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A legal malpractice case over who was responsible for missing a critical deadline has produced a bitter split in the Georgia Supreme Court. Four justices on Nov. 23 cleared the way for a businessman to sue his former lawyer, Manchester sole practitioner David J. Turner Jr., because Turner allegedly failed to take “a very simple step” in warning the client about a five-year deadline that — when ignored — placed in jeopardy at least $143,000 owed to the client. Three justices dissented, arguing that the majority ruling by Chief Justice Norman S. Fletcher created a new standard that “destroys any notion of finality attorneys may hope to have in any aspect of their employment.” The decision, added dissenting Justice Robert Benham, will “inevitably result in higher premiums” for malpractice insurance, costs that “will necessarily be passed on to clients.” Presiding Justice Leah Ward Sears and Justices George H. Carley and Carol W. Hunstein joined Fletcher to form the majority. Justices Hugh P. Thompson and P. Harris Hines joined Benham in dissenting. At issue was Turner’s representation of William Barnes Jr. in the 1996 sale of his company, William Barnes’ Quality Auto Parts Inc. in Manchester. The buyers were James and Rhonda Lipp, who agreed to a $220,000 price — $40,000 to be paid at the closing and the remaining $180,000 to be paid over 10 years, the debt secured by a lien on their assets. Turner filed Uniform Commercial Code financing statements that are similar to security deeds in real estate transactions. “Turner did not, however, inform Barnes” that under state law, the financing statements had to be renewed in five years to remain effective, according to Fletcher. Because no one renewed them, the documents lapsed in 2001. Fletcher added that the failure to renew caused trouble for Barnes because the Lipps had pledged the same collateral to a bank and an automotive distributor, placing Barnes in a junior position to the other two lenders. Now James Lipp has filed for protection under Chapter 7 of the bankruptcy code, according to the decision, and Barnes still is owed at least $143,000. Contrary to the court’s recitation of the facts, Turner asserts that he told Barnes of the requirement, according to Turner’s lawyer, Johannes S. “Joe” Kingma of Carlock, Copeland, Semler & Stair. Kingma advised Turner, who is also a Meriwether County Juvenile Court judge, not to comment on the decision. Barnes sued Turner in 2002, but a Meriwether Superior Court judge granted Turner’s motion to dismiss because the suit was filed six years after the alleged mistake, violating Georgia’s four-year statute of limitations for legal malpractice actions. Last year the Georgia Court of Appeals affirmed the ruling, but the high court agreed to hear the case and to decide when the statute of limitations began to run on Turner’s alleged malpractice. But in Fletcher’s opinion, the question changed to what duty Turner owed Barnes. The majority concluded that “by failing to inform Barnes of the renewal requirement, Turner undertook a duty to renew the security interest himself.” Because that duty was allegedly breached in 2001, when the five-year renewal deadline passed, the four-year statute of limitations has not expired, Fletcher wrote. DISSENTING VIEWPOINT Writing for the dissenters, Benham viewed the matter in simple, but opposite, terms: “Turner was employed to close a commercial transaction. Whatever duty he undertook was in connection with that employment and was breached or not at that time. There being no duty to renew the UCC documents in 2001, Turner’s failure to do so could not constitute a breach of duty which would support the legal malpractice claim against him.” Benham argued that the majority had created “continuous representation” duties that lawyers owed their clients, even though the court had expressly rejected “continuous representation” in previous cases. These duties, Benham added, “could outlast not only the period of the attorney-client relationship, but even the attorney’s life.” The extension of lawyers’ duties would cause malpractice insurance premiums to rise, Benham predicted. CLIENT VS. COUNSEL DUTIES Fletcher responded at length to Benham’s criticisms, suggesting why the decision was released in the so-called “distress period” — when the court’s term is winding down and it puts forth some of its hardest cases. “Under the dissent’s view, a client has to specifically ask his lawyer to renew the financing statements for this to be among the lawyer’s duties,” Fletcher wrote. “But how can the client be expected to know of this legal requirement? He hires the lawyer because the lawyer knows the law.” Barnes v. Turner, No. S04G0813 (Sup. Ct. Ga. Nov. 23, 2004). Frank J. Beltran, who defends lawyers in discipline cases and malpractice actions, said the majority rule “seems to be more fair to the client” and probably would not increase insurance premiums. Kingma, Turner’s lawyer, said he and associate John C. Rogers will ask the high court to reconsider its ruling. Should the court deny the motion, Kingma added that he and Rogers are comfortable defending Turner at trial. Considering the problem caused when an alleged malpractice cannot be noticed until after the statute of limitations has run, Kingma said, “These are troublesome facts. That’s why we had a 4-3 decision.” Kingma also said that, contrary to what the court majority said, Turner claims he informed Barnes of the deadline. Taylor W. Jones, Barnes’ lawyer, said there is no evidence that Turner informed Barnes of the deadline. The factual dispute, Jones added, means that the case should be brought to trial, not decided by an appellate court. Jones said he was “a little disappointed” three justices dissented, but he added, “A win is a win.”

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