Berman v. Rubin, 51940

Decision Date13 May 1976
Docket NumberNo. 51940,No. 1,51940,1
Citation227 S.E.2d 802,138 Ga.App. 849
PartiesMerrill BERMAN v. M. H. RUBIN
CourtGeorgia Court of Appeals
Custer, Smith & Manning, Lawrence B. Custer, Marietta, for appellant

Neely, Freeman & Hawkins, Paul M. Hawkins, Andrew M. Scherffius, Atlanta, for appellee.

STOLZ, Judge.

This suit for legal malpractice arose from the actions of attorney Rubin in negotiating a property settlement for Dr. Berman relating to the latter's divorce. As executed, the portions of the settlement pertinent to this appeal read as follows: '(a) At the present time, the Husband earns approximately (a stipulated amount). To the extent that in any one year, the Husband shall earn in excess of this said sum, the amount of child support per child for that year and alimony for the wife for that year shall be increased by 15% of such increase . . . (b) nothing herein contained shall permit the amount of child support per child to exceed $8,000 for any 1 year, nor shall any amount of alimony to the wife exceed $16,000 . . .' (Emphasis supplied.) The record shows that Dr. Berman read this agreement, initialed each page and signed his name at the end.

In a subsequent contempt hearing, the trial court judge construed the agreement to require payment of 15% of such increased earnings to each of his three children and 15% to his wife (an aggregate of 60% of his excess earnings). The trial court's order holding Dr. Berman in contempt was affirmed in Berman v. Berman, 231 Ga. 723, 204 S.E.2d 124.

Subsequent to this construction, Dr. Berman sued Mr. Rubin for misrepresentation and malpractice. As to Court 1, alleging negligent misrepresentation of the settlement, the trial court found that Rubin's actions merely constituted interpretation of a legal document later construed to the contrary by an appellate court. As to Count 2 of Berman's complaint, alleging Rubin's failure to properly advise him, the trial court found that the plaintiff had actual knowledge of the information allegedly withheld. The trial court entered summary judgment in Rubin's favor on both counts. The thrust of this appeal is Berman's contention that he signed the agreement only upon the assurances of Rubin, his attorney, that the additional payments would total only 15% of his earnings in excess of that sum upon which the settlement was based. 1 Held:

This particular legal malpractice claim is for Rubin's negligence in representing to Berman the contents of the child support and alimony provisions of the property agreement. The initial requirement for establishing liability is that there be a duty; this arises from the attorney-client relationship itself. Lewis v. Foy, 189 Ga. 596, 598, 6 S.E.2d 788; Republic Mortgage Corp. v. Beasley, 117 Ga.App. 303(3), 160 S.E.2d 429; O'Kelley v. Skinner, Wilson & Beals, 132 Ga.App. 792(2), 209 S.E.2d 242. As to particular examples, see generally Arey v. Davis, 233 Ga. 951, 213 S.E.2d 837 (retained counsel); State v. Goode, 84 S.D. 369, 171 N.W.2d 733 (court-appointed counsel); Young v. United States, 120 U.S.App.D.C. 312, 346 F.2d 793 (legal aid society counsel); American Employers' Ins. Co. v. Goble Aircraft Specialties, Inc., 205 Misc. 1066, 131 N.Y.S.2d 393 (insurance company's counsel). Once this relationship existed, a duty devolved upon Rubin, as Berman's attorney, 'to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake.' Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal.3d 176, 98 Cal.Rptr. 837, 491 P.2d 421. For other formulations 'An attorney is not bound to extraordinary diligence. He is bound to reasonable skill and diligence, and the skill has reference to the character of the business he undertakes to do.' Cox v. Sullivan, 7 Ga. 144, 148, 50 Am.Dec. 386. Thus, while the standard of care required of an attorney remains constant, its application may vary. O'Barr v. Alexander, 37 Ga. 195. Two important considerations in particularizing this rather general standard in a given case are the number of options abailable to the attorney and the amount of time which he has to consider them. 2 As to this, see Comment, Attorney Malpractice, 63 Colum.L.Rev. 1292, 1301 and cits.; J. Wade, The Attorney's Liability for Negligence, 12 Vand.L.Rev. 755, 765 and cits.

of this standard, see Hodges v. Carter, 239 N.C. 517, 520, 80 S.E.2d 144, 146 ('ordinary care and diligence'); Glenn v. Haynes, 191 Va. 571, 581, 66 S.E.2d 509, 513 ('reasonable degree of care and skill'); Ward v. Arnold, 52 Wash.2d 581, 584, 328 P.2d 164, 167 ('reasonable amount of skill and knowledge').

Although he is not an insurer of the documents he drafts, 3 the attorney may breach his duty towards his client when, after undertaking to accomplish a specific result, such as to approve a marketable title or draft a will, he then fails to comply with prescribed statutory formalities or to effectuate the intent of the parties. See, e.g., Lilly v. Boyd, 72 Ga. 83(1) (title examination); Theobald v. Byers, 193 Cal.App.2d 147, 13 Cal.Rptr. 864 (failure to register a chattel mortgage); Ward v. Arnold, 52 Wash.2d 581, 328 P.2d 164, supra (advice to wife that a will for her husband was not necessary); Slade v. Harris, 105 Conn. 436, 135 A. 570 (failure to include intended covenant not to compete in a contract); McCullough v. Sullivan, 102 N.J.L. 381, 132 A. 102 (failure to state true consideration in chattel mortgage where prescribed by statute); Stein v. Kremer, Sup., 112 N.Y.S. 1087 (employment contract intended for definite period written so as to be revocable at will).

Likewise, ignorance of basic, well-established and unambiguous principles of law has been held to be a breach of duty towards the client in the following situations: permitting a devisee to witness a will (Goldberg v. Bosworth, 29 Misc.2d 1057, 215 N.Y.S.2d 849; 4 filing a chattel mortgage in the wrong county (Hampel-Lawson Mercantile Co. v. Poe, 169 Ark. 840, 277 S.W. 29)); advising a co-principal that he would not be jointly and severally liable for the total amount of his bond (Cochrane v. Little, 71 Md. 323, 18 A. 698). However, this question arises only when the law is fundamental; unless the law is so well settled, clear, and widely recognized, an attorney acting in good faith and to the best of his knowledge will be insulated from liability for adverse results. See Hodges v. Carter, 80 S.E.2d 144, supra; Lucas v. Hamm, 15 Cal.Rptr. 821, 364 P.2d 685, supra, at n. 3. Res ipsa loquitur is simply not applicable to suits for legal malpractice. See Olson v. North, 276 Ill.App. 457.

In malpractice actions against attorneys, as is the case against other professionals, it is essential that competent evidence be presented as to the acceptability of particular conduct. 'Attorneys are very properly held to the same rule of liability for want of professional skill and diligence in practice, and for erroneous or negligent advice to those who employ them, as are physicians and surgeons, and other persons The reason for this requirement is simply that the jury cannot rationally apply a general statement of the standard of care unless it is aware of what the competent lawyer would have done under similar circumstances. Nor can the jury be permitted to speculate about what the 'professional custom' is. Competent evidence as to the 'professional custom' in a given situation is required in malpractice actions against other professionals. See, e.g., Washington v. City of Columbus, 136 Ga.App. 682, 222 S.E.2d 583 (physician); Stallcup v. Coscarart, 79 Ariz. 42, 282 P.2d 791 (dentist); Paxton v. County of Alameda, 119 Cal.App.2d 393, 259 P.2d 934 (architect); Tremblay v. Kimball, 107 Me. 53, 77 A. 405 (pharmacist). Consistency demands a similar standard for attorneys. Of course, the fact that the defendant has followed customary procedures will not always insulate him from liability. 'While custom provides an important indication of what costitutes reasonable care and what is negligent, it is not dispositive of the question . . .' Gleason v. Title Guarantee Co., 300 F.2d 813 (5th Cir.).

who hold themselves out to the world as possessing skill and qualification in their respective trades or professions.' Citizens' Loan, Fund & Savings Assn. v. Friedley, 123 Ind. 143, 145, 23 N.E. 1075. Accord, Theobald v. Byers, 13 Cal.Rptr. 864, supra; Slade v. Harris, 135 A. 570, supra; Cook v. Irion, 409 S.W.2d 475, supra, n. 2. Hence, except in clear and palpable cases (such as the expiration of a statute of limitation), expert testimony is necessary to establish the parameters of acceptable professional conduct, a significant deviation from which would constitute malpractice. See Dorf v. Relles, 355 F.2d 488 (7th Cir.); Olson v. North, 276 Ill.App. 457, supra; Brown v. Gitlin, 19 Ill.App.3d 1018, 313 N.E.2d 180; Sanders v. Smith, 83 N.M. 706, 496 P.2d 1102; Walters v. Hastings, 84 N.M. 101, 500 P.2d 186. Compare Central Cab Co. v. Clarke, 259 Md. 542, 270 A.2d 662 (not required where counsel failed to notify client of termination of employment in time to avoid default).

Although it would otherwise be a jury question as to whether or not defendant Rubin had breached his duty towards Dr. Berman (Venable v. Block, 138 Ga.App. 215(4), 225 S.E.2d 755), we do not reach that issue in this case. The...

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