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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

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Ohio Legal Ethics Narrative

I. Client-lawyer relationship

1.1 RULE 1.1 COMPETENCE

1.1:300 Malpractice Liability

  • Primary Ohio References: Ohio Rule 1.1; ORC 2305.11(A)

  • Background References: ABA Model Rule 1.1
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 6.11

  • Commentary: ABA/BNA § 301:101; ALI-LGL §§ 48-54; Wolfram § 5.6

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 6.11 (1996).

Requirements of prima facie case of malpractice: In Ohio, it makes no difference whether the claim arises out of representation by the attorney in a civil, criminal, or administrative proceeding or in a nonlitigation context; the elements of a malpractice claim in each are essentially the same. The articulation of those elements by the Ohio Supreme Court, in a case premised on alleged negligent representation in civil, criminal, and administrative proceedings, is as follows:

To establish a cause of action for legal malpractice based on negligent representation, a plaintiff must show (1) that the attorney owed a duty or obligation to the plaintiff, (2) that there was a breach of that duty or obligation and that the attorney failed to conform to the standard required by law, and (3) that there is a causal connection between the conduct complained of and the resulting damage or loss.

Vahila v. Hall, 77 Ohio St.3d 421, 421-22, 674 N.E.2d 1164, 1165-66 (1997) (syllabus), following Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058 (1989). Accord Jackson v. Greger, 110 Ohio St.3d 488, 2006 Ohio 4698, 854 N.E.2d 487; Krahn (criminal representation; elements of proof for all malpractice claims, whether arising from criminal or civil representation, are the same -- a duty arising from the attorney-client relationship, breach of that duty, and damages proximately caused by the breach); Davis v. Montenery, 173 Ohio App.3d 740, 2007 Ohio 6221, 880 N.E.2d 488 (representation in real estate transfer); Hooks v. Ciccolini, 2002 Ohio 2322, 2002 Ohio App. LEXIS 2344 (Summit) (criminal representation); see McInnis v. Hyatt Legal Clinics, 10 Ohio St.3d 112, 461 N.E.2d 1295 (1984) (civil representation).

An attorney-client relationship sufficient to support a claim for legal malpractice is created when a person approaches an attorney with a view of retaining his or her services.  David v. Schwarzwald, Robiner, Wolf & Rock Co., L.P.A., 79 Ohio App.3d 786, 607 N.E.2d 1173 (Cuyahoga 1992). See Landis v. Hunt, 80 Ohio App.3d 662, 669, 610 N.E.2d 554, 558 (Franklin 1992) (initial consultation constituted attorney-client relationship even though "no fee arrangement was discussed or money exchanged").

Statute of limitations: ORC 2305.11(A)(1) provides that an action for legal malpractice must be commenced within one year after the cause of action accrues. See, e.g., Hibbett v. City of Cincinnati, 4 Ohio App.3d 128, 446 N.E.2d 832 (Hamilton 1982) (applying one-year statute of limitations where "gist" of action involved legal malpractice, regardless of attempts to label claims as ones for fraud, negligence not involving physical injury, and breach of contract, all of which have four-year or longer statutes of limitations); accord Grover v. Bartsch, 2006 Ohio 6115, 2006 Ohio App. LEXIS 6086 (Montgomery) (one-year, not two-year, limitation applied because "the essential character of the infliction of emotional distress claims was defamation"); Roberts v. Hutton, 152 Ohio App.3d 412, 2003 Ohio 1650, 787 N.E.2d 1267 (Franklin); John Oleyar HR-10 Profit Sharing Plan & Trust v. Martin, Pergram & Browning Co., L.P.A., No. 01 AP-182, 2001 Ohio App. LEXIS 5251, at *4 (Franklin Nov. 27, 2001) ("Regardless of whether claims of professional misconduct by an attorney are framed in terms of negligence or breach of contract, all such claims state a cause of action for legal malpractice" subject to the one-year statute of limitations set forth in ORC 2305.11(A)).

(Ohio at one time also had a legal malpractice six-year statute of repose, which ran from the date of the act or omission constituting the alleged malpractice, but that provision was subsequently held unconstitutional in State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 715 N.E.2d 1062 (1999).)

While seemingly straightforward on its face, the statute of limitations presents several problems in application. First, one must determine when "the cause of action accrues," the date from which the statute of limitations begins to run. Second, one must consider the impact of Ohio provisions pertaining to the tolling of claims and the "saving" of dismissed claims in computing the statute's one-year limitation period.

Accrual of claim: A cause of action for legal malpractice accrues, and the one-year statute of limitations commences to run, (1) when there is a cognizable event whereby the client discovers or should have discovered that his or her injury was related to the attorney's act or non-act and the client is put on notice of a need to pursue possible remedies against the attorney, or (2) when the attorney-client relationship for that particular transaction or undertaking terminates, whichever occurs later. Zimmie v. Calfee, Halter & Griswold, 43 Ohio St.3d 54, 538 N.E.2d 398 (1989) (syllabus) (applying Omni-Food & Fashion, Inc. v. Smith, 38 Ohio St.3d 385, 528 N.E.2d 941 (1988); dismissal of malpractice claim on limitations grounds affirmed). Of the many cases in accord, see, e.g.,Ott v. Bradley, 2007 Ohio 3124, 2007 Ohio App. LEXIS 2916 (Lorain) (summary judgment on limitations grounds affirmed); Crystal v. Wilsman, 151 Ohio App.3d 512, 2003 Ohio 427, 784 N.E.2d 764 (Cuyahoga) (summary judgment on limitations grounds reversed); Smith v. Capriolo, No. 19993, 2001 Ohio App. LEXIS 1668 (Summit Apr. 11, 2001) (summary judgment on limitations grounds affirmed. See also FDIC v. Alexander, 78 F.3d 1103 (6th Cir. 1996), which contains an informative discussion of both prongs of the Zimmie rule.

In addition to the definitive definition of the "cognizable event" or discovery prong set forth in Zimmie, a number of Eighth District Court of Appeals decisions have applied the following version of the Zimmie test: "A 'cognizable event' is an event sufficient to alert a reasonable person that in the course of legal representation his attorney committed an improper act." Chinese Merchs. Ass'n v. Chin, 159 Ohio App.3d 292, 2004 Ohio 6424, 823 N.E.2d 900, at para. 7 (Cuyahoga); Tolliver v. McDonnell, 155 Ohio App.3d 10, 2003 Ohio 5390, 798 N.E.2d 1176, at para. 11 (Cuyahoga). Accord Case v. Landskroner & Phillips Co., L.P.A., No. 78147, 2001 Ohio App. LEXIS 1987 (Cuyahoga, May 3, 2001); Wozniak v. Tonidandel, 121 Ohio App.3d 221, 699 N.E.2d 555 (Cuyahoga 1997). That court has further elaborated that "[i]n determining the cognizable event, 'the focus should be on what the client was aware of and not an extrinsic judicial determination.'" Chin, id. (quoting Vagianos v. Halpern, No. 76408, 2000 Ohio App. LEXIS 5856 (Cuyahoga Dec. 14, 2000)). Accord McDade v. Spencer, 75 Ohio App.3d 639, 600 N.E.2d 371 (Franklin 1991).

Cicchini v. Streza, 160 Ohio App.3d 189, 2005 Ohio 1492, 826 N.E.2d 379 (Stark), examined the cognizable-event issue in the context of alleged malpractice in the underlying action at the appellate level.  The malpractice plaintiff argued that his counsel had failed to advise him of the voting propensity of four Supreme Court justices, thereby preventing him from settling the underlying case prior to the Court's adverse ruling.  In affirming the grant of summary judgment to the lawyer defendants in the malpractice case on statute-of-limitation grounds, the court of appeals held that the cognizable event occurred in 2000, when the Supreme Court reinstated a verdict of more than $1,000,000 against Cicchini; thus, as he admitted in deposition testimony, he learned of the "disposition or predisposition" of four of the seven justices no later than the date of the adverse Supreme Court ruling, which occurred more than one year prior to the filing of the malpractice claim in October 2002.

The Supreme Court spoke to the termination prong of the Zimmie test most recently in Smith v. Conley, 109 Ohio St.3d 141, 2006 Ohio 2035, 846 N.E.2d 509. In Conley, a former client sued a lawyer for malpractice. The lawyer filed for summary judgment on statute-of-limitations grounds, and the motion was granted. The court of appeals reversed; the Supreme Court, in turn reversing the court of appeals, held that the action had been timely filed.

The facts of the underlying action pertinent to the termination issue were as follows: Conley represented Smith in a criminal matter in which Smith, on August 21, 2002, was found guilty of passing bad checks. Prior to the sentencing hearing, Smith allegedly discovered exculpatory evidence and asked Conley to seek a new trial. Conley was not persuaded of the value of the new evidence, and, in an August 26, 2002 telephone conversation, Conley purported to terminate the relationship. He memorialized the termination-by-telephone conversation in two letters of August 26 and August 28. Conley filed a motion to withdraw as counsel on September 6, 2003. Smith filed his malpractice action on September 5, 2003, based on Conley's conduct of the trial of his criminal matter, resulting in conviction.

After stating the Zimmie test, the Court noted, as to the cognizable event aspect, that the date of conviction was the date Smith should have known of the injury allegedly caused by Conley. That date, August 21, 2002, was of course not within the one-year limitation period. The Court then turned to the termination prong. Smith argued that the date of withdrawal, pursuant to local court rule, was the determinative date. The Supreme Court, however, found that local court rules, which vary from court to court, "are administrative in nature – designed to facilitate case management. . . . They do not implicate constitutional rights. . . . For purposes of R.C. 2305.11, the termination of an attorney-client relationship is not controlled by local rules of court." Id. at ¶ 9. Instead,

Conley clearly informed Smith no later than August 28, 2002, that he no longer could represent him and would not file further actions on his behalf. The efficient administration of justice would not be served if the various local rules of court regarding attorney withdrawal determined the date of termination of the attorney-client relationship.

Id. at ¶ 10. Smith's malpractice claim was therefore untimely under both prongs of the Zimmie test. Justice Lundberg Stratton was the lone dissenter, arguing that the "bright line" provided by local court withdrawal rules is the preferable termination test.

Another termination case, but with a different result, is Busacca v. Maquire & Schneider, LLP, 162 Ohio App.3d 689, 2005 Ohio 4215, 834 N.E.2d 856 (Trumbull). In Busacca, former clients brought a malpractice action against their lawyers. The trial court granted summary judgment for the lawyers, but the court of appeals reversed on the ground that genuine issues of fact existed with respect to the termination issue. The critical pieces of evidence were two letters written by the client(s), dated October 2000 and February 2001. If the former letter terminated the relationship, the malpractice action, filed on November 13, 2001, was out of time; if termination did not occur until the February 2001 letter, the action was timely. The October letter from the clients stated that they were hiring another attorney but also demanded a status report on the case. The February letter repeated the news that they were hiring another attorney, but in addition demanded that the file on the medical malpractice case be returned to them before their meeting with their new attorney. The court of appeals found that the October letter could be read either as a termination notice or a threat that if the requests in the letter were not complied with, they would hire a new attorney. Since there was a genuine issue of material fact with respect to whether the October letter terminated the relationship, the court reversed the summary judgment for the lawyer-defendants and remanded for further proceedings. Accord R.E. Holland Excavating, Inc. v. Martin, Browne, Hull & Harper, P.L.L., 162 Ohio App.3d 471, 2005 Ohio 3662, 833 N.E.2d 1273.

An interesting issue with respect to application of the termination aspect of the Zimmie test is raised by the court of appeals' opinion in Trickett v. Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A., No. 2000-P-0105, 2001 Ohio App. LEXIS 4806 (Portage Oct. 26, 2001), holding that the statute of limitations had run on plaintiff's claim because the claim was not filed until more than two years after the lawyers last provided service to him on the matter, a zoning dispute, on February 21, 1996. (It was undisputed that discovery of the resulting damage or injury had occurred even earlier.) In so deciding, the court expressly declined to follow the rule set forth in Mobberly v. Hendricks, 98 Ohio App. 3d 839, 649 N.E.2d 1247 (Medina 1994), to the effect that in determining when termination occurred, "the court must point to an affirmative act by either the attorney or the client that signals the end of the relationship."  Id. at 843, 649 N.E.2d at 1249. While, in the words of the court, "there was no such affirmative act," Trickett nevertheless held that

given the absence of any legal remedies available to appellant with respect to his zoning appeal subsequent to February 21, 1996, and his lack of communication with appellees subsequent to that date, the attorney-client relationship between appellant and appellees for that particular transaction terminated on February 21, 1996.

2001 Ohio App. LEXIS 4806, at *3. Mobberly would appear to be the sounder of the two approaches, based on the court's analysis that, while the client may terminate the relationship at any time, an attorney is not free to withdraw without notice to the client and, if required by applicable court rules, permission of the court, citing former OH DR 2-110(A).  98 Ohio App.3d at 843, 649 N.E.2d at 1249. [But see, as to the effect of obtaining permission to withdraw pursuant to court rules, Smith v. Conley supra.] Trickett does not deal with this reasoning. Indeed, it could be argued that the facts in Trickett may have met the Mobberly affirmative act test in any event, in that the law firm had declined to represent plaintiff in the filing of civil rights claims against government officials based on their conduct arising during the zoning dispute. See 2001 Ohio App. LEXIS 4806, at *3. See also Blackwell v. Gorman, 142 Ohio Misc.2d 50, 2007 Ohio 3504, 870 N.E.2d 1238 (Franklin C.P.) (law firm letter stating that our representation of you has concluded, sent well within the one-year statutory period; summary judgment on limitations grounds denied).

A further wrinkle on the termination-of-employment issue is seen in the case of John Oleyar HR-10 Profit Sharing Plan & Trust v. Martin, Pergram & Browning Co., L.P.A., No 01AP-182, 2001 Ohio App. LEXIS 5251 (Franklin Nov. 27, 2001), where the court, citing Mobberly as authority (id. at *12), affirmed summary judgment for the defendant attorneys on statute of limitations grounds. The court determined that the attorney-client relationship had ceased no later than November 1995, when the lawyer had ceased serving in the capacity of attorney; suit was not filed until January 22, 1999. (The court held that the cognizable event occurred prior to January 22, 1998.) Also, in 1994, the lawyer told the client to pick up his papers or they would be destroyed and the client made reference to receiving a "final bill" during that year. The fact that the lawyer later attempted to contact the client to pass on some information about the matter "did not resuscitate the attorney-client relationship." Id. Perhaps the "final bill" remark by the client and/or the pick-up papers-or-they-will-be-destroyed notice by the attorney satisfied the Mobberly test, but the court does not explicitly tie its citation to Mobberly to either of these two instances.

Actions of either party that dissolve the "essential mutual confidence" between attorney and client can signal the termination of the attorney-client relationship, which actions can trigger the running of the statute of limitations. See Wozniak v. Tonidandel, 121 Ohio App.3d 221, 699 N.E.2d 555 (Cuyahoga 1997) (attorney-client relationship can be terminated by letter from attorney to client, or, as in this case, where, after jury verdict, attorney told client his firm's involvement in case was over). Since the question of when the attorney-client relationship terminates is one of fact, Omni-Food & Fashion, Inc. v. Smith, 38 Ohio St.3d 385, 528 N.E.2d 941 (1988), summary judgment on limitations grounds is not properly granted where there is conflicting evidence as to the termination date. Compare Sinsky v. Gatien, No. 19795, 2000 Ohio App. LEXIS 3903 (Summit Aug. 30, 2000) (conflicting evidence as to date of termination; also, counsel continued to represent client after supposed termination date; summary judgment for defendant attorneys reversed), and Monastra v. D'Amore, 111 Ohio App.3d 296, 676 N.E.2d 132 (Cuyahoga 1996) (evidence that lawyer continued to act as client's attorney on matter after client fired him; summary judgment for attorney reversed), with Williams-Pytlik v. Biviano, Nos. 97-T-0022, 97-T-0063, 1998 Ohio App. LEXIS 3638 (Trumbull Aug. 7, 1998) (no evidence indicating relationship ended other than on date of client's letter dismissing defendant as her lawyer, more than one year prior to date suit was brought; summary judgment on limitations grounds affirmed). Fact issues can likewise arise with respect to when the client discovered or should have discovered that his or her injury was related to the attorney's malpractice. See Vagianos v. Halpern, No. 76408, 2000 Ohio App. LEXIS 5856 (Cuyahoga Dec. 14, 2000) (summary judgment for defendants reversed); Landis v. Hunt, 80 Ohio App.3d 662, 610 N.E.2d 554 (Franklin 1992) (same).

Continuous representation: It follows from the termination aspect of the Zimmie rule that a client's malpractice claim does not accrue so long as the attorney continuously represents the client. See Feudo v. Pavlik, 55 Ohio App.3d 217, 563 N.E.2d 351 (Cuyahoga 1988) (lawyer defendants argued that claim accrued on March 28, 1985, when plaintiff allegedly should have discovered his injury and when attorney-client relationship allegedly terminated. Reversing the trial court's grant of summary judgment for defendants, the appellate court held that malpractice claim was not time-barred where defendant attorneys conceded that Pavlik continued to work on appeal of case and that his representation of plaintiff was "nominally continuous" until appeal was decided on August 12, 1985; malpractice action was filed within eight months of determination of appeal). Accord Kumar v. Higgins, 91 F. Supp.2d 119 (N.D. Ohio 2000) (summary judgment motion by defendant lawyers, based on Ohio statute of limitations, denied; even though plaintiff should have discovered the malpractice in 1995, the legal relationship continued until December 1998, and suit was brought within one year of that date).

Tolling the statute of limitations - In general: Under Ohio law, the running of the statute of limitations will be tolled if (a) the person against whom a claim accrues is out of the state, see ORC 2305.15(A); (b) the person against whom a claim accrues is imprisoned, see ORC 2305.15(B); (c) the person in whose favor a claim accrues is (i) a minor or (ii) of unsound mind, see ORC 2305.16. An earlier provision that extended tolling to incarcerated plaintiffs during the time of their incarceration was repealed. 143 Ohio Laws 581 (1990) (amendment to ORC 2305.16, effective 1-13-91).

Tolling the statute of limitations - Interpretive issues: One must be cautious in applying the provision tolling the statute of limitations if the person against whom the claim accrues is out of the state (ORC 2305.15(A)), as both constitutional and statutory construction concerns cloud its application. In Bendix Autolite Corp. v. Midwestco Enterprises, Inc., 486 U.S. 888 (1988), the United States Supreme Court held that ORC 2305.15(A), as applied to a foreign corporation having no presence in Ohio, imposes an impermissible burden on interstate commerce. Relying on Bendix, the Second District Court of Appeals ruled in Gray v. Austin, 75 Ohio App.3d 96, 598 N.E.2d 893 (Montgomery 1992), that ORC 2305.15(A) cannot constitutionally be applied to toll the running of the limitations period in a malpractice action in which the defendant attorney had moved out of state, at least where there is no allegation that the defendant had absconded or concealed himself to avoid service.

A later decision by the Ohio Supreme Court, however, raises the question whether Gray v. Austin is still good law. In Johnson v. Rhodes, 89 Ohio St.3d 540, 733 N.E.2d 1132 (2000), the Court held that the tolling provisions of ORC 2305.15(A) apply and are not unconstitutional under Bendix where the defendants (presumably Ohio residents — the opinion never expressly so states) took a ten-day vacation out of state and plaintiffs missed the two-year personal-injury limitation period by two days. As a result, the limitation period having been tolled for ten days, plaintiffs' action was timely filed. The Ohio Supreme Court held that the unconstitutionality ruling in Bendix was limited to its facts — i.e., an out-of state corporation having no agent for service within the state, thereby placing on such a foreign corporation a "'greater burden . . . than it does on Ohio companies' in violation of the Commerce Clause." Id. at 543, 733 N.E.2d at 1134. On the facts of Johnson, the Court held that

[t]he application of R.C. 2305.15 against an individual, who temporarily leaves the state of Ohio for non-business reasons, does not constitute an impermissible burden on interstate commerce.

Id. (emphasis added). Accord Lisi v. Henkel, 175 Ohio App.3d 463, 2008 Ohio 816, 887 N.E.2d 1209 (Lucas). How does Johnson impact on the Gray decision, a malpractice case in which the defendant attorney, an individual, had moved (i.e., left the jurisdiction permanently) for business reasons, to establish his law practice in the Virgin Islands? Only time will tell, but it would appear that Gray should survive, given that two of the three bases in Johnson for differentiating Bendix (temporary absence; non-business reasons) were not present in Gray. Such a result appears sound — the interstate commerce result ought not depend on whether the defendant is an out-of-state corporation or an out-of-state individual. Indeed, the court in Tesar v. Hallas, 738 F. Supp. 240 (N.D. Ohio 1990) (following Bendix where individual had moved out of state), noted that such an individual is arguably penalized more by the tolling provision, since Ohio provides no mechanism whereby he or she can appoint an agent for service of process, as a foreign corporation can. Id. at 242-43. And both can be reached out of state by means of the long-arm statute and rule, ORC 2307.382(A), OH Civ R 4.3(A).

Post-Johnson court of appeals cases indicate that time is telling us that Gray should survive -- ORC 2305.15 is unconstitutional pursuant to the Bendix analysis when applied to individual nonresidents of Ohio; otherwise it "'could perpetually subject the non-resident to potential liability.'" Grover v. Bartsch, 2006 Ohio 6115, 2006 Ohio App. LEXIS 6086. at para. 40 (Montgomery) (defamation action; quoting Ruble v. Ream, infra); Ruble v. Ream, 2003 Ohio 5969, 2003 Ohio App. LEXIS 5290 (Washington) (personal injury action against nonresident motorist). Compare Drumm v. Brekken, 2005 Ohio 1428, 2005 Ohio App. LEXIS 1385 (Mercer) (tolling statute unconstitutional as applied to nonresident motorist who moved with his family to another state shortly after accident because father lost his job in Ohio; Johnson not cited), with Cramer v. Archdiocese of Cincinnati, 158 Ohio App.3d 110, 2004 Ohio 3891, 814 N.E.2d 97 (Hamilton) (tolling statute found applicable, following Johnson, to former Ohio resident who permanently left Ohio many years ago, but two of three concurring judges noted that argument "can certainly be made" that tolling as to nonresidents is unconstitutional; "in an appropriate case where this issue is raised and properly briefed, we must address whether the same reasoning [of Bendix as to nonresident corporations] applies to nonresident individuals," id. at ¶ 33).

Should the Ohio lawyer who must temporarily leave the state for business purposes, or who elects to do so for non-business purposes, be forced to forgo a portion of his or her malpractice-statute-of-limitations protection by doing so? Even if not a commerce clause violation, would it implicate the constitutionally protected right to travel (see, e.g., Shapiro v. Thompson, 394 U.S. 618 (1969))? In describing the history of the Johnson case, the Ohio Supreme Court noted that the trial court had held the tolling provision unconstitutional as unduly infringing on the constitutionally protected right to travel, but that the decision of the court of appeals affirming the trial court "rests on the position that R.C. 2305.15 imposes an impermissible burden on interstate commerce." 89 Ohio St.3d at 541, 733 N.E.2d at 1133. There is no other reference to the right-to-travel theory in the opinion; perhaps the defendants abandoned it on appeal.

(Application of the out-of-state tolling provision has produced some opinions that turn on the smallest of details. The question whether fractional days count as tolled days has been addressed in court of appeals cases not involving lawyers as parties. For a summary of the various options, see Wheating v. Jasman, No. L-02-1026, 2002 Ohio App. LEXIS 3743 (Lucas) (counting partial day as full day; counting total of actual time out of state; not counting partial days at all). Compare Gee v. Aldridge, No. 2000CA0031, 2001 Ohio App. LEXIS 1528 (Scioto Mar. 19, 2001) (plaintiff persuaded court that conduct of one of defendants, who spent an average of three hours a month over course of two-year limitations period shopping in Kentucky, tolled the statute as to him for either 72 hours or twenty-four days; the court did not have to choose, since the 72-hour figure produced a three-day tolling that was sufficient to render plaintiff's case timely filed), with Cantwell v. Frantz, No. 2000 CA00331, 2001 Ohio App. LEXIS 3687 (Stark Aug. 8, 2001) (concluding that fractional days, during which defendant's absence made commencing action and completing service on that day not reasonably possible (i.e., defendant left the state at 5:00 a.m. on the day in question and did not return until days later), should be included in number of days statute is tolled). [Query whether the Cantwell analysis makes sense under modern rules of procedure, pursuant to which the action is "commenced" when the complaint is filed, provided service is made within one year. See OH Civ R 1(A). The court found support for its result in a Supreme Court case, Stanley v. Stanley, 47 Ohio St. 225, 24 N.E. 493 (1890), decided when an action was not commenced until the defendant was served. See OH Rev St § 4987 (1890).])

Statute not tolled: The statute of limitations is not tolled by filing a grievance with a local bar association, inasmuch as the plenary power to discipline attorneys, vested ultimately in the Ohio Supreme Court, does not include the power to modify any substantive right embodied in the statute of limitations applicable to a legal malpractice action brought in a court of common pleas. Lewis v. Roselle, 63 Ohio App.3d 254, 578 N.E.2d 546 (Hamilton 1990). Nor is the statute of limitations tolled by the malpractice plaintiff's having previously filed a declaratory judgment action on a related matter in probate court. Knauber v. Smith & Schnacke, 42 Ohio App.3d 1, 536 N.E.2d 403 (Hamilton 1987). Likewise, the malpractice statute of limitations is not tolled by pendency of a criminal appeal raising a claim of ineffective assistance of counsel based on the same facts as the malpractice claim. Tolliver v. McDonnell, 155 Ohio App.3d 10, 2003 Ohio 5390, 798 N.E.2d 1176 (Cuyahoga) (Zimmie "cognizable event" test applied; plaintiff aware of alleged malpractice no later than date of his letter directing lawyer handling his criminal appeal to assert ineffective-assistance-of counsel claim).

Equitable estoppel: In Fiorini, D.C., v. Speaker, 2002 Ohio 3541, 2002 Ohio App. LEXIS 3634 (Cuyahoga), plaintiff argued that defendants were equitably estopped from asserting the statute of limitations defense because they indicated an interest in settling the malpractice case as the limitations deadline drew near. The court of appeals rejected the argument and affirmed summary judgment for the lawyers on numerous grounds, including (1) failure to raise the issue in the trial court; (2) the lack of any misleading factual misrepresentation with respect to the statute; and (3) most tellingly, clear evidence in the record that plaintiff's lawyer was well aware that the limitations deadline was approaching but nevertheless missed the filing date by two months.

Savings statute: ORC 2305.19 provides that where a judgment for the plaintiff is reversed or the plaintiff fails otherwise than upon the merits (e.g., voluntary dismissal), the plaintiff may commence a new action within one year of that event, or within the statute of limitations period, whichever occurs later. An interesting application of that provision in the malpractice context arose in Ralich v. Lowrey, 2002 Ohio 3408, 2002 Ohio App. LEXIS 3478 (Summit), where plaintiff sued lawyer A for malpractice. After voluntarily dismissing, plaintiff refiled his action within the one-year savings provision of ORC 2305.19, but also added attorney B as a party defendant. (Attorney B was allegedly vicariously liable as A's law partner.) Summary judgment was granted to attorney B, and the court of appeals affirmed. Inasmuch as the savings clause applies only when the two actions are "substantially the same" -- and Supreme Court authority has held that this test is not met when the parties in the two actions are different -- plaintiff's action against B was unprotected by the savings statute and thus barred by the one-year malpractice statute of limitations.

Survival of claim: A malpractice claim against the estate of a deceased attorney survives the attorney's death pursuant to ORC 2305.21, inasmuch as it is a cause of action that survives at common law and it constitutes an injury to the plaintiff's property interests.  Loveman v. Hamilton, 66 Ohio St.2d 183, 420 N.E.2d 1007 (1981). The claim survives the death of the claimant as well. "[T]he statute [ORC 2305.21] applies equally to 'the death of the person entitled or liable thereto.' . . . The Loveman holding applies to mandate the survival of a legal malpractice claim after the death of the party entitled to assert the claim." Hosfelt v. Miller, No. 97-JE-50, 2000 Ohio App. LEXIS 5506, at *4 (Jefferson Nov. 22, 2000) (summary judgment for defendant law firm reversed; lack of privity argument irrelevant; suit brought, not by beneficiary, but by administrator of estate of decedent against whom malpractice allegedly practiced).

Ineffective assistance of counsel: In the discussion that follows, ineffective-assistance-of-counsel decisions, as well as malpractice cases, are cited. While the thrust of ineffective-assistance cases is of course different (the doctrine is invoked by criminal defendants asserting that they were deprived of their Sixth Amendment rights), the lawyer conduct underlying both ineffective-assistance and malpractice claims typically raises competence issues -- i.e., did the lawyer conduct in question fall below “an objective standard of reasonable representation,” e.g., State v. Mundt, 115 Ohio St.3d 22, 2007 Ohio 4836, 873 N.E.2d 828, at para. 62; State v. Bradley, 42 Ohio St.3d 136, 137, 538 N.E.2d 373, 375 (1989) (syllabus two). It is on this competency aspect that the ineffective-assistance cases are presented below.  See also discussion of these two analogous groups of cases in section 1.1:200 at “Skill requirements – Malpractice standards.”

Malpractice liability found or supported: Representative of modern Ohio Supreme Court cases supporting malpractice liability are the following:

  • LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 2007 Ohio 3608, 872 N.E.2d 254 (allegations of "collusion" sufficient to withstand Rule 12(B)(6) dismissal under malice exception to Scholler/Simon rule (as to which see section 1.1:410 infra) in malpractice action brought by nonclient children against lawyers for their mother with respect to "orchestration" of execution of new will for the mother and transfer of all her stock in closely held corporation of which she was majority shareholder) (the LeRoy decision is further discussed in this section infra at "Malpractice liability not found," and in sections 1.1:370, 1.1:410, and 1.13:520);

  • Vahila v. Hall, 77 Ohio St.3d 421, 674 N.E.2d 1164 (1997) (failure properly to disclose to clients all matters and legal consequences surrounding plea bargains entered into by clients in criminal matters and settlement arrangements agreed to by clients in various civil matters, as well as failing to protect clients' interests in other underlying matters, supported claim of malpractice; affirmance of summary judgment for defendant attorneys reversed);

  • Arpadi v. First MSP Corp., 68 Ohio St.3d 453, 628 N.E.2d 1335 (1994) (defendant attorneys, who represented limited partnership and general partner thereof, owed duty of due care to nonclient limited partners; summary judgment for defendants on limited partners' malpractice claim reversed and case remanded for consideration of issues of breach of duty, causation, and damages) (for further discussion of the Arpadi case, see sections 1.1:410 and 1.1:440);

  • Elam v. Hyatt Legal Servs., 44 Ohio St.3d 175, 541 N.E.2d 616 (1989) (vested beneficiary of estate is in privity with fiduciary of estate, and fiduciary's attorneys therefore not immune from malpractice liability in suit by nonclient beneficiary; summary judgment for defendant attorneys reversed) (for further discussion of the Elam case, see section 1.1:410);

  • Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058 (1989) (attorney failed to disclose plea bargain in criminal action and failed to appear before liquor commission to defend violation notice; reversal of summary judgment for defendant attorneys affirmed);

  • McInnis v. Hyatt Legal Clinics, 10 Ohio St.3d 112, 461 N.E.2d 1295 (1984) (per curiam) (lawyer's effecting publication in local newspaper of client's pending divorce contrary to client's specific instructions and after promising client in writing there would be no publication, instead of advising client that publication was required by law pursuant to ORC 3105.06, supported client's claim for malpractice; reversal of directed verdict for defendant attorneys affirmed).

See State v. Brown, 115 Ohio St.3d 55, 2007 Ohio 4837, 873 N.E.2d 858 (failure to challenge competency to testify of defendant's alleged wife, the main witness against him in aggravated murder case, constituted ineffective assistance); State v. Kole, 92 Ohio St.3d 303, 750 N.E.2d 148 (2001) (ineffective assistance of counsel; failure to present potentially dispositive statutory defense at trial and appellate levels required remand for new trial). Kole is also discussed at section 1.1:320. See also Haliym v. Mitchell, 492 F.3d 680 (6th Cir. 2007) (ineffective assistance at sentencing phase of trial for aggravated murder, where defendant was sentenced to death; failure to conduct even the most basic interviews, which would have revealed "highly relevant mitigating evidence," id. at 712).

Court of appeals decisions supporting malpractice liability include Davis v. Montenery, 173 Ohio App.3d 740, 2007 Ohio 6221, 880 N.E.2d 488 (Jefferson) (summary judgment for lawyer reversed; genuine issue of material fact as to whether client-attorney relationship existed between plaintiff and lawyer defendant, and, if so, whether defendant breached resultant duty to plaintiff's harm); Nalls v. Nystrom, 159 Ohio App.3d 200, 2004 Ohio 6230, 823 N.E.2d 500 (Montgomery) (summary judgment for lawyer reversed; alleged breach of professional duty in failing to pursue appeal/postconviction relief; whether representation included such obligation was disputed issue of fact); Montali v. Day, 2002 Ohio 2715, 2002 Ohio App. LEXIS 2812 (Cuyahoga) (summary judgment for lawyer reversed; elements of malpractice claim pleaded and supported by expert testimony; genuine issue of material fact exists); Polivka v. Cox, 2002 Ohio 2420, 2002 Ohio App. LEXIS 2439 (Franklin) (same; defendant attorney's affidavit insufficient to satisfy initial burden imposed on summary judgment movant); Brinkman v. Doughty, 140 Ohio App.3d 494, 748 N.E.2d 116 (Clark 2000) (summary judgment for defendant lawyers reversed; for purposes of maintaining legal malpractice action, attorney-client relationship between lawyers and administrator of estate extended to statutory wrongful death beneficiaries, inasmuch as beneficiaries were in privity with administrator; Arpadi and Elam followed) (see further discussion of Brinkman at section 1.1:400); Rumley v. Buckingham, Doolittle & Burroughs, 129 Ohio App.3d 638, 718 N.E.2d 964 (Franklin 1998) (reversing 12(B)(6) dismissal in favor of defendant law firm; complaint alleging firm's abandonment of client sufficiently stated breach of duty and resulting damages); Burks v. Peck, Shaffer & Williams, 109 Ohio App.3d 1, 671 N.E.2d 1023 (Cuyahoga 1996) (financing scheme structured by defendant was in direct conflict with Ohio law; dismissal of malpractice claim against attorneys reversed); Huffer v. Cicero, 107 Ohio App.3d 65, 667 N.E.2d 1031 (Highland 1995) (attorney's failure to disclose plea-bargain offer in criminal action; Krahn followed; additional damages proximately caused by the malpractice allowed on appeal); Harrell v. Crystal, 81 Ohio App.3d 515, 611 N.E.2d 908 (Cuyahoga 1992) (attorney advised clients to invest in speculative tax shelters without properly investigating investments and individuals involved (one of whom was convicted felon), failed to request letter ruling from IRS to determine whether shelters were legal, and failed to advise clients on ways to avoid resultant IRS interest and penalties; judgment on jury verdict for plaintiffs affirmed); David v. Schwarzwald, Robiner, Wolf & Rock, L.P.A., 79 Ohio App.3d 786, 799, 607 N.E.2d 1173, 1191 (Cuyahoga 1992) ("In this case, there was competent, credible evidence going to all elements of plaintiff's cause of action for legal malpractice as she established that she had entered into an attorney-client relationship with defendant in her domestic relations action, that defendant [attorney] then breached duties inherent to that relationship by subsequently agreeing to act as co-counsel for Dr. David [the defendant] in that same action, and that defendant's conduct proximately caused plaintiff to incur damages."); Williams v. Hyatt Legal Servs., No. 14235, 1990 Ohio App. LEXIS 934 (Summit Mar. 14, 1990) (contrary to representations by attorney that she would file, and subsequently that she had filed, bankruptcy petition, attorney failed to do so and client lost her home to foreclosure; judgment on jury verdict for plaintiff affirmed); Canady v. Shwartz, 62 Ohio App.3d 742, 577 N.E.2d 437 (Franklin 1989) (summary judgment for defendant attorney reversed, based on his failure to contact co-defendant in criminal case who was prepared to testify that malpractice plaintiff took no part in criminal activity). See State v. Blair, 171 Ohio App.3d 702, 2007 Ohio 2417, 872 N.E.2d 986 (defense counsel did not prepare, then "sat silently by as Blair was convicted without any defense whatsoever"'; "defense counsel did not satisfy even the most minimal standards of professional conduct."  Id. at paras. 16, 22).

In Estate of Holmes v. Ludeman, No. L-00-1294, 2001 Ohio App. LEXIS 4501 (Lucas Oct. 5, 2001), the question was raised whether lawyers associated with the primary defendant could be liable for his malpractice. The trial court had held that the association of lawyers was not a partnership and granted summary judgment for the "firm" and for the three lawyers associated with the primary defendant. Reversing, the court of appeals held that there were genuine issues of material fact as to whether the four attorneys were conducting business as a partnership in fact or as a partnership by estoppel.

Malpractice liability not found: In addition to the many cases decided on the basis of the statute of limitations, malpractice defendants have prevailed on a variety of other grounds.

In the Supreme Court, see Shoemaker v. Gindlesberger, 118 Ohio St.3d 226, 2008 Ohio 2012, 887 N.E.2d 1167 (potential beneficiaries under will not in privity with testatrix and therefore had no standing to sue testatrix’s attorney, who drafted real estate contract deeding property to one of her sons, thereby allegedly reducing estate share of her other beneficiary-children; summary judgment affirmed) (for further discussion of the Shoemaker case, see section 1.1:410); LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 2007 Ohio 3608, 872 N.E.2d 254 (nonclient children not in privity with mother in malpractice suit against mother’s lawyers regarding private transaction transferring to another of all of mother’s stock in closely held corporation) (for further discussion of LeRoy, see this section supra at “Malpractice liability found or supported,” and sections 1.1:370, 1.1:410, and 1.13:520); Simon v. Zipperstein, 32 Ohio St.3d 74, 512 N.E.2d 636 (1987) (potential beneficiary under will not in privity with testator and therefore has no standing to sue testator's attorney, who drafted will, for malpractice; summary judgment for attorney reinstated) (for further discussion of the Simon case see section 1.1:410).  See State v. Mundt, 115 Ohio St.3d 22, 2007 Ohio 4836, 873 N.E.2d 828 (rejecting arguments that trial counsel in capital murder case rendered ineffective assistance during voir dire, at guilt phase, and at penalty phase).

A claim of ineffective assistance of counsel on appeal was rejected in State v. Burke, 97 Ohio St.3d 55, 2002 Ohio 5310, 776 N.E.2d 79 ("since the basis of Burke's claim is counsel's failure to raise certain issues on appeal, we note that appellate counsel need not raise every possible issue in order to render constitutionally effective assistance," id. at para. 7). Accord State v. Mack, 101 Ohio St.3d 397, 2004 Ohio 1526, 805 N.E.2d 1108 ("In order to show ineffective assistance, Mack 'must prove that his counsel were deficient for failing to raise the issues he now presents and that there was a reasonable probability of success had he presented those claims on appeal," id. at para. 5, quoting State v. Sheppard, 91 Ohio St.3d 329, 330, 744 N.E.2d 770, 771 (1991)).

In the courts of appeals, see Swiss Reinsurance Am. Corp. v. Roetzel & Andress, 163 Ohio App.3d 336, 2005 Ohio 4799, 837 N.E.2d 1215 (affirming summary judgment for lawyer-defendants for want of standing; insurance company that retained lawyer to defend insured doctor was neither client of lawyer or in privity with his doctor-client); Davis v. Eachus, 2004 Ohio 5720, 2004 Ohio App. LEXIS 5162 (Pike) (summary judgment for defendant lawyers affirmed; plaintiff presented no evidence of professional malpractice premised on failure to challenge deed on grounds of fraud; inasmuch as there was no fraud found on part of nonlawyer defendants, "it follows that [the lawyer] could not have committed malpractice by failing to challenge the deed on such grounds."  Id. at para. 46 n.12.). Hahn v. Jennings, 2004 Ohio 4789, 2004 Ohio App. LEXIS 4320 (Franklin) (summary judgment for defendant attorneys affirmed; court unable to say that defendants overlooked or ignored viable or colorable argument in appeal in underlying action on behalf of present plaintiffs); Schneider, Smeltz, Ranney & LaFond, P.L.L. v. Kedia, 154 Ohio App.3d 117, 2003 Ohio 4567, 796 N.E.2d 553 (Cuyahoga) (summary judgment for law firm affirmed; integration clause of settlement agreement used to show that malpractice counterclaimant "had read the agreement and found it to be in accordance with his understanding," therefore he cannot contradict that statement to create a genuine issue of fact for trial.  Id. at para. 14.); C.R. Withem Enters. v. Maley, 2002 Ohio 5056, 2002 Ohio App. LEXIS 5096 (Fairfield) (partial summary judgment for defendant lawyers affirmed; no evidence by plaintiffs contradicting defendants' expert's affidavit that malpractice claim, based on failure to pursue rescission remedy, was meritless; on claim that defendants negligently presented witness testimony on compensatory damages, court found plaintiff's experts' conclusory affidavit insufficient to support claim and plaintiffs' self-serving affidavit failed to present genuine issue of material fact as to whether defendant's failure to perfect appeal from adverse judgment was malpractice); Advanced Analytics Labs., Inc. v. Kegler, Brown, Hill & Ritter, L.P.A., 148 Ohio App.3d 440, 2002 Ohio 3328, 773 N.E.2d 1081 (Franklin) (summary judgment for defendant lawyers affirmed; plaintiff judicially estopped from arguing that defendants breached duty of care in preparing financing documents and in protecting client's security interest; moreover, plaintiff failed to present evidence creating genuine issue of material fact as to (1) defendants' alleged negligence in preparing financing statements, (2) existence of duty to protect client from wrongful treatment by client's debtor in bankruptcy proceedings, and (3) existence of any damage flowing from defendants' supposedly negligent preparation of subordinated loan agreement) (the judicial estoppel aspect of the case is discussed in section 1.1:370 at "Judicial estoppel"); Wooton v. Vogele, 147 Ohio App.3d 216, 769 N.E.2d 889 (Hamilton 2001) (summary judgment for public defender on malpractice claim affirmed; governmental employees immune from civil liability absent maliciousness, bad faith, or wanton or reckless behavior; no such evidence here); Sprague v. Simon, 144 Ohio App.3d 437, 760 N.E.2d 833 (Ashtabula 2001) (summary judgment affirmed for want of duty; suit premised on lawyer's failure timely to file on insured's behalf wrongful death/survivorship crossclaim in underlying action; to extent attorney-client relationship existed between plaintiff insured and lawyer, hired by insurance company for limited purpose of defending insured on personal injury claim, it did not extend to or create duty with respect to filing of crossclaim); Medpartners, Inc. v. Calfee, Halter & Griswold, L.L.P., 140 Ohio App.3d 612, 748 N.E.2d 604 (Cuyahoga 2000) (merger transaction; law firm not liable to corporation it did not represent in absence of (1) privity between plaintiff and corporation that law firm did represent or (2) malicious conduct) (see further discussion of case at section 1.1:410); Benna v. Slavin, No. CV-381241, 2000 Ohio App. LEXIS 5959 (Cuyahoga Dec. 18, 2000) (lawyer exercised reasonable professional judgment in advising client to settle underlying claim); Treft v. Leatherman, 74 Ohio App.3d 655, 600 N.E.2d 278 (Hancock 1991) (allegation that attorney failed to obtain plea bargain, when no offer of same was made by state, insufficient to state malpractice claim; Krahn v. Kinney (failure to disclose plea bargain made by state), distinguished); Hile v. Firmin, Sprague & Huffman Co., L.P.A., 71 Ohio App.3d 838, 595 N.E.2d 1023 (Hancock 1991) (lawyers for corporation not liable in malpractice to members of board of directors; no attorney-client relationship between lawyers and directors, nor was there privity between directors and corporate client); Haller v. Close, No. 90-AP-853, 1991 Ohio App. LEXIS 565 (Franklin Feb. 5, 1991) (disagreement in strategy as to defending criminal case does not give rise to malpractice liability; while unreasonable advice relied on and proximately causing harm can give rise to liability, there was no such showing in case at bar).

See also Firestone v. Galbreath, 976 F.2d 279 (6th Cir. 1992) (beneficiaries of inter vivos trust created by their grandmother had no standing to bring malpractice action against attorney relating to services performed for grandmother before her death because of lack of privity at that time between grandmother and grandchildren), aff'g on this point 747 F. Supp. 1556 (S.D. Ohio 1990). For a case raising ineffective-assistance-of-counsel issues in which the court held that the lawyer's conduct did not fall below an objective standard of reasonableness, see State v. Baker, 159 Ohio App.3d 462, 2005 Ohio 45, 824 N.E.2d 162 (Greene) ("a debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel," id. at para. 9, citing State v. Cook, 65 Ohio St.3d 516, 605 N.E.2d 70 (1992)).

1.1:310 Relevance of Ethics Codes in Malpractice Actions

As was stated with respect to the former OHCPR, "violation of the Disciplinary Rules does not, in itself, create a private cause of action." Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171, 178, 707 N.E.2d 853, 859 (1999). Accord Montali v. Day, 2002 Ohio 2715, 2002 Ohio App. LEXIS 2812 (Cuyahoga); Palmer v. Westmeyer, 48 Ohio App.3d 296, 549 N.E.2d 1202 (Lucas 1988). However, as Judge Karpinski noted in her concurring opinion in Kutnick v. Fischer, 2004 Ohio 5378, 2004 Ohio App. LEXIS 4907 (Cuyahoga), "[a]lthough a violation of the [OHCPR] is not, in itself, a form of legal malpractice, the Code sets a background against which legal practice is understood." Id. at para. 96. Accord Findlay/Hancock County Bar Ass'n v. Filkins, 90 Ohio St.3d 1, 7, 734 N.E.2d 764, 769 (2000) ("a successful disciplinary action may support a malpractice action for damages."). See Columbus Bar Ass'n v. McCorkle, 105 Ohio St.3d 430, 2005 Ohio 2588, 828 N.E.2d 99 (referencing default judgment in malpractice action obtained by client based on neglect in respondent's letting statute of limitation run on client's personal injury claim). See also 2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 17:18, at 986 (2008 ed.) (noting that conflict-of-interest allegations appear "almost routinely" in legal malpractice actions). And see Northwestern Life Ins. Co. v. Rogers, 61 Ohio App.3d 506, 512, 573 N.E.2d 159, 163 (Franklin 1989) (rejecting plaintiff's argument that defendant attorney's conflict of interest violative of OHCPR constituted malpractice per se, resulting, without more, in legal malpractice liability; "the client must have incurred damages which were directly and proximately caused by the attorney's malpractice"). Accord DeMeo v. Provident Bank, 2008 Ohio 2936, 2008 Ohio App. LEXIS 2475 (Cuyahoga); Montgomery v. Gooding, Huffman, Kelly & Becker, 163 F. Supp.2d 831 (N.D. Ohio 2001) (violations of OHCPR "do not constitute malpractice per se," id. at 836, citing Rogers).

The Rules of Professional Conduct carry forward these guidelines. See Scope at [20]:

Violation of a rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. . . . [The rules] are not designed to be a basis for civil liability. . . . Nevertheless, since the rules do establish standards of conduct by lawyers, a lawyer's violation of a rule may be evidence of a breach of the applicable standard of conduct.

Conversely, conduct that constitutes malpractice may not rise to the level of a disciplinary violation. See Office of Disciplinary Counsel v. Kay, 75 Ohio St.3d 397, 398, 662 N.E.2d 351, 352 (1996) (finding that attorney's misrepresentation to his client concerning the status of his case, which had been dismissed, "constituted more than just negligence" and merited disciplinary action). Cf. Collins v. Morgan, No. 68680, 1995 Ohio App. LEXIS 5098 (Cuyahoga Nov. 16, 1995) (dictum) (decision of Office of Disciplinary Counsel that conduct of attorney did not warrant disciplinary action, in proceeding arising from grievance filed by malpractice plaintiff against defendant attorney, does not act as res judicata bar to plaintiff's subsequent action for malpractice).

How the OHRPC will change, or not change, this interrelationship between the Rules and a private cause of action for malpractice remains to be seen, but likely it will remain the same. See Laws. Man. on Prof. Conduct (ABA/BNA) § 301:109 (1998).

One case in which a lawyer-defendant tried to turn the relationship between disciplinary rules and attorney liability (here involving settlement funds to which client was entitled, rather than malpractice) to his advantage is Watterson v. King, 166 Ohio App.3d 704, 2006 Ohio 2305, 852 N.E.2d 1278 (Stark).  After being disciplined for charging the client a nonrefundable retainer on top of a contingent fee, see Stark County Bar Ass'n v. Watterson, 103 Ohio St.3d 322, 2004 Ohio 4776, 815 N.E.2d 386, Watterson had the chutzpa in the settlement-fund action to argue on appeal that plaintiff was not entitled to recover because "the Ohio Supreme Court's disciplinary opinion bars any further action under the doctrine of res judicata." 166 Ohio App.3d 704, at para. 18.  The court quotes bromides such as violation of the disciplinary rules does not, in itself, create a private cause of action [Watterson, of course, was arguing that it defeats a private cause of action] and then concludes, correctly, that "a disciplinary action does not bar a civil lawsuit on the same or similar conduct under the doctrine of res judicata."  Id. at para. 18.  It would be one thing if Watterson had been found not to have violated the disciplinary rules and then argued that a civil suit against him premised on the same or similar conduct was barred; his argument that the civil suit to recover the funds owing was barred by res judicata based on a finding of violation is a nonsequitur.

See also sections 1.6:330, 1.6:630, 1.7:260, and 1.8:900.

Disclosure requirement for lawyers who do not carry minimum amount of malpractice insurance: Not only do the professional responsibility rules play an indirect role in setting standards applied in malpractice actions, but they sometimes address malpractice issues more directly. For example, effective July 1, 2001, the Ohio Supreme Court adopted former OH DR 1-104, which obligated Ohio lawyers (other than government and in-house lawyers) to inform their clients if they failed to maintain a minimum level of malpractice insurance ($ 100,000 per occurrence, $ 300,000 aggregate) or if their malpractice insurance has been terminated. A standard form of notice was appended to the Rule, as was an acknowledgment by the client that the client has been so informed. The lawyer must retain the notice for a minimum of five years after the representation concludes. These provisions have been incorporated into the Rules; see Ohio Rule 1.4(c); see also Rule 1.4 cmts. [8] & [9].

Disciplinary decisions citing former OH DR 1-104 include Dayton Bar Ass'n v. Landon, 108 Ohio St.3d 173, 2006 Ohio 546, 842 N.E.2d 42; Columbus Bar Ass'n v. Torian, 106 Ohio St.3d 14, 2005 Ohio 3216, 829 N.E.2d 1210; Butler County Bar Ass'n v. Schoonover, 105 Ohio St.3d 472, 2005 Ohio 2816, 828 N.E.2d 1007; and Columbus Bar Ass'n v. Port, 102 Ohio St.3d 395, 2004 Ohio 3204, 811 N.E.2d 535. See also Toledo Bar Ass'n v. DeLabbio, 101 Ohio St.3d 147, 2004 Ohio 338, 803 N.E.2d 389, where, in fashioning an appropriate sanction for a lawyer whose malpractice insurance had lapsed, the Court made one of the conditions of a stayed six-month suspension that respondent cooperate with a monitoring attorney, "including conscientious client representation and notice as required by DR 1-104," id. at para. 11. Ethics opinions citing to former DR 1-104 are Bd. of Comm'rs on Grievances & Discipline Op. 2005-1, 2005 Ohio Griev. Discip. LEXIS 1 (Feb. 4, 2005), and Bd. of Comm'rs on Grievances & Discipline Op. 2003-3, 2003 Ohio Griev. Discip. LEXIS 3 (June 6, 2003). In Opinion 2003-3, the Board opined that, in a fee-sharing context, each lawyer is responsible for providing the OH DR 1-104 disclosure notice, if applicable, to the client. In Opinion 2005-1, OH DR 1-104 was found inapplicable to a lawyer who performed research and writing on a contract basis for other attorneys, if the lawyer was not engaged by, did not meet with, and did not offer advice to clients. According to the Board, such a lawyer is not considered to be engaged in the practice of law. We think the preferable rationale, also stated by the Board, is simply that the 1-104(A) notice requirements "apply to attorneys who are engaged by clients to provide legal services," and thus has no application to attorneys who do nothing more than provide research and writing to other attorneys on a contract basis.  Id. at *3.

1.1:320 Duty to Client [see also 1.1:200]

Although the former OHCPR provided that a lawyer must represent the client zealously (OH DR 7-101) within the bounds of the law (OH DR 7-102), all reference to zealous representation has been removed from the Rules of Professional Conduct, because, in the Task Force's words, "[z]ealous advocacy is often invoked as an excuse for unprofessional behavior." ABA Model Rules Comparison to Rule 1.3. The lawyer's duties as an advocate and as an advisor are set forth in Rules 3.1-3.9 and Rule 2.1, respectively. A lawyer should keep the client informed of relevant considerations, Ohio Rule 1.4, and exercise professional judgment in a manner consistent with the best interests of the client. See Rule 1.2. The special responsibilities of a public prosecutor and a government lawyer are discussed in Rules 3.8 and 1.11, respectively. The extent of a lawyer's duty of loyalty to the client is discussed in section 1.7:210.

Duties of representation, as delineated in Ohio malpractice and ineffective-assistance-of-counsel cases, include the following:

  • A lawyer is expected to find the law pertinent to a matter. State v. Kole, 92 Ohio St.3d 303, 306, 750 N.E.2d 148, 152 (2001) (convictions reversed on ineffective-assistance-of-counsel grounds; lawyer at trial and appellate levels of case failed to discover statute that may have provided complete affirmative defense to two of the counts on which defendant was convicted; "defense counsel appears to have missed this statute in counsel's investigation and research of the law") (dissenting, Justice Cook noted that the statute in question, to the best of her knowledge, "has never been cited in any opinion published by any court in this state,"  id. at 309, 750 N.E.2d at 154); Motz v. Jackson, No. C-990644, 2001 Ohio App. LEXIS 2896 (Hamilton June 29, 2001) (evidence of malpractice present; lawyer-witness for plaintiff testified that defendants' "failure . . . to know the law" with respect to pertinent recent decisions violated duty of care, id. at *3); DePugh v. Sladoje, 111 Ohio App.3d 675, 676 N.E.2d 1231 (Miami 1996) (failure to realize that savings clause was inapplicable in circumstances, resulting in loss of claim on limitations grounds, is malpractice per se) (see further discussion of this case at section 1.1:370) (compare Kolsen v. Chattman, Gaines & Stern, No. 78781, 2001 Ohio App. LEXIS 3982 (Sept. 6, 2001) (DePugh per se rule inapplicable and jury verdict for defendants affirmed, where evidence that legal issue with respect to availability of savings clause was unclear, in contrast to DePugh, in which it was apparent from statutory language that savings provision could not be invoked when defendant sought to do so)); cf. Awad v. McKinley, No. 6-89-16, 1991 Ohio App. LEXIS 4656 (Hardin Sept. 27, 1991) (failure of lawyer in underlying divorce action to provide evidence, requested by domestic relations judge, of "present value" (as distinguished from "present cash value") of defined contribution retirement plan fund was malpractice; judgment of trial court in favor of defendant reversed and remanded for determination of damages issue).

    However, a lawyer does not breach the duty "for lack of knowledge as to the true state of the law where a doubtful or debatable point is involved." Howard v. Sweeney, 27 Ohio App.3d 41, 499 N.E.2d 383 (Cuyahoga 1985) (syllabus one). Accord Stoklosa v. McGill, No. L-91-028, 1992 Ohio App. LEXIS 728 (Lucas Feb. 21, 1992); Thomarios v. Lieberth, No. 15229, 1992 Ohio App. LEXIS 748 (Summit Feb. 19, 1992) (invoking this principle in the alternative, after finding that divorce lawyer's treatment of client's company as marital asset, rather than nonmarital asset, was justified under then-existing law). See also Haliym v. Mitchell, 492 F.3d 680 (6th Cir. 2007) (rejecting ineffective assistance claim with respect to necessity of filing and making part of record defendant's jury waiver in strict compliance with ORC 2945.05; "[b]ecause the law with respect to the necessity of strict compliance with § 2945.05 was [then] uncertain, Petitioner's appellate counsel was not constitutionally ineffective for failing to raise the issue on direct appeal."  Id. at 696 (bracketed material added).) Similarly, failure to predict a change in the law is not actionable. See, e.g., Howard v. Sweeney, supra (finding lawyer's failure to predict change in computation of statute of limitations with respect to asbestos claims nonactionable). The rationale underlying this principle was well articulated by the Eighth District Court of Appeals in the Sweeney case, where the court remarked:

    As noted earlier, an attorney will not be held liable for lack of knowledge as to the true state of the law where a doubtful or debatable point is involved. In the case at bar, the plaintiffs have attempted to go beyond that which has already been rejected by attempting to hold the defendants liable for failing to accurately predict future changes in the law. At the time the complaint was filed, the law was clear. The statute began running on an asbestos claim from the date of last exposure. The fact that the Sweeney firm took the case hoping the law would change does not subject the defendants to liability for failing to accurately predict when and how the law would change. Holding an attorney liable under these facts would place an impossible burden on attorneys who might be willing to accept a case in the hope that the law might be changed. The effect of such a holding would be that attorneys would no longer take such cases, a result which is contrary to public policy. Thus we conclude that an attorney's acts must necessarily be governed by the law as it existed at the time of the act. Counsel's failure to predict a subsequent change in a settled point of law cannot serve as a foundation for professional negligence.

    27 Ohio App.3d at 43-44, 499 N.E.2d at 386 (citations omitted; emphasis in original).  Cf. Frank W. Schaefer, Inc. v. C. Garfield Mitchell Agency, Inc., 82 Ohio App.3d 322, 337-39, 612 N.E.2d 442, 452-53 (Montgomery 1992) (on appeal of judgment on jury verdict for plaintiff company on claim for negligent failure to provide coverage, court rejected defendant insurance agency's argument that decision of company's lawyer to settle rather than try underlying personal injury action brought against it was unreasonable, because lawyer should have anticipated favorable change in applicable law effected by cases decided after underlying action was settled).

  • A lawyer is expected to adhere to the applicable standard of care when conducting a factual investigation related to the representation. See Carabotta v. Mitchell, No. 79165, 2002 Ohio App. LEXIS 76 (Cuyahoga Jan. 10, 2002) (experts in conflict on whether attorney breached duty of care in making "subject matter" patent search, pursuant to which he failed to discover patent held by foreign company; jury verdict for defendant reinstated inasmuch as verdict supported by substantial, competent evidence supplied by defendant's expert); Mercer Sav. Bank v. Worster, No. CA-1273, 1991 Ohio App. LEXIS 541 (Darke Feb. 15, 1991) (conflicting expert testimony as to whether attorney breached duty of care in title search by searching mortgage abstract, but not official mortgage index, thereby missing prior mortgage reflected only in index; summary judgment for plaintiff bank reversed, because conflicting affidavits presented genuine issue of material fact); Canady v. Shwartz, 62 Ohio App.3d 742, 577 N.E.2d 437 (Franklin 1989) (summary judgment for attorney reversed because reasonable minds could not conclude that defendant fulfilled his duty to investigate thoroughly facts in a criminal case); Smith v. Richardson, No. CA-85-32, 1986 Ohio App. LEXIS 5783 (Muskingum Feb. 10, 1986) (because there was conflicting expert testimony as to whether attorney conducting title examination in Ohio breaches his duty of care if he does not read each document in chain of title and search indices for names of land-contract vendees, trial court's grant of summary judgment to nonmoving lawyer defendant reversed; appellate court went on to hold that plaintiffs were entitled to summary judgment, inasmuch as lawyer failed to respond to requests for admissions and thereby admitted his malpractice, and trial court erred in not considering these admissions in ruling on plaintiffs' motion). See also Morales v. Mitchell, 507 F.2d 916 (6th Cir. 2007) (failure to investigate or present compelling and readily available mitigating evidence at penalty phase of aggravated felony murder trial constituted ineffective assistance); Frazier v. Huffman, 343 F.3d 780 (6th Cir. 2003) (ineffective assistance of counsel; failure to investigate and present evidence of client's brain impairment).

  • A lawyer is expected to be competent in drafting legal documents. See RE America, Inc. v. Garver, Nos. 66808, 66947, 1996 Ohio App. LEXIS 394 (Cuyahoga Feb. 8, 1996) (concurring opinion) (defendant lawyer breached the duties owing to his clients in counseling and representing them in acquisitions, including but not limited to preparing note but failing to include cognovit provision or to secure note with collateral; judgment on jury verdict against defendant attorney affirmed); Doblanski v. Goldberg, No. 88-T-4080, 1989 Ohio App. LEXIS 4299, at *3 (Trumbull Nov. 17, 1989) (attorney committed malpractice in drafting contract that "failed to contain any of the basic warranties concerning the financial condition of the business that a normal contract would contain").

  • A lawyer is expected to be competent and exercise reasonable care in counseling and advising clients.  See, e.g., RE America, Inc. v. Garver, Nos. 66808, 66947, 1996 Ohio App. LEXIS 394 (Cuyahoga Feb. 8, 1996) (malpractice found where attorney failed to advise client about full ramifications of business acquisition); Harrell v. Crystal, 81 Ohio App.3d 515, 611 N.E.2d 908 (Cuyahoga 1992) (malpractice found for conduct involved in advising clients to invest in speculative tax shelters for which the IRS disallowed tax deductions, and in failing to advise clients on ways to avoid resulting IRS interest assessments and penalties); Doblanski v. Goldberg, No. 88-T-4080, 1989 Ohio App. LEXIS 4299 (Trumbull Nov.17, 1989) (malpractice found where attorney advised client to invest in restaurant venture that fails, promised to protect client's interest, and then breached that promise by (1) referring her to inexperienced lawyer to handle the deal; (2) allowing documents to be signed where they failed to protect client in normal manner; and (3) not warning her that she was paying far too much for far too little, given the valuation of the assets purchased).

  • A lawyer is expected to take reasonable steps to protect his client's interests. Monastra v. D'Amore, 111 Ohio App.3d 296, 676 N.E.2d 132 (Cuyahoga 1996) (wife's attorney's alleged failure to act to stop dimininution of marital estate by husband during divorce proceedings stated claim for malpractice).  Doblinski v. Goldberg, No. 88-T-4080, 1989 Ohio App. LEXIS 4299 (Trumbull Nov. 17, 1989).  See Smith v. Ohio Dep't of Rehabilitation & Corrections, 453 F.3d 426 (6th Cir. 2006) (failure timely to notify criminal defendant/client of result of defendant's appeal to state appellate court constituted ineffective assistance of counsel).

  • A lawyer involved in litigation is expected to be able to handle the proceedings related to the litigation, preserve the record, and prosecute an appeal if necessary. State v. Kole, 92 Ohio St.3d 303, 750 N.E.2d 148 (2001) ("deficient" performance at trial and appellate level in failing to present potentially dispositive statutory defense to two of the counts on which defendant was convicted); Roberts v. Hutton, 152 Ohio App.3d 412, 2003 Ohio 1650, 787 N.E.2d 1267 (Franklin) (appellant must, pursuant to OH App R 16(A)(7), present contentions regarding each assignment of error and reasons in support of contentions, with citations to authority and record. "It is not the duty of this court to search the record for evidence to support an appellant's argument as to alleged error. . . . It is also not appropriate for this court to construct the legal arguments in support of an appellant's appeal." Id. at para. 18 (citations omitted).); Good v. Krohn, 151 Ohio App.3d 832, 2002 Ohio 4001, 786 N.E.2d 480 (Allen) (court refused to consider argument in defense of judgment below because appellee failed to set forth cross-assignment of error pursuant to ORC 2505.22); State v. King, 151 Ohio App.3d 346, 2003 Ohio 208, 784 N.E.2d 138 (Champaign) (failure to request instruction on mistake, when there was evidence in record to that effect, fell below objective standard of reasonableness in representation of defendant convicted of theft by deception); Taylor v. Franklin Blvd. Nursing Home, Inc., 112 Ohio App.3d 27, 677 N.E.2d 1212 (Cuyahoga 1996) (lawyer lectured for failure to comply with OH App R 12(A) in setting forth reviewable assignments of error; also some assigned errors not briefed or argued); McClarty v. Herzog, Nos. 57238, 57283, 1990 Ohio App. LEXIS 2835 (Cuyahoga July 12, 1990) (lawyer committed malpractice by failing to present required evidence and failing to pursue appeals of denial of benefits through Industrial Commission); Neebuhr v. Axner, No. 10916, 1983 Ohio App. LEXIS 15742 (Summit June 29, 1983) (attorney who filed appeal but failed to file transcript to demonstrate claimed error was negligent). See also Richey v. Bradshaw, 498 F.3d 344 (6th Cir. 2007) (ineffective assistance in complete failure to rebut false scientific evidence in arson/murder trial).

    But there are limits. Thus, the court was not impressed by a malpractice plaintiff's argument that his lawyer should have advised him of the voting propensities of Ohio Supreme Court justices, so that he could have settled the case prior to the Supreme Court's ruling adverse to him.  Although the Fifth District Court of Appeals held that plaintiff/appellant's malpractice claim was barred on statute-of-limitations grounds, it could not resist noting, in response to this "suspect case theory suggested by appellant," that

    [a]n appellate attorney may have a duty to research how a particular judge has ruled on a given issue of law, but that duty is a far cry from requiring an attorney to analyze and predict the philosophical inclinations of the judges of the Ohio Supreme Court as a component of effective appellate representation, which appellant seems to propose.

    Cicchini v. Streza, 160 Ohio App.3d 189, 2005 Ohio 1492, 826 N.E.2d 379, at para. 17 (Stark).

  • A lawyer is expected to make skilled judgments while carrying out the representation. Broad deference is usually given to the attorney where pure issues of judgment are involved. Disagreements with a lawyer's trial strategy, for example, will not give rise to malpractice liability unless the strategy is unreasonable or contradicts an express direction of the client. See, e.g., Haller v. Close, No. 90 AP-853, 1991 Ohio App. LEXIS 565, at *8 (Franklin Feb. 5, 1991) ("A disagreement over how to defend a criminal case does not give rise to malpractice liability. Although unreasonable advice which is relied upon can give rise to such liability if it proximately causes harm," that did not happen in this case); Murphey, Young & Smith Co., L.P.A. v. Billman, Nos. 84AP-49, 84 AP-198, 1984 Ohio App. LEXIS 11643, at *24 (Franklin Nov. 20, 1984) ("[T]here can be no claim for malpractice with respect to an attorney selecting one of several courses of action in conducting the defense of his client in litigation, including a disciplinary proceeding. This constitutes selection of trial strategy, as to which there may be a difference of opinion among attorneys. However, where there is a good faith selection of a particular trial strategy, there can be no claim for malpractice, even if the strategy be unsuccessful." Here the concern involved "failing to interview witnesses, deciding not to call certain witnesses, and not asking certain questions or making certain objections during the disciplinary hearing."). See also Treft v. Leatherman, 74 Ohio App.3d 655, 600 N.E.2d 278 (Hancock 1991) (failure to call witness did not constitute breach of professional duty). See also sections 1.2:330 and :370.

This same distinction applies in ineffective-assistance-of-counsel cases. Compare State v. Mundt, 115 Ohio St.3d 22, 2007 Ohio 4836, 873 N.E.2d 828 (failure to question or challenge prior on voire dire not ineffective assistance; "[w]e have consistently declined to 'second-guess trial strategy decisions' or impose 'hindsight views about how current counsel might have voir dired the jury differently." Id. at para. 63 (citations omitted)); State v. Franklin, 97 Ohio St.3d 1, 2002 Ohio 5304, 776 N.E.2d 26 (failure to object to alleged prosecutorial misconduct during closing argument not ineffective assistance of counsel: "A reasonable attorney may decide not to interrupt his adversary's argument as a matter of strategy."  Id. at para. 42.), State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989) (broad array of claims of ineffective assistance rejected; numerous references to "legitimate strategy," "permissible trial tactics," "considered choice of counsel," and the like,  id. at 144, 146, 538 N.E.2d at 381, 383); State v. Bruce, 159 Ohio App.3d 562, 2005 Ohio 373, 824 N.E.2d 609 (Hamilton) ("we decline to second guess counsel's strategy," id. at para. 14);  State v. Kenney, 2004 Ohio 972, 2004 Ohio App. LEXIS 867 (Cuyahoga) (no lack of effective assistance of appellate counsel by not presenting particular argument; appellate advocate can and should winnow contentions down to the most promising), State v. Issa, No. C-000793, 2001 Ohio 3910; 2001 Ohio App. LEXIS 5762 (Hamilton Dec. 21, 2001) (trial-strategy decisions, absent prejudice, do not constitute ineffective assistance of counsel), and State v. Norman, 137 Ohio App.3d 184, 738 N.E.2d 403 (Hamilton 1999) ("this court will not find ineffective assistance based on debatable tactical decisions by trial counsel,"  id. at 197, 738 N.E.2d at 411), with State v. Barr, 158 Ohio App.3d 86, 2004 Ohio 3900, 814 N.E.2d 79 (Columbiana) (counsel ineffective in opening door to evidence that had previously been suppressed and offering no objection to elicitation of that evidence; while defendant must overcome presumption that allegedly ineffective action might be considered sound trial strategy by lawyer, "it's hard to imagine why he would open the door with these questions." Id. at para. 44), State v. Nichols, 116 Ohio App.3d 759, 689 N.E.2d 98 (Franklin 1996) (even debatable trial tactics do not constitute ineffective assistance of counsel unless a competent attorney would not reasonably adopt them; lawyer's errors (including failure to object to highly prejudicial hearsay testimony) found to be more than a matter of tactical decision-making and constituted ineffective assistance of counsel), and State v. Carpenter, 116 Ohio App. 3d 615, 688 N.E.2d 1090 (Montgomery 1996) (ineffective assistance of counsel found where counsel's failure to object to prosecutor's closing, despite closing's "obvious impropriety," could not be treated as reasonable tactical decision).

Ohio federal ineffective-assistance-of-counsel cases on the matter of strategy include Girts v. Yanai, 501 F.3d 743 (6th Cir. 2007) (ineffective assistance; failure to object to prosecutor's improper statements; "[t]his inaction simply cannot be characterized as litigation strategy. There was no conceivable benefit to be derived from failing to challenge the prosecutor's improper statements." Id. at 757.); Mapes v. Tate, 388 F.3d 187, 192-93 (6th Cir. 2004) (failure on appeal to raise claim of error, fully supported by U.S. Supreme Court decision, was ineffective assistance; "this was not a case in which appellate counsel omitted a questionable claim in order to concentrate on more meritorious claims; in fact, the opposite appears to be true. . . . No competent attorney, in the circumstances of this case, would have failed to raise this issue."); Bigelow v. Williams, 367 F.3d 562, 566 (6th Cir. 2004) ("'[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation,'" quoting from Strickland v. Washington, 466 U.S. 668, 691 (1984)); Hamblin v. Mitchell, 354 F.3d 482 (6th Cir. 2003), discussed this section infra at "Thoroughness and preparation." Accord Frazier v. Huffman, 343 F.3d 780 (6th Cir. 2003), where the court stated:

We can conceive of no rational trial strategy that would justify the failure of Frazier's counsel to investigate and present evidence of his brain impairment . . . .

Id. at 794.

It must be remembered that strategy is not the be-all and end-all. In finding the Ohio appellate court's analysis faulty (unable to reach merits because could not determine whether counsel's delay in filing alibi notice was result of trial strategy or ineffectiveness), the court of appeals in Clinksdale v. Carter, 375 F.3d 430 (6th Cir. 2004) stated as follows:

This explanation implies that if the delay was strategic, then it necessarily could not constitute ineffective assistance of counsel. As explained more fully below, however [quoting Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000)], "[t]he relevant question is not whether counsel's choices were strategic, but whether they were reasonable."

375 F.3d at 439.

1.1:330 Standard of Care [see also 1.1:200]

The standard of care expected from lawyers as a matter of professional ethics is set forth in Ohio Rule 1.1, which provides: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." This standard is discussed in section 1.1:200.

The standard of care articulated in the malpractice context is quite similar. An attorney is required to exercise the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession similarly situated.  Stoklosa v. McGill, No. L-91-028, 1992 Ohio App. LEXIS 728 (Lucas Feb. 21, 1992). An attorney who fails to meet these requirements may be found liable for malpractice.  Minick v. Callahan, 24 Ohio Op.3d 104 (App. Lucas 1980). An attorney is also required to be ordinarily and reasonably diligent, careful, and prudent in discharging the duties that he or she has assumed.  Spangler v. Sellers, 5 F. 882 (C.C.S.D. Ohio 1881). The "ordinary and reasonable" standard is to be distinguished from higher levels of care, such as perfect legal knowledge or highest degree of skill.  Stoklosa v. McGill supra.

One aspect of the test, the "similarly situated" requirement, has not been extensively explored in the Ohio case law. Contained within it are two issues. The first is whether in accessing the standard of care we look at the conduct of lawyers in some discrete locality within the state or for the state as whole. The second is whether we hold all lawyers in the relevant geographic area to one standard or whether the standard should be higher for those acting as specialists.

The locality standard: In at least four Ohio cases the "locality standard" has been used by experts with respect to whether there had been a breach of the applicable standard of care. Thus, in Adhesive Impressions, Inc. v. Amer, Cunningham & Brennan Co., L.P.A., 89 Ohio App.3d 532, 625 N.E.2d 643 (Summit 1993), plaintiff's expert opined that the attorney had performed below the accepted standard of care exercised by "attorneys in the Northern Ohio area."  Id. at 536, 625 N.E.2d at 645. In Motz v. Jackson, No. C-990644, 2001 Ohio App. LEXIS 2896 (Hamilton June 29, 2001), plaintiffs submitted an affidavit by a lawyer who stated that defendants' "failure to know the law" was negligent and "violated the ordinary care standard as it exists in Warren County, Ohio, and Hamilton County, Ohio." Id. at *3. Similarly, in Bingamon v. Curren, No. 90- CA-122, 1991 Ohio App. LEXIS 5558 (Greene Nov. 21, 1991), plaintiff's expert testified that defendant's tardy filing of estate tax returns failed to conform with the standards "of the practice of law in the Greene County area." Id. at para. 3. And in Mercer Savings Bank v. Worster, No. CA-1273, 1991 Ohio App. LEXIS 5417 (Darke Nov. 15, 1991), the expert testimony from both sides focused on what the standard of care was in conducting a title search in Darke County, where the alleged malpractice took place. See also Rice v. Johnson, No. 63648, 1993 Ohio App. LEXIS 4109, at *3 (Cuyahoga Aug. 26, 1993) (applicable standard of care is that required of an attorney "in the community"). While this seems a not unreasonable interpretation of the phrase "similarly situated," general commentary on the issue suggests that the pertinent professional community is "that of lawyers undertaking similar matters in the relevant jurisdiction (typically a state)." 1 Restatement (Third) of the Law Governing Lawyers §  52 cmt. b, at 377 (2000) (noting that the locality test has seldom been recognized for lawyers and that it is now "generally rejected for all professions." Id.). Accord Laws. Man. on Prof. Conduct (ABA/BNA) §  301:106 (1998); see 2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice §  20:5, at 1292, 1299 (2008 ed.) (knowledge of local rules and practice relevant and often essential, but standard or degree of care should be same throughout licensing jurisdiction); John C. Nemeth, Legal Malpractice in Ohio, 40 Cleve. St. L. Rev. 143, 162 (1992) (suggesting state-wide standard for malpractice actions); cf. Charles W. Wolfram, Modern Legal Ethics §  5.6, at 214 (1986) (suggesting flexibility as to the appropriate test, depending on the circumstances in each case). One Ohio case has expressly disapproved the use of the locality test in a legal malpractice action.  Smith v. Richardson, No. CA-85-32, 1986 Ohio App. LEXIS 5783, at *3 (Muskingum Feb. 10, 1986) ("We reject the trial court's attempt to impose on expert testimony the rejected 'locality' rule of evidence once followed in the State of Ohio in connection with expert medical testimony.").

Lawyers acting as specialists: With respect to the specialization issue, while there appear to be no Ohio cases on point, it is implicit in Rule 1.1 that a more demanding standard will apply where a lawyer undertakes an engagement requiring specialized expertise. Since, under the Rule, "competent representation requires" whatever is "reasonably necessary to the representation," it follows that in undertaking a representation requiring specialization skills, the lawyer must have, or obtain, the "requisite level of competence" (cmt. [4]) "reasonably necessary to the representation." See also Comment [2], which notes that competent representation can also be provided by association with a lawyer of "established competence in the field in question." According to Mallen and Smith, the modern trend of the cases nationwide is to require an attorney taking on a case that requires specialized knowledge to "exercise the degree of skill and knowledge possessed by those attorneys, who practice in that specialty." 2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice §  20:4, at 1279 (2008 ed.). Mallen and Smith also note that "[n]o court has rejected the idea that a more demanding standard of care should apply to specialists." Id. at 1193.

1.1:335 Requirement of Expert Testimony

Expert testimony generally required: As a general rule, in an action for legal malpractice the plaintiff must establish by expert testimony the degree of knowledge, skill, and ability ordinarily possessed and exercised by lawyers similarly situated. Accordingly, if a plaintiff does not introduce such testimony, the defendant attorney is entitled to summary judgment, e.g., Hooks v. Ciccolini, 2002 Ohio 2322, 2002 Ohio App. LEXIS 2344 (Summit), or a directed verdict, Minick v. Callahan, 24 Ohio Op.3d 104 (App. Lucas 1980). Cf. Martin v. Dadisman, No. 77030, 2000 Ohio App. LEXIS 3843 (Cuyahoga Aug. 24, 2000) (plaintiff, with fifteen-years' paralegal experience, cannot satisfy the expert testimony requirement with his own testimony). Similarly, if plaintiff submits an expert affidavit, but it is insufficient, summary judgment for the defendant attorney is in order.  C.R. Withem Enters. v. Maley, 2002 Ohio 5056, 2002 Ohio App. LEXIS 5096 (Fairfield) (conclusory expert affidavit submitted by plaintiffs failed to state why defendants were negligent in their presentation of witnesses who testified on the issue of compensatory damages, or what an ordinarily competent attorney would have done that defendants failed to do; expert provided no underlying facts in support of his opinion, as required by OH R Evid 705). See also Montgomery v. Gooding, Huffman, Kelly & Becker, 163 F.Supp.2d 831 (N.D. Ohio 2001) (absence of required expert testimony as to attorney's breach of duty of care; partial summary judgment for defendant attorneys granted.  The court also held that expert testimony was not required on the causation issue).

Exception to general rule: While expert testimony is generally required to establish a breach of professional standards of performance, it is not necessary in cases where the breach of duty to the client is well within the common understanding of laypeople.  McInnis v. Hyatt Legal Clinics, 10 Ohio St.3d 112, 461 N.E.2d 1295 (1984) (per curiam) (attorney's failure to follow the specific instructions of the client was sufficient to establish a breach of duty without expert testimony). Accord Nalls v. Nystrom, 159 Ohio App.3d 200, 2004 Ohio 6230, 823 N.E.2d 500 (Montgomery) ("straightforward" issue of fact under general laws of contract not requiring expert testimony; summary judgment in favor of lawyer reversed); Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (Cuyahoga 2000) (summary judgment for defendant attorney, because of plaintiff's failure to provide expert testimony, reversed; conduct at issue - failure to inspect records of dental practice being purchased, when there were suspicions of welfare fraud and plaintiff purchaser had insisted they be examined - was within ordinary understanding of a lay jury and expert testimony therefore not required); Rafferty v. Scurry, 117 Ohio App.3d 240, 690 N.E.2d 104 (Madison 1997) (stating and applying exception to need for expert testimony, where defendant attorney, by failing to respond to request for admission, admitted that he breached his duty of care in failing to answer complaint in underlying action, resulting in default judgment); DePugh v. Sladoje, 111 Ohio App.3d 675, 676 N.E.2d 1231 (Miami 1996) (summary judgment for defendant attorneys, on ground that plaintiff failed to provide expert testimony of breach of duty, reversed; expert testimony not required where statute of limitations on client's wrongful-death claim expired because attorneys gave client incorrect advice as to when action had to be refiled). Compare Burke v. Gammarino, 108 Ohio App.3d 138, 670 N.E.2d 295 (Hamilton 1995) (alleged malpractice, in failing to file motion to intervene, failing to have receiver appointed, and failing to file certain counterclaims, not so obvious as to relieve counterclaimant of burden of establishing claim through expert testimony); Hirschberger v. Silverman, 80 Ohio App.3d 532, 609 N.E.2d 1301 (Lucas 1992) (recognizing exception, but applying general rule); Northwestern Life Ins. Co. v. Rogers, 61 Ohio App.3d 506, 573 N.E.2d 159 (Franklin 1989) (attorney's alleged breach of duty in complex real estate transaction was not so obvious as to come within the common understanding of a layperson and obviate the need for expert testimony). Accord Werts v. Penn, 164 Ohio App.3d 505, 2005 Ohio 6532, 842 N.E.2d 1102 (on conflicting testimony as to what occurred with respect to erroneous land contract prepared by malpractice defendant, magistrate erred in finding breach of duty by defendant; breach not so obvious it could be determined as matter of law; expert testimony needed on standard-of-care requirement of lawyer in circumstances).

In contrast to lay plaintiffs, who in the usual case must secure expert testimony, lawyer malpractice defendants have been allowed to support their position through their own testimony; outside expert testimony is not required. For example, in Roselle v. Nims, 2003 Ohio 630, 2003 Ohio App. LEXIS 604 (Franklin) (summary judgment for defendant lawyer affirmed), the expert testimony in support of the defendant attorney's conduct was provided by the defendant himself. Accord Hooks v. Ciccolini, 2002 Ohio 2322, 2002 Ohio App. LEXIS 2344 (Summit). The defendant attorney likewise provided the expert affidavit in Adhesive Impressions, Inc. v. Amer, Cunningham & Brennan Co., L.P.A., 89 Ohio App.3d 532, 625 N.E.2d 643 (Summit 1993), but summary judgment for defendant lawyers was reversed because conflicting expert affidavits raised issues of fact on scope of duty and breach. At least one case has expressly rejected the argument that a malpractice defendant cannot rely on his own expert affidavit, Perotti v. Beck, No. 00 CA 29, 2001 Ohio App. LEXIS 4535 (Mahoning Sept. 24, 2001), and another has specifically endorsed the practice.  Roberts v. Hutton, 152 Ohio App.3d 412, 2003 Ohio 1650 787 N.E.2d 1267 (Franklin). Two other cases have explained that the expert testimony requisite, if applicable, is the obligation of the plaintiff, not the defendant lawyer (even though the lawyer often does supply expert testimony to the effect that his or her conduct did not breach any duty to the client).  Murphy v. Redeker, No. 70868, 1997 Ohio App. LEXIS 115, at *2 (Cuyahoga Jan. 16, 1997) ("No such requirement [of expert testimony] is made of the attorney in defense of his or her standard of practice"); see Nuckols v. Kapp, No. 97-KO-6, 1999 Ohio App. LEXIS 1461, at *5 (Columbiana Mar. 30, 1999) (not a necessity that malpractice defendant present independent expert testimony; "a defendant in a malpractice cause of action would, arguably, possess the required skill and knowledge to testify as to whether they met the applicable standard of care." No error in allowing defendant so to testify here.). But see Polivka v. Cox, 2002 Ohio 2420, 2002 Ohio App. LEXIS 2439 (Franklin). In Polivka, the issue was whether defendant failed to file a timely notice of appeal from the denial of his client's worker's compensation claim. The lawyer filed his own expert affidavit; the plaintiff filed none. The court of appeals nevertheless reversed the grant of summary judgment to the lawyer because he failed to satisfy his initial burden of demonstrating the absence of a genuine issue of fact. His affidavit "inadequately supported" the motion, primarily because he failed to attach the supposedly timely-filed notice of appeal. Since defendant failed to meet his initial burden, plaintiff's reciprocal burden was never triggered. (Although the court does not say so, this would clearly seem to be the sort of case in which expert testimony from the plaintiff is not needed -- the failure to file a notice of appeal on time is well within the common understanding of a layperson.)

An unusual situation involving expert testimony in a malpractice action is found in Maust v. Palmer, 94 Ohio App.3d 764, 641 N.E.2d 818 (Franklin 1994). Defendant moved for summary judgment and provided an affidavit by an Ohio State law professor supporting the defendant's position that he had met the standard of care for Ohio attorneys. Since plaintiff filed no expert affidavit in response, the trial court granted the summary judgment motion. Plaintiff, however, had filed a motion to strike the affidavit of defendant's expert, arguing in his own affidavit that he had himself consulted the expert about the pending matter; as a result, plaintiff argued, he had an attorney-client relationship with the expert and the affidavit should have been stricken. The trial court did not rule on plaintiff's motion to strike. On appeal, the court, finding that the conflicting affidavits precluded summary judgment, reversed. It also reasoned that it was not appropriate for the trial court to consider the expert's affidavit until the issue of its admissibility, raised by the motion to strike, was ruled upon. Without the expert's affidavit, according to the court of appeals, the record did not establish that no genuine issue of material fact existed and summary judgment was therefore improper on this ground as well.

On the question of admissibility of the expert affidavit, the Maust court noted that "[i]f an attorney-client relationship had existed, Professor Jacobs might be barred from testifying pursuant to R.C. 2317.02," which precludes an attorney from testifying "concerning a communication made to him by his client in that relation . . . ." Id. at 768, 641 N.E.2d at 820. One wonders how the expert's affidavit could have contained testimony "concerning a communication made to him by his client [plaintiff] in that relation," when the expert submitted a second, apparently uncontested, affidavit indicating that "no communication from plaintiff formed a basis for his opinion." Id. at 769 n.3, 641 N.E.2d at 821 n.3. The court of appeals was not persuaded; as it stated: "That issue is not determined hereby and was not determined in the trial court assuming that, if true, it could 'cure' any privilege violation." Id.

Finally, the Ohio Supreme Court, in a medical malpractice case, Vaught v. Cleveland Clinic Found., 98 Ohio St.3d 485, 2003 Ohio 2181, 787 N.E.2d 631, affirmed the preclusion of the defendant doctor from testifying as an expert in his own defense after he failed to file a written expert report in accordance with the then-applicable local rule (Cuyahoga CP Gen R 21.1), which has since been amended, effective Sept. 1, 2002, to limit the application of the rule to "non-party" expert witnesses only. Thus, under the rule as amended, a defendant lawyer acting as his or her own expert need not file such a report.

1.1:340 Causation and Damages

On the legal malpractice front 2008 was a year of seismic developments in the law of causation and damages.  Two very important Supreme Court opinions came down, and they change the lay of the land.  First, in June, the Court decided in Paterek v. Petersen & Ibold, 118 Ohio St.3d, 2008 Ohio 2790, 890 N.E.2d 316, that “collectibility of the judgment lost due to the malpractice is an element of the plaintiff’s claim against the negligent attorney.” Id. at para. 1. Second, in Envtl. Network Corp. v. Goodman Weiss Miller, L.L.P., 119 Ohio St.3d 209, 2008 Ohio 3833, 893 N.E.2d 173, the Court concluded in the syllabus, which “clarifie[s]” Vahila v. Hall, 77 Ohio St.3d 421, 674 N.E.2d 1164 (1997), as follows:

When a plaintiff premises a legal-malpractice claim on the theory that he would have received a better outcome if his attorney had tried the underlying matter to conclusion rather than settled it, the plaintiff must establish that he would have prevailed in the underlying matter and that the outcome would have been better than the outcome provided by the settlement.

Both decisions will be discussed in detail below. First, however, a brief summary of what the landscape looked like pre-Paterik/Environmental Network:

The touchstone of legal malpractice causation for years was Vahila v. Hall supra, which held, in the language pertinent here with respect to causation,

we cannot endorse a blanket proposition that requires a plaintiff to prove, in every instance, that he or she would have been successful in the underlying matter.

Id. at 428, 674 N.E.2d at 1170. The decisions in the wake of Vahila tended to overlook the “blanket proposition” and “in every instance” language, and read Vahila as a general rejection of the “case-within-a-case” test. Indeed, the best examples of this are the two court of appeals decisions reversed by the Supreme Court in Environmental Network and Paterek. In both, the lawyers argued that the plaintiff needed to prove the case within a case to prevail. In both the appellate court rejected the argument, citing Vahila: “Consequently, the standard to prove causation in a legal malpractice case requires a claimant to ‘provide some evidence of the merits of the underlying claim,’” citing Vahila (Environmental Network, 2007 Ohio App. LEXIS 760, at para. 26 (Cuyahoga)); “the ‘case-within-a-case’ approach was rejected by the Supreme Court of Ohio in Vahila v. Hall.” (Paterek, 2006 Ohio App. LEXIS 4127, at para. 40 (Geauga)). See also Robinson v. Calig & Handleman, 119 Ohio App.3d 141, 144, 694 N.E.2d 557, 559 (Franklin 1997) (“Here, the trial court appears to have applied the ‘but for’ test rejected in Vahila”).

The Supreme Court’s opinion in Environmental Network put an end to this overreading of Vahila. It resurrects the “but for” test and makes it the rule in cases in which plaintiff’s theory is that it would have received a better result if the attorney had tried the case to conclusion rather than settling. On such a theory, it is difficult to take issue with Justice O’Connor’s statement that

appellees here could recover only if they could prove that they would have succeeded in the underlying case and that the judgment would have been better than the terms of the settlement. . . .

This type of legal malpractice action, then involves the case-within-a-case doctrine.

Id. at paras. 18, 19.  Since plaintiffs failed to show that, but for defendants’ malpractice, they would have received a better result by trying the case, the court of appeals was reversed and the case remanded to the trial court for entry of judgment in favor of the defendant lawyers.

Environmental Network’s case-within-a-case holding deals only with the causation element where the plaintiff alleges that she would have received a more favorable outcome if her attorney had tried the case rather than settling it. At the other end of the spectrum, Vahila’s “some evidence” rule presumably will continue to apply where the plaintiff’s damages caused by the malpractice constitute losses other than those tied to the result in the underlying action, such as loss of profits, as in Vahila itself. What rule will apply in the often encountered situation in which plaintiff’s lawyer does try the case to conclusion and either loses it or comes away with a result less favorable than that to which plaintiff claims she was entitled? The definitive answer will, of course, have to await future Supreme Court case law, but we suspect that the reasoning behind the Environmental Network result will lead to the “but for” test being applied there as well. Such a case would also seem to “place[] the merits of the underlying litigation directly at issue,” and put plaintiffs in a position where they “could recover only if they could prove that they would have succeeded in the underlying case and that the judgment would have been better than the terms of the” judgment obtained. Id. at para. 18. Time will tell.

In the other major malpractice decision, Paterek v. Petersen & Ibold, 118 Ohio St.3d 503, 2008 Ohio 2790, 890 N.E.2d 316, the Court held that “proof of the collectibility of the judgment lost due to the malpractice is an element of the plaintiff’s claim against the negligent attorney.” Id. at para. 1.

The underlying claim in Paterek was a personal injury action arising from an automobile accident. After filing the action, the lawyer voluntarily dismissed it, but then failed to refile within the one-year savings statute. In the subsequent malpractice action, liability was admitted; the only issue was the damage proximately caused by the breach. The tortfeasor had no assets other than $100,000 automobile liability coverage.  The defendant lawyers, seeking partial summary judgment, argued that damages should be capped at $100,000. The trial court denied the motion and stated that “‘[a]lthough Plaintiffs will have to prove the “case within the case,” such proof does not have to go so far as to demonstrate . . . that the tortfeasor had assets from which a judgment could be collected.’” Id. at para. 7.

The malpractice case proceeded to trial, and the parties submitted joint stipulations to the effect that the tortfeasor’s only asset was the $100,000 policy, that the injured plaintiffs had underinsured motorist coverage in the amount of $250,000, and that the jury would be asked only to return a verdict regarding the amount of plaintiffs’ damages.  The jury returned a verdict of $382,000.  The defendants sought judgment n.o.v., which the trial court granted, limiting damages to $100,000. That court reasoned that, although plaintiffs suffered damages in the amount of $382,000 because of the tortfeasor’s negligence, that “‘does not mean that Plaintiff suffered damages in that same amount as a result of the negligence of Jonathan Evans and Petersen & Ibold . . . . [T]he damages actually caused by the negligence of these Defendants must be limited to the amount that Plaintiff could be reasonably certain of receiving had Defendant[s] not been negligent’” Id. at para. 21. The court of appeals, stressing the trial court’s reliance on the “case within a case” analysis “was rejected by the Supreme Court of Ohio in Vahila v. Hall,” 2006 Ohio App. LEXIS 4127, at para. 40, reversed and held that the trial court’s duty was to determine whether the verdict was supported by substantial evidence, not whether the verdict was collectible.

On review, Supreme Court quoted the Vahila syllabus, stressing the third prong – that there must be a causal connection between the malpractice and the resulting loss. “Thus, the focus in this case is the value of the lost cause of action.” Id. at 28.

[T]he appellant attorneys in this case are not responsible for [the tortfeasor’s] negligent conduct; they are responsible for their own. This case is not about what Irene Paterek suffered on account of [the tortfeasor’s] bad driving, but what she suffered on account of appellants’ bad lawyering. The proper inquiry then is this: Had the appellants not be negligent, how much could Irene have received from a settlement or a judgment?

In answering this question, the Court follows the “‘prevailing rule . . . that the client’s recovery is limited to the amount that would have been collectible,’” (citing 4 Mallen & Smith, Legal Malpractice § 31:17 (2008 ed.), and that the burden of proving collectibility of a lost judgment is on the plaintiff.  118 Ohio St.3d 503, at para. 32.

We hold that collectibility is logically and inextricably linked to the legal-malpractice plaintiff’s damages, for which the plaintiff bears the burden of proof. In proving what was lost, the plaintiff must show what would have been gained . . . . [H]er injury is measured by what she actually would have collected.

Id. at para. 37.

As a result, the Supreme Court reversed and, since the appellants had stipulated to the amount available from plaintiffs’ UIM policy ($250,000 - $100,000 set-off = $150,000), remanded the case to the trial court to enter judgment in the amount of $250,000.

While the Supreme Court’s decision in Paterek does not get into the “but for” or “case within a case” litany in so many words, the result and analysis – particularly the language stating that the plaintiff’s “injury is measured by what she actually would have collected,” id. at para. 37, sounds very much like the “but for” test without so identifying it.

The Paterek and Environmental Network decisions are examined in Monica A. Sansalone, Legal Malpractice in Ohio:  A New Horizon?, Clev. Metro. B.J., Nov. 2008, at 48.

It also should be noted that in ineffective-assistance-of-counsel cases, the defendant must show both professional incompetence and prejudice, the latter of which requires proof of a reasonable probability that, but for counsel's errors, the result would have been different.  State v. Kole, 92 Ohio St.3d 303, 750 N.E.2d 148 (2001).  This is the federal rule as well.  E.g., Smith v. Ohio Dep't of Rehabilitation & Corrections, 463 F.3d 426 (6th Cir. 2006) (ineffective assistance in not notifying client of state appellate decision, but no showing that client would have timely appealed but for counsel's failure).

Damages must be attributable to attorney misconduct: In order to succeed on a malpractice claim, the plaintiff must also show that injury or damage resulted from the attorney's misconduct. See Envtl. Network Corp. v. Goodman Weiss Miller, L.L.P., 119 Ohio St.3d 209, 2008 Ohio 3833, 893 N.E.2d 173, and Paterek v. Petersen & Ibold, 118 Ohio St.3d 503, 2008 Ohio 2790, 890 N.E.2d 316, both of which are discussed in detail above. Compare Rumley v. Buckingham, Doolittle & Burroughs, 129 Ohio App.3d 638, 718 N.E.2d 964 (Franklin 1998) (OH Civ R 12(B)(6) dismissal reversed; plaintiff adequately pleaded breach of duty and resultant damages), with Meuhreke v. Housel, 2008 Ohio 3028, 2008 Ohio App. LEXIS 2553 (Cuyahoga) (proof of actual damages required; jury verdict for plaintiff reversed), Advanced Analytics Labs., Inc. v. Kegler, Brown, Hill & Ritter, L.P.A., 148 Ohio App.3d 440, 2002 Ohio 3328, 773 N.E.2d 108 (Franklin) (summary judgment affirmed because, inter alia, plaintiff's evidence failed to support claim that it was damaged by defendants' allegedly negligent preparation of subordinated loan agreement), Motz v. Jackson, No. C-990644, 2001 Ohio App. LEXIS 2896 (Hamilton June 29, 2001) (summary judgment for defendants proper, given lack of any evidence establishing calculable financial loss), and Burton v. Selker, 36 F. Supp.2d 984 (N.D. Ohio 1999) (summary judgment for defendant-attorneys granted, inter alia, because plaintiff failed to show any damages resulting from defendants' alleged malpractice), aff'd, 30 Fed. Appx. 456 (6th Cir. 2002).

Speculative damages are insufficient to create liability. DeMeo v. Provident Bank, 2008 Ohio 2936, 2008 Ohio App. LEXIS 2475 (Cuyahoga); see Pietz v. Toledo Trust Co., 63 Ohio App.3d 17, 577 N.E.2d 1118 (Lucas 1989) (damage claim by remaindermen, premised on attorney's alleged negligence in reducing value of remainder interest, held speculative where life beneficiary had access to all assets and could exhaust the trust). Nonspeculative economic loss resulting from the lawyer's malpractice, however, is recoverable, see McInnis v. Hyatt Legal Clinic, 10 Ohio St.3d 112, 461 N.E.2d 1295 (1984). With respect to lost profits or actual expenditures, the recovery of which in the underlying action was allegedly prevented by the attorney's negligence, see Breezevale Ltd. v. Dickinson, 759 A.2d 627 (D.C. App. 2000) (Ohio law applied; alleged damage not shown with necessary reasonable certainty; conclusory testimony of plaintiff's executive insufficient).

The amount recoverable may include prejudgment interest (see Okocha v. Fehrenbacher, 101 Ohio App.3d 309, 655 N.E.2d 744 (Cuyahoga 1995); Mobberly v. Hendricks, 98 Ohio App.3d 839, 649 N.E.2d 1247 (Medina 1994)), and amounts expended in mitigating or attempting to mitigate the damage caused by the lawyer's conduct, see Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058 (1989) (cost of setting aside default order entered because lawyer failed to appear at hearing). In appropriate circumstances, typically involving fraud or malice, exemplary damages may be awarded. Compare Okocha v. Fehrenbacher, 101 Ohio App.3d 309, 655 N.E.2d 744 (Cuyahoga 1995) ($50,000 punitive damages award affirmed where, inter alia, lawyer wrongfully converted client's settlement proceeds), with David v. Schwarzwald, Robiner, Wolf & Block, 79 Ohio App.3d 786, 607 N.E.2d 1173 (Cuyahoga 1992) (evidence did not show that attorney maliciously or consciously disregarded his duties to plaintiff; directed verdict for defendant on punitive damage issue affirmed). (The related disciplinary proceeding against Mr. Okocha, arising out of his representation of the Fehrenbachers, is reported at Cuyahoga County Bar Ass'n v. Okocha, 69 Ohio St.3d 398, 632 N.E.2d 1284 (1994).) 

The Supreme Court has noted in dicta that the “‘[v]ast majority of appellate decisions that have considered the issue have held that an attorney is not liable for emotional distress damages where the attorney’s conduct has been merely negligent.’” Paterek v. Petersen & Ibold, 118 Ohio St.3d 503, 2008 Ohio 2790, 890 N.E.2d 316, at para. 28 (quoting from Joseph J. Kelleher, An Attorney’s Liability for the Negligent Infliction of Emotional Distress, 58 Fordham L. Rev. 1309, 1319 (1990)). See Muehreke v. Housel, 2008 Ohio 3028, 2008 Ohio App. LEXIS 2553 (Cuyahoga) (affirming directed verdict for lawyer on negligent infliction claim).

Concerning malpractice damages generally, see 3 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice §§ 21:1-21:21 (2008 ed.).

1.1:350 Waiver of Prospective Liability [see 1.8:910]

1.1:360 Settlement of Client's Malpractice Claim [see 1.8:920]

1.1:370 Defenses to Malpractice Claim

Raising a defense permitted: Ohio Rule 1.8(h) prohibits an attorney from attempting to exonerate himself from, or limit his liability to his client for, malpractice, but of course does not prohibit the attorney from raising any defense available to him against a malpractice claim. See, under the former OHCPR, Office of Disciplinary Counsel v. Clavner, 77 Ohio St.3d 431, 674 N.E.2d 1369 (1997) (per curiam).

Potential defenses: The defenses available to an attorney defending a malpractice action are discussed in chapters 22 and 23 of 3 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice (2008 ed.). Of the nineteen defenses noted, at least seven have been litigated in Ohio.

Statute of limitations: By far the most common (and most successful) defense is the one-year statute of limitations set forth in ORC 2305.11(A)(1). See, e.g., Zimmie v. Calfee, Halter & Griswold, 43 Ohio St.3d 54, 538 N.E.2d 398 (1989). See generally section 1.1:300.

Contributory/comparative negligence: Ohio, like most other states, has held that contributory/comparative negligence can be a defense to a malpractice action. See Harrell v. Crystal, 81 Ohio App.3d 515, 611 N.E.2d 908 (Cuyahoga 1992) (comparative negligence; apportionment of damages unnecessary where attorneys failed to prove that clients were negligent).

Res judicata: In DiPaolo v. DeVictor, 51 Ohio App.3d 166, 555 N.E.2d 969 (Franklin 1988), the court of appeals affirmed the judgment of the court of common pleas in favor of the defendant attorney on, inter alia, res judicata grounds. One of the malpractice plaintiffs, the executrix of her husband's estate, was a party to prior probate court proceedings in which the issue whether assets should have been included in the deceased's estate was conclusively determined. The malpractice action asserted that those same assets had been wrongfully excluded from the estate by the defendant attorneys when they were retained by the executrix to represent the estate. The final accounting in the probate court matter was held to be res judicata as to the executrix's malpractice action.

Settlement of underlying action: In a number of Ohio malpractice cases, the attorney has argued that the client's settlement of the underlying action "waived," "barred," or "extinguished" the malpractice claim. This defense may be something of a red-herring in Ohio, however, as most of the cases appear ultimately to turn, not on the fact of settlement, but on an assessment of whether the attorney breached his duty of care. Further, it appears that the majority of the more recent cases support the view that the client's settlement of the underlying action is not a defense to a malpractice claim.

Thus, in Vagianos v. Halpern, No. 76408, 2000 Ohio App. LEXIS 5856, at *3 (Cuyahoga Dec. 14, 2000) (summary judgment for defendants reversed), defendant lawyers argued that their former client's settlement of the underlying action "operates to waive any claim for legal malpractice against [them]." The court of appeals was not persuaded:

This argument is without merit. Accepting a settlement for a reduced amount does not necessarily waive a claim for legal malpractice against the attorney whose substandard representation made settlement for the reduced amount reasonable.

Id.

In DePugh v. Sladoje, 111 Ohio App.3d 675, 676 N.E.2d 1231 (Miami 1996), the defendant attorneys similarly argued that the estate's settlement of a wrongful death action with the county was a defense to the plaintiff/beneficiary's malpractice claim against them. The attorneys, however, had not filed the wrongful death action until after the statute of limitations (ORC 2125.02(D)) had run. Actually, the case had been filed in time, but then voluntarily dismissed, prior to the running of the two-year statute of limitations for wrongful death. Thinking that the one-year savings provision of ORC 2305.19 applied, the attorneys refiled the suit eleven months later. But the savings provision applies only where there is a voluntary dismissal after the statute of limitations has expired; if the dismissal comes during the limitations period, that period continues to run, with no savings period tacked on. As a result, the attorneys missed their refiling deadline by about five months. On these facts, the Second District Court of Appeals held as follows:

[W]e conclude that where a settlement is entered into as a result of an attorney's exercise of his reasonable judgment in handling a case, the settlement bars a malpractice claim against the attorney. On the other hand, a legal malpractice claim is not barred by a settlement with a party in the underlying action where the attorney has acted unreasonably or has committed malpractice per se. In our judgment, when an attorney has made an obvious error which seriously compromises his client's claim, and a settlement is on the table (albeit an inadequate one), the client should not be forced to forgo the settlement offer as a condition of pursuing the attorney for malpractice.

Utilizing this approach, we conclude that missing the statute of limitations amounted to malpractice per se by the attorneys who owed a duty to the estate or its beneficiaries, so that the estate's claim is not barred by its settlement with the Miami County Board of Commissioners.

Id. at 687, 676 N.E.2d at 1239.

Accord Monastra v. D'Amore, 111 Ohio App.3d 296, 676 N.E.2d 132 (Cuyahoga 1996) (summary judgment for attorney reversed):

We find no merit to Monastra's claim that D'Amore's divorce settlement with her husband waived her legal malpractice claim against him. If the evidence should show that Monastra's defective representation diminished D'Amore's ability to reach a successful settlement or succeed at trial, we see no reason why a waiver of that malpractice claim should be implied by reason of the settlement.

Id. at 302, 676 N.E.2d at 136.

The Ohio Supreme Court reached a result consistent with this analysis in Vahila v. Hall, 77 Ohio St.3d 421, 674 N.E.2d 1164 (1997) (reversing summary judgment for defendant attorneys where underlying civil actions had been settled, allegedly under duress from attorneys and without proper disclosure or adequate explanation by attorneys of settlement consequences.  Id. at 427, 674 N.E.2d at 1169). Accord Gibson v. Westfall, Nos. 74628, 74977, 1999 Ohio App. LEXIS 4791 (Cuyahoga Oct. 7, 1999) (affirming jury verdict against lawyer for malpractice; rejecting lawyer's argument that client's settlement of underlying suit precluded malpractice recovery). See also Motz v. Jackson, No. C-990644, 2001 Ohio App. LEXIS 2896 (Hamilton June 29, 2001) (settlement by plaintiffs of underlying claim did not preclude claim for malpractice in which evidence of breach of professional duty was presented; summary judgment for lawyers nevertheless affirmed because of absence of any evidence of damages arising from any such breach).

On the other hand, where no breach of the duty of due care is found, or the attorney has a plausible argument in defense of his chosen course of action, the Ohio courts typically refer to the fact of settlement of the underlying action as a further basis for ruling for the malpractice defendant.  Benna v. Slavin, No. CV-381241, 2000 Ohio App. LEXIS 5959 (Cuyahoga Dec. 18, 2000) (summary judgment for lawyer/defendant affirmed; lawyer on appeal argued that voluntary settlement of underlying action by his client barred malpractice claim and that he exercised reasonable professional judgment in advising client to settle; appellate court affirmed on ground that lawyer exercised reasonable professional judgment and noted also that client had voluntarily settled). Accord E.P.B., Inc. v. Cozza & Steuer, 119 Ohio App.3d 177, 694 N.E.2d 1376 (Cuyahoga 1997), where the court stated that it was not suggesting that the client's settlement of the underlying action (here, while pending on appeal) always operates as a waiver of the client's malpractice claim; to the contrary, such a claim is not barred if the attorney has acted unreasonably or committed malpractice per se. In the case at bar, the attorneys made no error that compromised the client's underlying claim, and, as a result, the summary judgment in the attorney's favor was affirmed. Similarly, in Sawchyn v. Westerhaus, 72 Ohio App.3d 25, 593 N.E.2d 420 (Cuyahoga 1991), the court of appeals affirmed summary judgment for the defendant attorney where the client settled the underlying action while an appeal from an adverse punitive damage judgment was pending. Although the court did state that the settlement extinguished the client's right to pursue his malpractice claim, it also left no doubt that it thought the malpractice claim itself was meritless. The client's claim against the attorney, who represented him only on the punitive damage claim in the underlying action, was premised on the attorney's failure to settle the punitive damage claim prior to trial. Inasmuch as there would have been no liability for punitive damages unless and until actual or compensatory damages had been proved, the court remarked that "[p]rior to trial, it is difficult to conceive why punitive damages would be settled before a settlement was reached on compensatory damages."  Id. at 28, 593 N.E.2d at 422.

The one case found that appears to be an exception to this pattern is Estate of Callahan v. Allen, 97 Ohio App.3d 749, 647 N.E.2d 543 (Lawrence 1994). In Callahan, the trial court had ruled in favor of the client. Reversing, the court of appeals held that the client's settlement of the underlying case with the IRS without appeal constituted a waiver of his malpractice claim against the defendant attorney, which claim was premised on the attorney's handling of estate tax matters. The defendant lawyer's effort to increase the marital deduction and thereby reduce the estate tax liability to zero was rejected by the IRS, which ruled that the effort expressly violated a provision of the Internal Revenue Code, 26 USC §  2518(b)(4) (2000). The court's opinion as a whole indicates that the lawyer's plan was inconsistent with the statutory provision directly on point. Thus, the case seems to be one where settlement trumped bad lawyering, even though one subsequent case has seen fit to place the case in the "plausible argument"/not unreasonable "strategic decisions" category. See DePugh v. Sladoje, 111 Ohio App.3d 675, 685-87, 676 N.E.2d 1231, 1238-39 (Miami 1996).

See also Endicott v. Johrendt, No. 99 AP-935, 2000 Ohio App. LEXIS 2697 (Franklin June 22, 2000) (agreeing with appellant that settlement of underlying action is not always preclusive of damages in malpractice case, but finding no need to reach issue because appellant failed to show she was damaged by appellee's withdrawal as counsel); Robinson v. Calig & Handleman, 119 Ohio App.3d 141, 694 N.E.2d 557 (Franklin 1997) (reversing pre-Vahila grant of summary judgment to lawyer and remanding for reconsideration in light of Vahila; client had settled underlying divorce case.)

Judicial estoppel: The judicial-estoppel defense was invoked and applied in the case of Advanced Analytics Labs., Inc. v. Kegler, Brown, Hill & Ritter, L.P.A., 148 Ohio App.3d 440, 2002 Ohio 3328, 773 N.E.2d 1081 (Franklin). In Advanced Analytics, plaintiff sought to sue defendants for malpractice; it claimed, among other things, that the law firm had breached its duty of care to ensure that financing documents complied with applicable law and that the firm was negligent in its effort to perfect plaintiff's security interest in the collateral of its debtor. (Plaintiff also argued that the financing statements prepared by defendants were confusing and misleading.) The problem with plaintiff's claim was that it had twice successfully argued to the contrary, before the bankruptcy court in North Carolina and on appeal to the federal district court. As the Franklin County Court of Appeals summed it up:

The doctrine of judicial estoppel precludes a party from assuming a position in a legal proceeding inconsistent with a position taken in a prior action. . . . The doctrine may be applied only where the party making the inconsistent assertion was successful with the prior assertion.

. . .  The evidentiary materials submitted by the parties . . . unequivocally demonstrate plaintiff's position in the bankruptcy court and federal district court proceedings to be that its financing statements comported with established case law and statutory requirements, including the pertinent provisions of the UCC, and validly perfected plaintiff's security interest in [its debtor's] assets. . . . Because plaintiff successfully asserted that position in the prior proceedings, plaintiff is precluded by judicial estoppel from now arguing that, as to the financing statements and security agreement, defendants breached their duty to ensure that all such documents comported with the requirements of the law, or that defendants were negligent in their "effort to perfect the security interest of the Plaintiff relating to the collateral of the debtor, EAI, Inc. of North Carolina."

Id. at ¶¶ 37-38 (citations omitted; interior quotation from plaintiff's brief on appeal).

Immunity: Another Mallen and Smith defense that has been litigated in Ohio is immunity from liability. There are three decisions on point, all involving public defenders. In Wooden v. Kentner, 153 Ohio App.3d 24, 2003 Ohio 2695, 790 N.E.2d 813 (Franklin), the court affirmed an OH Civ R 12(B)(6) dismissal on immunity grounds in favor of a county public defender office and its lawyer employees who had represented the plaintiff in a prior criminal case in which the plaintiff had pled guilty to corruption of a minor. The office was immune under the governmental discretionary function defense set forth in ORC 2744.03(A)(3). The lawyer employees were immune under ORC 2744.03(A)(6), which provides that a political subdivision's employees are immune unless, inter alia, they act maliciously, in bad faith, or recklessly. In the case at bar plaintiff alleged only negligence; "[t]he defendant employees are immune from liability for negligent conduct." Id. at para. 15. Accord Thorp v. Strigari, 155 Ohio App.3d 245, 2003 Ohio 5954, 800 N.E.2d 392 (Hamilton) (lawyer employee immune under ORC 2744.03(A)(6); plaintiffs' constitutional attacks on immunity statute (equal protection; right-to-remedy) rejected; summary judgment for defendant affirmed). A similar result was reached on summary judgment in the case of Wooten v. Vogele, 147 Ohio App.3d 216, 769 N.E.2d 889 (Hamilton 2001). In Wooten the appellate court affirmed the trial court on the ground that there was no evidence the defendant public defender had engaged in malicious, reckless, or wanton conduct or that he had acted in bad faith; as a result, he was immune from liability as a matter of law pursuant to ORC 2744.03(A)((6)(b).  (In the Thorp case, Judge Painter, concurring, thought it odd that "a person with money can hire an attorney, has a remedy if the attorney errs, but a poor person has none.  Alas, the ways of the world; but in this case mandated by the legislature."  155 Ohio App.3d 245, at para. 38.)

Prematurity/exhaustion of other remedies: A legal malpractice claim may not be ripe if the client has failed to exhaust other legal remedies available to her. See Petruzzi v. Casey, No. 89- AP-1508, 1990 Ohio App. LEXIS 1658 (Franklin Apr. 26, 1990) (cruise passenger's malpractice claim, in which she alleged that her attorney's negligence precluded her from filing suit against cruise line within one-year statute of limitations period purportedly imposed by language of contract for passage included on cruise ticket, was premature where (1) no statute of limitations had been imposed barring appellant's personal injury claim in any legal proceeding, and (2) there had been no definitive legal determination that one-year limitation imposed by cruise line was applicable or enforceable).

Absence of attorney/client relationship: An additional "defense," not catalogued by Mallen and Smith, is usually available when one not a client of the lawyer attempts to sue the lawyer for malpractice and/or negligent representation. In such circumstances, there is no liability unless the plaintiff is in privity with the lawyer's client or the lawyer's conduct was malicious. The seminal decision is that of the Ohio Supreme Court in Scholler v. Scholler, 10 Ohio St.3d 98, 462 N.E.2d 158 (1984) (syllabus one); accord Simon v. Zipperstein, 32 Ohio St.3d 74, 512 N.E.3d 636 (1987).  The Scholler rule and its exceptions are discussed in detail in section 1.1:410 infra.

Court of appeals cases applying the general no-liability rule of Scholler include Tortora v. Messenger, 2004 Ohio 5930, 2004 Ohio App. LEXIS 5634 (Mahoning); Brady v. Hickman, 2003 Ohio 5649, 2003 Ohio App. LEXIS 5034 (Cuyahoga); see McGuire v. Draper, Hollenbaugh & Briscoe Co., L.P.A., 2002 Ohio 6170, 2002 Ohio App. LEXIS 6003 (Highland) (plaintiff sued X firm for malpractice, then amended complaint to add malpractice claim against Y firm, which had been retained by X's insurance carrier to defend X(!). No attorney-client relationship, no privity, no malice; summary judgment for Y defendants affirmed); Medpartners, Inc. v. Calfee, Halter & Griswold L.L.P., 140 Ohio App.3d 612, 748 N.E.2d 604 (Cuyahoga 2000) (malpractice jury verdict against law firm in favor of parent corporation reversed because firm did not represent parent in merger transaction and thus owed it no duty. The court further held there could be no third-party liability to parent in absence of allegations that parent organization was in privity with corporation that law firm did represent in merger, or that law firm acted maliciously); Am. Express Travel Related Servs. Co. v. Mandilakis, 111 Ohio App.3d 160, 675 N.E.2d 1279 (Cuyahoga 1996) (client embezzled funds from companies; summary judgment for lawyer on companies' malpractice claim affirmed because there was no attorney-client relationship between lawyer and companies, there was no privity between client and companies, and there was no evidence that lawyer acted maliciously in not notifying companies of client's fraud); Hile v. Firmin, Sprague & Huffman Co., L.P.A., 71 Ohio App.3d 838, 595 N.E.2d 1023 (Hancock 1991) (suit by members of board of directors against lawyers for corporation, with which directors held not to be in privity; summary judgment for lawyers affirmed). The Medpartners case is also discussed in section 1.1:410; Mandilakis in sections 1.1:410 and 4.1:300.

If privity and/or malice is present or alleged, however, the attorney can be subject to suit for malpractice by a nonclient. The court of appeals so found on both scores in Leroy v. Allen, Yurasek & Merklin, 162 Ohio App.3d 155, 2005 Ohio 4452, 832 N.E.2d 1246 (Union) (reversing order granting motion to dismiss by lawyer defendants); the Supreme Court, affirming in part and reversing in part, rejected the appellate court’s privity analysis but found that plaintiffs’ allegations of “collusion” were sufficient to invoke the malice exception for Rule 12(B)(6) purposes. 114 Ohio St.3d 323, 2007 Ohio 3608, 873 N.E.2d 254.  The LeRoy decision is also discussed in sections 1.1:410 and 1.13:520.

One court of appeals case has permitted a nonclient to sue a lawyer on a negligent misrepresentation theory. See Orshoski v. Krieger, No. OT-01-009, 2001 Ohio App. LEXIS 5018 (Ottawa Nov. 9, 2001) discussed in section 1.1:410.

For a case reaching the not-surprising result that a lawyer cannot sue co-counsel for malpractice, see Gruenspan v. Thompson, 2003 Ohio 3641, 2003 Ohio App. LEXIS 3287 (Cuyahoga).

The "professional judgment rule": This defense, also not noted by Mallen & Smith, has apparently not found much favor in Ohio, at least in the Eighth District Court of Appeals. See Kolsen v. Chattman, Gaines & Stern, No. 78781, 2001 Ohio App. LEXIS 3982 (Cuyahoga Sept. 6, 2001); Home Indem. Co. v. Kitchen, Deery & Barnhouse, No. 77372, 2000 Ohio App. LEXIS 5487 (Cuyahoga Nov. 22, 2000). But see Murphey, Young & Smith Co., L.P.A., v. Billman, Nos. 84AP-49, 84 AP-198, 1984 Ohio App. LEXIS 11643 (Franklin Nov. 20, 1984). As set forth in Murphey, the rule provides that a lawyer will not be held liable for a mere error in judgment if he or she acts in good faith and in an honest belief that the advice given and/or acts taken are well-founded and in the best interests of the client. The Murphey court, however, quoted the rule in the context of deciding that the selection of a particular trial strategy, as to which there may be a difference of opinion among lawyers, or of other strategic decisions relating to litigation, is not a basis for malpractice -- a view that can be harmonized with a number of Ohio cases, including at least one from the Eighth District. See Benna v. Slavin, No. CV-381241, 2000 Ohio App. LEXIS 5959 (Cuyahoga Dec. 18, 2000) (summary judgment sustained on grounds, inter alia, that attorney had "exercised reasonable professional judgment." Id. at *3.). Perhaps the key to this rather murky state of precedent is found in the term "reasonable." If, from the spectrum of choices available to the lawyer when making tactical decisions, the course chosen can be said to be a reasonable one, there is no liability. Thus, the exercise of "reasonable" professional judgment is not actionable, even if it turns out in hindsight to be less than perfect. On the other hand, to say that all tactical choices made are protected, willy-nilly, so long as made in good faith and in an honest belief that they are well founded, irrespective of their reasonableness, may stack the deck too heavily in favor of the malpractice defendant. The two seemingly divergent lines of cases discussed above are for the most part reconcilable if and when the reasonableness of the choice is factored into the equation. The DePugh case, discussed above in this section, captures the distinction explicitly in the context of the lawyer's choice to settle the underlying action -- if that decision was reasonable, no claim will lie; if unreasonable or if amounting to "obvious error" or malpractice per se, the claim is viable. See 111 Ohio App.3d at 687, 676 N.E.2d at 1239.

Arbitration: In one Ohio case, lawyer defendant sought an OH Civ R 12(B)(6) dismissal on the grounds that plaintiff had agreed in the retainer agreement to arbitrate any controversy or claim arising out of the retainer. The lawyer thereafter filed a motion to stay and to compel arbitration. The trial court denied the motion, and the Eighth District Court of Appeals affirmed.  Thornton v. Haggins, 2003 Ohio 7078, 2003 Ohio App. LEXIS 6440 (Cuyahoga). The court reasoned as follows:

We are persuaded by the cases finding such agreements unenforceable with regard to the malpractice disputes, and we find the reasoning set forth in Opinion 96-9 [Bd. of Comm'rs on Grievances & Discipline Op. 96-9, 1996 WL 734408 (Dec. 6, 1996)] compelling. We agree that the best interests of the client require consultation with an independent attorney in order to determine whether to prospectively agree to arbitrate attorney-client disputes. Such agreements are therefore not knowingly and voluntarily made absent independent consultation.

Id. at ¶ 10. This is the result called for under the Rules. See Rule 1.8(h)(1) and section 1.8:910.

1.1:380 Liability to Client for Breach of Contract, Breach of Fiduciary Duty, and Other Liabilities

The Ohio courts have regularly treated cases brought by clients against their lawyers, arising from the representation, as malpractice actions, irrespective of whether the client has attempted to plead the action as one for breach of contract, negligence, fraud, or whatever. E.g., Hibbett v. City of Cincinnati, 4 Ohio App.3d 128, 446 N.E.2d 832 (Hamilton 1982) (as long as the "gist" of the claims assert legal malpractice, attempts to label the action as one based on breach of contract, fraud, and negligence will not take the case outside the malpractice statute of limitations). Accord Polivka v. Cox, 2002 Ohio 2420, 2002 Ohio App. LEXIS 2349 (Franklin) (complaint alleging breach of contract, breach of fiduciary duty, and intentional infliction of emotional distress presents cause of action for malpractice, regardless of how labeled); Gullatte v. Rion, 145 Ohio App.3d 620, 763 N.E.2d 1215 (Montgomery 2000) (fraud claim treated as malpractice for limitations purposes); Muir v. Hadler Real Estate Mgmt. Co., 4 Ohio App.3d 89, 90, 446 N.E.2d 820, 822 (Franklin 1982) (client's claim predicated on alleged breach of contract not in writing, arising from attorney-client relationship, is malpractice claim. "Malpractice by any other name still constitutes malpractice. . . . It makes no difference whether the professional misconduct is founded in tort or contract, it still constitutes malpractice."). Blackwell v. Gorman, 142 Ohio Misc. 2d 50, 2007 Ohio 3504, 870 N.E.2d 1238 (Franklin C.P.) ("Under Ohio law, a legal-malpractice claim subsumes within it any of the issues that can arise from the attorney-client relationship.  These may include alleged billing errors by the lawyer.  All claims in trust, fraud, or contract against a lawyer are, essentially, considered to be malpractice."  Id. at para. 46 (citations omitted)). See DiPaolo v. DeVictor, 51 Ohio App.3d 166, 555 N.E.2d 969 (Franklin 1988) (refusing to treat fraud case as other than one for malpractice in absence of allegations that defendant attorneys committed the acts in question for their own personal gain), and Endicott v. Johrendt, No. 99 AP-935, 2000 Ohio App. LEXIS 2697 (Franklin June 22, 2000) (desire to obtain settlement and resulting contingent fee not type of personal gain under DiPaolo that would support action for fraud separate from malpractice action).

The only Ohio cases discovered in which the malpractice label was not imposed where the client sought damages by attempting to plead something other than malpractice in a case arising out of the attorney-client relationship are Davis v. Eachus, 2004 Ohio 5720, 2004 Ohio App. LEXIS 5162 (Pike) (reversing sua sponte grant of summary judgment for defendant lawyer on breach-of-contract claim by client, which claim alleged failure to account for funds paid to lawyer and double-billing), and Bennice v. Bennice, 82 Ohio App.3d 594, 612 N.E.2d 1256 (Ottawa 1992) (client's fraud claim against his former attorney, based on client's transfer of real property to attorney by signing quitclaim deed in blank at request of attorney and upon attorney's false representation that document would merely allow client to get back into his locked house, was not precluded, even though five years later attorney reconveyed the property back to client, where client sought damages for loss of use and beneficial enjoyment of the property). See, with respect to some of the facts set forth above, Office of Disciplinary Counsel v. Levin, 35 Ohio St.3d 4, 517 N.E.2d 892 (1988), the disciplinary proceeding in which the attorney was indefinitely suspended from the practice of law for his conduct in Bennice.

In three other cases the defendant attorneys sought to use the malpractice statute of limitations, but the court found that the claim (or one aspect of it) did not arise out of the attorney-client relationship or that there was an issue of fact as to whether it did. In the first, the court of appeals reversed a summary judgment for the defendant lawyer because the court believed "the gist of plaintiff's claim to be both in malpractice and breach of contract to perform services not necessarily legal in nature" -- holding certificates of deposit in escrow for plaintiff.  Bryant v. Williams, No. CA 9272, 1985 WL 8723, at *1 (Ohio App. Montgomery June 7, 1985). Similarly, in the second case, the court held that an attorney and his law firm could not avoid liability for breach of escrow duties set forth in the purchase agreement drafted by them by pleading the malpractice statute of limitations; their duties as escrow agent were governed by the fifteen-year statute of limitations applicable to contracts in writing, ORC 2305.06.  Saad v. Rodriguez, 30 Ohio App.3d 156, 506 N.E.2d 1230 (Cuyahoga 1986) (summary judgment for attorneys, based on one-year malpractice statute of limitations, reversed insofar as defendants proximately caused damage to plaintiff purchaser while acting in their capacity as escrow agent, as opposed to their capacity as attorneys for purchaser; case remanded for determination of capacity in which attorneys acted when they released funds held in escrow prior to having in hand title insurance policy on the property, as required by the purchase agreement). In the third case, Endicott v. Johrendt, No. 99 AP-935, 2000 Ohio App. LEXIS 2697 (Franklin June 22, 2000), plaintiff asserted a variety of claims, all of which were subsumed under the malpractice theory, except the court concluded that one aspect of plaintiff's intentional infliction of emotional distress claim (relating to actions taken well after the representation had terminated) should be considered on its own terms. Even so, the court found that this claim (along with all others) could not survive defendant's summary judgment motion because there was no evidence raising an issue of material fact with respect to the existence of extreme and outrageous conduct, an essential element of the intentional infliction claim.

"Other liabilities": In American Motors, Inc. v. Huffstutler, 61 Ohio St.3d 343, 575 N.E.2d 116 (1991), the Court reinstated a permanent injunction against a former employee/engineer/ lawyer (characterized by the Court as "at a minimum, an agent acting on behalf of legal counsel to AMC,"  id. at 346, 575 N.E.2d at 119) precluding him from acting as a witness or consultant in litigation against his former employer. Defendant was selling and offering to use the employer's confidential information, including trade secrets, privileged information, and work product, which he had improperly removed from the employer's files. See also discussion of Huffstutler at section 1.6:420.

See generally, with respect to this section, 1 Restatement (Third) of the Law Governing Lawyers § 55 (2000).

1.1:390 Liability When Nonlawyer Would Be Liable

As stated in 1 Restatement (Third) of the Law Governing Lawyers § 56 cmt. b, at 416 (2000):

Lawyers are subject to the general law. If activities of a nonlawyer in the same circumstances would render the nonlawyer civilly liable, or afford the nonlawyer a defense to liability, the same activities by a lawyer in the same circumstances generally render the lawyer liable or afford the lawyer a defense.

A representative sample of Ohio cases involving the question of attorney liability to, or defense against, clients or nonclients, in circumstances where a nonlawyer would be liable or have a defense, follows (in each of the cases cited the lawyer's adversary is a nonclient, unless otherwise noted):

Abuse of process: See, e.g. Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A., 68 Ohio St.3d 294, 626 N.E.2d 115 (1994), and Border City Sav. & Loan Ass'n v. Moan, 15 Ohio St.3d 65, 472 N.E.2d 350 (1984) (per curiam).  The abuse-of-process cases involving lawyer defendants are discussed at section 1.1:520.

Breach of contract: In a contract dispute arising out of plaintiff's renovation of defendant attorney's home, the fact that defendant from time to time represented the plaintiff and its president in legal matters did not cause the burden of proof to shift to the attorney defendant to show the fairness of his dealings with the sometime client, inasmuch as the house renovation was not a part of, and did not arise out of, the attorney-client relationship.  Petersen Painting & Home Improvement, Inc. v. Znidnarsic, 75 Ohio App.3d 265, 599 N.E.2d 360 (Geauga 1991) (case decided on general contract principles applicable to cost-plus contracts such as the one at issue). See Saad v. Rodriquez, 30 Ohio App.3d 156, 506 N.E.2d 1230 (Cuyahoga 1986), and Bryant v. Williams, No. CA 9272, 1985 WL 8723 (Montgomery June 7, 1985), discussed at section 1.1:380.

Breach of fiduciary duty: In Little Beaver Creek Valley Railroad & Historical Society, Inc. v. P.L.&W. Railroad, Inc., No. 95- CO-76, 1998 Ohio App. LEXIS 2657 (Columbiana June 10, 1998), the court of appeals affirmed a judgment on a jury verdict against a lawyer who, as a trustee for a non-profit corporation, breached his fiduciary duty by drafting by-laws for a related for-profit corporation that were not protective of the interests of the not-for-profit corporation.

Consumer protection laws: Lawyer liability when a nonlawyer would be liable can be altered by statute. Thus, in Ohio, a transaction between a lawyer and his or her client is expressly excluded from the definition of a "consumer transaction" for purposes of Ohio's Consumer Sales Practices Act ("CSPA"). ORC 1345.01(A). As the court noted in Burke v. Gammarino, 108 Ohio App.3d 138, 142, 670 N.E.2d 295, 298 (Hamilton 1995) (citing ORC 1345.01(A)), plaintiff's reliance on the act for his claim of consumer fraud against his lawyer was "completely misplaced." This is consistent with the rule in most states that have considered the issue; whether by express statutory exclusion or judicial decision, consumer protection statutes are typically found not to apply to the professional aspects of the practice of law. See 1 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice §  9.5, at 1154 (2008 ed.).

Compare Havens-Jobias v. Eagle, 2003 Ohio 1561, 2003 Ohio App. LEXIS 1512 (Montgomery), where the CSPA was invoked by nonclients against lawyer defendants who had represented their client against plaintiffs in a prior lawsuit, but plaintiffs failed to state facts that would constitute a violation of the act, even assuming, as the appellate court did (the trial court had so held), that the lawyers met the definition of "supplier" under the act contained in ORC 1345.01(C). [Query how a lawyer attempting to collect a debt for his client could be a CSPA "supplier" ("a seller, lessor, assignor, franchisor, or other person engaged in the business of effecting or soliciting consumer transactions, whether or not the person deals directly with the consumer"). Inasmuch as client-lawyer transactions by definition are not "consumer transactions," it seems incongruous that suing a third party could be deemed such a transaction, or that the sued third party could be deemed a "consumer" (one "who engages in a consumer transaction with a supplier"), entitled to CSPA relief. See ORC 1345.09.]

Contribution: Under ORC 2307.31(A), if two or more persons are concurrently liable in tort for a common injury, there is a right to contribution. In Costin v. Wick, C.A. No. 95 CA006133, 1996 Ohio App. LEXIS 233 (Lorain Jan. 24, 1996), the Ninth District Court of Appeals applied this rule in holding that a lawyer sued for malpractice can maintain a third-party action against the successor attorney based on allegations that the successor contributed to or aggravated the damages claimed by the malpractice plaintiff. The court of appeals reversed the trial court's dismissal of the third-party claim and noted that

[w]e cannot see any reason for exempting attorneys from the application of this statute. If the legislature had intended to create an exception for attorneys, it could have done so.

Id. at *3.

Conversion: For a case involving a claim of conversion of a client's personal property (settlement proceeds) by her lawyer, who unlawfully negotiated the settlement check made out jointly to both without his client's signature and applied the proceeds to fees allegedly owing, see Okocha v. Fehrenbacher, 101 Ohio App.3d 309, 655 N.E.2d 744 (Cuyahoga 1995) (denial of lawyer's motion for summary judgment on client's counterclaim affirmed). A related disciplinary proceeding, Cuyahoga County Bar Ass'n v. Okocha, arising in part out of conduct in the Fahrenbacher case and decided while Fehrenbacher was pending in the court of appeals, is reported at 69 Ohio St.3d 398, 632 N.E.2d 1284 (1994) (indefinite suspension from the practice of law). In accord with its decision in Fehrenbacher (although not citing it) is the Eighth District Court of Appeals' holding in Montali v. Day, 2002 Ohio 2715, 2002 Ohio App. LEXIS 2812 (Cuyahoga), where summary judgment for the defendant lawyer was reversed because conflicting affidavits presented a genuine issue of material fact on the conversion claim, as well as on the malpractice claim. The property at issue in Montali was a check from the bankruptcy court payable to Montali; she pled and submitted evidence by affidavit that her attorney received the check and, despite her demands to deliver it to her, had it endorsed and cashed without her authority.

Fraud: The Ohio Supreme Court in Chemical Bank v. Neman, 52 Ohio St.3d 204, 556 N.E.2d 490 (1990), affirmed a jury verdict against defendant attorney for fraud in misrepresenting to a deputy sheriff seeking to levy on certain stock of defendant's client that he did not have possession of the stock, where the verdict was supported by some competent, credible evidence going to all of the essential elements of a fraud claim, including justifiable reliance by plaintiff bank, and thus was not against the manifest weight of the evidence. The Court further held that the attorney could not act as he did under the guise of zealous representation of his client (quoting former OH EC 7-10 in support). In Reiner v. Kelley, 8 Ohio App.3d 390, 457 N.E.2d 946 (Franklin 1983), the Tenth District Court of Appeals affirmed a judgment holding defendant, attorney for the sellers in real-estate transaction, liable for fraudulent misrepresentations made to sellers' real-estate brokers, from whom lawyer obtained a check through misrepresentation and then converted the proceeds. And in Little Beaver Creek Valley R.R. & Historical Society, Inc. v. P.L.&W. R.R., No. 95- CO-76, 1998 Ohio App. LEXIS 2657 (Columbiana June 10, 1998), the court of appeals affirmed a fraud judgment against an attorney for reckless misrepresentation concerning the inability of nonresidents to hold stock in an Ohio corporation. See Bennice v. Bennice, 82 Ohio App.3d 594, 612 N.E.2d 1256 (Ottawa 1992) (fraud on client; case discussed at section 1.1:380).

The case of Rubin v. Schottenstein, Zox & Dunn, 143 F.3d 263 (6th Cir. 1998) (en banc), provides a number of views on attorney-fraud liability under Ohio law. (While most of the discussion is in the context of a 10b-5 security law claim, it is clear that the same analysis applied to the pendent fraud claims under Ohio law.) Plaintiff Rubin brought suit against a law firm and one of its lawyers (Barnhart), claiming that Barnhardt made material omissions and misrepresentations of fact, causing Rubin to commit funds to one of Barnhart's clients that subsequently went bankrupt with the result that Rubin lost his investment. The district court granted summary judgment for the defendants. On appeal, a panel of the Sixth Circuit affirmed, holding that, with respect to the alleged omissions, Barnhardt had no duty to speak and, with respect to the alleged misrepresentations, that plaintiff, a sophisticated investor represented by counsel could not have justifiably relied upon the statements: "where, as in the case here, a party has relied on another attorney when it is represented by its own and has the opportunity to learn of the true facts, reliance is unjustifiable." 110 F.3d 1247, 1257 (6th Cir. 1997). Judge Boggs, dissenting, pointed out that the rule relied on by the majority

is limited to reliance on the opinions or research of the other party's attorney on points of law . . . . The theory is that one's own lawyer ought to be able to detect and cure misleading statements of law from the other side. Extending the principle to factual representations would . . . allow[] an attorney to mislead investors with impunity. This is not a privilege afforded by a law degree.

Id. at 1261 (emphasis in original). The majority's opinion was vacated and the case set for rehearing en banc.  120 F.3d 603 (6th Cir. 1997). Upon rehearing, with Judge Boggs now writing for the court, the summary judgments for Barnhardt and his firm were reversed and the case remanded for further proceedings.  143 F.3d 263 (6th Cir. 1998) (en banc). Not surprisingly, the en banc opinion is consistent with the panel dissent:

There is nothing special about Barnhart's status as an attorney that negates his Rule 10b-5 duty to disclose, a duty that ordinarily would devolve under Rule 10b-5 upon a third party under these circumstances. . . .

* * *

We are thus left with the defendants' least persuasive argument: that attorneys should be treated differently from other defendants in securities-fraud cases. . . . It is perhaps symptomatic of the current debate over the state of legal ethics that the defendants would invoke the attorney's duty of confidentiality to justify what, if Rubin's and [his lawyer] Weiss's affidavits are correct, amount to outright lies. . . . The defendants’ argument is no more persuasive when phrased as the principle that a party who is represented by counsel cannot rely on the opinion of the other party's attorney. [Thereafter proceeding to reiterate the language quoted above from the panel dissent.]

Id. at 267, 269-70 (bracketed material added). The Sixth Circuit's en banc opinion is in accord with the rule set forth in 2 Restatement (Third) of the Law Governing Lawyers §  98 (2000) (knowingly making false statements to nonclient).

Interestingly, on remand, the district court in Rubin again granted summary judgment for defendants, but this time around the arguments were different. In other related actions, Rubin had already recovered more in settlement than he claimed to have lost; thus he was barred from seeking further compensatory relief. Also, after Barnhard's statements, there were intervening third-party acts that rendered the statements too remote from Rubin's loss to establish "loss causation" under both federal securities law and Ohio common-law fraud.  119 F.Supp.2d 787 (S.D. Ohio 2000).

Fraud was among the many claims asserted by plaintiffs against the defendant lawyers in Havens-Tobias v. Eagle, 2003 Ohio 1561, 2003 Ohio App. LEXIS 1512 (Montgomery). After reciting the elements of common-law fraud and noting that plaintiffs' claim was premised on various conduct relating to attempts to collect an alleged debt, the court made quick work of the claim by noting that "[a]t the very least, the Tobiases failed to allege any justifiable reliance on their part on representations made by Eagle. For this reason alone, they failed to state a claim of fraud against Eagle." Id. at ¶ 34.

Intentional infliction of emotional distress: See Endicott v. Johrendt, 99 AP-935, 2000 Ohio App. LEXIS 2697 (Franklin June 22, 2000), discussed at section 1.1:380.

Invasion of Privacy: Plaintiffs in Havens-Tobias v. Eagle, 2003 Ohio 1561, 2003 Ohio App. LEXIS 1512 (Montgomery), argued that the defendant lawyers had invaded their privacy by sending collection demand letters to their lawyer and by filing a lawsuit to recover the alleged debt. The court of appeals, affirming the dismissal of this claim, noted that these allegations were wholly insufficient to constitute the wrongful-intrusion branch of the privacy tort recognized by the Supreme Court in the leading case of Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (1956) (syllabus two); such a claim, in debtor-creditor situations, typically depends on evidence of a campaign of harassment against the debtor, and plaintiffs did not allege conduct of that sort.

Libel and slander: See section 1.1:410 infra for a discussion of cases dealing with lawyer liability for defamation and the applicability of the defenses of qualified and absolute privilege in such cases. For a full discussion of the absolute privilege as it applies to lawyers, see section 1.1:510.

The absolute privilege traditionally applies to four categories, and the beneficiary of the privilege need not be a lawyer. The categories are: (1) statements made in legislative proceedings, (2) statements made in judicial proceedings, (3) official acts of executive officers of a state or nation, and (4) acts done in the exercise of military authority.  M.J. DiCarpo, Inc. v. Sweeney, 69 Ohio St.3d 497, 505, 634 N.E.3d 203, 209 (1994). Absolute privilege is also sometimes provided for by statute, see, e.g., ORC 2151.142(G)(1)(a) (reporting child abuse). In judicial proceedings, under the absolute privilege "witnesses, parties, attorneys, and judges are protected while functioning as such in the usual and regular course of judicial proceedings." Michaels v. Berliner, 119 Ohio App.3d 82, 87, 694 N.E.2d 519, 522 (Summit 1997).

The qualified privilege in defamation actions is not limited to the four categories of absolute privilege; it also can be asserted by both lawyers and nonlawyers in accordance with the requisites therefor. "A qualified or conditional privilege arises when there is 'good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only.' . . . The privilege is defeated by a showing that the allegedly defamatory communication was made with 'actual malice,' defined as knowledge of falsity or disregard as to truth or falsity." Michaels, id. at 90-91, 694 N.E.2d at 524-25 (summary judgment for defendant attorneys reversed because genuine issue of fact existed regarding malice; quoting and citing A&B-Abell Elevator Co. v. Columbus/Central Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 8, 11-12, 651 N.E.2d 1283, 1290, 1292-93 (1995) (nonlawyer defendant)). Compare Gugliotta v. Marano, 161 Ohio App.3d 152, 2005 Ohio 2570, 829 N.E.2d 757 (Summit) (nonlawyer defendant; summary judgment for defendant affirmed; no malice; qualified privilege applicable to statements made to Better Business Bureau about plaintiff/lawyer).

Malicious prosecution:  Malicious prosecution cases involving lawyer defendants are discussed in sections 1.1:410 and 1.1:520.

Misappropriation of trade secrets: In Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171, 707 N.E.2d 853 (1999), the Ohio Supreme Court held that the court of appeals correctly reversed a summary judgment for the defendant attorneys (a migrating lawyer and her new firm) on plaintiff's claim for misappropriation of trade secrets; there were genuine issues of material fact as to whether plaintiff had adequately protected its client list for it to qualify as a trade secret and whether defendants had created their own list or had simply used plaintiff's list. Justice Cook wrote a strong dissent. And see American Motors, Inc. v. Huffstutler, 61 Ohio St.3d 343, 575 N.E.2d 116 (1991), discussed above at section 1.1:380.

Negligent misrepresentation: See Orshoski v. Krieger, No. OT-01-009, 2001 Ohio App. LEXIS 5018 (Ottawa Nov. 9, 2001) (stating claim under 3 Restatement (Second) of the Law of Torts §  552 (1977); erroneous legal advice relied on by nonclient). Orshoski is discussed at section 1.1:410.

Tortious interference with contract: In the Siegel case, 85 Ohio St.3d 171, 707 N.E2d 853, the Court likewise affirmed the court of appeals' reversal of summary judgment for defendants (a migrating lawyer and her new firm) on plaintiff's tortious interference with contract claim, where the lawyer sent mailings to her former firm's clients, for whom she had worked, inviting them to become her clients at her new firm. The Court held that the disciplinary rules (former OH DR 2-102(A)(2) and 2-110(A)(2)) relied on by the migrating lawyer did not protect her conduct, and concluded that there was a genuine issue of fact as to whether, in the language of 4 Restatement (Second) of the Law of Torts §  768 (1979), she and her new firm had employed "wrongful means" (i.e., utilization of protected trade secrets), thereby precluding summary judgment in their favor on the tortious interference claim. As with the misappropriation of trade secrets aspect of the case, Justice Cook entered a powerful dissent. Siegel is further discussed at sections 1.1:530, 1.2:400, and 7.3:220.

Next: 1.1.400