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GA: Applying the Same Standard of Care in a Different Way

Kellos v. Sawilowsky, 325 D.E.2d 757 (Ga. 1985).

GA: Legal Malpractice Standards in General

Student Contributor: Paul Barnhill

FACTS: In a legal malpractice case, Attorney made a motion for summary judgment and supported this motion with an affidavit claiming to have met the proper standards of an attorney “in the State of Georgia.” Clients responded to this with an affidavit written by an attorney claiming exactly the opposite. Without elaborating on any reasons, the trial court found in Attorney’s favor, and the Court of Appeals of Georgia upheld this finding, claiming that no questions of fact were raised after the affidavits were filed. However, the Supreme Court of Georgia heard the case to determine whether attorneys should be held to local standards of care (as the documents said “in the State of Georgia”) for Georgia or to standards in the legal profession as a whole.

ISSUE: Are attorneys in Georgia held to local standards of conduct or standards that cover the legal profession as a whole?

RULING: There is no way to determine standards of the legal profession as a whole, so to make the filing process easier, the standard of care required is that of a practitioner in Georgia. Since Clients did not show how Attorney fell below this standard in the affidavit, the judgment was affirmed.

LESSON: While the distinction here concerns semantics more than anything else, the court made two important distinctions that led to the decision. While the standard of care theoretically does not change, its application can in a different locale. First, the number of options available to an attorney and time the attorney has to consider a case can easily change. Though the technology gap is closing, a sole practitioner in small town Blue Ridge, Georgia may not have the same resources as an attorney working for a sizeable firm in a larger city. The court also held that an attorney’s chance to investigate a case can change based on the attorney’s circumstances and familiarity with the case. While this is a nuanced distinction, the court decided that while the standard of care itself remains the same for any attorney, application of this standard may change depending on the jurisdiction or the situation of an attorney’s case. Thus, the standard of care in Georgia is applied based on what an attorney in Georgia would be expected to know and do, but the standard itself it the same as in other jurisdictions.

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Posted in: Georgia, Standard of Care