Tante v. Herring
| Decision Date | 02 November 1993 |
| Docket Number | No. A93A1166,A93A1166 |
| Citation | 211 Ga.App. 322,439 S.E.2d 5 |
| Parties | TANTE v. HERRING et al. |
| Court | Georgia Court of Appeals |
Denney, Pease, Allison, Kirk, & Lomax, John W. Denney, Columbus, for appellant.
Beltran & Associates, Frank J. Beltran, Simone R. Siex, Atlanta, for appellees.
T. Edward Tante IV appeals the grant of summary judgment on liability to Laura K. Herring and Bobby C. Herring in their action against him for legal malpractice. He also alleges that the trial court erred by denying his motion for summary judgment on the Herrings' claims. Appellees filed their own affidavits, affidavits of doctors and psychologists, affidavits of their expert as to legal malpractice, and depositions--none of which have been refuted by appellant.
Tante was retained as counsel to pursue a claim for Social Security disability benefits because of a blockage of Mrs. Herring's right carotid artery. A favorable award was issued, and both Herrings signed Tante's request for attorney fees.
While Tante pursued the Social Security claim, Tante and Mrs. Herring began an adulterous relationship that continued for approximately two years.
The Herrings sued Tante for legal malpractice, breach of fiduciary duty, and breach of contract. They alleged that both Herrings had an attorney-client relationship with Tante, that Tante took advantage of information in Mrs. Herring's confidential medical and psychological reports about her impaired emotional and mental functioning, that Tante took advantage of Mrs. Herring's impaired intellectual functioning, depression and anxiety to convince her to have an affair, and that as a result of this affair Mrs. Herring suffered physical and mental harm. The Herrings allege that Tante infected Mrs. Herring with two strains of venereal disease with which she unknowingly infected Mr. Herring. Their complaint also alleged that Tante violated certain rules and standards of the State Bar of Georgia, that he breached the standard of care owed clients by attorneys, that he violated his fiduciary duties to the Herrings, that he breached his contract with them, and that the Herrings were damaged thereby. The complaint sought compensatory damages, punitive damages, and litigation expenses, including attorney fees.
Tante contends the trial court erred by granting summary judgment on liability to the Herrings and by denying his motion for summary judgment. Tante admits his extramarital relationship with Mrs. Herring, but denies he committed legal malpractice, denies any liability to the Herrings and specifically denies that he had an attorney-client relationship with Mr. Herring. On appeal he further contends the statute of limitation bars this action. Held:
1. While Tante admits an attorney-client relationship with Mrs. Herring, he denies that Mr. Herring was his client, and asserts that he represented only Mrs. Herring in her claim with the Social Security Administration. Thus, he contends he cannot be liable to Mr. Herring for legal malpractice because there could be no attorney-client relationship with Mr. Herring. See Horn v. Smith & Meroney, P.C., 194 Ga.App. 298, 390 S.E.2d 272.
The evidence shows, however, that both Mr. and Mrs. Herring attended meetings with Tante, that Mrs. Herring signed a contract prepared by Tante employing his firm as her "attorneys to present and prosecute for [her] and any applicable family members a claim for Social Security benefits." Moreover, a fee request, again prepared by Tante, and signed by both Mr. and Mrs. Herring stated, in part,
Under these circumstances, although the claim prosecuted was for Mrs. Herring's disabilities, the documentary evidence prepared by Tante shows that he was employed to represent both Mr. and Mrs. Herring, and that he performed legal services for both. An attorney-client relationship may be created expressly by contract or inferred from the parties' conduct. Huddleston v. State, 259 Ga. 45, 46-47, 376 S.E.2d 683. However, contractual formalities are not essential to the creation of such relationships. Guillebeau v. Jenkins, 182 Ga.App. 225, 229, 355 S.E.2d 453. Although generally the test of employment is the fee, the basic question in regard to the formation of an attorney-client relationship is whether it has been sufficiently established that advice or assistance is both sought and received in matters pertinent to the attorney's profession. Huddleston, supra 259 Ga. at 46-47, 376 S.E.2d 683. Compare Legacy Homes v. Cole, 205 Ga.App. 34, 35, 421 S.E.2d 127. Considering the evidence of record, the trial court did not err by concluding there was an attorney-client relationship between Tante and Mr. Herring. Huddleston, supra; Horn, supra.
2. Next, Tante contends he cannot be liable for legal malpractice as a matter of law because he performed in a manner consistent with the standard of care ordinarily exercised by lawyers generally under similar conditions and like circumstances, and he was successful. In our view, however, this argument takes a too narrow view of attorneys' obligations to their clients. A successful monetary result on a claim does not mean that a lawyer cannot, per se, otherwise breach his professional responsibilities to his clients.
Although it is customary for malpractice actions to be brought after a client's cause ends unsatisfactorily, an unsatisfactory result is not an element of a claim for legal malpractice. The elements of such action are employment of an attorney; failure of the attorney to exercise ordinary care, skill and diligence; and damages proximately caused by that failure. Guillebeau, supra; Rogers v. Norvell, 174 Ga.App. 453, 457, 330 S.E.2d 392. Hughes v. Malone, 146 Ga.App. 341, [211 Ga.App. 325] 344, 247 S.E.2d 107. "[M]embers of all professions must exercise the degree of skill, prudence, and diligence which ordinary members of the particular profession commonly possess and exercise" (Ga.Law of Damages, § 36-19, p. 689), and Tante was "bound to the highest honor and integrity, to the utmost good faith" (Cox v. Sullivan, 7 Ga. 144, 147, 50 Am.Dec. 386) in his representation of the Herrings.
The Herrings supported their allegations with the affidavit of an attorney, which contained sufficient foundation, from which the trial court could determine the attorney was a legal malpractice expert. See McDonald v. Glynn-Brunswick Mem. Hosp., 204 Ga.App 7, 418 S.E.2d 393. This expert, who indeed is generally recognized as an authority in this area of law, stated he had reviewed documents pertinent to the complaint, that in his expert opinion an attorney-client relationship was established between the Herrings and Tante, that Tante was legally, professionally and ethically responsible for his representations of the Herrings, and that a fiduciary relationship was created between Tante and the Herrings. He further stated he was familiar with the standard of care expected of attorneys in this state and that Tante's representation of the Herrings was substandard and deviated from and breached the degree of care and skill required of attorneys in this state, generally, under similar conditions and like circumstances, and proximately caused damages to the Herrings. He further stated that because of his attorney-client and fiduciary relationships with the Herrings, Tante had a duty and obligation to represent the Herrings' interests faithfully, honestly, and consistently; to protect their rights, interests, and properties; and to advise them promptly, fully, adequately, and honestly. The affidavit further stated that Tante's
We note that at the same time Tante admittedly was having a sexual relationship with Mrs. Herring, he was representing to the Social Security Administration that Mrs. Herring was so mentally disabled that she was incapable of working. Under the circumstances, Tante's sexual misconduct with his client was potentially damaging to the Social Security claim. Moreover, Tante, particularly as an attorney, is charged with the knowledge (OCGA § 1-3-6) that engaging in a sexual relationship with Mrs. Herring while each was married to another, constituted the crime of adultery. OCGA § 16-6-19. See OCGA § 16-2-20.
In addition, Mrs. Herring's affidavit stated that Tante received her psychological evaluations which stated she had organic brain damage, was depressed and anxious with feelings of insecurity, inadequacy, and inferiority, and...
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