Russo v. Griffin

Joseph Russo turned over his long-established paving business, J.A. Russo Paving, Inc. (Russo Paving) (plaintiff), two his two sons, Anthony (plaintiff) and Frank. The two brothers hired attorney H. Vaughn Griffin, Jr. (Griffin) (defendant), and his firm Griffin & Griffin, Ltd. (defendant), to assist with the process of incorporating the business. Griffin drew up the necessary paperwork, filed the documents with the Secretary of State’s office, and arranged for the transfer of assets. Several years later, Frank considered leaving the paving business to purchase a laundromat. The two brothers met with Griffin to discuss Anthony’s buy-out of Frank’s share of the business. At no time during the meeting did Griffin inform Anthony of including a covenant not to compete in the documents for Frank to sign. Three months after the buy-out, Frank went back into the paving business in direct competition with Russo Paving. Anthony and Russo Paving filed suit against defendants for legal malpractice, asserting that inclusion of a non-compete in the transfer documents would have prevented Frank from establishing a business in direct competition with Russo Paving. At trial, plaintiffs provided two attorneys who had practices in the state’s largest city who testified that Griffin’s failure to advise the plaintiffs to include a covenant not to compete deviated from the standard of care required of practicing attorneys in the state. Griffin introduced two similar attorneys who practiced in the community who testified that Griffin’s conduct was consistent with the applicable standard of care. The trial court sided with defendants and applied the locality rule in holding that the relevant standard of care was what a careful and prudent practitioner in the town or community in which the lawyer practices would do under the same or similar circumstances. Plaintiffs appealed.