Berman v. Rubin, No. 51940

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: STOLZ; BELL, C.J., and CLARK
• Citation: 227 S.E.2d 802,138 Ga.App. 849
• Parties: Merrill BERMAN v. M. H. RUBIN
• Decision Date: 13 May 1976
• Docket Number: No. 51940,No. 1

Page 802

227 S.E.2d 802 138 Ga.App. 849 Merrill BERMAN
v.
M. H. RUBIN. No. 51940. Court of Appeals of Georgia, Division No. 1. May 13, 1976.
Rehearing Denied June 9, 1976.

[138 Ga.App. 855]

Page 804

Custer, Smith & Manning, Lawrence B. Custer, Marietta, for appellant.

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

[138 Ga.App. 849] 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 [138 Ga.App. 850] 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 [138 Ga.App. 851] 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

Page 805

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').

'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 [138 Ga.App. 852] 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.

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....