Crosby v. Pittman, Court of Appeals of Georgia, August 20, 2010.
Facts: Crosby retained Pittman to represent him with respect to a traffic citation. Pittman advised Crosby that he would need to pay $350 to resolve the citation. Crosby gave Pittman $350, only to learn that the citation was for $300 and it had never actually been paid.
Crosby then sued Pittman for fraud and breach of fiduciary duty. The lower court dismissed Crosby’s complaint for failure to file an affidavit of merit pursuant to OCGA Section 9-11-9.1. Crosby appealed.
Issue: Is an affidavit of merit necessary for claims against an attorney other than legal malpractice, ie. fraud and breach of fiduciary duty?
The applicable Georgia statute requires that any complaint alleging professional malpractice against an attorney be accompanied by an expert affidavit setting forth at least one negligent act or omission claimed to exist and the factual basis for each such claim. The appellate court, therefore, held that by its very language, the statute was only applicable to professional malpractice actions. The Court further noted:
Additionally, claims for breach of fiduciary duty do not require an expert affidavit as they are not based on negligence involving the performance of the professional’s services.
Accordingly, the appellate court reversed the dismissal of Crosby’s complaint.
Lesson: In Georgia, plaintiffs need not obtain an affidavit of merit to pursue claims of fraud or breach of fiduciary duty against their former attorney.