Kellos v. Sawilowsky

• Decision Date: 19 February 1985
• Docket Number: No. 41660,41660
• Citation: 325 S.E.2d 757,254 Ga. 4
• Parties: , 53 USLW 2433 KELLOS et al. v. SAWILOWSKY et al.
• Court: Georgia Supreme Court

Page 757

325 S.E.2d 757

254 Ga. 4, 53 USLW 2433

KELLOS et al. v. SAWILOWSKY et al.

No. 41660.

Supreme Court of Georgia.

Feb. 19, 1985.

Robert W. Beynart, Patricia E. Ratner, Smith, Gambrell & Russell, Atlanta, for Arnold J. Kellos et al.

A. Montaque Miller, Thomas W. Tucker, Dye, Miller, Tucker & Everitt, Augusta, for Jay M. Sawilowsky et al.

MARSHALL, Presiding Justice.

In this legal-malpractice action, defendant Sawilowsky supported his motion for summary judgment by his own affidavit that he exercised "that degree of skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the State of Georgia ..." (Emphasis supplied.) Plaintiffs Kellos opposed the motion with the affidavit of an attorney, averring that, in his opinion, Sawilowsky "failed to exercise that degree of skill, prudence and diligence as lawyers of ordinary skill and capacity ... possess and exercise in the State of Georgia." (Emphasis supplied.) The trial court granted summary judgment to the defendant-attorney without stating any reason. The Court of Appeals, in a split decision, affirmed. Kellos v. Sawilowsky, 172 Ga.App. 263, 322 S.E.2d 897 (1984). The majority opinion held, on p. 264, that "[t]he appellant's expert evidence did not create an issue of fact according to the above requirements," and that the affidavit had used the standard of the practice "in the State of Georgia," rather than "in the profession generally." We granted certiorari to determine whether, in a legal-malpractice action in Georgia, the applicable standard of skill, prudence and diligence of attorneys practicing in Georgia is that of the "locality" (i.e., the State of Georgia) or of the legal profession generally, if these standards differ. Held:

In Storrs v. Wills, 170 Ga.App. 179, 181, 316 S.E.2d 758 (1984), the rule is stated to be "that the expert opinion testimony must be based on 'the standard of care in the legal profession generally.' Gibson v. Talley, 156 Ga.App. 593, 595 (275 SE2d 154). See also Cale v. Jones, 162 Ga.App. 257, 258 (290 SE2d 154)." Reference to Gibson, supra, reveals that, although the appellant's expert there based his opinion on the standard of care in the legal profession generally, no authority is cited and no specific holding is made that this is the applicable standard. In Cale, supra, reliance upon the "standard of care in the legal profession generally" is based upon, in addition to Gibson (already examined above), the cases of Howard v. Walker, 242 Ga. 406, 249 S.E.2d 45 (1978), and Hughes v. Malone, 146 Ga.App. 341, 345, 247 S.E.2d 107 (1978). In Howard, supra, we dealt with the propriety of granting summary judgment based upon opinion evidence in a legal-malpractice action; the issue of the applicable standard of care was not involved. Similarly, in Hughes, supra, the opinion dealt with the issue of the effectiveness of the attorney's representation, rather than the issue of the applicable standard. Thus, we have found no authority for the purported rule that the standard of care is in the legal profession generally.

In the final analysis, the local standard versus the standard of the legal profession generally may be a distinction without a difference. Our courts have held that an attorney's duty is " '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[,]' " and that " '[a]n 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.' [...