Should lawyers be given the “benefit of the doubt” in situations where allegations of professional liability are later asserted? What if the attorney relied on his or her professional judgment and experience in representing the client? These are the questions recently posed to and addressed by the Georgia Supreme Court.

For years in Georgia, one commonly litigated defense in legal-malpractice cases was the “judgmental immunity doctrine.” Relying on a history of Court of Appeals precedent, including Hudson v. Windholz, this defense focused on whether the attorney had acted in good faith and in his or her best judgment when making a recommendation to a client. As the Hudson court found in its 1992 decision, where a lawyer “assessed the relative strengths and weaknesses” of the clients’ claims “and exercised his best, informed judgment” prior to making a recommendation, “any error or mistake in judgment by defendant as to this recommendation is protected by the doctrine of judgmental immunity and may not serve as the basis for a legal malpractice action against defendant.”

The theory was, if the law is not settled and the lawyer makes a reasonable judgment based on their experience and knowledge, the lawyer would not be liable for legal malpractice if, in hindsight, the decision was the wrong one.

The applicability of this defense in Georgia was addressed by a decision issued on May 13, 2025, by the Supreme Court of Georgia in Cox-Ott v. Barnes & Thornburg LLP. In that case, the defendant attorney argued that the judgmental immunity doctrine insulated him from allegations that he had breached the standard of care in proceeding with the client’s case under Georgia law (rather than New York law) and in asserting a reformation claim on the client Trust’s behalf against an insurance company (instead of a rescission claim). The trial court concluded that the judgmental immunity doctrine applied because the lawyer was a seasoned litigator with experience in both Georgia and New York courts. The Court of Appeals affirmed, concluding that the lawyer was not required to prove that he had researched the choice of law issue in order to benefit from this defense because he had “engaged in an honest exercise of professional judgment in applying Georgia law.”

The Georgia Supreme Court upheld the lower court’s decision due to the client’s failure to prove the causation element of her claims but expressly disapproved of the lower court’s reliance on the professional judgment doctrine. In a detailed opinion reviewing the history of this doctrine in Georgia, the Supreme Court expressly overruled Hudson on the grounds that neither it nor several of the cases following it considered the separate duty of reasonable care owed by attorneys. An attorney’s duty to exercise reasonable care in providing legal services “is a hallmark of legal malpractice jurisprudence,” the Supreme Court recognized. “[B]y focusing on the discretion afforded to an attorney without acknowledging the broader imitation of that discretion being exercised with reasonable care, Hudson materially altered the long-established standard.”

The Supreme Court concluded that the Court of Appeals erred by considering only whether the lawyer had engaged in an honest exercise of professional judgment rather than reviewing the specific circumstances of the case to determine whether the lawyer “exercised reasonable care in reaching that judgment.”

By this holding, the Supreme Court has limited the use of the judgmental immunity doctrine as a standalone defense. Instead, the Supreme Court has concluded that this doctrine cannot be considered separately from the second element of a legal malpractice case: whether the attorney exercised reasonable care in providing legal services (that is, whether the lawyer breached any duty owed). Thus, a lawyer’s good faith judgment in recommending a course of action to a client may be insufficient without evidence that the lawyer similarly exercised reasonable care in reaching that judgment.

Before this decision, it was recommended to lawyers that they document significant decisions and recommendations to clients, as well as the support for the same. That advice still rings true after the Cox-Ott decision. However, lawyers should consider not only whether such a recommendation documents the lawyer’s support for their recommendation, but also whether it could be used to show that the lawyer exercised reasonable care in reaching that judgment to the extent the judgment is later shown to be mistaken.

Whether a lawyer has exercised reasonable care in providing legal services is highly fact-dependent. And while the Supreme Court correctly noted that the standard of care “remains constant,” long-term precedent in Georgia and elsewhere also recognizes that whether a breach has occurred is impacted by developments in the law and the standards of practice (and sometimes technological improvements).

A lawyer making a recommendation to a client might want to note whether the law is settled or whether there is uncertainty in the outcome. For example, if the law is uncertain, and the lawyer makes a recommendation based on the known facts and circumstances, as well as the attorney’s knowledge and experience, that would be expected to support an argument that the lawyer exercised reasonable care in using their judgment. On the other hand, if the law is well-settled but the lawyer fails to consider that as a factor impacting their recommendations, it may be harder for the lawyer to defend the recommendations.

Future court decisions are expected to shape whether and how a lawyer’s exercise of professional judgment impacts their duty of care, but in the meantime, Georgia lawyers should continue to document the ways in which they used reasonable care in exercising their judgment in client matters.