Court: Court of Appeals of Georgia; November 19, 1980; Georgia; State Appellate Court
In *Collins v. Levine*, the Court of Appeals of Georgia upheld the summary judgment in favor of the law firm Parks, Eisenberg, and attorney David Levine, ruling that no attorney-client relationship existed between plaintiff Collins and Parks, Eisenberg. The court found that Collins had retained Levine as her attorney following a referral from a disbarred lawyer, and all communications and filings were done under Levine's name, despite the firm's stationery being used. Parks, Eisenberg contended that Levine was merely sharing office space and was not an official member of the firm, which Levine disputed, indicating that the firm was aware of his use of their name. However, the court concluded that Collins' claim against Parks, Eisenberg was barred by the statute of limitations, as any potential attorney-client relationship would have ended in July 1973 when Levine left the firm's office. The evidence, including pleadings and correspondence, supported the position that Collins' relationship was exclusively with Levine, negating any claims against Parks, Eisenberg.
Parks, Eisenberg assert that Mrs. Collins had no attorney-client relationship with them because her retainer agreement was solely with David N. Levine, who was not mentioned in the agreement. While the court agrees that no material factual issues exist and that Parks, Eisenberg are entitled to summary judgment, it does not rest this conclusion solely on Mrs. Collins' lack of privity with Levine. The court considers whether Levine acted as an agent for the firm in relation to Mrs. Collins' lawsuit, which could bind Parks, Eisenberg to the contract and allow for extrinsic evidence to support this claim. If Levine was indeed perceived as an agent of the firm, Parks, Eisenberg could have claimed a share of the fees, particularly since the firm was named in pleadings and Levine may have represented himself as part of the firm.
However, the relevance of these potential claims diminishes due to inconsistencies in Mrs. Collins’ statements during her deposition and affidavit. In her affidavit, she claimed to have always believed Levine was part of the Parks, Eisenberg firm and noted that neither Levine nor the firm informed her of any change after Levine moved offices in 1973. Contrarily, in her deposition, Mrs. Collins stated that she regarded Levine as her attorney and had no contact with Parks or Eisenberg. Notably, she acknowledged knowing about Levine's move and explicitly stated that she continued to consider Levine as her attorney thereafter. The court references a precedent that if there are significant conflicts in a party's own statements, the version least favorable to that party will be accepted for the purposes of summary judgment.
Mrs. Collins acknowledged that after Levine departed from Parks, Eisenberg in 1973, she no longer considered the firm her attorneys, instead regarding Levine as her sole attorney. Consequently, any belief that Levine had authority from the firm to act on her behalf ceased after July 1973, and she cannot claim ignorance of this fact. As a result, Parks, Eisenberg cannot be held liable for any negligent acts related to her representation after that date. Additionally, any claims for negligence prior to July 1973 are barred by the statute of limitations when she filed her action in February 1978.
The trial court's decision to deny Mrs. Collins' motion to require the withdrawal of counsel for the defendants due to potential conflicts of interest between Levine and Parks, Eisenberg is also addressed. It is established that when defendants with potentially conflicting interests share the same counsel, withdrawal is necessary, regardless of good faith or consent. Levine and Parks, Eisenberg have conflicting interests, particularly regarding Levine's claim that the firm allowed him to represent himself as part of it. This conflict inhibits proper cross-examination during the trial.
While the trial court's refusal to withdraw counsel was deemed harmless due to the grant of summary judgment favoring Parks, Eisenberg, the core issue lies in Mrs. Collins' inconsistent testimony, which undermines her case against the firm. Ultimately, the judgment affirming the removal of Parks, Eisenberg from the case is upheld, independent of the conflict of interest, based solely on the insufficiency of Mrs. Collins' claims.
