Professional Negligence Law Reporter

A Georgia appellate court held that an attorney’s affidavit in a malpractice suit was legally sufficient under Ga. Code Ann. §9-11-9.1 despite the fact that he was a member of the law firm representing the plaintiff in the lawsuit.

Here, David Mitchell sued two attorneys and their firms, alleging legal malpractice. Mitchell was represented by William Ney, an attorney licensed to practice in Georgia. Pursuant to §9-11-9.1, the plaintiff attached to the complaint the affidavit of Jacob Rhein, an attorney who was a partner in Ney’s firm. The defense moved to dismiss, arguing that the plaintiff had failed to comply with the affidavit requirement of §9-11-9.1, which requires a legal malpractice plaintiff to file with the complaint an affidavit of an expert competent to testify and setting forth at least one negligent act or omission forming the factual basis for the plaintiff’s claim. The trial court granted the motion and concluded there was an inherent conflict between Rhein serving as an affiant-witness and being a member of the law firm representing the plaintiff.

Reversing, the appellate court found that §9-11-9.1 imposes a pleading, not an evidentiary, requirement. Therefore, courts have been reluctant to impose qualifications for an affiant that are not expressly set forth by the law, the court said. Citing the statute’s text, the court noted that the law’s plain language requires only that an affiant in a professional malpractice case be competent to testify regarding the opinion set forth in his or her affidavit and possess the requisite expert qualifications, such as professional licensure.

The court concluded that the defendants have not challenged Rhein’s qualifications as an expert, nor the contents of his affidavit. The defendants also have not established that Rhein’s status as Ney’s law partner has resulted in the filing of a frivolous malpractice case, the statutory purpose behind §9-11-9.1. Consequently, the court concluded that the trial court’s decision to grant the defendants’ motion to dismiss had been improper.

Citation: Mitchell v. Parian, 2020 WL 3118270 (Ga. Ct. App. June 12, 2020).

Plaintiff counsel: William Ney, Lawrenceville, Ga.