Hughes v. Malone

Decision Date22 June 1978
Docket NumberNo. 55295,55295
Citation247 S.E.2d 107,146 Ga.App. 341
PartiesHUGHES v. MALONE.
CourtGeorgia Court of Appeals

James K. Jenkins, Timothy N. Skidmore, Atlanta, for appellant.

Watson, Spence, Lowe & Chambless, G. Stuart Watson, Albany, for appellee.

BIRDSONG, Judge.

Hughes appeals the grant of summary judgment entered in behalf of Malone after the filing of a complaint alleging legal malpractice by Malone in his representation of Hughes.

The facts show that Hughes entered into a fraudulent scheme with one of his ex-employees (one Logan), to print counterfeit U. S. currency. Hughes made the negatives from which Logan made the plates and arranged for the currency to be printed; approximately $5,000,000 in counterfeit $20 bills was produced. Unknown to Malone, one of his employees, one Goode, was involved in the counterfeiting scheme and was responsible to some degree for the distribution of the bogus bills. According to Hughes, Goode instructed Hughes as to how and where to transport the printed currency to a pick-up point for further transportation and ultimate distribution. Two persons unknown to Hughes picked up the currency and made distribution in Miami of $2,000,000 to purchasers who were in fact undercover police agents. The currency was packaged in unique boxes which were traced back to Hughes. A search of Hughes' place of business revealed no incriminating evidence. However, the then-present occupant of the building (Logan, who prepared the plates and arranged for the printing of the money) acknowledged to the investigating agents that Hughes had a possessory interest in other buildings. Logan admitted to possession of a key to one of these buildings and agreed to take the investigating agents to the other building. Logan also had a possessory interest in the second building. He opened the building for the agents and the search uncovered the plates, the press upon which the money was printed and some scraps of the counterfeit bills. The individual who actually printed the bills (one Cook) was apprehended and gave a statement. Cook did not know of Hughes' involvement but implicated Logan. At this point, Hughes and Logan went to Malone who agreed to represent all three of the persons involved, Hughes, Logan (the ex-employee) and Cook (the actual printer of the bills). Malone was informed at the outset by Hughes that Goode was involved in the scheme. By way of affidavit and deposition, it was shown that Malone acquainted himself with the circumstances of the taking of Cook's confession, with the circumstances of the search of Hughes' building undertaken without benefit of a warrant but consented to by Logan, and with the nature and extent of the government's case against Hughes by examination of the government's file. There was evidence that Hughes requested Malone to interview the two distributors who were in jail in Miami. Malone talked to the attorney for these two men and determined that the two would neither cooperate with their own attorney nor admit anything more than that they had been apprehended with the contraband. As a result, Malone did not attempt to interview either man. Additionally, Hughes informed Malone that the federal judge before whom Hughes would appear was possibly biased against Hughes because of past personal relations. Because of possible bias and alleged adverse pretrial publicity, Hughes discussed the possible advantages of requesting the judge to recuse himself and a change of venue. Under these circumstances, Malone advised Hughes to enter a plea of guilty to a count of transporting counterfeit money, thereby obviating the risk of facing the more serious charges of manufacturing and distributing counterfeit money. Throughout this period, Hughes was emotionally distraught.

Hughes asserts that he was advised by Malone that the U. S. attorney required an immediate answer as to the nature of a plea. If a plea of not guilty were not forthcoming, all charges would be submitted to a grand jury, involving greater risk and further adverse notoriety. Further, Hughes asserts that Malone advised him that the sentencing judge would be advised that the government was not seeking incarceration, that because Hughes was a first offender, he would receive a probated sentence and a fine, and that if he (Hughes) were not satisfied with the sentence, he could withdraw his guilty plea and proceed with a plea of not guilty.

Hughes sought the advice of another attorney as to the advisability of entering a guilty plea to the transporting charge. Upon being assured that Malone's recommendation was sound, Hughes entered a plea of guilty. At the plea proceedings, Hughes admitted to the judge that he was guilty and was entering the plea voluntarily and without promise or hope of reward. He was sentenced to seven years. Two years after he was sentenced, Hughes brought this legal malpractice suit alleging that Malone fraudulently coerced him into pleading guilty by misrepresenting the following facts: there was no urgency to a decision as to how to plead; there was no threat to refer a plea of not guilty to a grand jury; an entered plea of guilty could not be withdrawn in a federal district court; the sentencing judge was not informed that the government was not seeking penitentiary time; and the plea was enticed to protect Malone's employee, Goode, thus rendering a serious conflict of interest. Hughes also complained that Malone demonstrated fraud and was negligent in his representation by failing to file motions to suppress the evidence produced by the search without a warrant, to suppress the confession of the co-accused Cook, to change venue, to recuse the judge, to interview witnesses in Miami, to seek psychiatric evaluation, or to take any action to minimize the adverse publicity. In a third count, Hughes asserts that Malone breached his contractual obligations to represent Hughes in a legally responsible way. The trial court was presented with approximately 1,000 pages of affidavits, depositions and other records to assist it in reaching a decision on the motion for summary judgment. Held :

This particular legal malpractice claim is based upon Hughes' complaint that Malone failed generally to afford him reasonable representation. 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; O'Kelley v. Skinner, Wilson & Beals, 132 Ga.App. 792(2), 209 S.E.2d 242. Once this relationship was shown to exist, a duty devolved upon Malone, as Hughes' 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. Cox v. Sullivan, 7 Ga. 144, 148, 50 A.D. 386; Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal.3d 176, 98 Cal.Rptr. 837, 491 P.2d 421. Although an attorney is not an insurer of the results sought to be obtained by such representation, when, after undertaking to accomplish a specific result, he then wilfully or negligently fails to apply commonly known and accepted legal principles and procedures through ignorance of basic, well-established and unambiguous principles of law or through a failure to act reasonably to protect his client's interests, then he has breached his duty toward the client. As the legal profession is at best an inexact science, a breach of duty arises only when the relevant, i. e., legal principles or procedures are well settled and their application clearly demanded, and the failure to apply them apparent; otherwise, an attorney acting in good faith and to the best of his knowledge will be insulated from liability for adverse results. Hodges v. Carter, 239 N.C. 517, 520, 80 S.E.2d 144, 146.

In malpractice actions against lawyers, as in the case against other professionals, it is essential to the maintenance of a cause of action that competent evidence be presented as to the reasonableness of the lawyer's 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, surgeons, and other persons 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, cited with approval in Berman v. Rubin, 138 Ga.App. 849, 853, 227 S.E.2d 802. 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. Howell v. Jackson, 65 Ga.App. 422, 16 S.E.2d 45; Pilgrim v. Landham, 63 Ga.App. 451(4), 11 S.E.2d 420. See Dorf v. Relles, 355 F.2d 488 (7th Cir.); 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. The reason for this requirement is simply that a jury cannot rationally apply negligence principles to professional conduct absent evidence of what the competent lawyer would have done under similar circumstances, and the jury may not be permitted to speculate about what the "professional custom" may be. Expert evidence as to the "professional custom" is required in malpractice actions against other professionals. Washington v. City of Columbus, 136...

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