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In Defending Legal Malpractice Suits in Georgia, When Subsequent Legal Counsel Was Retained Could Be Crucial

Posted on: November 30th, 2017

By: Jessica C. Samford

When dealing with a lawsuit alleging legal malpractice, one of the first lines of defense in Georgia is O.C.G.A. § 9-11-9.1, which requires that an expert affidavit be filed at the same time as the complaint. Not only does this statute require the affidavit to set forth specifically “at least one negligent act or omission claimed to exist and the factual basis for such claim” by a “competent” expert; it also comes with teeth, mandating dismissal for failure to state a claim under certain circumstances.  While much attention is given toward subsection (e) of the statute, which addresses attacking defects in the expert affidavit, this statute contains additional provisions that provide strong consequences if the situation calls for the application of subsections (b) and (f) as explained below.

First, subsection (b) allows a complaint to be filed without the expert affidavit but only if (i) the complaint alleges that the required affidavit could not be prepared “because of time constraints,” (ii) the complaint is instead accompanied by the filing of an affidavit by the filing attorney, attesting that they were hired less than 90 days before the expiration of the limitation period, and (iii) an expert affidavit is filed within 45 days. The statute then provides that the court is forbidden from extending the 45-day deadline for any reason without consent of all parties and that “the complaint shall be dismissed for failure to state a claim” for failure to timely file either affidavit.

Importantly, dismissal is also mandated under this subsection if it turns out the law firm of the attorney who filed the affidavit “or any attorney who appears on the pleadings” was actually retained more than 90 days before the end of the limitation period. Therefore, in addition to the typical statute of limitation defense considerations as to when the applicable limitation period (2, 4, or 6 years depending on the particular allegations) was triggered and would run out for each claim asserted in the complaint, a key consideration should also be when subsequent counsel was retained in order to evaluate the possibility of a mandatory dismissal under subsection (b).

Next, subsection (f) provides that as long as a motion to dismiss raising the failure to file any affidavit required by the statute is filed with the answer, the complaint cannot be refiled after the limitation period’s expiry, even if voluntarily dismissed as is often done in an attempt to cure a prior failure to timely file any of the above affidavits.  (It should be noted there is a narrow exception if the requisite affidavit actually existed at the time it was required to be filed but was not filed by mistake.)  So if the circumstances fall within the realm of subsection (b), moving to dismiss at the same time as the answer could add finality to this statutory defense.  For example, subsequent counsel may try to fall back on a voluntary dismissal to circumvent a defense meriting mandatory dismissal, perhaps because there is evidence they were hired before the 90-day period.  By operation of subsection (f), the action would be dismissed as time-barred even if refiled with the requisite affidavit(s) after the applicable statute of limitation period passed.

While this statute is not limited to legal malpractice and applies to other enumerated professions, the affirmative defenses provided therein could be critical to obtaining an early dismissal with prejudice of a legal malpractice suit filed in Georgia.

If you have any questions or would like more information, please contact Jessica C. Samford at [email protected].

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