                    IN THE SUPREME COURT OF TENNESSEE
                               AT KNOXVILLE
                                   September 6, 2006 Session


              CATHY L. CHAPMAN, ET AL. V. RICK J. BEARFIELD

              Appeal by permission from the Court of Appeals, Eastern Section
                           Circuit Court for Washington County
                            No. 8999 Jean A. Stanley, Judge



                  No. E2004-02596-SC-R11-CV - Filed on November 6, 2006


We accepted this appeal to clarify whether experts testifying in legal malpractice cases must be
familiar with a single, statewide professional standard of care or a standard of care for a particular
locality within the state. Because we hold that a single, statewide professional standard of care exists
for attorneys practicing in Tennessee, expert witnesses testifying in legal malpractice cases must be
familiar with the statewide professional standard. The judgment of the Court of Appeals is affirmed.
We remand the case to the trial court for further proceedings consistent with this opinion.

        Tenn. R. App. P. 11; Judgment of the Court of Appeals Affirmed; Remanded

CORNELIA A. CLARK, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and
JANICE M. HOLDER, GARY R. WADE, JJ., and E. RILEY ANDERSON , SP .J., joined.

Jason W. Blackburn, Johnson City, Tennessee, for the appellant, Rick J. Bearfield.

John J. Bandeian, Bristol, Tennessee, for the appellees, Cathy L. Chapman, Brandon M. Chapman,
Kaylan L. Chapman, and Dana L. Chapman.


                                              OPINION

                                          BACKGROUND

        Cathy L. Chapman and other members of the Chapman family (“the Chapmans”) retained
Johnson City attorney Rick J. Bearfield (“Bearfield”) in 2001 to represent them in a medical
malpractice action resulting from a Chapman family member’s death. The Chapmans became
dissatisfied with Bearfield’s representation and obtained new counsel. After reviewing the case, the

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Chapmans’ new counsel advised them to file a legal malpractice suit against Bearfield. On July 8,
2004, in the Washington County Circuit Court, the Chapmans filed pro se the legal malpractice
action against Bearfield that has generated this appeal.

        Bearfield answered the Chapmans’ complaint and denied numerous factual allegations.
Bearfield subsequently moved for summary judgment. In support of his motion, Bearfield filed a
Statement of Material Facts, see Tenn. R. Civ. P. 56.03 (2006), and his own affidavit. In the
affidavit, Bearfield opined that neither he nor any attorney under his direction had committed
malpractice, citing as his authority the professional standard of care applicable to attorneys “in the
upper East Tennessee area.”

        The Chapmans responded to Bearfield’s motion, submitting their own Statement of Material
Facts and the affidavit of Richard L. Duncan, a Knoxville medical malpractice attorney. Duncan
asserted that he was “familiar with the standard of care for attorneys in medical malpractice cases
in Tennessee” and opined that Bearfield’s prosecution of the Chapmans’ medical malpractice claim
fell below the standard of what “a reasonable attorney under similar circumstances” would have
done.

       The motion for summary judgment was initially scheduled for hearing on September 27,
2004, but was then rescheduled by agreement of the parties. On October 5, 2004, Bearfield filed a
Reply Statement and a supporting affidavit.

        On October 7, 2004, the trial court heard arguments on Bearfield’s summary judgment
motion. At the hearing, Bearfield advanced a two-part argument. First, Bearfield attacked the
sufficiency of Duncan’s affidavit because Duncan did not demonstrate a familiarity with the
professional standard of care required of attorneys in upper east Tennessee. Second, he argued that
the Chapmans’ expert affidavit did not meet the requirements of Tennessee Rule of Civil Procedure
56.06 because it did not include the medical reports and other documents it referenced.

         On October 8, 2004, the Chapmans filed a revised affidavit of Richard L. Duncan, now with
the required supporting documents attached. Specific leave of the trial court had not been granted
for this filing.

         On October 18, 2004, the trial court granted summary judgment to Bearfield because (1) the
Duncan affidavit did not meet what the judge termed “the locality rule”: the affidavit did not
demonstrate Duncan’s familiarity with the professional standard of care required of attorneys in that
part of east Tennessee, and (2) the Chapmans’ failure to attach supporting documents to the Duncan
affidavit made it “technically deficient.”

         The Chapmans appealed. The Court of Appeals vacated the grant of summary judgment.
First, the intermediate appellate court could find no basis for a “locality rule” that governs the
conduct of an attorney practicing law in Tennessee. Second, the court found the Duncan affidavit
technically deficient but reasoned that the Chapmans should have received extra time to correct the


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mistake.

        We accepted this appeal to clarify whether experts testifying in legal malpractice cases must
be familiar with a single statewide professional standard of care or a standard of care for a particular
locality within the state. We hold that a single, statewide professional standard of care exists for
attorneys practicing in Tennessee and that expert witnesses testifying in legal malpractice cases must
be familiar with the statewide professional standard of care.


                                                   DISCUSSION

                                               Standard of Review

        We review a trial court’s grant of summary judgment de novo. See Blair v. W. Town Mall,
130 S.W.3d 761, 763 (Tenn. 2004). In accordance with Tennessee Rule of Civil Procedure 56.04,
a grant of summary judgment is appropriate only when (1) there is no genuine issue with regard to
the material facts relevant to the claim or defense contained in the motion, and (2) based on the
undisputed facts, the moving party is entitled to a judgment as a matter of law. Id. at 764.

               A Statewide Professional Standard of Care for Tennessee Attorneys

         In Spalding v. Davis, 674 S.W.2d 710 (Tenn. 1984), the Court noted that “[t]he settled
general rule in most if not all [United States] jurisdictions is that an attorney . . . may be held liable
to his client for damages resulting from his failure to exercise [the] ordinary care, skill, and diligence
. . . which is commonly possessed and exercised by attorneys in practice in the jurisdiction.” Id. at
714 (emphasis added).1 Twice since 1984, in Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C.,
813 S.W.2d 400, 405-06 (Tenn. 1991), and in Sanjines v. Ortwein & Assocs., 984 S.W.2d 907, 910
(Tenn. 1998), we repeated with approval, though without further elaboration or analysis, the
Spalding formulation. However, none of these cases presented a good opportunity to define the term
“jurisdiction.”

        Since 1984, various panels of the Court of Appeals have been inconsistent in defining the
“jurisdiction” referenced in Spalding. On the one hand, two reported opinions of the Court of
Appeals have linked the legal malpractice standard of care with the medical malpractice standard,
which is governed by a statutory locality rule.2 See Underwood v. Waterslides of Mid-Am., Inc., 823


         1
           In M eadows v. State, 849 S.W .2d 748, 752 (1993), we overruled Spalding on grounds unrelated to the issue
in this case.

         2
           In unpublished opinions, three other Court of Appeals panels have interpreted “jurisdiction,” either explicitly
or implicitly, to mean a political subdivision of the state. See Logan v. W instead, No. 03A01-9902-CV-00057, 1999
W L 538208, at *2 (Tenn. Ct. App. July 14, 1999) (crediting a defendant attorney’s service as a district attorney general
in the Third Judicial District and as an attorney in the county in which the case was heard as evidence of his awareness
of the standard of care in his “jurisdiction”); Davis v. Simpson, No. 1295, 1990 W L 16893, at *2 (Tenn. Ct. App. Feb.

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S.W.2d 171, 183 (Tenn. Ct. App. 1991) (finding that a professional’s familiarity with “the local
standard of care is the exception rather than the rule,” with the principal exceptions being law and
medicine); Cleckner v. Dale, 719 S.W.2d 535, 539 (Tenn. Ct. App. 1986) (“a lawyer’s standard of
care does not differ markedly from that of physicians or other professionals”) (internal quotation
marks and citations omitted). On the other hand, one intermediate appellate court panel understood
“jurisdiction” to mean “Tennessee.” See Wood v. Parker, 901 S.W.2d 374, 379 (Tenn. Ct. App.
1995) (“[w]e find nothing . . . to show that defendant . . . deviated from the accepted standard of care
for attorneys in Tennessee”) (emphasis added). In this case, the Court of Appeals, in its opinion
below, also adopted a statewide professional standard of care.

          We agree with the instant decision of the Court of Appeals. A “jurisdiction” is “[a]
geographic area within which political or judicial authority may be exercised.” Black’s Law
Dictionary 855 (7th ed. 1999); see also Webster’s Third New International Dictionary 1227 (1993)
(defining jurisdiction as “the limits or territory within which any particular power may be
exercised”). This Court allows an attorney with a Tennessee law license to practice anywhere in the
state. See Tenn. R. Sup. Ct. 7 § 1.05 (2006) (“All persons admitted to the bar of Tennessee are . .
. (i) officers of the courts of Tennessee, eligible for admission to practice in any court in this State
. . . and (ii) subject to the duties and standards imposed from time to time on attorneys in this
State.”). An attorney practicing in Tennessee, then, must exercise the ordinary care, skill, and
diligence commonly possessed and practiced by attorneys throughout the state. Indeed, while there
may be local rules of practice within the various judicial districts of our State, there are no local
standards of care. There is only one standard of care for attorneys practicing in Tennessee: a
statewide standard. By extension, an expert who opines in a legal malpractice case about an
attorney’s adherence to our professional standard of care must be familiar with the statewide
professional standard of care.

       Bearfield argues that the medical malpractice locality rule should be extended to legal
malpractice actions. However, the locality rule for medical malpractice is a creature of statute. See
Tenn. Code Ann. § 29-26-115(a)(1) (Supp. 2005) (standard of care relates to “the community in
which the defendant practices or in a similar community”). Neither this Court nor the legislature has
created a similar standard for the legal profession, and we decline to create one here.

        We also believe the adoption of a statewide professional standard of care for attorneys who
practice law in Tennessee is good policy. Three concerns motivate our conclusion. First, if a local
professional standard of care prevailed, plaintiffs might have difficulty proving their legal
malpractice cases because local attorneys might not be willing to speak against their colleagues. See
3 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 19.5 (5th ed. 2000). Second, local
variations in the standard of care could create an inefficient and inequitable morass of professional


27, 1990) (noting that a defendant attorney’s “qualifications and experience in domestic litigation in Knox County”
helped inform his awareness of the professional standard of care); Anthony v. Felknor & Cunningham, No. 146, 1988
Tenn. App. LEXIS 601, at *8-9 (Tenn. Ct. App. Sept. 30, 1988) (holding, without analysis, that Spalding meant “an
attorney has the duty to use the care and skill ordinarily used by attorneys in the same or similar locality under similar
circumstances”).

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standards of care, reducing the likelihood that some attorneys would face malpractice claims while
increasing the likelihood for others. See id. Finally, the emergence of the internet as a primary tool
for legal research undercuts historical transportation and communications arguments favoring local
variations in the standard of care. See Russo v. Griffin, 510 A.2d 436, 438 (Vt. 1986). We join
those states which have accepted these and other rationales for maintaining a statewide standard of
professional care for their attorneys. See, e.g., Brett v. Berkowitz, 706 A.2d 509, 517 (Del. Super.
Ct. 1998); Kellos v. Sawilowsky, 325 S.E.2d 757, 758 (Ga. 1985); Fenaille v. Coudert, 44 N.J.L.
286, 289 (N.J. 1882); Little v. Matthewson, 442 S.E.2d 567, 570 (N.C. Ct. App. 1994), aff’d 455
S.E.2d 160 (N.C. 1995); Feil v. Wishek, 193 N.W.2d 218, 225 (N.D. 1971); Smith v. Haynsworth,
Marion, McKay & Geurard, 472 S.E.2d 612, 614 (S.C. 1954); Russo v. Griffin, 510 A.2d 436, 438
(Vt. 1986); Cook, Flanagan & Berst v. Clausing, 438 P.2d 865, 866 (Wash. 1975); Moore v. Lubnau,
855 P.2d 1245, 1250 (Wyo. 1993).

       Because there is a statewide professional standard of care for attorneys practicing in
Tennessee, the Court of Appeals correctly overturned the trial court’s award of summary judgment
to Bearfield. The Chapmans’ expert affiant did not need to assert knowledge of any practice
standards peculiar to the “upper East Tennessee area.” To the contrary, he correctly asserted his
knowledge of the professional standard of care for attorneys practicing in Tennessee. Instead, it was
Bearfield’s original affidavit which relied upon the erroneous professional standard of care.

        Because we hold that the trial court used an incorrect standard of review in considering
Bearfield’s motion for summary judgment, we agree with the Court of Appeals that the grant of
summary judgment was error and that this case must be remanded to the trial court. It is therefore
unnecessary to determine whether, even if Bearfield’s affidavit is subjected to the correct standard
of review, it is otherwise sufficient to shift the burden to the Chapmans to demonstrate genuine
issues of material fact in controversy.3 At this stage, it is also unnecessary for us to determine the
adequacy of any pleadings or affidavits submitted subsequent to the original affidavit.




         3
          In their complaint, the Chapmans pleaded specific facts to support their contention that Bearfield committed
malpractice, including his filing of an incorrect pleading that vitiated their medical malpractice claim, his failure to
consult with the proper experts, and his delegation of too much responsibility to an inexperienced attorney. In
Bearfield’s Answer, he denies these factual allegations, placing those points in controversy. In his summary judgment
motion, Bearfield left those specific factual matters in contention. In both his Statement of Material Facts and his self-
prepared expert affidavit, Bearfield asserts that “[a]t all times relevant thereto, Bearfield and the attorneys under his
direction acted within the standard of care required of attorneys in the upper East Tennessee area” and that “[n]either
Bearfield nor the attorneys under his direction committed any act or made any omission that was below or deviated from
the standard of care in the upper East Tennessee area.” These conclusory statements of mixed law and fact alone may
not remove from controversy the specific facts that he denied in his Answer.

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                                          CONCLUSION

        A single, statewide professional standard of care exists for attorneys practicing law in
Tennessee. Therefore, experts testifying in legal malpractice cases in Tennessee must be familiar
with the professional standard of care for the entire state. We affirm the judgment of the Court of
Appeals and remand this case to the trial court for further proceedings consistent with this opinion.
The costs of this appeal are taxed to the appellant, Rick J. Bearfield, for which execution may issue,
if necessary.



                                                       ____________________________________
                                                       CORNELIA A. CLARK, JUSTICE




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