Legal Ethics - J. Randolph Evans and Anthony W. Morris

• Publication year: 1995

Legal Ethicsby J. Randolph Evans*and

Anthony W. Morris**

In 1989, the Supreme Court of Georgia and the State Bar of Georgia embarked upon what they considered a long-range project—to raise the level of professionalism of lawyers in the state. Accordingly, the Georgia Supreme Court established the Chief Justice's Commission on Professionalism, the first such body of its kind in the entire nation. Its primary mission is to ensure that the practice of law is engaged in the service not only of the client, but also of the public at large.¹

During the past year,² the Georgia appellate courts have focused their attention on professionalism. The courts issued significant decisions regarding the appropriate standard of care, including the role legal ethics will play in establishing the standard of care in legal malpractice cases. Also, the courts have analyzed the ethical propriety of certain types of fee arrangements with clients and others, including the validity of liquidated damages clauses in retainer agreements and the propriety of splitting fees with referral services. In addition, the courts have opened the door for broader solicitation of clients by attorneys and issued guidelines for attorneys who wish to contact former employees of organizations that are opposing parties in litigation. Finally, the courts have further defined statute of limitations issues in malpractice actions.

I. The Increasing Role of Ethics in Legal Malpractice Cases

During the past year, the appellate courts have altered the legal role that ethical standards play in the legal profession in Georgia. The courts have long felt that the professional nature of the practice of law and its obligations to the public interest require that lawyers be civilly responsible for their professional acts.³ In First Bank & Trust Co. v. Zagoria,⁴ the Georgia Supreme Court held that an attorney who is a shareholder in a professional corporation engaged in the practice of law is liable for the professional misdeeds of the other members of his firm when he holds himself out as a member of the law firm. In Zagoria an attorney who was a member of a professional corporation issued checks to clients in connection with real estate and other loan closings; the checks were dishonored because withdrawals from the law firm's checking account on which they were drawn left insufficient funds in the account.⁵ The court found that another attorney, who was also a shareholder in the professional corporation, but who was not personally involved in the loan closings or account withdrawals, was personally liable for the dishonored checks.⁶ In so ruling, the court focused on the professional nature of the practice of law and stated that "it is inappropriate for a lawyer to be able to play hide-and-seek in the shadows and folds of the corporate veil and thus escape the responsibilities of professionalism."⁷

In Evanoff v. Evanoff,⁸ the Georgia Supreme Court again addressed the professionalism issue.⁹ In that case, the court dismissed an appeal of a final judgment in a divorce action. In the trial court, the husband filed a petition for divorce. Although the wife's attorney filed a notice of appearance, he did not file a timely answer. The attorneys for both sides held several conversations toward negotiating a settlement, and the wife's attorney sent the opposing counsel a letter confirming the anticipated resolution. However, notwithstanding the discussions and prior to the date that the court had set for a final hearing, the husband's attorney proceeded ex parte before the presiding judge and presented evidence for a final decree, which the court granted.¹⁰

The trial court subsequently denied a motion to vacate the decree by the wife's attorney.¹¹ The Georgia Supreme Court agreed with the trial court that the case did not fall within the precise bounds of the Official Code of Georgia Annotated ("O.C.G.A.") section 9-ll-60(d)¹² because the husband's attorney took no action that could be characterized as actual fraud.¹³ However, concerned with the professionalism of the husband's attorney, or lack thereof, Justice Benham issued a concurring opinion dealing with professionalism.¹⁴

Justice Benham opined that the husband's attorney's actions in proceeding to the final decree "exceeded the bounds of professionalism and ethical conduct governing attorneys."¹⁵ Specifically, Justice Benham noted Ethical Consideration 7-10,¹⁶ which recognizes a concurrent obligation of an attorney to treat with consideration all persons involved in a legal process and to avoid the infliction of needless harm; Ethical Consideration 7-38,¹⁷ states that a lawyer should be courteous to opposing counsel and should follow local customs of courtesy or practice, unless timely notice to the contrary is given to opposing counsel; Directory Rule 7-106(c)(6),¹⁸ states that a lawyer shall not engage in undignified or discourteous conduct which is degrading to a tribunal.¹⁹ Although the conduct was deemed by Justice Benham to be unprofessional and unethical, it did not, according to the court, violate any legal requirement.²⁰ Therefore, the Georgia Supreme Court vacated the grant of application for discretionary appeal.²¹

The Georgia Supreme Court seemed to retreat from this position in Green v. Green.²² In that case, the appellant filed a divorce action and subsequently moved to Ohio. Her attorney then properly withdrew from the case. Subsequently, the case appeared as the fifteenth case on a trial calendar. The notice, published in the legal newspaper of the county, specified that all but the first ten cases would be "on call."²³ The appellee's counsel did not attempt to give notice of the trial to the appellant.²⁴ The appellee and his counsel appeared and answered ready.²⁵

When the trial court indicated that it would continue the case because it could not locate the file, appellee's counsel located the file in another judge's office and presented it to the trial court.²⁶ The court then heard the case and entered an order awarding appellee custody and child support. Appellant moved to set aside the order, but the trial court denied the motion. The Georgia Supreme Court granted appellant's application for discretionary review.²⁷

Initially, the court held that only the first ten cases on the published calendar were required to be present under the rule in effect at the time.²⁸ Since judgment was entered against a party who was not required by the rule to be present, the judgment should have been set aside.²⁹

The court then addressed the professionalism issue. Distinguishing Evanoff,³⁰ the court stated that in Green³¹ there was case law permit- ting the setting aside of the judgment as an exercise of discretion.³² The court then noted, "[T]here is the caution in Evanoff that the courts will not condone a refusal 'to act out of a spirit of cooperation and civility and not wholly out of a sense of blind and unbridled advocacy.'"³³ The court summarized attorneys' professional duties as follows:

That spirit of cooperation and civility, when taken together with the notions of fundamental fairness that lie at the heart of the principle of due process of law, requires that attorneys, as officers of the court, make a good faith effort to ensure that all parties to a controversy have a full and fair opportunity to be heard. Such an effort may entail, as is already the customary practice of many attorneys, counsel assuming the burden of notifying by mail any unrepresented opposing party when their case appears on a trial calendar.³⁴

The court observed that appellee's counsel acted unprofessionally and noted that professionalism encompasses not only those things an attorney must do, but also those things an attorney ought to do.³⁵

In a special concurring opinion, Justice Sears-Collins rejected an absence of professionalism as a basis to set aside a judgment.³⁶ Her opinion stated as follows:

Moreover, the State Bar Rules provide that professionalism standards are "non-mandatory" and "aspirational." State Bar Rule 9-101. That being so, it can hardly be concluded that a litigant has notice that non-mandatory and aspirational standards will be made mandatory and used to set aside his or her judgment.³⁷

Justice Sears-Collins reasoned that the majority's reliance on professionalism to vacate a judgment infringes upon, if not violates, both the appellee and the appellee's lawyer's rights to due process.³⁸ Interestingly, Justice Sears-Collins foresaw the future when she wrote:

[T]he majority has begun the descent of the slippery slope of legislating civility and courtesy. In the future, this Court no doubt will have to classify some professionalism standards as more important than others,

some transgressions as more unprofessional than others, and some standards as appropriate weapons in the litigation arena and others only as guides for regulating conduct through our attorney disciplinary agencies. These problems illustrate why this Court should not permit its distaste for lawyers who may not be exercising common sense, maturity, and civility to blind it to the problems of legislating such conduct.³⁹

Indeed, this appears to be exactly what has happened during the past year. Over the years, courts in various jurisdictions have taken different approaches regarding whether codes of ethics of professional responsibility are admissible as evidence of a lawyer's standard of care. Some courts have held that professional ethics standards conclusively establish a duty of care, and violations of the standards constitute negligence per se.⁴⁰ A minority of courts have found that an ethical rules violation establishes a rebuttable presumption of malpractice.⁴¹ The majority of states treat violations of ethical rules as admissible evidence of the lawyer's duty of care.⁴²

In Allen v. Lefkoff, Duncan, Grimes & Dermer⁴³ the Georgia Supreme Court decided to follow the rule of the majority of states and held that the Georgia...