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A Fulton County, Ga., state court judge has refused to dismiss a libel suit against McKenna Long & Aldridge, but the Georgia Court of Appeals has decided to hear the firm’s appeal. The libel dispute began last year after Atlanta securities broker John Keller sued McKenna Long (then Long, Aldridge & Norman) and former partner Terry R. Weiss over a letter Weiss wrote and then tried to recall. The suit claimed that Weiss wrote to Keller’s new employer, Neidiger Tucker Bruner, and falsely accused Keller of stealing property, including customer lists, from his former employer, First Atlanta Securities. At the time, Weiss, now with Washington, D.C.-based Sutherland, Asbill & Brennan’s Atlanta office, represented First Atlanta Securities. Weiss sent that letter on Feb. 21, 2001. Five days later, he sent a second letter to Keller’s boss at Neidiger Tucker telling him to “ignore” the previous letter. Weiss wanted the original letter and all copies rounded up and returned to him. However, the damage was done, according to Keller’s suit. Copies of Weiss’ first letter had been distributed to Neidiger Tucker’s management committee and board of directors. In the wake of the accusatory letter, Keller wasn’t allowed to open accounts at Neidiger Tucker on behalf of his clients and subsequently resigned. His suit alleges libel, negligence and tortious interference with business relations and seeks compensatory damages for lost past and future income and damages to his reputation, as well as punitive damages. Keller v. Long Aldridge & Norman, No. 02VS028589A (Fult. St. filed Feb. 11, 2002). McKenna Long, represented by Peter C. Canfield, Thomas M. Clyde and Marcia B. Stadeker of Washington, D.C.-based Dow, Lohnes & Albertson, moved for judgment on the pleadings. They argued that the law was clear: Lawyers acting as lawyers can’t be sued by their clients’ adversaries “absent, at the least, intentionally wrongful conduct.” That’s because attorneys owe no duty of care to such adversaries, they wrote. No court has permitted such a professional negligence claim, they continued, adding that “recognition of a duty to a client’s adversary would be antithetical to our legal system.” They also argued that the letter was a privileged communication. To pierce that privilege, Keller must show intentionally wrongful conduct — actual malice — but he failed to do so in his complaint, the lawyers added. Keller’s attorneys, Neal H. Howard and William D. James of Atlanta’s Neal H. Howard & Associates, countered that Georgia law makes a distinction between actions for professional negligence and actions for ordinary negligence against lawyers or any other professional. Keller’s claims were for ordinary, not professional, negligence, and professionals have a duty of ordinary diligence toward others in matters that don’t require professional skill or judgment, they argued. Their brief pointed to Bailey v. Joyner, 229 Ga. App. 832 (1997), in which the appeals court considered a lawyer’s failure to correct a name on a deed after promising to do so. In that case, the court found that “the breach of a duty requiring ordinary care, albeit in a legal context, is not legal malpractice.” Fulton County State Court Judge Penny Brown Reynolds, in a Feb. 27 order, denied McKenna Long’s motion for judgment on the pleadings but allowed it to appeal the matter. The firm did just that, arguing to the Court of Appeals that Reynolds’ ruling “poses an immediate threat to privileged communications between Defendants and their client” since she also denied McKenna Long’s request for a protective order and to stay discovery. The appellate court granted the firm’s request for an interlocutory appeal on April 2. Howard said the appeal would present a good issue for the court, adding that he’d rather have it settled before trial than after. Canfield said, “No matter how you label it, lawyers can’t be sued by their opponent’s clients for doing their job. That is not a new principle, but it is an important one and we’re pleased that the Court of Appeals acted so quickly to reiterate its vitality.” McKenna Long represents the Fulton County Daily Report, an affiliate of law.com and American Lawyer Media.

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