Please Wait

Complete the registration form.

Then you will be brought back to your Cart to buy yours book(s).

Register

New Users
 
Current LJP Subscribers
 
To add books to your Shopping Cart, please Sign-in...
 

                        

  

Cancel
 
book image Georgia Legal Malpractice Law 2016
free chapter

This book is not yet available for purchase online. If you would like to purchase a print copy, please visit: www.lawcatalog.com

Have a question about purchasing options for
this product? Email Us or call 1.877.807.8076.


The file format of ALM eBooks is EPUB 2.0.
See our Help/FAQ section for technical details.
Standing Order with Automatic Update Service

Author Name J. Randolph Evans
Shari L. Klevens
412 Pages  
Published date 2015
ISBN no. 978-1-57625-945-0
eBook ISBN no. 978-1-57625-946-7
Condition New
 
To purchase this book, you must first complete the registration or login.
     
Title
Acknowledgment
Preface
About the Authors
Part I: LEGAL MALPRACTICE LAW AND DEFENSES
Chapter 1: Legal Elements of a Claim
1-1 INTRODUCTION
1-2 DUTY
1-2:1 Generally
1-2:2 Duty to Client
1-2:2.1 Who is the Client?
1-2:2.2 Express Attorney-Client Relationship
1-2:2.3 Implied attorney-Client Relationship
1-2:3 Duty to Non-Clients
1-2:3.1 Generally
1-2:3.2 Third-Party Beneficiaries
1-2:3.3 Foreseeable Reliance
1-2:3.4 Voluntary Agency
1-2:3.5 Use of Disclaimers
1-3 Breach
1-3:1 Breach of Duty Required
1-3:2 Standard of Care
1-3:3 Factors Establishing Breach
1-3:3.1 Generally
1-3:3.2 Failing to Properly Advise Clients
1-3:3.3 Adverse Results
1-3:3.4 Undertaking to Accomplish a Specific Result
1-3:3.5 Ethical Rules
1-3:3.6 Use of Expert Testimony
1-4 PROXIMATE CAUSE
1-4:1 Generally
1-4:2 Client Would Have Prevailed, Absent the Alleged Malpractice
1-4:3 Collectability of Underlying Judgment
1-4:4 Viability of Underlying Action
1-4:5 Negligence in Appeals
1-4:6 Criminal Representations
1-5 DAMAGES
1-5:1 Damages Required for Cause of Action
1-5:2 Damages Cannot be Speculative
1-5:3 Expenses of Litigation
1-5:4 Loss of Settlement Position
1-5:5 Punitive Damages
1-5:5.1 Grounds for Punitive Damages in Malpractice Actions
1-5:5.2 Punitive Damages from the Underlying Action
Chapter 2: Additional Requirements for a Malpractice Claim
2-1 REQUIREMENTS OUTSIDE NEGLIGENCE ELEMENTS
2-2 Affidavit requirement under O.C.G.A. § 9-11-9.1
2-2:1 Scope and Applicability of O.C.G.A. § 9-11-9.1
2-2:2 When Is an Affidavit Necessary?
2-2:2.1 Generally
2-2:2.2 Professional Negligence
2-2:2.3 Other Claims Against Attorneys and Law Firms
2-2:2.3a Not Au Claims Require affidavit
2-2:2.3b Intentional Conduct
2-2:2.3c Fraud
2-2:2.3d Contract Actions
2-2:2.3e Multiple Claims
2-2:2.4 Type of Plaintiff
2-2:2.4a Different types of Plaintiffs
2-2:2.4b Professional as Plaintiff
2-2:2.4c Pro Se Plaintiff
2-2:2.5 Counterclaims and third Party Claims
2-2:2.6 Clear and Palpable Negligence
2-2:3 What Should the affidavit Say?
2-2:4 What Makes a Qualified Expert?
2-2:5 Timing and Authenticity of Affidavit
2-2:5.1 Timing of the Affidavit and the Statute of Limitations
2-2:5.2 Curing Deficiency or amending Complaint
2-2:5.3 Oath and authenticity
2-2:6 Effect of a Motion to Dismiss
2-2:7 Waiver
2-2:8 9.1 Affidavits as a Basis for an Independent Malpractice action
2-3 OTHER USES OF EXPERT EVIDENCE IN MALPRACTICE CASES
2-3:1 Expert Evidence at Summary Judgment
2-3:2 Other Requirements for Expert Testimony
2-4 STATUTES OF LIMITATIONS
2-4:1 Introduction
2-4:2 Statute of Limitations for Actions Sounding in Contract
2-4:2.1 Type of Contract
2-4:2.2 What Constitutes a Written or Oral Contract Between an Attorney and Client?
2-4:2.3 The Impact of Newell Recycling
2-4:3 Statute of Limitations for Actions Sounding in Tort
2-4:3.1 Categories of Tort Actions
2-4:3.2 Malpractice Actions That Allege Tortious Injury
2-4:3.3 Pure Tort Actions Against Attorneys
2-4:4 When Does a Malpractice Action Accrue?
2-4:4.1 Date of Breach
2-4:4.2 Damages Required
2-4:4.3 Failure to Correct an Act of Malpractice
2-4:4.4 The “Springing” Statute of Limitations
2-4:5 Tolling the Statute of Limitations
2-4:5.1 Introduction
2-4:5.2 Fraud
2-4:5.2a Intentional
2-4:5.2b Acts of Fraud Must be Distinct from Acts of Malpractice
2-4:5.2c Significance of the Attorney-Client Relationship
2-4:5.2d Discovery of Fraud
2-4:5.3 Client’s Mental Incapacity
2-4:5.4 Tolling Agreements
2-5 WAIVER OF PRIVILEGE
2-6 ATTACKING THE UNDERLYING CLAIM NOT NECESSARY AS PREREQUISITE TO MALPRACTICE ACTION
2-7 MALPRACTICE CASES BASED ON ATTORNEY’S SETTLEMENT AUTHORITY
2-8 FIDUCIARY DUTY
Chapter 3: Liability for or in Conjunction with the Conduct of Others
3-1 INTRODUCTION
3-2 AGENCY LAW GENERALLY
3-3 VICARIOUS LIABILITY IN LAW FIRM PARTNERSHIPS
3-3:1 Partners Can Contractually Modify Statutory Liability
3-3:2 Liability of Individual Partners for Their Own Acts
3-3:3 Liability of Partnership for Acts of Individual Partners
3-3:4 Liability of Individual Partners (and Exposure of Their Personal Assets) for Acts of the Partnership or Other Individual Partners
3-3:4.1 Different Liability for General Partners and Limited Liability Partners
3-3:4.2 Liability of General Partners
3-3:4.3 Liability of Limited Partners and Limited Liability Partners
3-4 VICARIOUS LIABILITY IN ATTORNEY-CLIENT RELATIONSHIP
3-4:1 Client Liability for Actions of Attorney
3-4:2 Attorney Liability for the Actions of a Client
3-5 ATTORNEY LIABILITY FOR ASSISTING CLIENTS WITH WRONGFUL CONDUCT
3-5:1 Introduction
3-5:2 Liability for Abusive Litigation
3-5:3 Tortious Interference
3-5:4 Conspiracy
3-5:5 Negligence
3-6 VICARIOUS LIABILITY IN RELATIONSHIPS BETWEEN INSURANCE REPRESENTATIVES AND THE ATTORNEYS THAT THEY HIRE
3-6:1 Liability of Attorney for Actions of Insurance Representative/Adjuster
3-6:2 Liability of Insurance Company for Actions of Attorney Representative
Chapter 4: Defenses to Legal Malpractice Claims
4-1 INTRODUCTION
4-2 GENERAL DEFENSES
4-2:1 Elements of Claim Lacking
4-2:2 Duty
4-2:3 Breach of Standard of Care
4-2:3.1 Generally
4-2:3.2 Failure to Prove Breach
4-2:3.3 Judgmental Immunity
4-2:3.4 Settled Law
4-2:3.5 O.C.G.A. § 9-11-9.1 Affidavit
4-2:4 Causation
4-2:4.1 Generally
4-2:4.2 Events That Break the Causal Chain Between Breach and Damages
4-2:4.2a Generally
4-2:4.2b The Client’s Duty To Read
4-2:4.2c Withdrawal or Substitution of Counsel As a Basis for a Malpractice Claim
4-2:4.3 Contributory Negligence
4-2:5 Damages
4-3 AFFIRMATIVE DEFENSES
4-3:1 Introduction
4-3:2 Collateral Estoppel, Res Judicata, and Judicial Estoppel
4-3:2.1 Distinctions
4-3:2.2 Collateral Estoppel
4-3:2.3 Res Judicata
4-3:2.4 Judicial Estoppel
4-3:3 Release
4-3:4 Waiver
4-3:5 Statute of Limitations
Part II: LEGAL MALPRACTICE PREVENTION
Chapter 5: Structuring a Law Firm Under Georgia Law
5-1 INTRODUCTION
5-2 GENERAL PARTNERSHIPS
5-3 PROFESSIONAL ASSOCIATIONS
5-4 LIMITED LIABILITY PARTNERSHIPS
5-4:1 Introduction
5-4:2 Executing a Written Partnership Agreement That Complies With Georgia Statute
5-4:3 Defining a Partnership as a Limited Liability Partnership
5-4:4 Ensuring That the Individual Assets Belonging to Each Partner are Protected
5-5 ADDITIONAL ISSUES COMMON TO ALL STRUCTURES
5-5:1 Introduction
5-5:2 Identify What Happens When a Partner or Equity Holder Leaves the Firm
5-5:3 Periodically Re-Review the Partnership Agreement or Articles of Incorporation
5-5:4 Suicide Prevention
5-5:4.1 Talk About Suicide as a Risk
5-5:4.2 Identify and Communicate Solutions
5-5:4.3 Watch for Warning Signs
5-5:4.4 Act When You See Warning Signs
Chapter 6: Internal Audit
6-1 PROCEDURAL CATEGORIES
6-2 PRE-FILE OPENING
6-2:1 General Considerations
6-2:2 Identify the Client
6-2:3 Conflicts of Interest
6-2:4 The Attorney’s Expertise
6-2:5 Fee Arrangement
6-2:6 Reasonableness of the Fee Agreement
6-2:7 Arbitration Provisions in Fee Agreements
6-2:8 Anticipating Withdrawal
6-2:9 Creating an Attorney-Client Relationship
6-3 FILE OPENING
6-3:1 Documentation
6-3:2 Engagement Letters and Fee
6-3:2.1 Format
6-3:2.2 What Should be Included in the Engagement Letter or Fee Contract?
6-3:2.3 Should Attorneys Use an Engagement Letter or a Retainer Letter?
6-3:3 File Opening Memos
6-4 REPRESENTATION OF THE CLIENT
6-4:1 The Obligations of a Georgia Attorney
6-4:2 Areas in Which Attorneys are Particularly Susceptible to Legal Malpractice Claims
6-4:3 Calendar Control Systems
6-4:4 Communication
6-4:5 Financial Controls
6-4:6 Billing Procedures
6-5 WITHDRAWING FROM AN ATTORNEY-CLIENT RELATIONSHIP
6-5:1 When to Withdraw
6-5:2 How to Withdraw
6-6 FILE CLOSING
Chapter 7: Identifying & Resolving Conflicts of Interest
7-1 OVERVIEW OF CONFLICTS OF INTEREST
7-2 THE INTERSECTION OF ETHICS AND MALPRACTICE
7-3 MULTIPLE REPRESENTATION
7-3:1 Conflict Creates Breach of Duty of Loyalty
7-3:2 Multiple Representation in General
7-3:3 Application of Rule 1.7 in Georgia
7-3:3.1 Introduction
7-3:3.2 Will the Representation Adversely Affect Another Client?
7-3:3.3 Is the Conflict Waivable?
7-3:3.4 Has the Attorney Fully Advised the Clients of the Risks Related to the Conflict?
7-3:3.5 Has the Client Adequately Consented to the Representation?
7-3:4 Disqualification Due to Multiple Representation
7-3:5 Imputed Disqualification
7-4 SUCCESSIVE REPRESENTATION: THE FORMER CLIENT RULE
7-4:1 Screening of Non-Attorney Staff and Successive Conflicts of Interest
7-5 INTERMEDIARY REPRESENTATION
7-6 PROHIBITED TRANSACTIONS
7-7 CONFLICTS ISSUES UNIQUE TO SPECIFIC REPRESENTATIONS
7-7:1 Issues Unique to Corporate Representation
7-7:2 Issues Unique to Criminal Representations
7-7:3 Issues Unique to Internal Investigations
7-7:4 Issues Unique to In-House Counsel
Chapter 8: Email & Attorney Marketing: New Issues in the Practice of Law in the 21st Century
8-1 INTRODUCTION
8-2 EMAIL AND MALPRACTICE
8-2:1 Email Communication’s Impact on Practice of Law Generally
8-2:2 Using Email as a Calendar Reminder System
8-2:3 Lack of a Systematic Approach to Handling Emails
8-2:3.1 Introduction
8-2:3.2 How Attorneys Can Determine if an Email Problem Exists
8-2:3.3 Types of Email Problems
8-2:3.3a “Subject Surfing”
8-2:3.3b “Attachment Deferral”
8-2:3.3c “Email Skimming”
8-2:3.3d “Email Billing”
8-2:3.4 Addressing an “Email Problem”
8-2:3.4a Introduction
8-2:3.4b Electronic Cut-Off for Old Emails
8-2:3.4c Electronic Cut-Off for Too Many Emails
8-2:4 Managing Risk of Malpractice Claims from Third-Party Email Recipients
8-2:4.1 Risk of Third-Party Claims Generally
8-2:4.2 The Risk That Emails Will be Forwarded
8-2:4.3 The Risk of an Unintended Recipient
8-2:4.4 One Solution: Email Disclaimers
8-3 SOCIAL NETWORKING AND MALPRACTICE
8-3:1 Risks of Social Media Generally
8-3:2 Risk of Implied Attorney-Client Relationship
8-3:3 Risk of Unauthorized Practice of Law
8-3:4 Solution
Chapter 9: Jury Selection and Persuasion: Ethics for the Trial Practitioner
9-1 THE RULES
9-1:1 Introduction
9-1:2 Trial Conduct
9-1:3 Disclosing Adverse Authority and the Duty of Candor
9-1:4 Degrading the Court
9-1:5 Perjury by the Client
9-1:6 Attorney as a Witness
9-1:6.1 Potential Issues
9-1:6.1a Confidentiality
9-1:6.1b Attorney-Client Privilege
9-1:6.1c Work Product
9-1:6.1d Conflict of Interest
9-1:6.2 Serving as an Advocate and a Witness
9-1:6.3 Steps to Take if Called as a Witness
9-1:7 Contact with Witnesses
9-1:8 Communications with Jurors and Officials
9-1:8.1 Ex Parte Communication
9-1:8.2 Communication with Jurors
9-1:8.3 Communication with Officials
9-1:9 Trial Publicity
9-2 JUDICIAL DECISIONS GOVERNING ATTORNEY TRIAL CONDUCT
9-2:1 Introduction
9-2:2 Opening Statement
9-2:3 Questions From the Jury
9-2:4 Closing Statement
9-2:5 Conflicts Between the Court and Trial Counsel
Chapter 10: Sanctions
10-1 BASES FOR SANCTIONS GENERALLY
10-2 DISCOVERY SANCTIONS
10-3 ATTORNEYS’ FEES AND EXPENSES
10-3:1 Bases for Imposing Fees and Expenses Generally
10-3:2 Mandatory Liability
10-3:3 Discretionary Liability
10-3:4 Actions Under O.C.G.A. § 13-6-11
10-3:5 Defenses
10-4 ABUSIVE LITIGATION
10-5 CONTEMPT
10-5:1 Courts’ Inherent Power
10-5:2 Contempt
Part III: INSURANCE AND LOSS AVOIDANCE
Chapter 11: Purchasing Legal Malpractice Insurance
11-1 INSURANCE POLICY IS A CONTRACT
11-2 FACTORS TO CONSIDER WHEN CHOOSING AN INSURANCE PROVIDER
11-2:1 Consider Scope and Type of Coverage
11-2:2 Factors to Analyze in Choosing a Carrier
11-2:3 Look at the Insurance Industry Rating of the Carrier
11-3 COVERAGE PROVISIONS
11-3:1 The Insuring Agreement
11-3:2 Scope of Coverage, Generally
11-3:3 Prior Acts Coverage
11-3:4 Prior Law Firm Distinguished from Predecessor Firm
11-3:5 Personal Injury Liability
11-3:6 Innocent Insured Coverage
11-3:7 Retroactive Date
11-3:8 Inception Date
11-3:9 Expiration Date
11-3:10 Benefitting from Coverage
11-4 WHO IS INSURED?
11-4:1 Generally
11-4:2 Definition of “Insured” and “Predecessor Firms”
11-4:3 Changes or Additions to Named Insured
11-5 LIMITS AND DEDUCTIBLES
11-5:1 Impact on Coverage and Settlement
11-5:2 Limits
11-5:3 Deductible and Self-Insured Retentions
11-5:4 Defense of Disciplinary Proceedings
11-5:5 Defendant’s Reimbursement
11-5:6 Defense Costs and Claim Expenses Within Policy Limits
11-5:7 What are “Endorsements”?
11-6 EXCLUSIONS
11-6:1 Exclusions Generally
11-6:2 Bodily Injury/Property Damage Exclusion
11-6:3 Securities Exclusion
11-6:4 Institution Exclusion
11-6:5 Workers’ Compensation Claims Exclusion
11-6:6 Contractual Exclusion
11-6:7 Dishonest, Fraudulent, Malicious or Criminal Acts Exclusion
11-6:8 Personal Profit Exclusion
11-6:9 Insured vs. Insured Exclusion
11-6:10 Business Enterprise Other Than Named Insured Exclusion
11-6:11 Business Enterprise Owned by Attorney or Spouse Exclusion
11-7 EXTENDED REPORTING PERIODS
11-7:1 Claims-Made Policies
11-7:2 Extended Reporting Periods (ERP) Options
11-7:3 Mini-Tail Availability
11-8 DEFENSE AND SETTLEMENT
11-8:1 Duty to Defend
11-8:2 Insured’s Consent to Settlement
11-8:3 Insurer’s Consent to Settlement
11-8:4 Arbitration of Claims
11-8:5 Subrogation
11-9 TERMS AND CONDITIONS
11-9:1 Effect of Terms and Conditions
11-9:2 Notice
11-9:3 Territory
11-9:4 Other Insurance
11-9:5 Assignment of the Policy to a Third Party
11-9:6 Cancellation
11-9:7 Legal Action Limitation
11-10 EXPOSURE OR NON-COVERAGE AS A RESULT OF THE INSURANCE APPLICATION PROCESS
11-10:1 Introduction
11-10:2 Rescission of Policy for Misrepresentation in Application
11-10:3 Policy Exclusions for Acts “Arising Out Of” Excluded Claims
Chapter 12: The Tripartite Relationship
12-1 RELATIONSHIP BETWEEN INSURER, INSURED AND INSURED’S ATTORNEY
12-2 RULES OF PROFESSIONAL CONDUCT
12-3 WHO IS THE CLIENT?
12-4 COMPLICATIONS ARISING FROM THE RETENTION OF PANEL OR CUMIS COUNSEL
12-5 DOES A RESERVATION OF RIGHTS LETTER CREATE A CONFLICT?
12-6 CONFLICTS ARISING FROM THE ATTORNEY-CLIENT PRIVILEGE
12-7 WHO OWNS THE CLAIM AGAINST THE ATTORNEY IN THE TRIPARTITE RELATIONSHIP: THE INSURED OR THE INSURER?
12-7:1 Insurer’s Standing to Sue Defense Counsel for Legal Malpractice
12-7:2 If an Insurer Does Have Standing to Sue Defense Counsel Directly for Malpractice, Can Both the Insured and the Insurer Bring a Claim?
Chapter 13: Handling a Claim: Four Steps for Attorneys Who Discover an Error or Receive a Legal Malpractice Claim
13-1 INTRODUCTION
13-2 NOTIFY THE CLIENT OF THE ERROR, WITHOUT ADMITTING LIABILITY
13-2:1 Giving General Notice of Error
13-2:2 Admitting Liability May Give Support to an Otherwise Weak Malpractice Claim
13-2:3 Admitting Liability May Lead to a Lack of Insurance Coverage
13-2:4 Denying Responsibility When Claims are Asserted May Lead to Liability
13-3 IDENTIFY LEGAL MALPRACTICE CARRIER TO THE CLIENT
13-4 ADVISE THE CLIENT TO OBTAIN INDEPENDENT COUNSEL
13-4:1 Attorney’s Options Concerning Representation of Client After Error
13-4:2 Continuing the Representation of the Original Matter
13-4:3 Advising the Client to Obtain Separate Counsel While Remaining Involved as Co-Counsel
13-4:4 Withdrawing From the Matter Entirely
13-5 NOTIFY MALPRACTICE INSURANCE CARRIER WITHOUT DELAY
Appendix
Table of Cases
Index
Back Page
 
Subscriptions to books are auto-renewed to avoid disruptions in service. Print editions must be returned within 30 days in resalable condition for refund. For downloadable eBook products, a refund will be granted if the eBook has not been downloaded. eBook Details: We recommend you download the free sample chapter of this product (available on the product page) before purchasing to ensure compatibility with your device and eBook reader. The file format of ALM eBooks is EPUB 2.0, which is an eBook standard that can be read using a variety of devices and readers including, but not limited to, Apple iPad or iPhone, SONY Reader, Barnes & Noble NOOK and Adobe Digital Editions. See our Help/FAQ section for more technical details and support
.