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Georgia Legal Malpractice Law

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J. Randolph Evans, Shari L. Klevens


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Georgia Legal Malpractice Law addresses both the fabric of Georgia legal malpractice law and the cases and issues confronting attorneys, including effective claim prevention and loss avoidance. Since the first edition of this book was released, the Georgia Supreme Court and the Court of Appeals of Georgia have heard a steady stream of important new cases refining and, in some cases, revising the duties, responsibilities, liabilities and obligations of Georgia attorneys. Hence, this book addresses those changes in the context of these three parts:

Part One: Legal Malpractice Law and Defenses
Part Two: Legal Malpractice Prevention
Part Three: Insurance and Loss Avoidance


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  • Availability: Available
  • Brand: Daily Report (GA)
  • Product Type: Books
  • Page Count: 448
  • ISBN: 978-1-62881-603-7
  • Pub#/SKU#: GAML8
  • Pub Date: 05/28/2019

Author Image
  • J. Randolph Evans

J. Randolph Evans is a partner at Dentons US LLP. He
handles high profile, complex litigation and negotiation matters
domestically and internationally for some of the largest companies
in the world. He is a frequent lecturer and prolific author on the
subjects of professional liability, ethics and insurance.
He has authored or co-authored eight books, including The
Practice Guide to Purchasing Legal Malpractice Insurance
(3d ed. 1999), The Lawyer’s Handbook: Ethics Compliance and
Claims Avoidance (1st ed. 2013), and California Legal Malpractice
Law (2015).



Also by J. Randolph Evans:
The Lawyer's Handbook: Ethics Compliance and Claim Avoidance
California Legal Malpractice Law


Author Image
  • Shari L. Klevens


Shari L. Klevens is a partner and is the Deputy General Counsel
at Dentons US LLP.

She represents lawyers and law firms in the defense of legal
malpractice claims and advises and counsels lawyers concerning
claims for malpractice, ethical violations, and breaches of duty.
Shari is the co-chair of the global Insurance sector team for
Dentons and is a frequent writer and lecturer on issues related to
legal malpractice. Shari also litigates complex commercial cases in
state and federal courts across the country.

She has authored or co-authored two other books: The Lawyer’s
Handbook: Ethics Compliance and Claim Avoidance (1st ed. 2013)
and California Legal Malpractice Law (2015). Shari is a member
of the ABA’s Standing Committee on Lawyer’s Professional
Liability.


Also by Shari L. Klevens:
The Lawyer's Handbook: Ethics Compliance and Claim Avoidance

PART I LEGAL MALPRACTICE LAW AND DEFENSES

Chapter 1: Legal Elements of a Claim

1-1 INTRODUCTION
1-2 DUTY
1-2:1 Generally
1-2:2 Duty to Client
1-2:3 Duty to Non-Clients
1-3 BREACH
1-3:1 Breach of Duty Required
1-3:2 Standard of Care
1-3:3 Factors Establishing Breach
1-4 PROXIMATE CAUSE
1-4:1 Generally
1-4:2 Client Would Have Prevailed, Absent the Alleged Malpractice
1-4:3 Collectability of Underlying Judgment
1-4:4 Viability of Underlying Action
1-4:5 Negligence in Appeals
1-4:6 Criminal Representations
1-5 DAMAGES
1-5:1 Damages Required for Cause of Action
1-5:2 Damages Cannot be Speculative
1-5:3 Expenses of Litigation
1-5:4 Loss of Settlement Position
1-5:5 Punitive Damages

Chapter 2:
Additional Requirements for a Malpractice Claim
2-1 REQUIREMENTS OUTSIDE NEGLIGENCE ELEMENTS
2-2 AFFIDAVIT REQUIREMENT UNDER O.C.G.A. § 9-11-9.1
2-2:1 Scope and Applicability of O.C.G.A. § 9-11-9.1
2-2:2 When Is an Affidavit Necessary?
2-2:3 What Should the Affidavit Say?
2-2:4 What Makes a Qualified Expert?
2-2:5 Timing and Authenticity of Affidavit
2-2:6 Effect of a Motion to Dismiss
2-2:7 Waiver
2-2:8 9.1 Affidavits as a Basis for an Independent Malpractice Action
2-3 OTHER USES OF EXPERT EVIDENCE IN MALPRACTICE CASES
2-3:1 Expert Evidence at Summary Judgment
2-3:2 Other Requirements for Expert Testimony
2-4 STATUTES OF LIMITATION
2-4:1 Introduction
2-4:2 Statute of Limitation for Actions Sounding in Contract
2-4:3 Statute of Limitation for Actions Sounding in Tort
2-4:4 When Does a Malpractice Action Accrue?
2-4:5 Tolling the Statute of Limitation
2-4:6 Statutes of Limitation vs. Statutes of Repose
2-5 WAIVER OF PRIVILEGE
2-6 ATTACKING THE UNDERLYING CLAIM NOT NECESSARY AS PREREQUISITE TO MALPRACTICE ACTION
2-7 MALPRACTICE CASES BASED ON ATTORNEY’S SETTLEMENT AUTHORITY
2-8 FIDUCIARY DUTY
2-9 PERSONAL JURISDICTION

Chapter 3:
Liability for or in Conjunction With the Conduct of Others
3-1 INTRODUCTION
3-2 AGENCY LAW GENERALLY
3-3 VICARIOUS LIABILITY IN LAW FIRM PARTNERSHIPS
3-3:1 Partners Can Contractually Modify Statutory Liability
3-3:2 Liability of Individual Partners for Their Own Acts
3-3:3 Liability of Partnership for Acts of Individual Partners
3-3:4 Liability of Individual Partners (and Exposure of Their Personal Assets) for Acts of the Partnership or Other Individual Partners
3-4 VICARIOUS LIABILITY IN ATTORNEY-CLIENT RELATIONSHIP
3-4:1 Client Liability for Actions of Attorney
3-4:2 Attorney Liability for the Actions of a Client
3-5 ATTORNEY LIABILITY FOR ASSISTING CLIENTS WITH WRONGFUL CONDUCT
3-5:1 Introduction
3-5:2 Liability for Abusive Litigation
3-5:3 Tortious Interference
3-5:4 Conspiracy
3-5:5 Negligence
3-6 VICARIOUS LIABILITY IN RELATIONSHIPS BETWEEN INSURANCE REPRESENTATIVES AND THE ATTORNEYS THAT THEY HIRE
3-6:1 Liability of Attorney for Actions of Insurance Representative/Adjuster
3-6:2 Liability of Insurance Company for Actions of Attorney Representative

Chapter 4: Defenses to Legal Malpractice Claims

4-1 INTRODUCTION
4-2 GENERAL DEFENSES
4-2:1 Elements of Claim Lacking
4-2:2 Duty
4-2:3 Breach of Standard of Care
4-2:4 Causation
4-2:5 Damages
4-3 AFFIRMATIVE DEFENSES
4-3:1 Introduction
4-3:2 Collateral Estoppel, Res Judicata, and Judicial Estoppel
4-3:3 Release
4-3:4 Waiver
4-3:5 Statute of Limitation

PART II LEGAL MALPRACTICE PREVENTION

Chapter 5: Structuring a Law Firm Under Georgia Law
5-1 INTRODUCTION
5-2 GENERAL PARTNERSHIPS
5-3 PROFESSIONAL ASSOCIATIONS
5-4 LIMITED LIABILITY PARTNERSHIPS
5-4:1 Introduction
5-4:2 Executing a Written Partnership Agreement That Complies With Georgia Statute
5-4:3 Defining a Partnership as a Limited Liability Partnership
5-4:4 Ensuring That the Individual Assets Belonging to Each Partner are Protected
5-5 ADDITIONAL ISSUES COMMON TO ALL STRUCTURES
5-5:1 Introduction
5-5:2 Identify What Happens When a Partner or Equity Holder Leaves the Firm
5-5:3 Periodically Re-Review the Partnership Agreement or Articles of Incorporation
5-5:4 Consider Accountability by Contract
5-5:5 Sharing Office Space
5-5:6 Suicide Prevention and Substance Abuse

Chapter 6: Internal Audit

6-1 PROCEDURAL CATEGORIES
6-2 PRE-FILE OPENING
6-2:1 General Considerations
6-2:2 Identify the Client
6-2:3 Conflicts of Interest
6-2:4 The Attorney’s Expertise
6-2:5 Fee Arrangement
6-2:6 Reasonableness of the Fee Agreement
6-2:7 Arbitration Provisions in Fee Agreements
6-2:8 Anticipating Withdrawal
6-2:9 Creating an Attorney-Client Relationship
6-3 FILE OPENING
6-3:1 Documentation
6-3:2 Engagement Letters and Fee
6-3:3 File Opening Memos
6-4 REPRESENTATION OF THE CLIENT
6-4:1 The Obligations of a Georgia Attorney
6-4:2 Areas in Which Attorneys are Particularly Susceptible to Legal Malpractice Claims
6-4:3 Calendar Control Systems
6-4:4 Communication
6-4:5 Financial Controls
6-4:6 Billing Procedures
6-5 WITHDRAWING FROM AN ATTORNEY-CLIENT RELATIONSHIP
6-5:1 When to Withdraw
6-5:2 How to Withdraw
6-6 FILE CLOSING

Chapter 7: Identifying and Resolving ­Conflicts of Interest

7-1 OVERVIEW OF CONFLICTS OF INTEREST
7-2 THE INTERSECTION OF ETHICS AND MALPRACTICE
7-3 MULTIPLE REPRESENTATION
7-3:1 Conflict Creates Breach of Duty of Loyalty
7-3:2 Multiple Representation in General
7-3:3 Application of Rule 1.7 in Georgia
7-3:4 Disqualification Due to Multiple Representation
7-3:5 Imputed Disqualification
7-4 SUCCESSIVE REPRESENTATION: THE FORMER CLIENT RULE
7-4:1 Screening of Non-Attorney Staff and Successive Conflicts of Interest
7-5 INTERMEDIARY REPRESENTATION
7-6 PROHIBITED TRANSACTIONS
7-7 CONFLICTS ISSUES UNIQUE TO SPECIFIC REPRESENTATIONS
7-7:1 Issues Unique to Corporate Representation
7-7:2 Issues Unique to Criminal Representations
7-7:3 Issues Unique to Internal Investigations
7-7:4 Issues Unique to In-House Counsel

Chapter 8:
Email & Attorney Marketing: New Issues in the Practice of Law in the 21st Century
8-1 INTRODUCTION
8-2 EMAIL AND MALPRACTICE
8-2:1 Email Communication’s Impact on Practice of Law Generally
8-2:2 Using Email as a Calendar Reminder System
8-2:3 Lack of a Systematic Approach to Handling Emails
8-2:4 Managing Risk of Malpractice Claims from Third-Party Email Recipients
8-3 SOCIAL NETWORKING AND MALPRACTICE
8-3:1 Risks of Social Media Generally
8-3:2 Risk of Implied Attorney-Client Relationship
8-3:3 Risk of Unauthorized Practice of Law
8-3:4 Solution
8-4 ADDRESSING THE MEDIA
8-4:1 The Client’s Instructions
8-4:2 Materially Prejudicing an Adjudicative Proceeding
8-4:3 Defensive Responses
8-4:4 Reviewing the Rules

Chapter 9:
Jury Selection and Persuasion: Ethics for the Trial Practitioner
9-1 THE RULES
9-1:1 Introduction
9-1:2 Trial Conduct
9-1:3 Disclosing Adverse Authority and the Duty of Candor
9-1:4 Degrading the Court
9-1:5 Perjury by the Client
9-1:6 Attorney as a Witness
9-1:7 Contact with Witnesses
9-1:8 Communications with Jurors and Officials
9-1:9 Trial Publicity
9-2 JUDICIAL DECISIONS GOVERNING ATTORNEY TRIAL CONDUCT
9-2:1 Introduction
9-2:2 Opening Statement
9-2:3 Questions From the Jury
9-2:4 Closing Statement
9-2:5 Conflicts Between the Court and Trial Counsel

Chapter 10: Sanctions

10-1 BASES FOR SANCTIONS GENERALLY
10-2 DISCOVERY SANCTIONS
10-3 ATTORNEYS’ FEES AND EXPENSES
10-3:1 Bases for Imposing Fees and Expenses Generally
10-3:2 Mandatory Liability
10-3:3 Discretionary Liability
10-3:4 Actions Under O.C.G.A. § 13-6-11
10-3:5 Defenses
10-4 ABUSIVE LITIGATION
10-5 CONTEMPT
10-5:1 Courts’ Inherent Power
10-5:2 Contempt

PART III
INSURANCE AND LOSS AVOIDANCE

Chapter 11: Purchasing Legal Malpractice Insurance

11-1 INSURANCE POLICY IS A CONTRACT
11-2 FACTORS TO CONSIDER WHEN CHOOSING AN INSURANCE PROVIDER
11-2:1 Consider Scope and Type of Coverage
11-2:2 Factors to Analyze in Choosing a Carrier
11-2:3 Look at the Insurance Industry Rating of the Carrier
11-3 COVERAGE PROVISIONS
11-3:1 The Insuring Agreement
11-3:2 Scope of Coverage, Generally
11-3:3 Prior Acts Coverage
11-3:4 Prior Law Firm Distinguished from Predecessor Firm
11-3:5 Personal Injury Liability
11-3:6 Innocent Insured Coverage
11-3:7 Retroactive Date
11-3:8 Inception Date
11-3:9 Expiration Date
11-3:10 Benefitting from Coverage
11-4 WHO IS INSURED?
11-4:1 Generally
11-4:2 Definition of “Insured” and “Predecessor Firms”
11-4:3 Changes or Additions to Named Insured
11-5 LIMITS AND DEDUCTIBLES
11-5:1 Impact on Coverage and Settlement
11-5:2 Limits
11-5:3 Deductible and Self-Insured Retentions
11-5:4 Defense of Disciplinary Proceedings
11-5:5 Defendant’s Reimbursement
11-5:6 Defense Costs and Claim Expenses Within Policy Limits
11-5:7 What are “Endorsements”?
11-6 EXCLUSIONS
11-6:1 Exclusions Generally
11-6:2 Bodily Injury/Property Damage Exclusion
11-6:3 Securities Exclusion
11-6:4 Institution Exclusion
11-6:5 Workers’ Compensation Claims Exclusion
11-6:6 Contractual Exclusion
11-6:7 Dishonest, Fraudulent, Malicious or Criminal Acts Exclusion
11-6:8 Personal Profit Exclusion
11-6:9 Insured vs. Insured Exclusion
11-6:10 Business Enterprise Other Than Named Insured Exclusion
11-6:11 Business Enterprise Owned by Attorney or Spouse Exclusion
11-7 EXTENDED REPORTING PERIODS
11-7:1 Claims-Made Policies
11-7:2 Extended Reporting Periods (ERP) Options
11-7:3 Mini-Tail Availability
11-8 DEFENSE AND SETTLEMENT
11-8:1 Duty to Defend
11-8:2 Insured’s Consent to Settlement
11-8:3 Insurer’s Consent to Settlement
11-8:4 Arbitration of Claims
11-8:5 Subrogation
11-9 TERMS AND CONDITIONS
11-9:1 Effect of Terms and Conditions
11-9:2 Notice
11-9:3 Territory
11-9:4 Other Insurance
11-9:5 Assignment of the Policy to a Third Party
11-9:6 Cancellation
11-9:7 Legal Action Limitation
11-10 EXPOSURE OR NON-COVERAGE AS A RESULT OF THE INSURANCE APPLICATION PROCESS
11-10:1 Introduction
11-10:2 Rescission of Policy for Misrepresentation in Application
11-10:3 Policy Exclusions for Acts “Arising Out Of” Excluded Claims

Chapter 12: The Tripartite Relationship

12-1 RELATIONSHIP BETWEEN INSURER, INSURED AND INSURED’S ATTORNEY
12-2 RULES OF PROFESSIONAL CONDUCT
12-3 WHO IS THE CLIENT?
12-4 COMPLICATIONS ARISING FROM THE RETENTION OF PANEL OR CUMIS COUNSEL
12-5 DOES A RESERVATION OF RIGHTS LETTER CREATE A CONFLICT?
12-6 CONFLICTS ARISING FROM THE ATTORNEY-CLIENT PRIVILEGE
12-7 WHO OWNS THE CLAIM AGAINST THE ATTORNEY IN THE TRIPARTITE RELATIONSHIP: THE INSURED OR THE INSURER?
12-7:1 Insurer’s Standing to Sue Defense Counsel for Legal Malpractice
12-7:2 If an Insurer Does Have Standing to Sue Defense Counsel Directly for Malpractice, Can Both the Insured and the Insurer Bring a Claim?

Chapter 13:
Handling a Claim: Four Steps for Attorneys Who Discover an Error or Receive a Legal Malpractice Claim
13-1 INTRODUCTION
13-2 NOTIFY THE CLIENT OF THE ERROR, WITHOUT ADMITTING LIABILITY
13-2:1 Giving General Notice of Error
13-2:2 Admitting Liability May Give Support to an Otherwise Weak Malpractice Claim
13-2:3 Admitting Liability May Lead to a Lack of Insurance Coverage
13-2:4 Denying Responsibility When Claims are Asserted May Lead to Liability
13-3 IDENTIFY LEGAL MALPRACTICE CARRIER TO THE CLIENT
13-4 ADVISE THE CLIENT TO OBTAIN INDEPENDENT COUNSEL
13-4:1 Attorney’s Options Concerning Representation of Client After Error
13-4:2 Continuing the Representation of the Original Matter
13-4:3 Advising the Client to Obtain Separate Counsel While Remaining Involved as Co-Counsel
13-4:4 Withdrawing From the Matter Entirely
13-5 NOTIFY MALPRACTICE INSURANCE CARRIER WITHOUT DELAY

Appendix
Table of Cases
Index