PART I LEGAL MALPRACTICE LAW AND D EFENSES Chapter 1: Legal Elements of a Claim 1-1 INTRODUCTION 1-2 DUTY 1-2:1 Generally 1-2:2 Duty to Client 1-2:3 Duty to Non-Clients 1-3 BREACH 1-3:1 Breach of Duty Required 1-3:2 Standard of Care 1-3:3 Factors Establishing Breach 1-4 PROXIMATE CAUSE 1-4:1 Generally 1-4:2 Client Would Have Prevailed, Absent the Alleged Malpractice 1-4:3 Collectability of Underlying Judgment 1-4:4 Viability of Underlying Action 1-4:5 Negligence in Appeals 1-4:6 Criminal Representations 1-5 DAMAGES 1-5:1 Damages Required for Cause of Action 1-5:2 Damages Cannot be Speculative 1-5:3 Expenses of Litigation 1-5:4 Loss of Settlement Position 1-5:5 Punitive Damages Chapter 2: Additional Requirements for a Malpractice Claim 2-1 REQUIREMENTS OUTSIDE NEGLIGENCE ELEMENTS 2-2 AFFIDAVIT REQUIREMENT UNDER O.C.G.A. § 9-11-9.1 2-2:1 Scope and Applicability of O.C.G.

A. § 9-11-9.1 2-2:2 When Is an Affidavit Necessary? 2-2:3 What Should the Affidavit Say? 2-2:4 What Makes a Qualified Expert? 2-2:5 Timing and Authenticity of Affidavit 2-2:6 Effect of a Motion to Dismiss 2-2:7 Waiver 2-2:8 9.1 Affidavits as a Basis for an Independent Malpractice Action 2-3 OTHER USES OF EXPERT EVIDENCE IN MALPRACTICE CASES 2-3:1 Expert Evidence at Summary Judgment 2-3:2 Other Requirements for Expert Testimony 2-4 STATUTES OF LIMITATION 2-4:1 Introduction 2-4:2 Statute of Limitation for Actions Sounding in Contract 2-4:3 Statute of Limitation for Actions Sounding in Tort 2-4:4 When Does a Malpractice Action Accrue? 2-4:5 Tolling the Statute of Limitation 2-4:6 Statutes of Limitation vs. Statutes of Repose 2-5 WAIVER OF PRIVILEGE 2-6 ATTACKING THE UNDERLYING CLAIM NOT NECESSARY AS PREREQUISITE TO MALPRACTICE ACTION 2-7 MALPRACTICE CASES BASED ON ATTORNEY''S SETTLEMENT AUTHORITY 2-8 FIDUCIARY DUTY 2-9 PERSONAL JURISDICTION Chapter 3: Liability for or in Conjunction With the Conduct of Others 3-1 INTRODUCTION 3-2 AGENCY LAW GENERALLY 3-3 VICARIOUS LIABILITY IN LAW FIRM PARTNERSHIPS 3-3:1 Partners Can Contractually Modify Statutory Liability 3-3:2 Liability of Individual Partners for Their Own Acts 3-3:3 Liability of Partnership for Acts of Individual Partners 3-3:4 Liability of Individual Partners (and Exposure of Their Personal Assets) for Acts of the Partnership or Other Individual Partners 3-4 VICARIOUS LIABILITY IN ATTORNEY-CLIENT RELATIONSHIP 3-4:1 Client Liability for Actions of Attorney 3-4:2 Attorney Liability for the Actions of a Client 3-5 ATTORNEY LIABILITY FOR ASSISTING CLIENTS WITH WRONGFUL CONDUCT 3-5:1 Introduction 3-5:2 Liability for Abusive Litigation 3-5:3 Tortious Interference 3-5:4 Conspiracy 3-5:5 Negligence 3-6 VICARIOUS LIABILITY IN RELATIONSHIPS BETWEEN INSURANCE REPRESENTATIVES AND THE ATTORNEYS THAT THEY HIRE 3-6:1 Liability of Attorney for Actions of Insurance Representative/Adjuster 3-6:2 Liability of Insurance Company for Actions of Attorney Representative Chapter 4: Defenses to Legal Malpractice Claims 4-1 INTRODUCTION 4-2 GENERAL DEFENSES 4-2:1 Elements of Claim Lacking 4-2:2 Duty 4-2:3 Breach of Standard of Care 4-2:4 Causation 4-2:5 Damages 4-3 AFFIRMATIVE DEFENSES 4-3:1 Introduction 4-3:2 Collateral Estoppel, Res Judicata, and Judicial Estoppel 4-3:3 Release 4-3:4 Waiver 4-3:5 Statute of Limitation PART II LEGAL MALPRACTICE PREVENTION Chapter 5: Structuring a Law Firm Under Georgia Law 5-1 INTRODUCTION 5-2 GENERAL PARTNERSHIPS 5-3 PROFESSIONAL ASSOCIATIONS 5-4 LIMITED LIABILITY PARTNERSHIPS 5-4:1 Introduction 5-4:2 Executing a Written Partnership Agreement That Complies With Georgia Statute 5-4:3 Defining a Partnership as a Limited Liability Partnership 5-4:4 Ensuring That the Individual Assets Belonging to Each Partner are Protected 5-5 ADDITIONAL ISSUES COMMON TO ALL STRUCTURES 5-5:1 Introduction 5-5:2 Identify What Happens When a Partner or Equity Holder Leaves the Firm 5-5:3 Periodically Re-Review the Partnership Agreement or Articles of Incorporation 5-5:4 Consider Accountability by Contract 5-5:5 Sharing Office Space 5-5:6 Suicide Prevention and Substance Abuse Chapter 6: Internal Audit 6-1 PROCEDURAL CATEGORIES 6-2 PRE-FILE OPENING 6-2:1 General Considerations 6-2:2 Identify the Client 6-2:3 Conflicts of Interest 6-2:4 The Attorney''s Expertise 6-2:5 Fee Arrangement 6-2:6 Reasonableness of the Fee Agreement 6-2:7 Arbitration Provisions in Fee Agreements 6-2:8 Anticipating Withdrawal 6-2:9 Creating an Attorney-Client Relationship 6-3 FILE OPENING 6-3:1 Documentation 6-3:2 Engagement Letters and Fee 6-3:3 File Opening Memos 6-4 REPRESENTATION OF THE CLIENT 6-4:1 The Obligations of a Georgia Attorney 6-4:2 Areas in Which Attorneys are Particularly Susceptible to Legal Malpractice Claims 6-4:3 Calendar Control Systems 6-4:4 Communication 6-4:5 Financial Controls 6-4:6 Billing Procedures 6-5 WITHDRAWING FROM AN ATTORNEY-CLIENT RELATIONSHIP 6-5:1 When to Withdraw 6-5:2 How to Withdraw 6-6 FILE CLOSING Chapter 7: Identifying and Resolving ­Conflicts of Interest 7-1 OVERVIEW OF CONFLICTS OF INTEREST 7-2 THE INTERSECTION OF ETHICS AND MALPRACTICE 7-3 MULTIPLE REPRESENTATION 7-3:1 Conflict Creates Breach of Duty of Loyalty 7-3:2 Multiple Representation in General 7-3:3 Application of Rule 1.7 in Georgia 7-3:4 Disqualification Due to Multiple Representation 7-3:5 Imputed Disqualification 7-4 SUCCESSIVE REPRESENTATION: THE FORMER CLIENT RULE 7-4:1 Screening of Non-Attorney Staff and Successive Conflicts of Interest 7-5 INTERMEDIARY REPRESENTATION 7-6 PROHIBITED TRANSACTIONS 7-7 CONFLICTS ISSUES UNIQUE TO SPECIFIC REPRESENTATIONS 7-7:1 Issues Unique to Corporate Representation 7-7:2 Issues Unique to Criminal Representations 7-7:3 Issues Unique to Internal Investigations 7-7:4 Issues Unique to In-House Counsel Chapter 8: Email & Attorney Marketing: New Issues in the Practice of Law in the 21st Century 8-1 INTRODUCTION 8-2 EMAIL AND MALPRACTICE 8-2:1 Email Communication''s Impact on Practice of Law Generally 8-2:2 Using Email as a Calendar Reminder System 8-2:3 Lack of a Systematic Approach to Handling Emails 8-2:4 Managing Risk of Malpractice Claims from Third-Party Email Recipients 8-3 SOCIAL NETWORKING AND MALPRACTICE 8-3:1 Risks of Social Media Generally 8-3:2 Risk of Implied Attorney-Client Relationship 8-3:3 Risk of Unauthorized Practice of Law 8-3:4 Solution 8-4 ADDRESSING THE MEDIA 8-4:1 The Client''s Instructions 8-4:2 Materially Prejudicing an Adjudicative Proceeding 8-4:3 Defensive Responses 8-4:4 Reviewing the Rules Chapter 9: Jury Selection and Persuasion: Ethics for the Trial Practitioner 9-1 THE RULES 9-1:1 Introduction 9-1:2 Trial Conduct 9-1:3 Disclosing Adverse Authority and the Duty of Candor 9-1:4 Degrading the Court 9-1:5 Perjury by the Client 9-1:6 Attorney as a Witness 9-1:7 Contact with Witnesses 9-1:8 Communications with Jurors and Officials 9-1:9 Trial Publicity 9-2 JUDICIAL DECISIONS GOVERNING ATTORNEY TRIAL CONDUCT 9-2:1 Introduction 9-2:2 Opening Statement 9-2:3 Questions From the Jury 9-2:4 Closing Statement 9-2:5 Conflicts Between the Court and Trial Counsel Chapter 10: Sanctions 10-1 BASES FOR SANCTIONS GENERALLY 10-2 DISCOVERY SANCTIONS 10-3 ATTORNEYS'' FEES AND EXPENSES 10-3:1 Bases for Imposing Fees and Expenses Generally 10-3:2 Mandatory Liability 10-3:3 Discretionary Liability 10-3:4 Actions Under O.C.G.

A. § 13-6-11 10-3:5 Defenses 10-4 ABUSIVE LITIGATION 10-5 CONTEMPT 10-5:1 Courts'' Inherent Power 10-5:2 Contempt PART III INSURANCE AND LOSS AVOIDANCE Chapter 11: Purchasing Legal Malpractice Insurance 11-1 INSURANCE POLICY IS A CONTRACT 11-2 FACTORS TO CONSIDER WHEN CHOOSING AN INSURANCE PROVIDER 11-2:1.