Wilson v. McNeely, Court of Appeals of Georgia, January 24, 2011.
Facts: McNeely represented Wilson in the purchase of a parcel of real property. Shortly thereafter, Wlson brought a malpractice action against McNeely and presented his brother as an expert witness with regard to an attorney’s standard of care in a real estate closing. McNeely moved to bar this testimony on the basis that Wilson’s brother was not a practicing lawyer during the relevant time period.
The trial court granted McNeely’s motion and Wilson appealed.
Issue: Must an expert witness in a legal malpractice action be a practicing attorney?
Here, the Appellate Division excluded Wilson’s brother even though he contended that he was actively engaged in the practice of law as "corporate counsel" for a family owned business. The Court found that, although an attorney may practice law while representing the interests of a single client, as many in-house corporate attorneys do, the record in this case did not support the purported expert’s contention that he was actively engaged in the practice of law because he did not:
- Represent entities or individuals in court;
- Draft or file pleadings in judicial proceedings; or
- Prepare the type of documents or perform the legal tasks at issue in the litigation.
Accordingly, the Appellate Division affirmed the lower court’s directed verdict in favor of McNeely.
Lesson: In Georgia, an expert witness in a legal malpractice action must be actively engaged in the practice of that area of the law in which he purports to give an opinion.