GA: Promissory Notes; Personal Guarantees
FACTS: Client hired Attorney in connection with a business deal involving a company called Versa-Tile. Versa-Tile issued two promissory notes in favor of The First National Bank of Valdosta, and Client became a personal guarantor on these notes. In the underlying action, First National Bank sued Client for payment, and Client added Attorney as a third-party defendant claiming legal malpractice to indemnify Client from having to pay on the personal guaranty. To rebut the legal malpractice claim, Attorney filed three affidavits in his defense from three attorneys who claimed to be familiar with the case and facts surrounding Attorney’s representation of Client, and that in their opinions, Attorney represented Client with the proper degree of “skill, prudence, and diligence.” Additionally, these attorneys all were deposed and demonstrated how they felt Attorney’s representation was proper in the context of this particular case. In contrast, Client submitted an affidavit in support of his malpractice claim, but the affidavit said only that Attorney, “violated one or more provisions of the Georgia Code of Professional Responsibility.” Client’s brief made no mention of negligence or dropping below the standard of care of attorneys. The trial court granted Attorney summary judgment, and Client appealed.
ISSUE: Does the fact that Client’s supporting affidavit of merit fails to mention negligence on Attorney’s part make the affidavit insufficient in a legal malpractice case.
RULING: In Georgia, it is presumed that an attorney’s representation of a client is performed in a skillful manner. Here, this was reinforced in by Attorney’s three affidavits which actually went into great detail saying exactly how Attorney upheld the proper standard of care. Previously Georgia courts have held that allegations of violating a professional rule of conduct alone are not sufficient to support a claim, especially one as thoroughly rebutted as this one. Therefore, Client’s affidavit did not allege any act that constituted legal malpractice, and summary judgment for Attorney was affirmed.
LESSONS: The lesson here is simple, but important. When an attorney rebuts a legal malpractice claim with an affidavit stating the attorney demonstrated proper care, the suing client must have a countering affidavit alleging that the standard of care was not met in sufficient detail to raise a material question of fact. Otherwise, no issue of fact remains, and summary judgment for the attorney is proper and will be granted. Also, alleging that an attorney broke a rule of professional conduct is not enough to overcome this; the client must show a specific departure from the standard of care.