Copeland, Jones, Brown, Brennan & Eastwood, Atlanta, L. Ray Patterson, Athens, for Allen.

H. Lane Young, Freeman & Hawkins, Atlanta, for Lefkoff, Duncan, Grimes & Dermer, P.C.

Christine L. Mast, Thomas F. Wamsley, Jr., Howell Hollis, III, Freeman & Hawkins, Atlanta.

Walter R. Phillips, Athens, for amicus appellant.

Kirk M. McAlpin, Jr., McAlpin & Henson, Atlanta.

Jana K. Bishop, McAlpin & Henson, Atlanta, for amicus appellant.

SEARS, Justice.

In this legal malpractice case, the Court of Appeals affirmed "the trial court's disallowance of any evidence of, reference to, or jury instruction on the defendant attorneys allegedly having violated certain provisions of the Code of Professional Responsibility." Allen v. Lefkoff, Duncan, Grimes & Dermer, P.C., 212 Ga.App. 560, 442 S.E.2d 466 (1994). ¹ The Court of Appeals recognized that in Cambron v. Canal Ins. Co., 246 Ga. 147, 269 S.E.2d 426 (1980), this court "upheld a jury instruction on the Code of Professional Responsibility's proscription of conflicts of interest," Allen, 212 Ga.App. at 561, 442 S.E.2d 466, but held that since Cambron did not involve an action for legal malpractice, that case was not applicable, and, instead, the issue was controlled adversely to Allen by Davis v. Findley, 262 Ga. 612, 613, 422 S.E.2d 859 (1992). We granted the appellant's petition for certiorari to consider this division of the Court of Appeals' decision.

1. As the Court of Appeals recognized, we have held that an alleged violation of the Code of Professional Responsibility (State Bar Rules 3-101 et seq.) or the Standards of Conduct (State Bar Rule 4-102), "standing alone, cannot serve as a legal basis" for a legal malpractice action. Davis v. Findley, 262 Ga. at 613, 422 S.E.2d 859 (citing East River Savings v. Steele, 169 Ga.App. 9, 11, 311 S.E.2d 189 (1983) (emphasis in original)). In other words, as the rule presently exists in Georgia, the duties imposed by the Bar Rules cannot provide the sole basis for the standard of care applied in a legal malpractice action. Davis, 262 Ga. at 613, 422 S.E.2d 859. ² This is so because

while the Code of Professional Responsibility provides specific sanctions for the professional misconduct of the attorneys whom it regulates, it does not establish civil liability of attorneys for their professional misconduct, nor does it create remedies in consequence thereof. ³

Id. at 613, 422 S.E.2d 859.

2. Having said that an attorney's conduct will not support a legal malpractice action solely because the conduct violates the Bar Rules, we now consider the extent of the role the Bar Rules may properly play in such an action.

(a) In a legal malpractice action, the plaintiff must establish three elements: "(1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff." Rogers v. Norvell, 174 Ga.App. 453, 457, 330 S.E.2d 392 (1985); Tante v. Herring, 264 Ga. 694, 453 S.E.2d 686 (1994). With respect to the "ordinary care, skill and diligence" element,

the law imposes upon [persons performing professional services] the duty to exercise a reasonable degree of skill and care, as determined by the degree of skill and care ordinarily employed by their respective professions under similar conditions and like surrounding circumstances.

Housing Authority of Atlanta v. Greene, 259 Ga. 435, 436, 383 S.E.2d 867 (1989) (emphasis added); see also Kneip v. Southern Engineering, 260 Ga. 409, 409-10, 395 S.E.2d 809 (1990). As to whether ethical standards are admissible as some evidence of this standard of care,

[c]ourts take four different approaches.... First, some courts hold that professional ethical standards conclusively establish the duty of care and that any violation constitutes negligence per se. Second, a minority of courts finds that a professional ethical violation establishes a rebuttable presumption of legal malpractice. Third, a large majority of courts treats professional ethical standards as evidence of the common law duty of care. Finally, one court has found professional ethical standards inadmissible as evidence of an attorney's duty of care.

Note, The Inadmissibility of Professional Ethical Standards in Legal Malpractice After Hizey v. Carpenter, 68 Wash.L.Rev. 395, 398-401 (1993) (emphasis added); see also Developments in the Law--Lawyers' Responsibilities and Lawyers' Responses, 107 Harv.L.Rev. 1547, 1566-67 (1994) (examining "the diverse and sometimes conflicting responsibilities of the modern-day lawyer," id. at 1556). ⁴ For the following reasons, we agree with the majority rule and we hold that pertinent Bar Rules are relevant to the standard of care in a legal malpractice action.

(b) To be admissible, Georgia law requires that evidence "relate to the questions being tried by the jury and bear upon them either directly or indirectly." OCGA § 24-2-1; see also MacNerland v. Johnson, 137 Ga.App. 541, 224 S.E.2d 431 (1976) ("evidence is relevant which logically tends to prove or disprove a material fact which is at issue," id. at 542, 224 S.E.2d 431 (citation omitted)). According to its preamble, the Code of Professional Responsibility was adopted because

[i]n this State, where the stability of courts and of all departments of government rests upon the approval of the people, it is peculiarly essential that the system for establishing and dispensing justice be developed to a high point of efficiency and so maintained that the public shall have absolute confidence in the integrity and impartiality of its administration. The future of this State and of the Republic ... depend[ ] upon our maintenance of justice pure and unsullied. It cannot be so maintained unless the conduct and motives of the members of our profession are such as to merit the approval of all just men.

As "[n]o code or set of rules" could anticipate every eventuality, the Code of Professional Responsibility sets forth a "general guide" for members on the State Bar of Georgia to follow in an effort to achieve the goals set forth in the preamble. The Standards of Conduct contained in State Bar Rule 4-102 are "to be observed by members of the State Bar of Georgia and those authorized to practice law in Georgia ... and any violation thereof shall subject the offender to disciplinary action and/or punishment...." ⁵ Given the potential consequences of their violation and the fundamental nature of their purpose, it would not be logical or reasonable to say that the Bar Rules, in general, do not play a role in shaping the "care and skill" ordinarily exercised by attorneys practicing law in Georgia.

(c) This is not to say, however, that all of the Bar Rules would necessarily be relevant in every legal malpractice action. In order to relate to the standard of care in a particular case, we hold that a Bar Rule must be intended to protect a person in the plaintiff's position or be addressed to the particular harm suffered by the plaintiff. Note, supra, at 412; Fishman v. Brooks, 396 Mass. 643, 487 N.E.2d 1377, 1381 (1986). The Supreme Court of Ohio stated this principle well in Krischbaum v. Dillon, 58 Ohio St.3d 58, 567 N.E.2d 1291 (1991):

The obvious purpose of the particular provisions in the Code of Professional Responsibility that the contestants sought to put before the jury is to protect clients from abuses that are likely to occur if attorneys [violate the rules]. Laws intended to protect individuals may create norms of behavior, the violation of which may be deemed to be actionable upon the theory that the violator has not acted with due care. While the failure to comply with general rules of conduct ... will not ordinarily constitute negligence per se, it is a circumstance that can be considered, along with other facts and circumstances, in determining whether the actor has acted with reasonable concern for the safety and welfare of others--that is, with due care.

Id. 567 N.E.2d at 1301. Thus, while a Bar Rule is not determinative of the standard of care applicable in a legal malpractice action, it may be "a circumstance that can be considered, along with other facts and circumstances," id. ⁶

3. As this opinion expands upon the applicable rule of law, we remand to the Court of Appeals so that court may reconsider the merits of the appeal in light of this holding.

Judgment reversed and case remanded to the Court of Appeals.

All the Justices concur except BENHAM, P.J., who concurs separately.

BENHAM, Presiding Justice, concurring.

While I applaud the desire of this court to clear up perceived confusion in the trial of legal malpractice cases and agree with the disallowance of ethical violations as a basis for malpractice actions, I must sound a note of caution with regard to our holding that ethical rules are relevant to the standard of care in legal malpractice actions. Our entry into this arena may be premature. There is danger that it will create confusion, erode this court's authority in regulating the practice of law, result in unwarranted prejudice to legal malpractice defendants, foster an avalanche of malpractice complaints, hamper efforts to improve ethical standards and professionalism, and have far reaching adverse effects in other areas of professional malpractice.

In granting the writ of certiorari in this case, we posed two questions:

1. Under what conditions can a violation of the Code of Professional Responsibility or the Standards of Conduct under Bar Rule 4-102 serve as a legal basis for a legal malpractice claim?

2. Is a violation of the Code of Professional Responsibility or the Standards of Conduct under Bar Rule 4-102...