Forty-eight States Are Probably Not Wrong: an Argument for Modernizing Georgia's Legal Malpractice Statute of Limitations
| Publication year | 2017 |
Forty-Eight States Are Probably Not Wrong: An Argument for Modernizing Georgia's Legal Malpractice Statute Of Limitations
Ben Rosichan
Georgia State University College of Law
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In 1979, a Texas couple hired Chilton Maverick, a family friend, to draft their divorce settlement agreement.1 At the husband's request, Mr. Maverick convinced the wife, Ms. Willis, to delete a provision allowing her to live in their marital home until their child turned eighteen by misinforming her that she would still have to consent if the husband ever tried to sell the home.2 Ms. Willis sued Mr. Maverick for legal malpractice in 1981 after her ex-husband sold the home without her consent.3 A Texas jury found Mr. Maverick's behavior reprehensible enough to award her $26,568.44 in compensatory damages and $610,000 in punitive damages.4 Mr. Maverick successfully moved for a judgment notwithstanding the verdict by persuading the trial court that the statute of limitations had run.5 The Texas Supreme Court found the facts of the case compelling enough, in conjunction with the "relationship of trust and confidence"6 between attorney and client, to reverse the trial court
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and adopt the discovery rule for legal malpractice actions in Texas.7 As the Texas Supreme Court defined the discovery rule in this case, the statute of limitations runs from the date the plaintiff discovers or should have discovered "the nature of the injury."8
In Willis, the Texas Supreme Court also noted that "an ever increasing majority of states have recognized the inherent unfairness of commencing the statute of limitations in legal malpractice causes of action on the date of the occurrence of the negligent act or omission . . . ."9 Georgia and Arkansas are the last two states that have declined to join the vast majority of states in modifying their statutes of limitations for legal malpractice.10 Both states still adhere to the occurrence rule, where the statute of limitations begins to
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accrue on the date the negligent act or omission occurs.11 Most states have recognized the inherent pitfalls of a legal malpractice statute of limitations similar to Georgia's and have adjusted their laws accordingly.12 The vast majority of attorneys do not resort to trickery like Chilton Maverick, but one case like that is one too many. Cases like Willis portray the profession in a negative light, even if they are rare. If and when a case like Willis surfaces in Georgia, the courts should be ready to protect the interests of the clients and the legal profession with a fair statute of limitations.
Georgia has not had the kind of incendiary legal malpractice case that compels legislative or judicial action regarding the legal malpractice statute of limitations. The Georgia courts have, however, addressed inequities in the state's medical malpractice statute of limitations in a series of cases in the 1980s.13 In one of the most important cases of that series, Clark v. Singer, the Georgia Supreme Court criticized statutes of limitation that expire before the plaintiff
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even knows of the malpractice.14 That series of cases recognized the special relationship of trust between doctor and patient, and sought to strike a balance between the interests of the negligent doctor and the wronged patient.15 Although legal malpractice does not have life-or-death consequences like medical malpractice, the economic and emotional harm many legal malpractice victims suffer is life-altering.16 Clients may not place their physical health and safety in their attorneys' hands, but they hire attorneys to advocate for their rights, redress wrongs against them, and protect their pecuniary interests.17
Clients lose time, money, and peace of mind, when they suffer from attorney negligence because the person they hired to protect their rights violated them.18 The legal profession is largely self-regulated, and each state has a bar association charged with creating and enforcing basic standards of professionalism and competence for attorneys.19 Unfortunately, attorneys do not always adhere to these standards.20 In Georgia, the State Bar can address attorney
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misconduct through remedial measures up to and including disbarment.21 The State Bar cannot, however, compensate wronged clients through monetary damages.22 Thus, some wronged clients must resort to a lawsuit for legal malpractice where a financial recovery is necessary to make the client whole again.
The common law in Georgia provides a cause of action for malpractice against the negligent attorney. To prevail, a plaintiff must prove: (1) he employed an attorney; (2) the attorney failed to exercise ordinary care, skill, and diligence; and (3) the attorney's negligence proximately caused damage to the client.23 Additionally, the plaintiff must prove that the underlying case would have been successful, but for the attorney's negligence.24 To win a legal malpractice lawsuit, the plaintiff must win two cases: the primary case that the attorney should have won, and the secondary negligence case against the alleged mal-practitioner.25 By setting the time frame in which the plaintiff must bring a claim or face having it barred, the statute of limitations is one of the most basic procedural hurdles that a plaintiff must clear when bringing a legal malpractice suit.26
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The statute of limitations that Georgia has adopted for legal malpractice actions is fraught with pitfalls.27 Usually, the negligent attorney discovers the error or omission before the client does.28 Most attorneys will fulfill the duty imposed by the Rules of Professional Conduct to inform clients of errors or omissions, but this does not always happen.29 The attorney may hope to fix the mistake before the client suffers any harm.30 The attorney also has a better understanding of the statute of limitations for legal malpractice and knows that damages do not accrue until the underlying case is finally adjudicated.31 Attorneys also know that without damages, no claim exists.32 Thus, attorneys in this position have an incentive to drag cases out beyond the four-year statute of limitations so that no
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damages have actually arisen or at least become apparent until the cause of action has expired.33
The statute of limitations for legal malpractice claims should not be so restrictive that good claims are tossed out with the bad ones.34 Nor should it facilitate dishonest, self-protective strategies by attorneys after they make a mistake.35 Part I of this Note explains Georgia's legal malpractice statute of limitations, the occurrence rule.36 Part II analyzes the potential pitfalls of Georgia's continued use of an unaltered occurrence rule,37 and examines the statutes of limitations that other states have adopted to address those pitfalls.38 Part III proposes a new legal malpractice statute of limitations for Georgia, designed to better protect clients from attorney malfeasance without contravening general principles of Georgia jurisprudence.39
Georgia and Arkansas are the last states clinging to an unaltered occurrence rule for legal malpractice claims.40 In Georgia and Arkansas, the statute of limitations runs from the attorney's negligent act—in Georgia it runs four years from the date of the negligent act.41 Most states that use the occurrence rule have also adopted the "continuous representation rule."42 The continuous representation
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rule protects clients in an ongoing relationship with the negligent attorney by tolling the statute of limitations while the attorney and client are in a "continuous and ongoing relationship."43 In contrast, many states use some form of the "discovery rule."44 Under the discovery rule, the statute of limitations begins accruing from the time the client knew or reasonably should have known of the negligent act.45 Other states toll the statute of limitations until actual damages accrue.46 Even outside of these rules and their modifications, some states have adopted different time frames for statutes of limitation and statutes of repose.47
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The elements of legal malpractice in Georgia are well-settled.48 Before considering the merits of each element of the claim, the plaintiff must find an expert willing to testify as to how the defendant attorney fell below the standard of care.49 For over a century, Georgia observed an unqualified, unaltered occurrence rule with a four-year statute of limitations accruing from the time of the negligent act.50 Georgia treats legal malpractice as an action arising from a contract—albeit an incomplete contract—as opposed to other states, which treat it as an action in tort.51
One dispute in particular, Newell Recycling v. Jordan Jones & Goulding, arising from a contract between an engineering firm and a recycling company, illustrates the difficulties in determining the applicable statute of limitations in professional liability actions.52 Newell Recycling, Inc. (Newell) hired Jordan Jones & Goulding, Inc. (JJ&G) to provide professional engineering assistance for
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construction of a car recycling plant in 1997.53 The parties memorialized their agreement with a "scope of work."54 In May 2000, the concrete foundation that Newell paid JJ&G to design started cracking, and in August 2004, Newell sued JJ&G for breach of contract and professional malpractice.55 Newell Recycling went to the Superior Court twice, the Court of Appeals three times, and the Supreme Court once.56 The alleged professional malpractice occurred in 2000, and the statute of limitations ran in either 2004 or 2006.57 The courts could not determine whether O.C.G.A. §§ 9-3-24 or 9-3-25 applied until 2012.58 The case purportedly established a six-year statute of limitations in professional liability actions if the...
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