NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: May 13, 2025
S24G0739. COX-OTT et al. v. BARNES & THORNBURG, LLP et
al.
BETHEL, Justice.
Following the dismissal of her lawsuit, Cynthia Cox-Ott sued
attorney Jim Leonard and his firm Barnes & Thornburg, LLP, for
professional negligence, alleging that Leonard’s actions caused the
unfavorable disposition of her case. The trial court granted
summary judgment in favor of Leonard and his law firm, finding
that they were shielded from liability by the so-called doctrine of
judgmental immunity, a creature of the Court of Appeals’ decisional
law. The Court of Appeals affirmed on the same basis. We granted
certiorari to consider whether the doctrine of judgmental immunity,
as applied by the Court of Appeals in this case, correctly states the
law of Georgia with respect to professional negligence claims against
attorneys and, if not, what the proper test is for the courts to apply.1
For the reasons explained below, we conclude that the Court of
Appeals erred in its analysis of this issue, though we ultimately
affirm its judgment on other grounds.
1. Facts and Procedural History
Cox-Ott consulted with Leonard in connection with a dispute
with an insurer regarding the premium amount on a life insurance
policy that was taken out to fund Cox-Ott’s family trust. Following
his own investigation into the dispute, Leonard discussed potential
paths forward with Cox-Ott, and it was his understanding that CoxOtt wanted to enforce the policy. Leonard thereafter outlined two
potential strategies in a letter he sent to Cox-Ott, though Cox-Ott
denied receiving this letter. Leonard explained that, in his opinion,
the insurer could agree either to rescind the policy and return the
premiums or to reform the policy to one better suited to Cox-Ott’s
needs.
1 We appreciate the thoughtful amicus brief filed by a consortium of 28
law firms with a presence in Georgia.
2
After the insurer refused to reform the policy, Leonard
recommended filing suit against the insurer, raising claims for fraud
and reformation of the policy. The suit could have been brought in
either Georgia or New York, and Leonard recommended that suit be
brought in Georgia. According to Leonard, his recommendation was
based on his experience that New York courts were “not as favorable
to policyholders because there are so many major insurers . . .
headquartered there, and NY law isn’t as favorable . . . as Georgia,”
as “most calls go to the insurers, and not the insureds.”
Leonard subsequently brought suit against the insurer in
Georgia on behalf of the family trust, asserting state law claims for
fraud, negligent misrepresentation, and reformation. The insurer
removed the case to federal court and moved to dismiss, which the
district court granted, finding that “the trust affirmed the policy by
seeking its reformation” and that the merger clause contained
within the affirmed policy barred the trust’s fraud claims. See C &
C Family Trust 04/04/05 ex rel. Cox-Ott v. AXA Equitable Life Ins.
Co., 44 FSupp3d 1247, 1256-1259 (B) (2) (N.D. Ga. 2014). The United
3
States Court of Appeals for the Eleventh Circuit affirmed the
dismissal. See C&C Family Tr. v. AXA Equitable Life Ins. Co., 654
Fed. Appx. 429 (11th Cir. 2016).
Cox-Ott, individually and as trustee for her family trust, then
sued Leonard and Barnes & Thornburg for professional negligence,
asserting that Leonard was negligent for electing to proceed under
Georgia law rather than New York law and for asserting a claim for
reformation rather than rescission, among other reasons. The trial
court ultimately entered summary judgment against Cox-Ott,
finding that the judgmental immunity doctrine precluded Cox-Ott’s
professional negligence claim. The Court of Appeals affirmed the
trial court’s determination that Cox-Ott’s claims were barred by
judgmental immunity, which it said “protects an attorney from
liability for acts and omissions in the conduct of litigation which are
based on an honest exercise of professional judgment.” See Cox-Ott
v. Barnes & Thornburg, LLP, 370 Ga. App. 615, 620, 622-626 (2) (a)
(i)-(ii) (898 SE2d 619) (2024). In particular, the Court of Appeals
held that research into the choice of law issue was not required in
4
order for Leonard’s decision to be protected by judgmental immunity
and that Leonard’s recommendation as to venue was similarly
protected because of his expertise and experience. Id. at 622-623 (2)
(a) (i). The court also held that Leonard’s recommendation to pursue
reformation rather than rescission was likewise protected since it
was “an honest exercise of professional judgment.” Id. at 625 (2) (a)
(ii). Finally, the court concluded that, irrespective of judgmental
immunity, Cox-Ott could not establish the causation element of her
professional negligence claims. Id. at 624 (2) (a) (i), 627-628 (2) (b).
Thereafter, we granted Cox-Ott’s petition for a writ of certiorari to
determine whether “the doctrine of judgmental immunity applied by
the Court of Appeals correctly state[s] the law of Georgia with
respect to professional negligence claims against attorneys[.]”
2. Analysis
Before turning to the particulars of the judgmental immunity
doctrine, it is helpful to contextualize our discussion with a
consideration of the broader framework applicable to legal
malpractice claims. An action for legal malpractice is a species of
5
professional malpractice, and as we have explained, “[a] professional
malpractice action is merely a professional negligence action and
calls into question the conduct of a professional in his area of
expertise.” Lutz v. Foran, 262 Ga. 819, 820 (2) (427 SE2d 248) (1993)
(citation and punctuation omitted) (superseded by statute on other
grounds). As a general matter, a claim for legal malpractice arises
from “the breach of a duty imposed by the contract of employment
between the attorney and the client[.]” Villanueva v. First American
Title Ins. Co., 292 Ga. 630, 631-632 (740 SE2d 108) (2013); Lewis v.
Foy, 189 Ga. 596, 600 (6 SE2d 788) (1940) (an attorney’s duty to act
in accordance with the standard of care arises from the attorneyclient relationship).
To prevail on a claim of legal malpractice, a plaintiff must
establish three elements: “(1) employment of the defendant
attorney, (2) failure of the attorney to exercise ordinary care, skill[,]
and diligence, and (3) that such negligence was the proximate cause
of damage to the plaintiff.” Leibel v. Johnson, 291 Ga. 180, 181 (728
SE2d 554) (2012) (citation and punctuation omitted). “And in order
6
to establish the final element, the plaintiff must show that, but for
the attorney’s negligence in the underlying case, the plaintiff would
have prevailed.” RES-GA McDonough, LLC v. Taylor English Duma
LLP, 302 Ga. 444, 446 (1) (807 SE2d 381) (2017) (citation and
punctuation omitted).
We are concerned here with the second element — the
attorney’s failure to exercise ordinary care, skill, and diligence —
that is, the element of breach of duty. “It is axiomatic that the
element of breach of duty in a legal malpractice case — the failure
to exercise ordinary care, skill, and diligence — must relate directly
to the duty of the attorney, that is, the duty to perform the task for
which he was employed.” Tante v. Herring, 264 Ga. 694, 695 (1) (453
SE2d 686) (1994). In other words, once an attorney-client
relationship exists, an attorney is duty-bound to exercise reasonable
care in the performance of his or her services.
The standard of reasonable care is a hallmark of legal
malpractice jurisprudence — and of professional malpractice
jurisprudence, more generally. This Court first considered a claim of
7
legal malpractice more than 175 years ago, and we recognized then
that “[a]n attorney is not bound to extraordinary diligence. He is
bound to reasonable skill and diligence, and the skill has reference
to the character of the business he undertakes to do.” Cox v.
Sullivan, 7 Ga. 144, 148 (1849) (emphasis in original). See also
O’Barr v. Alexander, 37 Ga. 195, 201 (1867) (“An attorney, in the
practice of his profession engages for reasonable skill and diligence,
and is responsible for ordinary neglect.” (emphasis supplied)). In
acknowledging this principle, Cox, and later O’Barr, drew from
decisions of the English common law, which had long assigned a
duty of reasonable care to attorneys in the practice of their
profession.2 See, e.g., Pitt v. Yalden, 98 Eng. Rep. 74, 75 (1767);
Russell v. Palmer, 95 Eng. Rep. 837, 838-839 (1767). See also Reece
v. Righy,106 Eng. Rep. 912, 912 (1821); Lanphier v. Phipos, 173 Eng.
Rep. 581, 583 (1838) (“Every person who enters into a learned
2 “In 1784, our legislature adopted the common law of England as of May
14, 1776, as Georgia law, see OCGA § 1-1-10 (c) (1), and so it has long been the
backstop law of Georgia.” Wasserman v. Franklin County, 320 Ga. 624, 629 (II)
(A) (1) (a) (911 SE2d 583) (2025) (citation and punctuation omitted).
8
profession undertakes to bring to the exercise of it a reasonable
degree of care and skill. He does not undertake, if he is an attorney,
that at all events you shall gain your case . . . ; nor does he undertake
to use the highest possible degree of skill. . . . [H]e undertakes to
bring a fair, reasonable, and competent degree of skill, and [the jury]
will say whether, in this case, the injury was occasioned by the want
of such skill in the defendant.”); Hart v. Frame, 7 Eng. Rep. 670, 676
(1839) (“[W]hen an injury has been sustained which could not have
arisen except from the want of such reasonable skill and diligence,
or the absence of the employment of either on the part of the
attorney, the law holds him liable.”); Shilcock v. Passman, 173 Eng.
Rep. 128, 130 (1836) (“[I]t is not every mistake or misapprehension
of an attorney that will make him liable to an action for negligence
. . . the question for us to consider is, whether the defendant has
used reasonable skill and reasonable care.”); 2 Ronald E. Mallen,
Legal Malpractice §§ 19.2, 19.3 (2025 ed.) (“The English precedent
influenced the American courts in the development of the liability
rules applicable to a lawyer’s error of judgment.”).
9
While the standard of care required of an attorney remains
constant, we also have emphasized the difficulty in more precisely
defining an attorney’s duty in a given case, explaining that
[w]hat may be a want of skill in any particular case, or
what may be ordinary neglect, must be decided by the
facts and circumstances of the case . . . . Good faith must
exist on the part of the attorney towards his client, and
when this is shown, the absence or presence of reasonable
skill and diligence must in each case be determined by its
own facts.
O’Barr, 37 Ga. at 201-202. See also Cox, 7 Ga. at 147 (“What facts
will constitute professional faith, and fulfill the requirements of
professional honor, it would be in vain to attempt to ascertain by any
general tests. Each case, in this regard, must be determined by its
own facts.”).
Critically, “mistakes of judgment” in “cases of reasonable
doubt” — that is, “upon points of new occurrence, or of nice or
doubtful construction” — do “not necessarily render [attorneys]
liable for the consequences.” O’Barr, 37 Ga. at 202 (citations and
punctuation omitted). See also Pitt, 98 Eng. Rep. at 75 (“Not only
counsel, but Judges may differ, or doubt, or take time to consider.
10
Therefore[,] an attorney ought not to be liable, in cases of reasonable
doubt.”); 1 Robert Maugham, A Treatise on the Law of Attornies,
Solicitors, and Agents, § 2, Of the Liabilities of Attornies and
Solicitors, at the Suit of their Clients, for Damages for Neglect,
Misconduct, and Unskillfulness, 228 (1825) (“Where there exists any
doubt, the attorney, in case of mistake, will of course derive the
benefit of the doubt, and, according to the circumstances, be wholly
or partially justified.”). Rather, attorneys enjoy discretion in matters
of professional judgment, and the inquiry focuses on whether the
attorney used reasonable care in exercising that judgment which
later proved to be mistaken. See Pitt, 98 Eng. Rep. at 75 (lawyers
“ought to be protected where they act to the best of their skill and
knowledge” and “conduct themselves with honour and integrity”);
O’Barr, 37 Ga. at 202 (same).
These principles — the duty of reasonable care and the
recognition that attorneys are not liable for mere errors in judgment
made in the exercise of reasonable care — were again recognized in
the decisional law of Georgia’s appellate courts when legal
11
malpractice claims appear to have been filed more frequently in
Georgia courts. See, e.g., Berman v. Rubin, 138 Ga. App. 849, 853
(227 SE2d 802) (1976) (“unless the law is so well settled, clear, and
widely recognized, an attorney acting in good faith and to the best
of his knowledge will be insulated from liability for adverse results”);
Hughes v. Malone, 146 Ga. App. 341, 346 (247 SE2d 107) (1978)
(similar). That landscape began to shift, however, following the
Court of Appeals’ decision in Hudson v. Windholz, 202 Ga. App. 882,
886-887 (3) (416 SE2d 120) (1992). In Hudson, which concerned a
claim of legal malpractice, the Court of Appeals expounded on the
long-standing principles regarding an attorney’s liability for
mistakes of professional judgment. But the Hudson court seemed to
view these principles as comprising a new rule, positing that
“Georgia has adopted the doctrine of judgmental immunity, holding
[that] ‘the tactical decisions made during the course of litigation
require, by their nature, that the attorney be given a great deal of
discretion.’” Hudson, 202 Ga. App. at 886 (3) (quoting Berman, 138
12
Ga. App. at 851 n.2).3 As conceived by the Hudson court, the socalled judgmental immunity doctrine mandated that “‘[t]here can be
no liability for acts and omissions by an attorney in the conduct of
litigation which are based on an honest exercise of professional
judgment.’” Id. (quoting Woodruff v. Tomlin, 616 F2d 924, 930 (6th
Cir. 1980)). Noticeably absent from Hudson’s discussion was any
mention of the standard of reasonable care. Indeed, in assessing the
defendant-attorney’s actions, the Hudson court focused on
subjective considerations, noting that the attorney had “assessed the
relative strengths and weaknesses of the plaintiffs’ claims” and
“exercised his best, informed judgment[.]” Hudson, 220 Ga. App. at
886-887 (3). On that basis, the court went on to conclude broadly
that “any error or mistake in judgment . . . is protected by the
3 What Hudson characterizes as Berman’s holding actually appeared in
footnote 2 of the Berman decision within a broader discussion about the
standard of care applicable to legal malpractice actions — a discussion that
was dicta and was unnecessary to Berman’s ultimate holding that the plaintiff
had failed to establish the causation element of a legal malpractice claim. See
Berman, 138 Ga. App. at 855 (the client “having failed to show that [the
defendant attorney’s] actions, and not his own, were the cause of his alleged
injury, the grant of summary judgment to defendant [attorney] was not error”).
13
doctrine of judgmental immunity and may not serve as the basis for
a legal malpractice action[.]” Hudson, 202 Ga. App. at 887 (3). In
essence, Hudson held that because the defendant-attorney had some
strategic basis for the challenged action, the plaintiffs could not
prevail on their legal malpractice claim. And in doing so, Hudson
supplanted the long-standing analysis centered on the objective
standard of reasonable care with a subjective analysis focused on
whether a particular defendant engaged in an “honest exercise” of
professional judgment and, as such, was entitled to judgmental
immunity. Id. at 886 (3). And by focusing on the discretion afforded
to an attorney without acknowledging the broader limitation of that
discretion being exercised with reasonable care, Hudson materially
altered the long-established standard. Critically, though, neither
the well-settled decisional law of this state predating Hudson nor
even the cases on which Hudson relied supports the excision of the
reasonable-care standard from consideration of a legal malpractice
claim. The Hudson court primarily relied on the United States Court
of Appeals for the Sixth Circuit’s decision in Woodruff, as well as its
14
own decision in Berman, but both those cases spoke at length about
the standard of reasonable care as applied to the exercise of
professional judgment. And both cases recognized that an attorney
could be held liable for mistakes in professional judgment where he
failed to use reasonable care in exercising that judgment. See
Woodruff, 616 F2d at 930 (“To hold that an attorney may not be held
liable for the choice of trial tactics and the conduct of a case based
on professional judgment is not to say, however, that an attorney
may not be held liable for any of his actions in relation to a trial. He
is still bound to exercise a reasonable degree of skill and care in all
his professional undertakings.”); Berman, 138 Ga. App. at 854
(where client sued attorney for legal malpractice in connection with
attorney’s construction of contract that later proved erroneous,
noting that “it would otherwise be a jury question as to whether or
not defendant [attorney] breached his duty towards [his client]” but
rejecting claim for lack of proximate cause). Accordingly, we overrule
15
Hudson and the decisions relying on it 4 to the extent they omit
consideration of the reasonable care standard when analyzing a
legal malpractice claim. 5
Because the Court of Appeals was bound by Hudson, it
faithfully followed that decision’s missteps in this case, focusing on
whether the record showed that Leonard “engaged in an honest
exercise of professional judgment,” Cox-Ott, 370 Ga. App. at 622 (2)
(a) (i), 625 (2) (a) (ii), rather than whether Leonard exercised
4 See, e.g., Rollins v. Smith, 353 Ga. App. 209, 214-215 (2) (a) (836 SE2d
585) (2019); Engelman v. Kessler, 340 Ga. App. 239, 244 (1) (797 SE2d 160)
(2017); Mosera v. Davis, 306 Ga. App. 226, 232 (2) (701 SE2d 864) (2010);
Guerrero v. McDonald, 302 Ga. App. 164, 167-168 (2) (690 SE2d 486) (2010);
Allen Decorating, Inc. v. Oxendine, 225 Ga. App. 84, 88 (2) (483 SE2d 298)
(1997).
5 We note that the moniker “judgmental-immunity doctrine” is a
misnomer that should be discarded. As courts in other jurisdictions have
recognized, the judgmental-immunity “doctrine” does not, in fact, grant
immunity to attorneys for actions or omissions based on the exercise of
professional judgment. Instead, as our discussion above implies, “when courts
discuss what has come to be called the ‘judgmental immunity doctrine,’ they
are actually addressing the factual issue as to whether an attorney breached
the standard of care.” Blanks v. Seyfarth Shaw LLP, 89 Cal. Rptr. 3d 710, 743
(IV) (F) (Ct. App. 2009)). See also Sun Valley Potatoes, Inc. v. Rosholt,
Robertson & Tucker, 981 P2d 236, 240 (II) (A) (Idaho 1999) (“Rather than being
a rule which grants some type of ‘immunity’ to attorneys, [the judgmentalimmunity doctrine] appears to be nothing more than a recognition that if an
attorney’s actions could under no circumstances be held to be negligent, then
a court may rule as a matter of law that there is no liability.”).
16
reasonable care in reaching that judgment. For example, the Court
of Appeals reasoned that Leonard’s recommendation as to whether
New York or Georgia law would be more advantageous was “the type
of tactical decision made during the course of litigation that the
judgmental immunity doctrine is designed to protect,” suggesting
that an attorney will be shielded from liability for actions and
decisions that are part and parcel of conducting litigation. See CoxOtt, 370 Ga. App. at 624 (2) (a) (i) (citing Hudson, 202 Ga. App. at
886 (3)). The court also emphasized that Leonard “was a seasoned
litigator with experience litigating issues in both Georgia and New
York” and that this experience formed the basis for his opinion that
Georgia law was more favorable to Cox-Ott’s position; on that basis,
the court concluded that Leonard could not be held liable for his
decision to proceed under Georgia law. Id. at 623 (2) (a) (i).
But the mere fact that an attorney’s judgment is based on his
experience does not automatically establish that the attorney
exercised reasonable care in reaching that judgment such that he
should be insulated from liability. Accordingly, in determining
17
whether Cox-Ott had established the requisite element of her
malpractice claim, the Court of Appeals erred by considering only
whether Leonard “engaged in an honest exercise of professional
judgment,” but instead should have determined, under the
circumstances of this case, whether Leonard exercised reasonable
care in reaching that judgment. Therefore, because it does not rest
on an accurate statement of the law of professional legal malpractice
in Georgia, we disapprove those portions of the Court of Appeals’
decision relying on the doctrine of judgmental immunity in affirming
the grant of summary judgment in this case.
Nevertheless, we affirm the Court of Appeals’ judgment in this
case. Besides concluding that Cox-Ott’s claims were barred by
judgmental immunity, the Court of Appeals also held that Cox-Ott
failed to establish the causation element of her professional
malpractice claim. See Cox-Ott, 370 Ga. App. at 624-626 (2) (a) (i)-(ii). Cox-Ott did not ask us to review this independent ground for
affirmance of the judgment against it, nor did we grant certiorari to
18
address it,6 so we do not disturb it. As a result, the judgment of the
Court of Appeals must be affirmed on that basis. See Brown v. Fokes
Properties 2002, Inc., 283 Ga. 231, 233 (2) (657 SE2d 820) (2008)
(“Since each of the alternative grounds which [appellant] fails to
address is sufficient on its face to support the judgment rendered,
and no reversible error has been demonstrated with respect to either
of them, the judgment must be affirmed” (citation and punctuation
omitted)); 5 C.J.S. Appeal and Error § 838 (2024) (“When a decision
is based on alternative grounds, the fact that one of the grounds may
be in error is of no consequence and may be disregarded on appeal if
the judgment can be sustained on one of the other grounds.”).
Judgment affirmed. Peterson, CJ, Warren, PJ, and Ellington,
McMillian, LaGrua, Colvin, and Pinson, JJ, concur.
6 Cox-Ott does not directly challenge this basis for the Court of Appeals’
decision but rather complains that the Court of Appeals’ conclusions as to
causation were nestled within its analysis of the judgmental immunity issue
such that reversing the Court of Appeals on its application of judgmental
immunity would necessarily include reversing its holding on causation.
However, causation is a separate element of a professional malpractice action,
see Tante, 264 Ga. at 694 (1), and the Court of Appeals’ consideration of that
issue constituted an alternate rationale for affirming the grant of summary
judgment. See Cox-Ott, 370 Ga. App. at 624-626 (2) (a) (i)-(ii).
19