Davis v. Findley
| Decision Date | 01 December 1992 |
| Docket Number | No. S92G0457,S92G0457 |
| Citation | 422 S.E.2d 859,262 Ga. 612 |
| Parties | DAVIS, et al. v. FINDLEY. |
| Court | Georgia Supreme Court |
William N. Withrow, Jr. and A. William Loeffler, Troutman, Sanders, Lockerman & Ashmore, Atlanta, for Davis.
Taylor W. Jones and Rebecca A. Copeland, Jones, Brown, Brennan & Eastwood, Atlanta, for Findley.
We granted certiorari to the Court of Appeals in Findley v. Davis, 202 Ga.App. 332, 414 S.E.2d 317 (1991), to determine "whether the plaintiff's allegation that the defendants charged excessive fees for legal services is sufficient to sustain a claim for legal malpractice." We conclude that it does not, and find that the Court of Appeals erred in ruling otherwise.
Appellee Findley sued the appellants, Davis and his professional corporation, alleging, inter alia, legal malpractice on the ground that "[d]efendant's fee in connection with the ... Lakeview Mobile Home Park sale constitute(s) illegal and clearly excessive fees in violation of the Canon of Ethics of the State Bar of Georgia." 1 In support of his claim the appellee attached an affidavit in which the affiant opined that if the appellee's allegation were true, then the appellants' collection of excessive fees constituted malpractice. The trial court granted summary judgment to the appellants but the Court of Appeals reversed in part, ruling in connection with the mobile home park sale that, notwithstanding the existence of a valid and binding fee contract, a jury question existed as to whether the appellants' collection of an allegedly "clearly excessive fee" in violation of the Georgia Code of Professional Conduct supplied the elements necessary to sustain an action for professional malpractice. Findley, supra, 202 Ga.App. at 335-37, 414 S.E.2d 317(2b).
The Code of Professional Responsibility, DR 2-106(A), provides that a lawyer should not "enter into an agreement for, charge or collect an illegal or clearly excessive fee." Moreover, Standard 31 of Bar Rule 4-102(d) prohibits the charging of a "clearly excessive fee," a violation of which is subject to disciplinary action, see Bar Rule 4-102(b). Whether an attorney's alleged violation of an ethical duty imposed by statute or by the Code of Professional Conduct gives rise to a cause of action independent of the imposition of remedies provided by the bar rules has been considered in this state and in other jurisdictions. In East River Savings Bank v. Steele, 169 Ga.App. 9, 11, 311 S.E.2d 189 (1983), the Court of Appeals held that a civil suit against an attorney for intentional infliction of emotional distress arising from an alleged violation of a rule of professional conduct could not lie, and therein noted as follows: In Roberts v. Langdale, 185 Ga.App. 122(1), 363 S.E.2d 591 (1987), the Court of Appeals upheld the grant of summary judgment to the defendant-attorney in an action for legal malpractice, finding that a violation of the Code of Professional Responsibility alone could not establish a basis for a negligence action. Other courts which have addressed this issue have held that a violation of those states' versions of the Code of Professional Responsibility does not give rise to a private cause of action for damages against attorneys. See, e.g., Hizey v. Carpenter, 119 Wash.2d 251, 830 P.2d 646 (1992); Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C., 813 S.W.2d 400 (Tenn.1991); Terry Cove North, Inc. v. Marr & Friedlander, P.C., 521 So.2d 22 (Ala.1988); Bob Godfrey Pontiac, Inc. v. Roloff, 291 Or. 318, 630 P.2d 840 (1981).
The Preamble to the Code of Professional Responsibility provides...
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...349, 247 S.E.2d 107 (1978); see Findley v. Davis, 202 Ga.App. 332, 337(2)(b), 414 S.E.2d 317 (1991), rev'd on other grounds, 262 Ga. 612, 422 S.E.2d 859 (1992); Rose v. Rollins, 167 Ga.App. 469, 471(2), 306 S.E.2d 724 (1983). 6. 202 Ga.App. 332, 414 S.E.2d 317. 7. See generally Howard v. Wa......
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