Hughes appeals the grant of summary judgment, еntered in behalf of Malone after the filing of a complaint/ alleging legal malpractice by Malone in his repre-' sentation of Hughes.
The facts show that Hughes entered into a fraudulent scheme with one of his ex-employees (one *342 Logan), to print counterfeit U. S. currency. Hughes made the negatives from which Logan made the plates and arranged for the currency to be printed; approximately $5,000,000 in counterfeit $20 bills was produced. Unknown to Malone, one of his employees, one Goode, was involved in the counterfeiting scheme and was responsible to some degree for the distribution of the bogus bills. According to Hughes, Goode instructed Hughes as to how and where to transport the printеd currency to a pick-up point for further transportation and ultimate distribution. Two persons unknown to Hughes picked up the currency and made distribution in Miami of $2,000,000 to purchasers who were in fact undercover police agents. The currency was packaged in unique boxes which were traced back to Hughes. A search of Hughes’ place of business revealed no incriminating evidence. However, the then-present occupant of the building (Logan, who prepared the plates and arranged for the printing of the money) acknowledged to the investigating agents that Hughes had a possessory interest in other buildings. Logan admitted to possession of a key to one of these buildings and agreed to tаke the investigating agents to the other building. Logan also had a possessory interest in the second building. He opened the building for the agents and the search uncovered the plates, the press upon which the money was printed and some scraps of the counterfeit bills. The individual who actually printed the bills (one Cook) was apprehended and gave a statement. Cook did not know of Hughes’ involvement but implicated Logan. At this point, Hughes and Logan went to Malone who agreed to represent all three of the persons involved, Hughes, Logan (the ex-employee) and Cook (the actual printer of the bills). Malone was informed at the outset by Hughes that Goode was involved in the scheme. By way of affidаvit and deposition, it was shown that Malone acquainted himself with the circumstances of the taking of Cook’s confession, with the circumstances of the search of Hughes’ building undertaken without benefit of a warrant but consented to by Logan, and with the nature and extent of the government’s case against Hughes by examination of the government’s file. There was evidence that Hughes *343 requested Malone to interview the two distributors who were in jail in Miami. Malone talked to the attorney for these two men and determined that the two would neither cooperate with their own attorney nor admit anything more than that they had been apprehended with the contraband. As a result, Malone did not attempt to interview either man. Additionally, Hughes informed Malone that the federal judge before whom Hughes would appear was possibly biased against Hughes because of past personal relations. Because of possible bias and alleged adverse pre-trial publicity, Hughes discussed the possible advantages of requesting the judge to recuse himself and a change of venue. Under these circumstances, Malone advised Hughes to enter a plea of guilty to a count of transporting counterfeit money, thereby obviating the risk of facing the more serious charges of manufacturing and distributing counterfeit money. Throughout this period, Hughes was emotionally distraught.
Hughes asserts that he was advised by Malone that the U. S. attorney required an immediate answer as to the nature of a plea. If a plea of not guilty were not forthcoming, all charges would be submitted to a grand jury, involving greater risk and further adverse notoriety. Further, Hughes asserts that Malone advised him that the sentencing judge would be advised that the government was not seeking incarceration, that because Hughes was a first offender, he would reсeive a probated sentence and a fine, and that if he (Hughes) were not satisfied with the sentence, he could withdraw his guilty plea and proceed with a plea of not guilty.
Hughes sought the advice of another attorney as to the advisability of entering a guilty plea to the transporting charge. Upon being assured that Malone’s recommendation wаs sound, Hughes entered a plea of guilty. At the plea proceedings, Hughes admitted to the judge that he was guilty and was entering the plea voluntarily and without promise or hope of reward. He was sentenced to seven years. Two years after he was sentenced, Hughes brought this legal malpractice suit alleging that Malone fraudulently coerced him into pleading guilty by misrepresenting the following facts: *344 there was no urgency to a decision as to how to plead; there was no threat to refer a plea of not guilty to a grand jury; an entered plea of guilty could not be withdrawn in a federal district court; the sentencing judge was not informed that the government was not seeking penitentiary time; and the plea was enticed to protect Malone’s employee, Goode, thus rendering a serious conflict of interest. Hughes also complained that Malone demonstrated fraud and was negligent in his representation by failing to file motions to suppress the evidence produced by the search without a warrant, to suppress the confession of the сo-accused Cook, to change venue, to recuse the judge, to interview witnesses in Miami, to seek psychiatric evaluation, or to take any action to minimize the adverse publicity. In a third count, Hughes asserts that Malone breached his contractual obligations to represent Hughes in a legally responsible way. The trial court was presented with approximately 1,000 pages of affidavits, depositions and other records to assist it in reaching a decision on the motion for summary judgment. Held:
This particular legal malpractice claim is based upon Hughes’ complaint that Malone failed generally to afford him reasonable representation. The initial requirement for establishing liability is that thеre be a duty. This arises from the attorney-client relationship itself.
Lewis v. Foy,
In malpractice actions against lawyers, as in the case against other professionals, it is essential to the maintenance of a cause of action that competent evidencе be presented as to the reasonableness of the lawyer’s conduct. "Attorneys are very properly held to the same rule of liability for want of professional skill and diligence in practice, and for erroneous or negligent advice to those who employ them, as are physicians, surgeons, and other persons who hold themselves out to the world as possessing skill and qualification in their respective trades or professions.” Citizens’ Loan, Fund & Savings Assn. v. Friedley,
In the practice of the medical arts, there is a presumption that medical or surgical services are performed in an ordinarily skillful manner, and the burden is on the one receiving such services to show a lack of due care, skill and diligence.
Ga. Northern R. Co. v. Ingram,
"[WJhile the standard of care required of an attorney remains constant, its application may vary. [Cit.] Two important considerations in particularizing this rather general standard in a given case are the number of options available to the attorney and the amount of time which he had to consider them.”
Berman v. Rubin,
In this case, Hughes did not offer evidence to establish that because of a lack of investigation Malone was unaware of an unlawful search and seizure, or of the possibility of an involuntary confession, the effect of which may have adversely affected Hughes’ right to a fair trial. In other words, Hughes does not argue a failure of investigation.
Alternatively, Hughes did not contend that a
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reasonable investigation would have established the presence of bias on the part of the judge or the probable effect of adverse publicity on a jury in that geographical arеa. To the contrary, it is admitted by both parties that Malone was aware of the search, the confession, the lack of communication between Hughes and the two distributors in Miami, the possible bias of the judge, the publicity, the mental state manifested by Hughes, the knowledge that Goode was involved to some extent, and every other fact alluded to by Hughes in his сomplaint. Thus, the evidence presents not a case of deliberate or negligent inaction but a case of full knowledge and deliberate tactical choices made in complete good faith. At no point does Hughes affirmatively show by expert legal opinion that the search was clearly illegal, that the confession was clеarly involuntary, that motions for change of venue and recusal were clearly demanded or would have been successful if made, or that he was coerced into pleading guilty to an offense of which he was not guilty. In fact, he has consistently admitted that he was guilty not only of the transportation offense of which he was convicted and sentencеd, but also of the manufacture and distribution of the counterfeit money. The record made clear that after some hesitation, Hughes received the advice of two attorneys, his family, friends, and co-accused to enter a plea of guilty. Even assuming that Hughes was misinformed as to the severity of the potential sentence, the timing of the decision of hоw to plead, and the ability to withdraw the plea once made if dissatisfied with the result, Hughes has not shown that except for the advice of Malone he would not have entered the plea of guilty. In fact, the record shows that Malone was insistent that the decision as to a plea be made by Hughes. When a defendant states on the record that his plea was not induced, he will not later be heard to claim the contrary.
Barksdale v. Ricketts,
We are here confronted, as we view it, with the disgruntled complaint of a disappointed but guilty client who received a more stringent sentence than anticipated. Hughes has failed to establish that a reasonable attorney would have reached different conclusions from Malone. As to each of the alleged inactions, Malone has shown a
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consideration of each problem and a choice which he asserts had Hughes’ best interest at its core. "The lack of effective representation of counsel means representation so lacking in competence that it becomes the duty of thе court or the district attorney to observe it and correct it. Williams v. Beto (CCA6), 354 F2d 698, 704.”
Sheets v. State,
In sum, Hughes’ complaint alleges ineffective legal representation, drawing that conclusion from the results of a gamble made but lost. No expert evidence was offered in support of the allegations of malpractice. S eeBerman v. Rubin, p. 853, supra. In addition to denying Hughes’ allegation, Malone offered extensive evidence showing a careful consideration of the case, tactical decisions relating to every turn in its development, and the obtaining of an agreement from the prosecutor to allow the client to plead guilty to a lesser offense in exchange for the dropping of two more serious offenses, and then only after concluding that a finding of guilty as to all offenses was most probable in the event that Hughes pleaded not guilty.
It is true that while the burden may be on the complainant upon the trial of the case to prove all the necessary elements of the cause of action, such burden does not rest upon the plaintiff on a motion for summаry judgment by the defendant. There is no duty upon the plaintiff to produce evidence until the defendant’s evidence pierces the plaintiffs pleadings and demands a finding in defendant’s favor on the particular issues of fact made by the pleadings. To satisfy the moving party’s burden, the evidentiary material before the court, if taken as true, must establish the absencе of any genuine issue of material fact, and it must appear that there is no real question as to the credibility of the evidentiary material, so that it may be taken as true. If the nonexistence of any genuine issue of material fact is established by such credible evidence, and on the facts and the law, the movant is entitled to judgment as a matter of law, thе motion should be granted, unless the opposing party shows good reason why he is at the time of the hearing unable to present facts in opposition to the motion. 6 Moore’s Federal Practice 56-463, ¶ 56.15[3].
Durrett v.
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Tunno,
In the instant case, the occurrence of each of the acts or omissions alleged as fraud, negligence, or breach of contract are admitted. Thus, there is no contested issue of
material
fact. All of these acts or omissions with the exception of Hughes’ plea of guilty are рroducts of the exercise of tactical, legal judgment and relate to questions of law. These legal questions quite properly were ruled upon by the trial court in considering the motion for summary judgment. See Martin v. Hall,
Succinctly stated, it may be said that in a legal malpractice case, the presumption is that the legal services were performed in an ordinarily skillful manner. This presumption remains with the attorney until the presumption is rebutted by expert legal testimony; otherwise, the grant of a summary judgment in favor of the attorney is proper. Should this presumption be rebutted by expert legal testimony there is presented for the jury a question of fact.
In view of our previous discussion, it follows that there is no dispute as to any material fact pertaining to the reasonableness of Malone’s legal representation of Hughes in his criminal defense; accordingly, the trial court properly granted summary judgment to Malone.
Judgment affirmed.