The Georgia Supreme Court recently issued a unanimous opinion dealing with the statute of limitations for professional liability lawsuits. The Court’s ruling may have a significant inpact on claims for legal malpractice and the way lawyers handle their risk management. On January 18, 2011, The Daily Report published a column I wrote regarding the opinion and its effect on lawyers in Georgia. The column focuses on the clarity the case provides and the confusion that still lingers. The column also calls for a change in how the statute of limitations is calculated. Rather than summarizing the article on this blog, I’ll direct you to the article on the Publications and Articles page of this site.
Posted By David Lefkowitz on: 25-Jan-11 at 5:11 pm | Send comment to David Lefkowitz
I am writing a monthly column for Southern Distinction magazine. The column will focus primarily on legal issues. The December 2010 and January 2011 issues have already been published, and you can find them on the Publications and Articles page of this website.
Posted By David Lefkowitz on: 17-Jan-11 at 5:44 pm | Send comment to David Lefkowitz
Hawkins, Parnell, Thackston & Young is a law firm with offices in Atlanta, California, Texas and South Carolina. The firm has several lawyers who defend legal malpractice claims, which, of course, means that I litigate against them quite often. One of the firm’s partners is Kim Jackson. Kim is a top-notch lawyer. He’s also honest, smart, and a big sports fan…three attributes which make him particularly likable. Kim has a blog which, like his practice, focuses on issues related to the defense of attorneys who have been accused of (or sued for) malpractice or other bad behavior. Kim read my recent article in the Daily Report and is featuring it on his blog. Here’s the first entry regarding the article. (Note regarding the photo: that’s my son Adam on my shoulders, before the Georgia-Florida game.) Here is Kim’s entire blog. If you want to read about legal malpractice from the defense perspective, Kim’s blog is a great place to visit.
Posted By David Lefkowitz on: 01-Dec-10 at 5:41 pm | Send comment to David Lefkowitz
A few weeks ago, I read an article in the Daily Report, which is the legal newspaper for the Atlanta metropolitan area. The article was written by Randy Evans, an attorney who defends lawyers and insurance carriers in legal malpractice actions (Randy also is prominent in the political area, representing, among others, Newt Gingrich). The focus of Randy’s article was how lawyers could protect themselves with an Limited Liability Partnership structure for their law firm. More particularly, the article presented some specific advice regarding the nuts-and-bolts of creating and maintaining the LLP in a way that will protect a lawyer’s assets if his partner commits malpractice. As I was reading the article, I felt like there are other ways to protect yourself from liability for legal malpractice. Providing good service is one way. Focusing on deadlines is another. Making your client feel like you care about her claim is yet another. I submitted an article to the Daily Report, not as a rebuttal to Randy Evans’ article, but as a supplement. The article was published, and you can read it on the Publications & Articles page of this website.
Posted By David Lefkowitz on: 22-Nov-10 at 2:27 pm | Send comment to David Lefkowitz
In October the firm officially opened its second office, located in Athens, Georgia. As most people are aware, Athens is the home of the University of Georgia…and for sports fans, the home of the Georgia Bulldogs. The office is located in the historic Dorsey House, located on S. Milledge Avenue. The firm is very excited to be joining the legal community in such a great city. The Athens office will complement the Atlanta office, which is located at 170 Mitchell Street.
Posted By David Lefkowitz on: at 1:30 pm | Send comment to David Lefkowitz
On October 28, 2009, the Fulton County Daily Report (the local legal newspaper) published an article I wrote regarding a recent decision issued by the Georgia Supreme Court (Benke v. Parker, S08G2078, S08G2082, Sept. 28, 2009). The article focused on the additional time an injured person has to file a lawsuit if the injury resulted from a “crime.” The Georgia Supreme Court ruled that the statute of limitations (the deadline for filing the lawsuit) is extended for the period of time that the criminal charges are pending. For instance, if the person who caused the crash was charged (issued a ticket/citation) at the scene with Following Too Close, and those charges were resolved four months later with the payment of a fine, then the injured person would have an extra four months (above-and-beyond the two year statute of limitations) to file suit. The article focused on the risks personal injury attorneys face with regard to the additional time for filing suit. The recent case also will affect legal malpractice claims. As an illustration, consider this hypothetical call I received last week:
In mid-November 2009, a prospective client called and told me that she had been involved in a car accident in October 2007. She was hurt in the accident, and the other driver was at fault. The personal injury attorney, who she hired soon after the accident, failed to settle the case, and he also failed to file suit within the two-year statute of limitations. The lawyer had honorably admitted that he missed the deadline. The client was referred to me to pursue the legal malpractice claim against the lawyer. During the call, I asked the client whether the other driver had received a ticket for causing the crash. Sure enough, he had. I then asked the client to call the local court and see if the criminal matter had been resolved. She soon called me back and said that the other driver had pleaded guilty to Following Too Close in late December 2007. This meant that the woman could still file her personal injury lawsuit. The deadline had been extended (or, put another way: the deadline had not started to run) for the time period it took to resolve the criminal action. I explained the situation to the client and told her that she needs to quickly hire an attorney to handle the injury claim.
There are a few important issues arising out of this recent Supreme Court case:
1. There was uncertainty as to whether a misdemeanor such as Following To Close triggered the extension of the statute of limitations to file a personal injury claim. The clear answer is that it does.
2. The Supreme Court did not address the issue of whether the tolling provision (the extra time to file suit) applies only to the “criminal” or applies to all possible claims. For instance, suppose that the lawsuit arises out of an assault at a convenience store. Suppose also that the convenience store management knew that the property was unsafe and failed to take appropriate measures to assure the safety of its customers. The deadline to file the civil claim would definitely be tolled (extended) as to the individual who assaulted the client. But how about the claim against the convenience store? The statute states “the running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled… .” The plain reading of that language would indicate that any (all) claims arising out of the crime are tolled (extended) for the period of time that the criminal charges are pending. There are, however, no appellate rulings to clarify whether the hypothetical claim against the convenience store would be tolled.
3. In addition to affecting personal injury claims, this recent Supreme Court decision will also affect legal malpractice claims in Georgia. With the Supreme Court’s interpretation of the statute, a person who contacts me with a legal malpractice claim may actually have a personal injury claim which still can be pursued. If the deadline for filing the personal injury claim has not actually expired, then the prospective client will not have a legal malpractice claim.
4. The Supreme Court subtly invited the state legislature to revisit the rule extending the deadline for filing suit. When the legislature convenes in January, attorneys will be watching closely to see if there is any action on this issue. I assume that the insurance companies will seek to have this extension eliminated. They will argue that it costs more to insure the risk of a claim if the deadline to file suit is extended. On the other hand, as I noted in the article, there is support for the argument that the state legislature intended to give all crime victims extra time to pursue a civil claim (so that they could focus on the criminal action first, and then shift attention to the civil action). In addition, interpreting the statute to apply to all tort claims arising out of a criminal act saves the State of Georgia money by allowing all claims to be asserted in one lawsuit. If a crime victim had different deadlines for different defendants, the victim could be forced to file two (or more) lawsuits rather than one. This takes the time of two judges, two juries, two court clerks, etc. Judicial efficiency (and economy) commands the conclusion that all claims arising out of a criminal act should have the same filing deadline.
Posted By David Lefkowitz on: 16-Nov-09 at 9:48 pm | Send comment to David Lefkowitz
While representing a client in civil litigation, you are conducting depositions in a conference room at your office. Opposing counsel asks to use an empty office during a break to return phone calls, and you oblige. After the depositions are finished for the day, you realize that your opposing counsel left a document in the empty office, and after glancing at it, you realize it is a status memorandum to the insurance adjuster on the case. The memorandum contains information which would be extremely helpful to your pursuit of the case. What should you do?
The Georgia Rules of Professional Conduct do not prohibit an attorney from reading the memo. While some states do bar a lawyer from engaging in this type of activity, Georgia ethical rules do not prohibit reading or using such a document, and the rules do not require that you inform opposing counsel that you have read it. If you read the memo and use the information, it would help you pursue the case on behalf of your client. The failure to do so, therefore, would put your client in a worse position than she would be in if you read the memo. Do you thus have a duty to read and use the memo? Would the failure to read (and use) the memo constitute substandard representation, giving rise to a claim for legal malpractice? How about the obligation of professionalism? Does reading a memo, which you know is private, violate the concepts of professionalism? Should you harm your client’s interests in the name of professionalism?
Ethics. Professionalism. Legal Malpractice. Lawyers face dilemmas such as these in their daily practice. In this blog, I intend to discuss common issues facing lawyers. This will be a venue for discussion of the tough issues. The easy issues don’t need to be addressed. I will not have a public comments section on the blog, but I do invite comments sent by email, and I will post comments of readers who have excellent contributions to make.
Posted By David Lefkowitz on: 19-Jan-09 at 12:46 pm | Send comment to David Lefkowitz
Email: dnl@lefkowitzfirm.com
Atlanta Office
170 Mitchell Street
Atlanta, Georgia 30303
Phone: 404.658.5000
Fax: 404.658.5004
Athens Office
648 South Milledge Avenue
Athens, Georgia 30605
Phone: 706.850.8383
Fax: 706.850.8388