Eleventh Circuit Court of Appeals Affirms Summary Judgment for Attorney in Legal Malpractice Case


The Eleventh Circuit Court of Appeals has affirmed summary judgment in favor of an attorney in a legal malpractice action. In Botes v. Weintraub.doc, a client sued his former attorney for negligently representing him during his criminal conspiracy and wire fraud case.

Prior to the criminal trial, the client passed a polygraph test. The attorney attempted, but failed to get the results admitted into evidence. The attorney elected not to videotape the examination, which might have resulted in the results being admitted.

The client also sought relief from his restrictive pre-trial release conditions. The attorney advised the client that the restrictions were standard and weren’t worth challenging. However, upon the client’s urging, the attorney successfully moved to have most of the bond conditions lifted, but the process took approximately one year. The attorney withdrew his representation prior to the trial and the client was eventually found guilty and sentenced to several months in jail.

While in prison, the client filed a pro se complaint against the attorney, alleging that his mismanagement of the polygraph evidence and failure to argue the bond restrictions earlier constituted a breach of contract. The attorney successfully moved for summary judgment on the basis that the breach of contract claim was really a malpractice action, which required dismissal in the absence of any expert witness testimony, required under Georgia law. The client appealed.

The appellate court affirmed, reasoning that the purported breach of contract claim was in reality a legal malpractice action, and the client therefore had been required to submit an expert affidavit containing an opinion that the attorney’s conduct fell below the proper standard of care. The Court also specifically found that the attorney’s conduct did not amount to legal malpractice.

Decision: Botes v. Weintraub

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