skip navigation

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.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

Ohio Legal Ethics Narrative



1.1:500 Defenses and Exceptions to Liability

Sections 1.1:510-:530 of the treatise deal, respectively, with the three subsections of 1 Restatement (Third) of the Law Governing Lawyers 57 (2000). Section 1.1:510 treats the lawyer's absolute privilege to publish matter concerning a nonclient under certain conditions; section 1.1:520 explores a lawyer's protections (or lack thereof) from liability to a nonclient for wrongful use of civil proceedings; and 1.1:530 examines the extent to which a lawyer may advise or assist a client in not entering into, or breaking, a contract without liability to a nonclient for tortious interference with contract or business relationship.

1.1:510 Advocate's Defamation Privilege

The general rule: A lawyer has an absolute privilege to make defamatory statements about a nonclient, without civil liability therefor, if (1) the publication is preliminary to or in the course of a proceeding before a tribunal; (2) the lawyer participates as counsel in the proceeding; and (3) the publication has some relation to the proceeding and is directed to a person who may be involved in the proceedings. See 1 Restatement (Third) of the Law Governing Lawyers § 57(1)(a)-(c) (2000). The privilege applies regardless of whether the lawyer acts with actual malice. As the Restatement puts it concerning malice,

a lawyer is absolutely privileged against defamation liability for publishing a defamatory statement relating to civil or criminal litigation before a tribunal exercising a judicial function, even if the lawyer acts maliciously and knows the statement to be false.

Restatement § 57 cmt. c, at 430.

The Ohio cases are in accord and, with respect to malice, include M.J. DiCorpo, Inc. v. Sweeney, 69 Ohio St.3d 497, 634 N.E.2d 203 (1994):

"the absolute privilege protects the publisher of a false, defamatory statement even though it is made with actual malice, in bad faith and with knowledge of its falsity. . . ."

Id. at 505, 634 N.E.2d at 209 (quoting Bigelow v. Brumley, 138 Ohio St. 574, 579, 37 N.E.2d 584, 588 (1941)). Accord Michaels v. Berliner, No. 20136, 2001 Ohio App. LEXIS 410, at *11 n.4 (Ohio App. Summit Feb. 7, 2001).

The reasonable relationship test is likewise reflected in the Ohio decisions. See, e.g., DiCorpo, 69 Ohio St.3d at 497, 634 N.E.2d at 203 (syllabus) (requiring "some reasonable relation"); Surace v. Wuliger, 25 Ohio St.3d 229, 495 N.E.2d 939 (1986) (allegation in RICO complaint listed Surace as one of "such known underworld figures"; Surace then sued RICO plaintiff and his lawyer for defamation; allegation reasonably related to RICO action and absolute privilege applied).

The absolute privilege for statements made in a judicial proceeding and bearing some reasonable relationship to the proceeding has been applied in right-of-privacy actions, as well as in those for defamation. Kutnick v. Fischer, 2004 Ohio 5378 (App. Cuyahoga) (basis of privacy claim by former client was disclosure of allegedly private information in proceeding for appointment of guardian for privacy plaintiff; absolute privilege applied). (The reader should be aware that the lead opinion in Kutnick drew the support of only one judge, its author; Judge Karpinski, writing separately, concurred in judgment only. Absolute privilege in privacy cases has, however, been utilized in other Eighth District Court of Appeals decisions. E.g., Pisani v. Pisani, No. 72136, 1997 Ohio App. LEXIS 5549 (Cuyahoga Dec. 11, 1997).)

Another instance of expanding the scope of the absolute privilege to claims other than defamation occurred in Willis Linnen & Co., L.P.A. v. Linnen, 163 Ohio App.3d 400, 2005 Ohio 4934, 837 N.E.2d 1263 (Summit), where a lawyer counterclaimed against another lawyer for abuse of process and malicious prosecution. The counterclaim defendant asserted absolute privilege (with respect to alleged misrepresentations in litigating the underlying contempt proceeding against the present counterclaimant); the trial court held that he was so entitled. The court of appeals affirmed in an opinion that is less than a model of clarity. Predictably enough, counterclaimant argued that absolute privilege existed in defamation actions, but did not extend to his claims -- abuse of process and malicious prosecution. The appellate court "agree[d] that appellant's claims themselves are not barred by the doctrine of absolute privilege," but "we find that the underlying rationale that supports the absolute privilege doctrine precludes the use of Haley's privileged statements to support appellant's tort claims." Id. at ¶ 7. In a classic example of judicial doublespeak, the court concluded:

We do not hold that Haley is immune from suit, only that his privileged statements made during the initial litigation may not serve as the basis for a tort claim.

Id. at ¶ 9. In other words, Haley is immune from suit for abuse of process and malicious prosecution based on his "privileged" statements.

There is another aspect of the court's privilege analysis that deserves mention. In support of its statement that the underlying basis of absolute privilege applied in the abuse of process/malicious prosecution case before it, the court cites Erie County Farmers' Ins. Co. v. Crecelius, 122 Ohio St. 210, 171 N.E. 97 (1930). In a truly astounding misuse of precedent, the Linnen court quotes extensively from Erie, a defamation case, about the rationale for the privilege, without bothering to inform the reader that Erie pointedly noted that the Erie court of appeals had improperly premised its judgment refusing to recognize the privilege on an earlier Supreme Court case; that case, however, "was a case of malicious prosecution, and it is needless to say that a different rule prevails in such cases." [!] Id. at 213, 171 N.E. at 98. In a nutshell, for its invocation of the absolute privilege against a malicious prosecution claim, the Linnen court finds support in a defamation case that expressly found malicious prosecution authority inapposite because "needless to say . . . a different rule prevails in such cases."

We might suggest that the "different rule" that should have been applied in Linnen was the rule of the Scholler case, pursuant to which a lawyer is not liable to nonclients for action taken in the performance of his duties as an attorney for his client unless, inter alia, the attorney acts with malice. See section 1.1:410.

Statements made in a proceeding before a tribunal: The absolute protection applies to statements made in pleadings, briefs, and oral presentations in court. Justice v. Mowery, 69 Ohio App. 2d 75, 430 N.E.2d 960 (Franklin 1980) (alleged defamatory written and oral statements made in prior proceeding by opposing lawyer protected by absolute privilege); accord Havens-Tobias v. Eagle, 2003 Ohio 1561 (App. Montgomery) (complaint and brief privileged); Surace; Bales v. Hack, 31 Ohio App.3d 111, 509 N.E.2d 95 (Clark 1986) (allegation of homosexuality in counterclaim by wife in divorce action; subsequent libel action by husband against wife's attorney dismissed because statement bore some reasonable relation to divorce action); Stern v. Neville, No. 50461, 1986 Ohio App. LEXIS 6992 (Cuyahoga June 5, 1986) (statement made in closing argument).

The phrase "proceeding before a tribunal" (or "judicial proceeding," the more common usage in Ohio), is an expansive one, extending far beyond comments made in open court. It encompasses conduct such as:

  • providing to the prosecuting attorney a statement or affidavit reporting the actual or possible commission of a crime (DiCorpo (syllabus));

  • the filing by a nonclient of a complaint against a lawyer with the grievance committee of a local bar association, Hecht v. Levin, 66 Ohio St.3d 458, 613 N.E.2d 585 (1993) (syllabus one); accord Gugliotta v. Morano, 161 Ohio App.3d 152, 2005 Ohio 2570, 829 N.E.2d 757 (Summit) (applying absolute-privilege rule in defamation suit by lawyer against former client), appeal not allowed, 106 Ohio St.3d 1556, 2005 Ohio 5531, 836 N.E.2d 581;

  • statements made during a church meeting to vote on the recall of the board of trustees and board of deacons of the church, as ordered by the court during ongoing litigation, Austin v. Eason, No. 2585-M, 1997 Ohio App. LEXIS 1490 (Medina April 16, 1997);

  • statements made to a judge during an in-chambers conference, O'Brien v. Stein, 47 Ohio App.3d 191, 547 N.E.2d 1213 (Franklin 1988); and

  • pre-indictment statements and writings made on behalf of a client in an ongoing grand jury investigation of the client, Simmons v. Climaco, 30 Ohio App.3d 225, 507 N.E.2d 465 (Cuyahoga 1986).

See also 3 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 22:8, at 157, 165 (2008 ed.) (privilege extends to settlement meetings and statements made in anticipation of litigation). As to the latter, see Krakora v. Gold, No. 98 CA 141, 1999 Ohio App. LEXIS 4699 (Mahoning Sept. 28, 1999) (letter from counsel to opposing counsel prior to institution of lawsuit); Palmer v. Westmeyer, No. L-89-186, 1990 Ohio App. LEXIS 1160 (Lucas March 30, 1990) (statement by corporate counsel to members of board of directors related to proposed litigation by corporation against defamation plaintiff); and Wexler v. Jewish Hosp. Ass'n, Nos. C-820654, C-820906, 1983 Ohio App. LEXIS 11806 (Hamilton Oct. 26, 1983) (judicial proceeding was imminent or pending when statements in question about plaintiff-doctor made by attorney for hospital). Compare Morrison v. Gugle, 142 Ohio App.3d 244, 755 N.E.2d 404 (Franklin 2001) (statements that plaintiff had embezzled from corporation, made by defendant lawyer to two of corporation's consignors who were seeking payment for consigned goods sold by corporation, were not protected by absolute privilege where, as to one consignor, no litigation was pending or imminent, and, as to the other, the claimant had already dismissed her claim when the statement was made).

The reasonable relationship test: The reasonable relation test is a minimal one -- the immunity applies

so long as the defamatory matter may possibly bear some relation to the judicial proceeding. [Citations omitted.]

. . . In determining whether the words and writings are relevant to the subject of inquiry, great liberality is to be used, as otherwise a party or his attorney may be deterred from prosecuting an action vigorously by fear of personal liability for libel and slander.

Justice v. Mowery, 69 Ohio App.2d 75, 76, 77, 430 N.E.2d 960, 961, 962 (Franklin 1980). Accord Simmons v. Climaco, 30 Ohio App.3d 225, 507 N.E.2d 465 (Cuyahoga 1986). The "great liberality" of the relevance inquiry is illustrated by Judge v. Mann, No. H-85-11, 1986 Ohio App. LEXIS 5212 (Huron Jan. 3, 1986), where the defamation plaintiff, in a prior action, had filed a claim that his van was exempt from attachment. In opposing the claim for exemption in the underlying attachment proceeding, the defendant lawyer had stated that "[t]he property attached is a Ford van -- a mere convenience. The only thing the obnoxious Larry Judge probably used it for, is to drive to and from bars, and to and from liquor stores." Id. at *2. The court held that the lawyer's statement, while offensive, bore some relation to the attachment proceeding and was therefore protected by absolute immunity. Compare Morrison v. Gugle, 142 Ohio App.3d 244, 755 N.E.2d 404 (Franklin 2001), where defendant lawyer, in the course of representing a corporation and/or its controlling shareholder, stated in a letter to counsel for the corporation's accounting firm (which was seeking payment of its fees from the corporation) that plaintiff (the other shareholder) had embezzled $30,000 from the corporation. The court of appeals ruled that plaintiff's alleged embezzlement "legally was irrelevant" to any future litigation by the accounting firm to collect its fee and therefore the absolute privilege did not apply. Id. at 260, 755 N.E.2d at 416.

Protected publication: Of course, one never reaches the question of privilege if there is no "publication" in the first place. See Havens-Tobias v. Eagle, 2003 Ohio 1561, 2003 Ohio App. LEXIS 1512 (Montgomery), where one of the defamation claims against the lawyer-defendant was based on a letter to plaintiff's counsel; dismissal of this claim was affirmed because a statement to the complaining parties or their agents does not constitute publication for defamation purposes.

Assuming publication, the statement is privileged only if made to one who has or may have some interest in the proceeding -- in the words of Restatement § 57 cmt. c, the privilege "does not protect statements directed to persons not involved in the litigation . . . . Thus a statement to the press is not covered by the privilege." Id. at 431. This aspect of the rule was invoked by the court in Michaels v. Berliner, 119 Ohio App.3d 82, 694 N.E.2d 519 (Summit 1997), involving the assertion of a conflict of interest in a "courtesy letter" sent to plaintiff's counsel in the underlying litigation and also to a Ms. Jones, an officer of a subsidiary of one of the parties to the underlying litigation and the daughter of one of the other parties to that litigation. The court held the letter met two of the three requisites for applying absolute privilege to extrajudicial communications -- it was made in the regular course of preparing for and conducting a judicial proceeding, and it was pertinent and material to the relief sought [i.e., it bore a reasonable relationship to the proceeding] -- but it failed the third test, publication to proper persons only, because it was published to a person not having a "direct interest in the proceeding." According to the Berliner court, the recipient's "presidency of JDJ&A, merely because that company was a subsidiary of a party to the Jones-DLZ litigation, was not sufficient to establish that she had a direct interest in that litigation," id. at 89, 694 N.E.2d at 524, and therefore summary judgment for the defendant lawyer was improperly granted.

The parties revisited the court of appeals after another summary judgment for defendants on the absolute privilege issue arising from the letter to Ms. Jones, and again, on a more complete evidentiary record, the appellate court reversed and remanded. Michaels v. Berliner, No. 20136, 2001 Ohio App. LEXIS 410 (Summit Feb. 7, 2001) (error as matter of law to hold that Ms. Jones had necessary direct interest in the litigation; "[a]t most, Ms. Jones had several indirect interests in that proceeding," id. at *13).

See also the discussion of qualified and absolute privilege at sections 1.1:390 and 1.1:410 supra.

1.1:520 Wrongful Use of Civil Proceedings; Abuse of Process; False Arrest [see also 3.1:400]

1 Restatement (Third) of the Law Governing Lawyers § 57(2) (2000) provides that a lawyer is not liable to a nonclient for wrongful use of a civil or criminal proceeding if the lawyer (1) has probable cause for acting or (2) acts primarily to help the client obtain a proper adjudication of the client's claim.

The first part of this special "exception" to lawyer liability is merely a repetition, from the defendant's standpoint, of one of the essential elements of the malicious prosecution tort generally -- that the actor instituted a proceeding without probable cause. E.g., Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d 264, 662 N.E.2d 9 (1986). (The Restatement's "wrongful use of civil proceedings" is termed malicious prosecution or malicious civil prosecution in Ohio; the wrongful use of criminal proceedings is termed malicious criminal prosecution.)

The second aspect of the Restatement exception to liability has no direct counterpart in Ohio law -- acting primarily to help the client obtain a proper adjudication is not, so far as we can discern, a defense that has been expressly discussed in the Ohio decisions. (At least one Ohio lawyer/defendant, in successfully seeking summary judgment on a number of claims, including abuse of process, argued that her actions and/or statements were "in furtherance of her representation of [her client]," Duncan v. Bender, No. 90-G-1610, 1991 Ohio App. LEXIS 5719, at *9 (Geauga Nov. 29, 1991), a position similar to the second Restatement exception.) It should be noted, however, that the Restatement uses the terms "improper purpose" and "improper motive" to describe circumstances when this defense would be unavailable. See 1 Restatement (Third) of the Law Governing Lawyers § 57 cmt. c, at 431, 432 (2000). The Ohio Supreme Court's definition of another essential element of the tort, malice, uses the "improper purpose" language; see Criss v. Springfield Township, 56 Ohio St.3d 82, 85, 564 N.E.2d 440, 443 (1990) ("For purposes of malicious prosecution it [malice] means an improper purpose, or any purpose other than the legitimate interest of bringing an offender to justice." (malicious criminal prosecution case)). Thus, the malice element in Ohio may well be the mirror image of the Restatement's protection given to a lawyer who acts primarily to help the client obtain a proper adjudication.

With respect to the two torts covered by the black letter of 1 Restatement (Third) of the Law Governing Lawyers § 57(2) (2000), the law in Ohio is as follows:

Malicious civil prosecution: Generally, the tort has four elements:

In order to state a cause of action for malicious civil prosecution in Ohio, four essential elements must be alleged by the plaintiff: (1) malicious institution of prior proceedings against the plaintiff by defendant, (2) lack of probable cause for the filing of the prior lawsuit, (3) termination of the prior proceedings in plaintiff's favor, and (4) seizure of plaintiff's person or property during the course of the prior proceedings.

Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d 264, 265, 662 N.E.2d 9, 10 (1996) (syllabus) (nonlawyer defendant).

When a lawyer is the malicious prosecution defendant, the same basic elements are applicable, see Kelly v. Whiting, 17 Ohio St.3d 91, 477 N.E.2d 1123 (1985) (Kelly is discussed at section 3.1:400) and Dever v. Lucas, 174 Ohio App.3d 725, 2008 Ohio 332, 884 N.E.2d 641 (Delaware) (exhaustively examining each of the four requisites and finding them satisfied in context of prior bankruptcy proceeding brought in bad faith and without probable cause, resulting in seizure of plaintiffs’ property, and terminated in plaintiffs favor; 12(B)(6) dismissal of malicious prosecution claim reversed). It should be noted, however, that a number of cases have stated two of the four elements (malice and lack of probable cause) in a fashion tailored to attorneys:

In view of the attorneys' ethical responsibility of zealous representation it must be shown that the attorneys either acted maliciously or that they knew, by clear and convincing evidence, that their client was motivated solely by actual malice. It must also be shown that they did not have a good-faith basis for believing that the civil or criminal proceeding was warranted under existing law, or under a good-faith argument for the extension, modification, or reversal of existing law. This is, essentially, the "probable cause" element as it applies to attorneys.

As in all other actions of malicious prosecution, the appellant bore the burden of providing that his person or property was seized in the course of the proceedings, and that the proceedings were terminated in his favor.

Woyczynski v. Wolf, 11 Ohio App.3d 226, 229, 464 N.E.2d 612, 617 (Cuyahoga 1983) (defendant attorneys had good cause to file both criminal and civil complaints on behalf of their client; summary judgment for defendant attorneys affirmed). (As to probable cause, compare the somewhat comparable Restatement formulation, which focuses on reasonable factual, as well as legal, bases. See 1 Restatement (Third) of the Law Governing Lawyers § 57 cmt. d, at 432 (2000).) Malicious civil prosecution cases generally in accord with Woyczynski are:

  • Moffitt v. Litteral, 2002 Ohio 4973, 2002 Ohio App. LEXIS 5000 at ¶ 63 (Montgomery) (summary judgment for lawyer defendant affirmed: "As applied to attorneys, the term [probable cause] is given an even broader interpretation because '[if] attorneys cannot act and advise freely, parties could not obtain their legal rights. Therefore, [s]uits for malicious prosecution [and abuse of process against attorneys] are viewed with disfavor in law and are carefully guarded against,'" quoting Cottman v. Cottman, 468 A.2d 131, 136 (Md. Spec. App. 1983) (final bracketed material added by Moffitt court); because of the peculiarity of Ohio abuse-of-process law -- the first element of the tort is bringing an action with probable cause -- the addition of the abuse-of-process language by the Moffitt court actually, if inadvertently, helps an abuse-of-process plaintiff);

  • Cipriani v. Stephanoff, No. 56250, 1990 Ohio App. LEXIS 114 (Cuyahoga Jan. 11, 1990) (using Woyczynski test; summary judgment for defendant lawyer reversed; genuine issue of material fact existed as to whether she acted with malice in having plaintiff's driver's license wrongfully suspended in attempt to execute on prior judgment in favor of her client); and

  • Shore, Shirley & Co. v. Kelley, 40 Ohio App.3d 10, 531 N.E.2d 333 (Cuyahoga 1988) (using Woyczynski test; upholding jury verdict against defendant attorney; $15,000,000 counterclaim, filed by attorney with malice and without probable cause in prior $2,500 municipal court action by accounting firm for fees, and dismissed therein, proximately caused cancellation of claimant accounting firm's malpractice insurance and other damages).

In Vitrano v. CWP Ltd. P'ship, No. 19516, 1999 Ohio App. LEXIS 6179 (Summit Dec. 23, 1999), the court, citing Shore, Shirley, noted the special formulation for attorneys, but since "both standards share the element which was not properly alleged--termination of the case in plaintiff's favor," the result remained the same under either test. Id. at *9 n.3.

For a case in which both the general and lawyer-specific versions of the test were utilized in the course of reversing summary judgment for the defendant attorney, see Butts v. Bjelovuk, 129 Ohio App.3d 134, 717 N.E.2d 381 (Cuyahoga 1998) (court found that conflicting evidence created genuine issue of material fact as to defendant's malice and lack of probable cause in bringing action for eviction and rent against non-lessee plaintiff and that plaintiff had satisfied other two elements of tort, termination of prior action in her favor and seizure of property through garnishment of her bank account). Similarly, both versions of the test were considered in Tilberry v. McIntyre, 135 Ohio App.3d 229, 733 N.E.2d 636 (Cuyahoga 1999), where the court found that under either version, the defendant attorneys acted with probable cause in successfully pursuing a motion for sanctions against the plaintiff lawyer in the underlying federal case, even though the sanction award was subsequently reversed by the federal court of appeals. The Tilberry result is consistent with the Restatement view: "A decision by a competent tribunal upholding the client's claim on the merits is ordinarily conclusive evidence of probable cause, even if it is reversed on appeal . . . ." 1 Restatement (Third) of the Law Governing Lawyers § 57 cmt. d, at 432 (2000).

A federal case in which summary judgment in favor of the defendant-lawyer was affirmed on appeal because the underlying proceedings were not terminated in the plaintiff's favor is Luciani v. Schiavone, 210 F.3d 372 (6th Cir. 2000) (table), 2000 U.S. App. LEXIS 5842, at *18-22.)

Malicious criminal prosecution: The elements of the tort in Ohio are the same as those for malicious civil prosecution, except that it is now established that the element of seizure of person or property is not a requisite of malicious criminal prosecution.  Trussell v. Gen. Motors Corp., 53 Ohio St.3d 142, 559 N.E.2d 732 (1990) (disapproving Woyczynski on this point; nonlawyer defendant). Accord Froehlich v. Ohio Dep't of Mental Health, 114 Ohio St.3d 286, 2007 Ohio 4161, 871 N.E.2d 1159 ("The tort of malicious prosecution in a criminal setting requires proof of three essential elements: '(1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused,'" id. at para. 10, quoting the Trussell syllabus; nonlawyer defendant). See Hodges v. Hodges, 175 Ohio App.3d 121, 2008 Ohio 601, 885 N.E.2d 307 (reversing malicious criminal prosecution verdict because probable cause was present; nonlawyer defendant). The general Restatement formulation is essentially the same. See 1 Restatement (Third) of the Law Governing Lawyers §  57 cmt. e, at 433 (2000). In addition to Woyczynski, other Ohio malicious criminal prosecution cases involving lawyers as defendants also have used the lawyer-tailored tests in determining whether the lawyer defendant acted with malice and without probable cause. See, e.g., Thompson v. R&R Serv. Sys., Inc. Nos. 96APE10-1277, 96 APE-1278, 1997 Ohio App. LEXIS 2677 (Franklin June 19, 1997) (initiating criminal proceeding for purposes of securing purely civil relief; evidence presented from which jury could find that attorney acted maliciously and knew her clients were motivated by malice). For a case in which the general Trussell rule was applied in affirming dismissal and summary judgment in favor of the defendant lawyer, see Bayer v. Neff, No. 95-L-044, 1995 Ohio App. LEXIS 5897 (Lake Dec. 29, 1995) (failure to satisfy termination-of-prosecution-in-favor-of-accused element, even though, after that court's dismissal of plaintiff's malicious prosecution suit, his conviction was reversed; "appellant's premature filing of the complaint and/or subsequent failure to request that the trial court stay the proceeding until the [criminal] appeal was resolved, was fatal to the instant appeal regarding this issue. The trial court, at the time that it disposed of appellant's case, only had before it appellant's conviction." Id. at *4.). Accord Willis Linnen Co., L.P.A. v. Linnen, 163 Ohio App.3d 400, 2005 Ohio 4934, 837 N.E.2d 1263 (Summit) (probable cause existed to support criminal contempt proceedings; summary judgment for counterclaim defendant/lawyer affirmed). See also Pollack v. Kanter, 68 Ohio App.3d 673, 589 N.E.2d 443 (Cuyahoga 1990), a case involving seizure of plaintiff's person, decided one month before Trussell came down. In Pollack, plaintiff alleged that defendant lawyers forwarded to the prosecutor a letter written by plaintiff; as a result, plaintiff was arrested and indicted for extortion, which indictment was later nolled. The appellate court held that the complaint was sufficient to state a claim; the trial court's dismissal under OH Civ R 12(B)(6) was reversed.

A federal case applying Trussell in finding plaintiff's malicious criminal prosecution claim meritless for want of malice and presence of probable cause is Harris v. United States, 422 F.3d 322 (6th Cir. 2005). While the defendants were nonlawyers, Harris contains a thorough exposition of these two aspects of the tort. See Id. at 327-30, 337-40.

Abuse of process: Unlike malicious prosecution (and with the exception of one suspect line of cases discussed below at "Abuse of process - Attorney-Specific Requirements"), there appear to be no specialized rules for abuse-of-process suits against lawyers in Ohio. Thus, the elements of the tort, against lawyers and nonlawyers, are:

(1) a legal proceeding has been set in motion in proper form and with probable cause;

(2) the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed; and

(3) direct damage resulted from the wrongful use of process.

Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A., 68 Ohio St.3d 294, 626 N.E.2d 115 (1994) (syllabus one) (lawyer defendant); accord Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d 264, 662 N.E.2d 9 (1996) (nonlawyer defendant); Dever v. Lucas, 174 Ohio App.3d 725, 2008 Ohio 332, 884 N.E.2d 641 (Delaware) (lawyer defendant).

Abuse of process - Probable cause requirement: While the Yaklevich syllabus has been accepted as stating the Ohio rule that the tort of abuse of process is predicated on the existence of probable cause for the underlying action out of which the abuse arises, the case itself actually upheld the complaint in the face of an OH Civ R 12(B)(6) motion to dismiss even though it alleged that the prior proceeding had been commenced without probable cause. See also Border City Sav. & Loan Ass'n v. Moan, 15 Ohio St.3d 65, 66, 472 N.E.2d 350, 351 (1984) (per curiam) ("An action for malicious prosecution or abuse of process 'may be maintained where a proceeding is carried on maliciously and without probable cause.'"). The waters are further muddied on this issue by the Yaklevich Court's express notation that the same set of facts might support both a malicious prosecution claim (requiring that the action be brought without probable cause) and an abuse of process claim, and that a plaintiff would be wise to plead both torts in separate counts where the probable-cause issue is not clear. 68 Ohio St.3d at 298, 301 n.6, 626 N.E.2d at 118, 120 n.6. At the same time, however, the Court stressed that the two torts are "related, but separate" and that "[t]he presence or absence of probable cause is the determining factor which divides the areas of operation of the two torts." Id. at 296, 301 n.6, 626 N.E.2d at 117, 120 n.6. The Yaklevich decision is criticized in 1 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice 6.24, at 782 & n.16 (2006 ed.) (arguing that the Court failed to recognize that the "essence" of the tort of abuse of process is "the procedural, objective misuse of process," id. at n.16).

The courts of appeals have addressed the probable-cause aspect of Yaklevich on at least three occasions. In the most recent, Dever v. Lucas, 174 Ohio App.3d 725, 2008 Ohio 332, 884 N.E.2d 641 (Delaware), the appellate court merely applied the Yanklevich plead-in-the-alternative advice set forth above in reversing the trial court’s dismissal of plaintiffs’ abuse of process claim because plaintiffs failed to assert that the prior proceeding was instituted with probable cause. In the second, Gugliotta v. Morano, 161 Ohio App.3d 152, 2005 Ohio 2570, 829 N.E.2d 757 (Summit), a lawyer sued a former client for defamation.  The defendant counterclaimed for, among other alleged torts, abuse of process.  The jury returned a verdict for defendant/counterclaimant on the abuse-of-process claim, and the lawyer appealed.  In reversing, the appellate court touched on two of the prongs of the tort as set out by the Supreme Court in Yaklevich.  (The second prong is discussed below at “Abuse of process - Ulterior purpose requirement.”  With respect to the requirement that the action must have been properly initiated and supported by probable cause, the court stated that “‘[a]buse of process does not lie for the wrongful bringing of an action, but for the improper use . . . once a proper claim has been commenced.’” Id. at para. 50 (quoting prior Ninth District authorities).  Since the counterclaimant (Morano) argued that “‘Gugliotta[] threatened litigation to coerce Morano to retract her complaint[s]’ to the board and the BBB,” “Morano’s own argument that Gugliotta used the threat of litigation as a tool of coercion [i.e., the action was “wrongfully” brought] serves to defeat her claim for abuse of process.”  Id. at paras. 49, 50 (bracketed material in original, except the last).

A third, nonlawyer, case that touches on this issue is Hildreth Mfg., L.L.C. v. Semco, Inc., 151 Ohio App.3d 693, 2003 Ohio 741, 785 N.E.74 774 (Marion).  In Hildreth, the court noted that the Yaklevich syllabus required that the action be “set in motion in proper form and with probable cause,” but, in describing the allegations of Hildreth’s abuse-of-process counterclaim with respect to this element, noted only that the proceeding had been set in motion “in proper form” – there apparently were no allegations regarding the with-probable-cause requirement. paras. 72-73.  Despite this absence, the court held the allegations sufficient to withstand the motion to dismiss, and the trial court’s granting of the motion on the abuse of process counterclaim was reversed.

Abuse of process - Ulterior purpose requirement: The second prong of the Yaklevich abuse-of-process test requires that the proceeding complained of has been perverted in an attempt to accomplish some ulterior purpose. A number of cases have elaborated on this criterion, although their guidance is somewhat muddled. Several factors seem to be at work here, depending on the court. One decision concludes that without sufficient "process" in the underlying proceeding, there is nothing to pervert. Thus, in Gugliotta the court noted that "'[i]n a typical case, the abuse of process * * * arises from events that occur during the course of the underlying litigation" (quoting Yaklevich, brackets and ellipsis by Gugliotta court). In the case at bar, however, "it is clear that there had been little or no 'process' in the defamation litigation [complaint filed; motion for default regarding "answer"; counterclaim filed], and Morano's counterclaim for abuse of process runs afoul of Yaklevich." 161 Ohio App.3d 152, 2005 Ohio 2570, 829 N.E.2d 757 (Summit) at para. 51 (bracketed material added).

A more common formulation looks at whether the suit was brought to achieve an end the court itself was powerless to order. If so, it has been held that this will satisfy the ulterior purpose requirement. One such case, involving lawyer-defendants, is Havens-Tobias v. Eagle, 2003-Ohio-1561, 2003 Ohio App. LEXIS 1512 (Montgomery). Focusing on this aspect of the tort, Havens-Tobias held that the plaintiffs had failed to show that the proceeding had been perverted to accomplish an ulterior purpose for which it was not designed:

There is nothing in the complaint to suggest that Eagle [the lawyer defendants] sought to achieve something that the court was powerless to order. [Applying the language of the Robb case, quoted in the next paragraph of text.] Rather, Eagle filed a complaint seeking to recover a monetary award from the Tobiases. . . . [Plaintiffs] certainly did not allege any facts from which reasonable minds could conclude that Eagle sought to achieve an ulterior purpose for which the lawsuit was not designed.

Id. at para. 24 (bracketed material added). The trial court's granting of Eagle's OH Civ R 12(B)(6) motion to dismiss for failure to state a claim upon which relief could be granted was therefore affirmed.

The Ohio Supreme Court endorsed this analysis in no uncertain terms in the nonlawyer-defendant case of Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d 264, 271, 662 N.E.2d 9, 14 (1996): "Simply, abuse of process occurs where someone attempts to achieve through the use of the court that which the court itself is powerless to order." Likewise, in Luciani v. Schiavone, 210 F.3d 372, 2000 U.S. App. LEXIS 5842 (6th Cir. 2000) (table), the Sixth Circuit held that a reasonable fact finder could conclude that a lawyer's attempt to force an adversary to submit to jurisdiction on matters not properly before an Ohio court constituted perversion of the process for an ulterior purpose. As a result, summary judgment in favor of the defendant lawyer on the abuse-of-process claim was reversed and remanded. (The Scholler aspect of the case is examined in this section below at "Abuse of Process - Attorney-specific requirements," where the opinion on remand, Luciani v. Schiovani, No. C-1-97-272, 2001 U.S. Dist. LEXIS 25918 (S.D. Ohio Jan. 2, 2001), is discussed.)

Some disagreement exists whether the ulterior purpose must be one to gain an advantage outside the underlying proceeding or whether it extends to gaining an advantage within the proceeding itself. This aspect was addressed by an Ohio court of appeals in Wolfe v. Little, No. 18718, 2001 Ohio App. LEXIS 1902 (Montgomery Apr. 27, 2001). The court in Wolfe found that the bare allegation of ulterior purpose (deprivation of due-process rights) was insufficient. Even if it had been sufficiently pleaded, the court held that plaintiffs' ulterior purpose allegation could not survive a motion to dismiss because the ulterior purpose must be one that attempts to gain an advantage outside the proceeding, whereas plaintiffs' ulterior purpose allegation concerned perversion of the proceeding to gain an advantage in the proceeding itself. While we have no doubt that an ulterior purpose to gain an advantage outside the proceeding meets the second requirement (e.g., Hildreth Mfg., L.L.C. v. Semco, Inc., 151 Ohio App. 3d 693, 2003 Ohio 741, 785 N.E.2d 774 (Marion) (alleged ulterior purpose was to interfere with counterclaimant's ability to compete and to put it out of business; nonlawyer case)), query whether it is so limited. See Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d 264, 271, 662 N.E.2d 9, 14 (1996) (nonlawyer defendant) ("'the improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club.' [quoting W. Page Keeton et al., Prosser & Keeton on Torts 898 (5th ed. 1984)] (emphasis added); Yaklevich v. Kemp, Schaefer & Rowe Co., L.P.A., 68 Ohio St.3d 294, 626 N.E.2d 115 (1994) (allegation that law firm brought prior suit for ulterior purposes, "those purposes being to induce Yaklevich's client to discharge him, to damage Yaklevich's reputation, and to increase the settlement value of Kemp, Schaefer & Rowe's claims." Id. at 295, 626 N.E.2d at 116) (emphasis added); Pheils v. Garber-Laurence Publ'g Group, Inc., No. L-92-418, 1993 Ohio App. LEXIS 5914 (Lucas Dec. 10, 1993) (reversing summary judgment for defendant attorney where possible ulterior purposes, in seeking and obtaining service by publication based on an affidavit stating a "last known address" that attorney knew to be inaccurate, were to prevent opposing parties from knowing of and defending case, and to harass).

And at least one court has drawn a distinction based on when the improper advantage will accrue. Thus, rather than where the collateral advantage must take place, Willis Linnen Co., L.P.A. v. Linnen, 163 Ohio App.3d 400, 2005 Ohio 4934, 837 N.E.2d 1263 (Summit), concluded that the supposed collateral benefit in the future "is insufficient to establish that he perverted the proceedings. Unlike Robb [Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d 264, 662 N.E.2d 9 (1996)], there is no evidence, or even allegation, that Haley sought any collateral advantage during the contempt proceedings." Id. at para. 24 (emphasis by the court).

Abuse of process - Attorney-specific requirements: The Wolfe court also created two additional requirements applicable when abuse-of-process claims are filed against attorneys. The court stated that

[b]ecause Appellees are attorneys, in order to sustain an abuse of process claim against them, Appellants need to allege facts demonstrating Appellees acted maliciously and for an ulterior purpose completely separate from their client's interest.

2001 Ohio App. LEXIS 1902, at *13. These two elements were added to the three Yalkevich factors even though Yalkevich itself was an attorney/defendant case. Each addition is problematic.

With respect to the second added element, Wolfe cites one case, Thompson v. R&R Service Systems, Inc., Nos. 96 APE10-1277, 96 APE10-1278, 1997 Ohio App. LEXIS 2677 (Franklin June 19, 1997). Thompson, in turn, after citing one Ohio case (Fallang v. Hickey, No. CA86-11-163, 1987 Ohio App. LEXIS 8542 (Butler Aug. 31, 1987)), proceeds to ignore the second element and holds that the abuse-of-process claim should have gone to the jury, even though there was no indication that the ulterior motive was separate and apart from the client's interest. Fallang states the proposition but cites no Ohio cases; the one case it does cite, Ewert v. Wibolt [sic Wiebolt] Stores, Inc., 347 N.E.2d 242 (Ill. App. 1976), does not support the proposition stated. (The Fallang decision was affirmed by the Ohio Supreme Court in an appeal by one of the nonattorney defendants on an issue unrelated to abuse of process. See Fallang v. Hickey, 40 Ohio St.3d 106, 532 N.E.2d 117 (1988).)

As for the first added element, malice, the Wolfe court stated that

attorneys only owe a duty to third persons arising from their performance as attorneys if the third person is in privity with the attorney's client or if the attorneys act maliciously [citing Scholler v. Scholler, 10 Ohio St.3d 98, 98, 462 N.E. 158, 159-60 (1984) (syllabus one)]. Appellants made no allegation in their complaint that they were in privity with appellees' client, but instead alleged that Appellees "maliciously breached the aforementioned duties" [alleged in their complaint].

2001 Ohio App. LEXIS 1902, at *14-15. In a masterpiece of circular reasoning, the court found that plaintiffs' malicious-breach-of-duty allegation was insufficient because, absent privity, under Scholler an attorney owes a duty to a third party only if the lawyer acts maliciously. Since "[a]ppellees do not have a duty to begin with, they cannot 'maliciously breach' nonexistent duties." Id. But under the Scholler rule, which the Wolfe court purports to follow, the duty is imposed only if and when malice is present; there is no need for "a duty to begin with." Indeed, if a duty already existed between the lawyer and the third person, the malice requirement would be superfluous and the Scholler rule unnecessary.

At least one federal district court opinion has applied the malice requisite of Scholler in denying summary judgment to the defendants in an abuse-of-process case. Luciani v. Schiavone, No. C-1-97-272, 2001 U.S. Dist. LEXIS 25918 (S.D. Ohio Jan. 2, 2001) (perversion of proceeding, in seeking relief court unable to grant, could be found to constitute "acting in bad faith, and, therefore, maliciously," id. at *19, using the Simon v. Zipperstein, 32 Ohio St.3d 74, 512 N.E.2d 636 (1987), formulation of what can constitute malice). If Scholler applies across the board to all actions against lawyers, including abuse of process, then this may well be a viable argument. The fact remains that, with the exception of Wolfe and Thompson, in all of the state Yalkevich/Scholler abuse-of-process cases in which the defendants were lawyers, decided since the Supreme Court laid down its rule in Yaklevich, the Scholler immunity rule and malice exception thereto were not mentioned in connection with the abuse-of-process discussion, and the Yalkevich syllabus was applied without more. See Moffitt v. Litteral, 2002 Ohio 4973, 2002 Ohio App. LEXIS 5000 (Montgomery); Nationwide Ins. Enters. v. Progressive Specialty Ins. Co., No. 00 AP-1474, 2001 Ohio App. LEXIS 3314 (Franklin July 26, 2001); Ahlbeck v. Joelson, No. L-96-413, 1997 Ohio App. LEXIS 3519 (Lucas Aug. 8, 1997); Knief v. Minnich, 103 Ohio App.3d 103, 658 N.E.2d 1072 (Logan 1995). In each of these cases, Scholler was cited, but only in connection with claims against the lawyer other than abuse of process. As to the latter, the courts relied on the Yalkevich syllabus and made no mention of malice. We think it also significant that the court of appeals opinion in Yalkevich (No. 91 AP-1296, 1992 Ohio App. LEXIS 3102 (Franklin June 9, 1992)) did inject malice into its formulation of the applicable rule, but such language is conspicuously absent from the Supreme Court's iteration of the elements of the tort. Thus, the court of appeals, reciting with approval the trial court's formulation, stated:

the trial court enunciated three elements necessary for a plaintiff to prove in a claim for an abuse of process: (1) that the defendant maliciously used process for an ulterior purpose; (2) that the use of the process for such ulterior purpose was not a proper use in the regular course of the proceeding; and (3) that the plaintiff was directly damaged by the malicious, wrongful use of process for an ulterior purpose.

Id. at *12 (emphasis added). Compare the Supreme Court's formulation in Yaklevich:

The three elements of the tort of abuse of process are: (1) that a legal proceeding has been set in motion in proper form and with probable cause; (2) that the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed; and (3) that direct damage has resulted from the wrongful use of process.

68 Ohio St.3d 294, 294, 626 N.E.2d 115, 116 (1994) (syllabus one). See also Clermont Envtl. Reclamation Co. v. Hancock, 16 Ohio App.3d 9, 11, 474 N.E.2d 357, 362 (Clermont 1984) (nonlawyer defendant; abuse of process "differs from 'malicious prosecution' in that the former connotes the use of process properly initiated for improper purposes, while the latter relates to the malicious initiation of a lawsuit which one has no reasonable chance of winning.").

The upshot of all of this, in our opinion, is that malice is not properly a separate, express element of the tort in Ohio, whether or not the suit is against lawyers, but rather that it may be implicit in the second Yalkevich element -- requiring that the actor pervert the proceeding in an attempt to accomplish an ulterior purpose for which it was not designed. If this is proved, there should be no need for an independent malice element in suits against lawyers -- the element of malice, to the extent required under Scholler (if indeed Scholler applies to abuse of process claims), is built into the perversion/ulterior purpose requisite. Footnote two of the Supreme Court's Yalkevich opinion is consistent with this analysis: there the Court notes (quoting W. Page Keeton et al., Prosser & Keeton on Torts (5th ed. 1984)) that "there is no liability [for abuse of process] where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions." 68 Ohio St.3d 294, 298 n.2, 626 N.E.2d 115, 118 n.2 (bracketed material by the Court; emphasis added). See also Luciani v. Schiavone, No. C-1-97-272, 2001 U.S. Dist. LEXIS 25918, at *16 (S.D. Ohio Jan. 2, 2001) (perversion of proceeding can constitute malicious conduct).

This analysis is supported by a number of abuse-of-process cases that do not cite Scholler at all and look to the Yaklevich syllabus as dispositive in cases against lawyers. See Willis Linnen Co., L.P.A. v. Linnen, 163 Ohio App.3d 400, 2005 Ohio 4934, 837 N.E.2d 1263 (Summit) (failure of perversion element; summary judgment affirmed); Gugliotta v. Morano, 161 Ohio App.3d 152, 2005 Ohio 2570, 829 N.E.2d 757 (Summit) (failure of probable cause and perversion elements; denial of lawyer's motion for directed verdict on abuse-of-process counterclaim reversed), appeal not allowed, 106 Ohio St.3d 1556, 2005 Ohio 5531, 836 N.E.2d 581; Havens-Tobias v. Eagle, 2003 Ohio 1561, 2003 Ohio App. LEXIS 1512 (Montgomery) (failure on perversion element; OH Civ R 12(B)(6) dismissal affirmed); Vitrano v. CWP Ltd. P'ship, No. 19516, 1999 Ohio App. LEXIS 6179 (Summit Dec. 22, 1999) (plaintiffs alleged that underlying lawsuit had not been brought with probable cause and in proper form; OH Civ 12(B)(6) dismissal affirmed); Tilberry v. McIntryre, 135 Ohio App.3d 229, 733 N.E.2d 636 (Cuyahoga 1999) (no evidence that defendant attorneys did anything more than carry out process to its authorized conclusion; summary judgment affirmed); Haupricht v. Davis Farm Servs. Inc., No. F-95-013, 1995 Ohio App. LEXIS 4819 (Fulton Nov. 3, 1995) (no improper purpose sought; defendants merely attempted, "by legal means, to collect upon a judgment," id. at *9). But see Bayer v. Neff, 95-L-044, 1995 Ohio App. LEXIS 5897 (Lake Dec. 29, 1995), where the court, in an opinion that contains little reasoned analysis on the point at issue, and without invoking the special rule for suits against attorneys, reversed a summary judgment for the defendant attorney, based in part on the appellant's affidavit that the lawyer had "acted in bad faith, frequently on his own behalf and maliciously . . . . ," id. at *13 (emphasis in affidavit), and without really dealing with the probable cause issue. The dissent noted that while appellant's "declarations [in his affidavit and in deposition testimony] of no probable cause may be supportive of his claims of malicious prosecution, they are incompatible with a claim of abuse of process." Id. at *21 (bracketed material added).

False arrest: The Restatement also contains one short paragraph on this tort, noting that while civil liability can be imposed for instigating or participating in the unlawful confinement of another, "lawyers like other participants are privileged against liability when someone is confined pursuant to a warrant that is valid or fair on its face . . . ." 1 Restatement (Third) of the Law Governing Lawyers § 57 cmt. d, at 433 (2000). Privilege likewise attaches to participants when someone is arrested on the oral order of a judge acting within his or her jurisdiction or by a policeman who reasonably suspects that the person has committed a felony. Id.

So far as we can tell, there are no reported Ohio false-arrest cases against lawyers. (In Thompson v. R&R Service Systems, Inc., Nos. 96 APE10-1277, 96 APE-1278, 1997 Ohio App. LEXIS 2677 (Franklin June 19, 1997), the claims against the defendants, one of whom was an attorney, included false arrest, but that claim was voluntarily dismissed. Id. at *2.)

1.1:530 Assisting Client to Break a Contract

1 Restatement (Third) of the Law Governing Lawyers § 57(3) (2000) states that a lawyer is not liable to a nonclient for interference with contract or prospective contractual relations, "if the lawyer acts to advance the client's objectives without using wrongful means." Thus, a lawyer will not be subject to civil liability for advising or assisting a client in not entering into a contract or in breaking an existing contract, so long as the lawyer does not employ wrongful means and is acting to protect the client's welfare. Id. cmt. g, at 434-35.

Ohio cases that are consistent with this approach include:

  • Andrews v. Carmody, 145 Ohio App.3d 27, 761 N.E.2d 1076 (Lake 2001), in which a prospective purchaser sued the escrow agent (acting for both parties) and its president, an attorney who represented the seller in the proposed transaction, for tortious interference with the plaintiff's contract to purchase real estate. In upholding summary judgment for the attorney, the court noted that Ohio law places the burden of proving lack of qualified privilege or lack of justification on the plaintiff in tortious interference cases and held that the evidence demonstrated that the lawyer's interference was justified, because Conway was representing Carmody as her attorney; specifically, Conway advised "her that the terms of the purchase agreement were not favorable to her and that she should not proceed with the sale." Id. at 34, 761 N.E.2d at 1081. To overcome the qualified privilege, malice had to be shown (knowingly making false statements to Carmody or making them with disregard as to whether they were true or false), and there was no such showing here. Id. at 35, 761 N.E.2d at 1082.

  • In Madorsky v. Bernstein, 89 Ohio App.3d 550, 626 N.E.2d 694 (Cuyahoga 1993), two attorneys were co-counsel for the client in a divorce action. Following a disagreement the two had on another case in which they were also acting as co-counsel, Bernstein told Madorsky that he could no longer work with him on the client's divorce case, and that Bernstein had discussed the matter with the client and told her she would have to make a choice. The client chose Bernstein, and Madorsky sued Bernstein for tortious interference. The trial court granted summary judgment for Bernstein. On appeal, Bernstein argued that, since the attorney-client relationship is tantamount to an at-will agreement, the relationship cannot be the basis for an action for tortious interference. The court of appeals disagreed:

    as a matter of law, we find that the discharge of an attorney may form the basis for a cognizable cause of action for tortious interference.

    Id. at 554, 626 N.E.2d at 695. The court concluded that reasonable minds could construe Bernstein's forcing the client to choose as interfering with her attorney-client relationship with Madorsky, but that Bernstein's interference was privileged:

    Madorsky averred that Bernstein was malicious, but failed to present evidence that Bernstein acted in bad faith.

    . . . Bernstein was privileged by virtue of his own attorney-client relationship with Gambill . . . . Consequently, Bernstein had a privilege to disclose to his client that he could no longer work with co-counsel.

    Construing the evidence in the light most favorable to Madorsky, reasonable minds could only reach the conclusion that Bernstein had a privilege to interfere with his client's relationship with co-counsel.

    Id. at 554, 626 N.E.2d at 696.

While the analysis of 1 Restatement (Third) of the Law Governing Lawyers § 57(3) (2000) focuses on "advis[ing] or assist[ing] a client to make or break a contract," there are a number of Ohio tortious-interference-with-contract decisions in which a lawyer urged a nonclient to breach a contract (typically in an effort to turn the nonclient into a client).

The leading case in Ohio is Fred Siegel Co., L.P.A., v. Arter & Hadden, 85 Ohio St.3d 171, 707 N.E.2d 853 (1999), which also reiterated the elements of the tort generally:

The elements of the tort of tortious interference with contract are (1) the existence of a contract, (2) the wrongdoer's knowledge of the contract, (3) the wrongdoer's intentional procurement of the contract's breach, (4) lack of justification, and (5) resulting damages.

Id. at 171-72, 707 N.E.2d at 855 (syllabus one).

Siegel involved a lawyer migrating from one firm to another and then soliciting clients of the former firm for whom she had done work. The Court affirmed the court of appeals' reversal of summary judgment in favor of the migrating lawyer and her new firm and sent the case back for further proceedings to resolve issues of material fact as to whether the migrating lawyer and her new firm had employed wrongful means in competing for her former firm's clients. The Court made clear that fair competition may constitute a justification for interference with an existing contract terminable at will, id. at 172, 707 N.E.2d at 856 (syllabus four) (adopting 4 Restatement (Second) of the Law of Torts § 768 (1979)). Since attorney-client contracts are terminable at will by the client, this justification will regularly come into play in solicitation cases involving attorneys moving from firm to firm, subject to the restriction on use of wrongful means. Thus, the issue in Siegel boiled down to whether the lawyer had wrongfully utilized trade secrets and/or fee information of her former firm in competing for those solicited.

In the dissent's view, those solicited were clients of both the former firm and the departing lawyer. Under this analysis, the lawyer would have been soliciting her own clients to stay with her and to break their at-will contracts with the former firm; the dissent viewed this as not actionable, which is consistent with 1 Restatement (Third) of the Law Governing Lawyers § 57(3) (2000). The tortious interference aspect of the Siegel case is also discussed in section 1.1:390.

A pre-Siegel federal bankruptcy case involving comparable analysis is In re Gettys, 205 B.R. 515 (Bankr. S.D. Ohio 1997), where the court found that the debtor-lawyer had tortiously interfered with a contract his client had with another attorney before the debtor persuaded the client to fire the former attorney. Once again the analysis of 4 Restatement (Second) of the Law of Torts § 768 was found applicable, and, as in Siegel, all factors justifying the competition were satisfied except that of avoiding use of wrongful means -- here, the debtor-lawyer's misrepresentation to the client that if she hired the debtor, then her obligation to her former attorney would become the debtor's obligation:

[T]his Court finds that the Debtor, without privilege or justification, improperly induced and purposefully caused Heim to discharge Fisse as her attorney, thereby tortiously interfering with the contract between Fisse and Heim.

205 B.R. at 524.

Another migratory-lawyer/solicitation case, decided prior to Siegel, is Sonkin & Melena Co., L.P.A. v. Zaransky, 83 Ohio App.3d 169, 614 N.E.2d 807 (Cuyahoga 1992). In this case, the migratory lawyer, in setting up his own practice, made use of the former firm's client list to solicit over 300 clients of the former firm to move their workers' compensation claims to his new firm. More than 200 did so. The trial court rejected the former firm's claim of tortious interference with the contracts it had with former clients, and the court of appeals affirmed:

The uniqueness of an attorney/client relationship and the freedom of the client to fire his attorney coupled with the totality of the circumstances of this case make it difficult to agree with Sonkin & Melena's argument that interference occurred. The clients in question were working with Zaransky on the cases before he left the employment of Sonkin & Melena. It is neither a violation of the Disciplinary Rules, see DR 2-102, nor a contractual interference for Zaransky to inform those same clients that he no longer worked for Sonkin & Melena. The subsequent decision of those clients to leave Sonkin & Melena and hire Zaransky is within their rights.

Id. at 179, 614 N.E.2d at 814. Perhaps one aspect of the "totality of the circumstances" that led the court to rule as it did was that the client list, used by Zaransky for his announcements, was prepared at his own direction and there was no evidence that the firm regarded the list as a trade secret of the firm. Finally, the court of appeals was unswayed by the firm's attempt to bolster its argument that Zaransky induced the clients not to pay contingent fees owing by promising to the clients that if they hired him, they would only have to pay one fee and that he would "work for free" on the claim if necessary. The court did not see the accurate statement that the clients would pay only one fee "as rising to the level on interfering with a contractual arrangement between Sonkin & Melena and the clients," id. at 180, 614 N.E.2d at 815, even though each client had a contingent fee arrangement with the firm. (The court had, earlier in the opinion, ruled that the firm was entitled to recover in quantum meriut for the work it had performed on each such case.)

While Sonkin & Melena was not cited by the Supreme Court in Siegel, the court of appeals opinion in Siegel does cite Sonkin & Melena and persuasively distinguished the two cases in the following terms:

In Sonkin & Melena, this court recognized that:

The tort of "business interference" occurs when a person, without a privilege, induces or otherwise purposely causes a third party not to enter into, or continue a business relationship, or perform a contract with another.

Id. at 179, 614 N.E.2d at 814 (quoting Juhasz v. Quik Shops, Inc. (1977), 55 Ohio App.2d 51, 379 N.E.2d 235, syllabus.)

* * * *

Appellants' claim for business interference is dependent on whether or not the information that Bauernschmidt [the migrating lawyer] retained was in fact a trade secret; if so, then the use of that information could be found to be tortious.

* * * *

In Sonkin v. Melena, supra, we found that a departing attorney had a privilege to inform those clients for whom he worked that he was leaving the firm and that he did not tortiously interfere with his previous firm's business by compiling a client list and informing those clients of his departure. However, in this case, the client list retained by Bauernschmidt was a list of all FSC [the Siegel firm] clients, not only those clients Bauernschmidt had worked for.

Bauernschmidt stated in her affidavit that she does not remember using the FSC client list to compile her mailing list of former clients. However, appellants demonstrated that certain letters sent by Bauernschmidt contained misspellings in client address; misspellings which appear only in the FSC client list. Accordingly, an inference may be made that the client list was used in her mailing.

Also, in Bauernschmidt's affidavit she avers that she contacted only those clients for whom she worked. But she also stated on deposition that she did not know if A & H [Arter & Hadden, her new firm] used FSC's client list in its mailing. Thus, a trier of fact could find that the privilege as outlined in Sonkin & Melena, supra, was exceeded in this mailing as well.

Fred Siegel Co., L.P.A. v. Arter & Hadden, No. 71440, 1997 Ohio App. LEXIS 3397 (Cuyahoga July 31, 1997), at *6-9 (emphasis by the Siegel court; bracketed material added).

It seems fair to say, based on the Ohio migratory-lawyer/interference-with-contract cases, that a major factor is whether the lawyer is soliciting his or her own clients, or other clients of the former firm. If the former, the result is typically no liability (Sonkin & Melena; Siegel dissent); if the latter, liability will be more readily imposed (Siegel; cf. In re Gettys).

There are various other Ohio cases involving tortious interference with contracts/business relationships in which lawyers are defendants; these cases focus on one or another of the elements of the tort and whether it was present or absent in the case at bar. See, e.g., Meros v. Mazgaj, No. 2001-T-0100, 2002 Ohio App. LEXIS 2052 (Trumbull Apr. 30, 2000) (after being suspended (and then disbarred), lawyer sued other lawyers for tortious interference with his contract with his former clients; "although appellant and the [clients] entered into some form of a contingent-fee arrangement, that agreement was terminated when appellant was suspended from the practice of law and could not continue representing the couple. Accordingly, because that contract had already concluded . . . , summary judgment was proper, as there was no contract to interfere with," id. at *12); accord Nationwide Ins. Enters. v. Progressive Specialty Ins. Co., No. 00AP-1474, 2001 Ohio App. LEXIS 3314 (Franklin July 26, 2001) (no evidence of any contract; further, no allegations as to how defendant lawyers procured the alleged breach; dismissal of tortious interference claim affirmed);

In Vitrano v. CWP Ltd. P'ship, No. 19516, 1999 Ohio App. LEXIS 6179 (Summit Dec. 22, 1999), the court, after stating the five elements of the tort as set forth in Siegel, held that a plaintiff must also establish a causal connection between the breach and the actions of the defendant. (This factor was not added because the actors were lawyers, but was stated as a general requirement.) The court affirmed summary judgment for the defendant attorneys because there was no evidence that the lawyers procured or caused the breach. [In reality, this additional element is just another way of stating the third Siegel factor -- "the wrongdoer's intentional procurement of the contract's breach."]