Allen v. Lefkoff, Duncan, Grimes & Dermer, P.C.

453 S.E.2d 719, 265 Ga. 374, 95 Fulton County D. Rep. 743, 50 A.L.R. 5th 839, 1995 Ga. LEXIS 111

• Court: Supreme Court of Georgia
• Decided: February 27, 1995
• Docket: S94G1071
• Status: Published

Opinions

Sears, Justice.

In this legal malpractice case, the Court of Appeals affirmed “the trial court’s disallowance of any evidence of, reference to, or jury instruction on the defendant attorneys allegedly having violated certain provisions of the Code of Professional Responsibility.” Allen v. Lefkoff, Duncan, Grimes & Dermer, P.C., 212 Ga. App. 560 (442 SE2d 466) (1994).¹ The Court of Appeals recognized that in Cambron v. Canal Ins. Co., 246 Ga. 147 (269 SE2d 426) (1980), this court “upheld a jury instruction on the Code of Professional Responsibility’s proscription of conflicts of interest,” Allen, 212 Ga. App. at 561, but held that since Cambrón did not involve an action for legal malpractice, that case was not applicable, and, instead, the issue was controlled adversely to Allen by Davis v. Findley, 262 Ga. 612, 613 (422 SE2d 859) (1992). We granted the appellant’s petition for certiorari to consider this division of the Court of Appeals’ decision.

1. As the Court of Appeals recognized, we have held that an alleged violation of the Code of Professional Responsibility (State Bar Rule 3-101 et seq.) or the Standards of Conduct (State Bar Rule 4-102), “standing alone, cannot serve as a legal basis” for a legal malpractice action. (Emphasis in original.) Davis v. Findley, 262 Ga. at 613 (citing East River Savings v. Steele, 169 Ga. App. 9, 11 (311 SE2d 18) (1983)). In other words, as the rule presently exists in Georgia, the duties imposed by the Bar Rules cannot provide the sole basis for the standard of care applied in a legal malpractice action. Davis, 262 Ga. at 613.² This is so because

while the Code of Professional Responsibility provides specific sanctions for the professional misconduct of the attorneys whom it regulates, it does not establish civil liability of attorneys for their professional misconduct, nor does it create remedies in consequence thereof.³

Id. at 613.

2. Having said that an attorney’s conduct will not support a legal malpractice action solely because the conduct violates the Bar Rules, we now consider the extent of the role the Bar Rules may properly play in such an action.

(a) In a legal malpractice action, the plaintiff must establish three elements: “(1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff.” Rogers v. Norvell, 174 Ga. App. 453, 457 (330 SE2d 392) (1985); Tante v. Herring, 264 Ga. 694 (453 SE2d 686) (1994). With respect to the “ordinary care, skill and diligence” element,

the law imposes upon [persons performing professional services] the duty to exercise a reasonable degree of skill and care, as determined by the degree of skill and care ordinarily employed by their respective professions under similar conditions and like surrounding circumstances.

(Emphasis supplied.) Housing Auth. of Savannah v. Greene, 259 Ga. 435, 436 (383 SE2d 867) (1989). See also Kneip v. Southern Engineering Co., 260 Ga. 409, 409-410 (395 SE2d 809) (1990). As to whether ethical standards are admissible as some evidence of this standard of care,

[c]ourts take four different approaches .... First, some courts hold that professional ethical standards conclusively establish the duty of care and that any violation constitutes negligence per se. Second, a minority of courts finds that a professional ethical violation establishes a rebuttable presumption of legal malpractice. Third, a large majority of courts treats professional ethical standards as evidence of the common law duty of care. Finally, one court has found professional ethical standards inadmissible as evidence of an attorney’s duty of care.

(Emphasis supplied.) Note, The Inadmissibility of Professional Ethical Standards in Legal Malpractice After Hizey v. Carpenter, 68 Wash. L. Rev. 395, 398-401 (1993); see also Developments in the Law — Lawyers’ Responsibilities and Lawyers’ Responses, 107 Harv. L. Rev. 1547, 1566-1567 (1994) (examining “the diverse and sometimes conflicting responsibilities of the modern-day lawyer,” id. at 1556).⁴ For the following reasons, we agree with the majority rule and we hold that pertinent Bar Rules are relevant to the standard of care in a legal malpractice action.

(b) To be admissible, Georgia law requires that evidence “relate to the questions being tried by the jury and bear upon them either directly or indirectly.” OCGA § 24-2-1; see also MacNerland v. Johnson, 137 Ga. App. 541 (224 SE2d 431) (1976) (“evidence is relevant ‘which logically tends to prove or disprove a material fact which is at issue,’ ” (citation omitted) id. at 542). According to its preamble, the Code of Professional Responsibility was adopted because

[i]n this State, where the stability of courts and of all departments of government rests upon the approval of the people, it is peculiarly essential that the system for establishing and dispensing justice be developed to a high point of efficiency and so maintained that the public shall have absolute confidence in the integrity and impartiality of its administration. The future of this State and of the Republic . . . depend [ ] upon our maintenance of justice pure and unsullied. It cannot be so maintained unless the conduct and motives of the members of our profession are such as to merit the approval of all just men.

As “[n]o code or set of rules” could anticipate every eventuality, the Code of Professional Responsibility sets forth a “general guide” for members of the State Bar of Georgia to follow in an effort to achieve the goals set forth in the preamble. The Standards of Conduct contained in State Bar Rule 4-102 are “to be observed by members of the State Bar of Georgia and those authorized to practice law in Georgia . . . and any violation thereof shall subject the offender to disciplinary action and/or punishment.. . .”⁵ Given the potential consequences of their violation and the fundamental nature of their purpose, it would not be logical or reasonable to say that the Bar Rules, in general, do not play a role in shaping the “care and skill” ordinarily exercised by attorneys practicing law in Georgia.

(c) This is not to say, however, that all of the Bar Rules would necessarily be relevant in every legal malpractice action. In order to relate to the standard of care in a particular case, we hold that a Bar Rule must be intended to protect a person in the plaintiffs position or be addressed to the particular harm suffered by the plaintiff. Note, supra at 412; Fishman v. Brooks, 487 NE2d 1377, 1381 (Mass. 1986). The Supreme Court of Ohio stated this principle well in Krischbaum v. Dillon, 567 NE2d 1291 (Ohio 1991):

The obvious purpose of the particular provisions in the Code of Professional Responsibility that the contestants sought to put before the jury is to protect clients from abuses that are likely to occur if attorneys [violate the rules]. Laws intended to protect individuals may create norms of behavior, the violation of which may be deemed to be actionable upon the theory that the violator has not acted with due care. [Cit.] While the failure to comply with general rules of conduct. . . will not ordinarily constitute negligence per se, it is a circumstance that can be considered, along with other facts and circumstances, in determining whether the actor has acted with reasonable concern for the safety and welfare of others — that is, with due care.

Id. at 1300-1301. Thus, while a Bar Rule is not determinative of the standard of care applicable in a legal malpractice action, it may be “a circumstance that can be considered, along with other facts and circumstances,” id.⁶

3. As this opinion expands upon the applicable rule of law, we remand to the Court of Appeals so that court may reconsider the merits of the appeal in light of this holding.

Judgment reversed and case remanded to the Court of Appeals. All the Justices concur, except Benham, P. J., who concurs separately.

1 The Court of Appeals decision adequately describes the relevant facts.

2 Certainly, a valid claim for legal malpractice will often involve actions which, incidentally, violate duties imposed by the Bar Rules. Concomitantly, conduct which happens to violate the Bar Rules may also provide a basis for a legal malpractice action, just not solely because the conduct violates the Bar Rules. In Davis, for example, the legal malpractice plaintiff claimed only that the attorney’s fee was “illegal and clearly excessive ... in violation of the Canon of Ethics of the State Bar of Georgia,” Davis, 262 Ga. at 612, with no other foundation alleged for his claim that the attorney’s fee constituted malpractice. This claim was held invalid.

3 Neither are the State Bar Rules intended to provide a basis for criminal liability. Marcus v. State, 249 Ga. 345 (290 SE2d 470) (1982).

4 Most courts do not hold that violation of the ethical guidelines creates a presumption of negligence, although they do permit discussion of such a violation at trial as some evidence of negligence. Expert testimony from an ethics specialist may thus be helpful in establishing the appropriate standard of care.

Developments, supra at 1567.

5 The Code of Professional Responsibility and the Standards of Conduct are separate and distinct from the Professionalism considerations contained in State Bar Rule 9-102. The Professionalism considerations are “non-mandatory” and “aspirational,” State Bar Rule 9-101, see Green v. Green, 263 Ga. 551, 557 (437 SE2d 457) (1993) (Sears-Collins, J., concurring specially), and are intended to encourage courtesy, civility, and respect among members of the profession. See State Bar Rule 9-102. Ethical rules, on the other hand, “can be regarded as a subspecies of legislation — rules that differ from law only in that their enforcement is relatively informal,” G. Hazard, Ethics in the Practice of Law (1978), as reprinted in G. Hazard and S. Koniak, The Law and Ethics of Lawyering (1990).

6 Of course, even relevant evidence may be excluded if the trial court, in its discretion, finds that the probative value of the evidence is outweighed by its tendency to confuse the issues or the jury. See Green, Georgia Law of Evidence (3rd ed.), § 63.