T. Edward Tante IV appeals the grant of summary judgment on liability to Laura K. Herring and Bobby C. Herring in their action against him for legal malpractice. He also alleges that the trial court erred by denying his motion for summary judgment on the Herrings’ claims. Appellees filed their own affidavits, affidavits of doctors and *323 psychologists, affidavits of their expert as to legal malpractice, and depositions — none of which have been refuted by appellant.
Tante was retained as counsel to pursue a claim for Social Security disability benefits because of a blockage of Mrs. Herring’s right carotid artery. A favorable award was issued, and both Herrings signed Tante’s request for attorney fees.
While Tante pursued the Social Security claim, Tante and Mrs. Herring began an adulterous relationship that continued for approximately two years.
The Herrings sued Tante for legal malpractice, breach of fiduciary duty, and breach of contract. They alleged that both Herrings had an attorney-client relationship with Tante, that Tante took advantage of information in Mrs. Herring’s confidential medical and psychological reports about her impaired emotional and mental functioning, that Tante took advantage of Mrs. Herring’s impaired intellectual functioning, depression and anxiety to convince her to have an affair, and that as a result of this affair Mrs. Herring suffered physical and mental harm. The Herrings allege that Tante infected Mrs. Herring with two strains of venereal disease with which she unknowingly infected Mr. Herring. Their complaint also alleged that Tante violated certain rules and standards of the State Bar of Georgia, that he breached the standard of care owed clients by attorneys, that he violated his fiduciary duties to the Herrings, that he breached his contract with them, and that the Herrings were damaged thereby. The complaint sought compensatory damages, punitive damages, and litigation expenses, including attorney fees.
Tante contends the trial court erred by granting summary judgment on liability to the Herrings and by denying his motion for summary judgment. Tante admits his extramarital relationship with Mrs. Herring, but denies he committed legal malpractice, denies any liability to the Herrings and specifically denies that he had an attorney-client relationship with Mr. Herring. On appeal he further contends the statute of limitation bars this action. Held:
1. While Tante admits an attorney-client relationship with Mrs. Herring, he denies that Mr. Herring was his client, and asserts that he represented only Mrs. Herring in her claim with the Social Security Administration. Thus, he contends he cannot be liable to Mr. Herring for legal malpractice because there could be no attorney-client relationship with Mr. Herring. See
Horn v. Smith & Meroney, P.C.,
The evidence shows, however, that both Mr. and Mrs. Herring attended meetings with Tante, that Mrs. Herring signed a contract prepared by Tante employing his firm as her “attorneys to present and prosecute for [her] and any applicable family members a claim for Social Security benefits.” Moreover, a fee request, again prepared *324 by Tante, and signed by both Mr. and Mrs. Herring stated, in part, “we have reviewed the request for approval of the fee submitted by our attorney, T. Edward Tante, IV, in the above case. After carefully considering the same and taking into account the work Mr. Tante did for us, we respectfully request that you approve Mr. Tante’s request for $1,500 attorney fees, as we believe the same to be justified and reasonable.”
Under these circumstances, although the claim prosecuted was for Mrs. Herring’s disabilities, the documentary evidence prepared by Tante shows that he was employed to represent both Mr. and Mrs. Herring, and that he performed legal services for both. An attorney-client relationship may be created expressly by contract or inferred from the parties’ conduct.
Huddleston v. State,
2. Next, Tante contends he cannot be liable for legal malpractice as a matter of law because he performed in a manner consistent with the standard of care ordinarily exercised by lawyers generally under similar conditions and like circumstances, and he was successful. In our view, however, this argument takes a too narrow view of attorneys’ obligations to their clients. A successful monetary result on a claim does not mean that a lawyer cannot, per se, otherwise breach his professional responsibilities to his clients.
Although it is customary for malpractice actions to be brought after a client’s cause ends unsatisfactorily, an unsatisfactory result is not an element of a claim for legal malpractice. The elements of such action are employment of an attorney; failure of the attorney to exercise ordinary care, skill and diligence; and damages proximately caused by that failure.
Guillebeau,
supra;
Rogers v. Norvell,
The Herrings supported their allegations with the affidavit of an attorney, which contained sufficient foundation, from which the trial court could determine the attorney was a legal malpractice expert. See
McDonald v. Glynn-Brunswick Mem. Hosp.,
We note that at the same time Tante admittedly was having a sexual relationship with Mrs. Herring, he was representing to the Social Security Administration that Mrs. Herring was so mentally disabled that she was incapable of working. Under the circumstances, Tante’s sexual misconduct with his client was potentially damaging to the Social Security claim. Moreover, Tante, particularly as an attorney, is charged with the knowledge (OCGA § 1-3-6) that engaging in *326 a sexual relationship with Mrs. Herring while each was married to another, constituted the crime of adultery. OCGA § 16-6-19. See OCGA § 16-2-20.
In addition, Mrs. Herring’s affidavit stated that Tante received her psychological evaluations which stated she had organic brain damage, was depressed and anxious with feelings of insecurity, inadequacy, and inferiority, and suffered from impairment of judgment and difficulty with interpersonal relationships. Mrs. Herring’s affidavit also stated that Tante was given medical reports showing she had a severe decrease in her desire for sex. She further stated that shortly after their first meeting, Tante advised her that she would be less depressed and would feel better if she would enter into a sexual relationship with him. Tante has not rebutted these allegations.
Further, Mrs. Herring’s affidavit stated that she has incurred and continues to incur considerable expense for psychological therapy. These statements are supported by affidavits from several mental health care providers and Mr. Herring.
A physician’s affidavit stated that Mrs. Herring suffered from mild dementia, amnestic syndrome, short term memory dysfunction, and that she was physically and mentally disabled, and also stated this information was provided Tante. A psychologist stated that Mrs. Herring suffered from organic brain syndrome, and another psychologist’s affidavit stated he treated Mrs. Herring after her sexual relationship with Tante and that her primary problem was obsession with the extramarital relationship with her attorney, and in his opinion, at the time of the sexual relationship Mrs. Herring’s impulse control was diminished and her judgment was impaired. Further, he opined that the relationship with Tante was destructive to Mrs. Herring’s emotional health and the health of her marriage. Also, a clinical psychologist’s affidavit stated that Mrs. Herring was vulnerable to Tante’s advances because of her emotional and mental condition caused by the occlusion of her right carotid artery, that she had inadequate control to resist Tante’s advances, that she was not fully capable of exercising independent judgment, and that the relationship with Tante was damaging to the Herring family and emotionally devastating to Mrs. Herring. Finally, Mr. Herring’s affidavit stated that the sexual relationship between his attorney and his wife damaged the marriage and his family, and that he contracted two venereal diseases from his wife.
Thus, particularly but not exclusively considering Tante’s professionally gained knowledge of his client’s, Mrs. Herring’s, medical condition and mental status, we agree with the Herrings’ expert that Tante had the duty not to induce and engage in sexual intercourse with his client, and particularly a client who was the spouse of his other client. Additionally, the record also shows that Tante violated his duty to both his clients by misusing information concerning Mrs. *327 Herring’s medical and psychological conditions to induce her to have a sexual relationship with him.
Although Tante is presumed to have performed legal services for the Herrings in an ordinary skillful manner
(Mims v. Wardlaw,
3. The record also supports the grant of summary judgment on the Herrings’ claim that Tante breached his fiduciary duties. Tante had a fiduciary relationship with the Herrings. OCGA § 23-2-58;
Jerry Lipps, Inc. v. Postell,
4. Although the Herrings’ legal expert astutely opined that Tante’s conduct constituted legal malpractice because of his deviation from the prescribed legal standards in Georgia by violating the Rules
*328
and Regulations of the Organization and Government of the State Bar of Georgia, Bar Rule 4-102, Standard 28 (knowingly using a confidence or secret of his client to the disadvantage of the client and by using a confidence or secret of his client for Tante’s advantage); Standard 30 (continuing his employment without notice to and the consent of the Herrings after his professional judgment on behalf of his clients was affected by his personal interests); Standard 45 (e) (knowingly engaging in other illegal conduct or conduct contrary to a disciplinary rule); and DR 4-401 (B) (using confidence or secrets of his client to the disadvantage of his client and to the advantage of himself without the consent of the Herrings after full disclosure), our Supreme Court recently foreclosed a claim of legal malpractice based upon these grounds. “[W]hile the Code of Professional Responsibility provides specific sanctions for the professional misconduct of the attorneys whom it regulates, it does not establish civil liability of attorneys for their professional misconduct, nor does it create remedies in consequence thereof.”
Davis v. Findley,
5. Finally, Tante contends the Herrings’ claim is barred by the statute of limitation. This defense was stated in Tante’s answer, but he did not seek a ruling on this defense in the trial court before the trial court’s grant of summary judgment to the Herrings. It is now too late to raise this defense. “A defendant may not avail himself of an affirmative defense which he failed to properly present.”
Searcy v. Godwin,
Accordingly, we find that the trial court did not err as enumerated. OCGA § 9-11-56 (c);
Lau’s Corp. v. Haskins,
Judgment affirmed.
On Motion for Reconsideration.
Tante’s motion for reconsideration contends the trial court’s grant of summary judgment on liability must be reversed because a grant of summary judgment to the plaintiffs cannot be based upon expert opinion evidence.
Howard v. Walker,
Further, as expert opinion evidence was not required to establish a claim for breach of fiduciary duties and Tante did not rebut the Herrings’ evidence supporting this claim, this objection in any event would not extend to the grant of summary judgment on the breach of fiduciary claim.
Tante’s motion for reconsideration based on the statute of limitation is denied for the reasons stated in Division 5 above.
Motion for reconsideration denied.