Eileen L. Zell v. Frost Brown Todd LLC, et al., Case No. 17-3534 (6th Circuit)
Seeking Amici to Help Overturn U.S. District Court's Rulings Enabling Ohio Attorneys to Immunize Themselves Completely from All Liability from Any Legal Malpractice Occurring in Litigation
Note: Although we (Plaintiff Eileen L. Zell's attorneys) have already filed our "Notice of Appeal," the U.S. Court of Appeals for the Sixth Circuit is temporarily holding our appeal in abeyance until the district court rules on our pending "Motion for a New Trial."
By the way, we previously filed an (unsuccessful) petition for a writ of mandamus before the Sixth Circuit. Attached below is a copy of our petition, which also contains copies of the district court's rulings.
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In Eileen L. Zell v. Katherine Klingelhafer, Frost Brown Todd LLC, et al., Case No. 2:13-cv-00458 (S.D.Ohio, E.D., 2017), the district court issued a set of three pretrial rulings that give lawyers a complete end run around the statute of limitations on legal malpractice. Thus, if this legal precedent is not overturned, clients will lose the due-process right to sue their lawyers. Moreover, as a result, lawyers will risk a legislative backlash potentially extending the limitations period on legal malpractice considerably. Accordingly, as depicted in the cartoon below, both lawyers and clients should want to join us in asking the Sixth Circuit to review the district court's dangerous and unconstitutional rulings.
Leaving out some of the finer points, basically the case of In re Eileen L. Zell deals with the situation where a number of lawyers at the "Am Law 200" law firm of Frost Brown Todd LLC (FBT) were representing the same client (Eileen Zell, a widow in her 80s) on the same legal matter -- the collection of a bad debt. Although one or more of the Frost Brown Todd lawyers worked on Eileen’s legal matter through to the end of the case (i.e., the Ohio appellate court’s decision), other FBT lawyers worked intermittently on and off on the case. However, during the pendency of Eileen’s case, none of the FBT lawyers in question ever told Eileen that his or her attorney-client relationship with Eileen was terminating prematurely, that is, before the Ohio litigation was over.
Well before one year after her case in state court had ended, Eileen sued some of the Frost Brown Todd lawyers for legal malpractice. The lawyers in question then claimed that, while one or more other Frost Brown Todd lawyers had continued working on Eileen's case until the end, they (the lawyers in question) had prematurely "stopped working" on Eileen's case while the Ohio litigation was still ongoing. Moreover, since they claimed to have "stopped working" on her case more than one year earlier, the lawyers in question claimed that, under the termination-of-representation prong of the statute of limitations, Ohio’s one-year limitations period had already expired on their malpractice.
Inexplicably, the district court ended up agreeing with the Defendant Frost Brown Todd lawyers. That is, the district court ruled that the statute of limitations is calculated separately for each member of a team of attorneys at the same law firm based simply on the dates that those attorneys had last worked on the client’s legal matter.
Moreover, according to the district court, it did not matter (1) that, in violation of Rule 1.16(d) of the Ohio Rules of Professional Conduct, the Frost Brown Todd attorneys in question never informed Eileen that they were terminating their representation; (2) that these attorneys are still employed at Frost Brown Todd; (3) that one or more other attorneys at Frost Brown Todd had continued to work on Eileen’s case within the time period covered by Ohio’s statute of limitations; or (4) that Eileen had no way of knowing whether or not the attorneys in question had permanently stopped working on her case.
When asked how Eileen was supposed to know that the Frost Brown Todd lawyers in question had permanently stopped working on her case, the Defendant FBT lawyers argued that Eileen could see from the time charges on Frost Brown Todd’s monthly bills when a given FBT lawyer had or had not worked on her case. But this argument is very flawed. First, these bills did not distinguish between a FBT lawyer who had only temporarily stopped working on Eileen’s case and a FBT lawyer who had permanently stopped working on her case. Second, at the time, even those FBT lawyers themselves had no way of knowing whether their cessation of work would be permanent or only temporary. Indeed, since not every FBT lawyer who worked on Eileen’s case did so every month, there were always temporary cessations of work. Third, at least one FBT lawyer never billed Eileen for any of his work on her case even though, from the very beginning of the case, he consulted periodically with the other FBT lawyers about Eileen’s case and then, at the very end of her case, he conducted Eileen’s oral argument before the Franklin County (Tenth District) Court of Appeals.
Thus, as depicted (with some artistic license) in the cartoon below, the Defendant Frost Brown Todd lawyers' argument was quite specious.
No other court has ever held that, under the termination-of-representation prong of the statute of limitations, the limitations period is calculated separately for each member of a team of attorneys in the same law firm based simply on the dates that those attorneys had last worked on the client’s matter. Indeed, the Ohio Supreme Court has called this is an open question. For example, in the Wuerth case, then-Chief Justice Moyer noted: “We do not address today the complex attorney-client relationship that arises when a client employs several different or successive attorneys in the same firm, nor do we confront the interplay of those relationships and the tolling events listed in R.C. § 2305.11(A).” Natl. Union Fire Ins. Co. of Pittsburg, PA v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939, ¶ 30 n. 3 (Ohio 2009) (Moyer, C.J., concurring).
Previously, the Ohio courts had held that, under the termination-of-representation prong of the statute of limitations, the limitations period begins to run not once an attorney does no further work on a matter, but only after the demonstration of an “unequivocal intent to terminate the attorney-client relationship.” McOwen v. Zena, No. 11 MA 58, 2012-Ohio-4568, ¶ 23 (Ohio 7th Dist. App.) (quoting Daniel v. McKinney, 181 Ohio App.3d 1, 2009-Ohio-690, 907 N.E.2d 787, ¶ 47). See Brautigam v. Damon, No. 1:11-CV-551 (S.D. Ohio, W.D. Feb. 14, 2014); Scherer v. Wiles, No. 2:12-cv-1101, 2014 U.S. Dist. LEXIS 121970, *5-7 (S.D. Ohio, E.D. Sept. 2, 2014).
Therefore, absent a “clear and unambiguous” act demonstrating a termination of the attorney-client relationship, see Duvall v. Manning, No. 2010-L-069, 2011-Ohio-2587, at ¶ 27 (Ohio 11th Dist. App), stopping work by an attorney on a client’s case will not automatically terminate the relationship. This is only logical because (as previously stated) often even an attorney does not know at the time whether the attorney’s cessation of work will be permanent or only temporary. Accordingly, just knowing the last dates that the Defendant Frost Brown Todd attorneys allegedly stopped working on Eileen’s case does not tell us when those attorneys terminated their attorney-client relationship with her.
However, based on the district court's erroneous rulings, attorneys are now able to immunize themselves completely from all liability from any malpractice occurring in litigation. For all that the attorneys would have to do is merely to hand off a litigation case in which they had committed malpractice to other members of their own firm -- as in the child’s game of “hot potato.” Then, if (for example, by filing an appeal) those other attorneys delayed the resolution of the case for one year (the length of Ohio's statute of limitations on legal malpractice) and did not commit any subsequent malpractice of their own, the entire law firm would get off scot-free.
Thus, as a result of the district court's rulings, clients will in essence lose the due-process right to sue their lawyers. Moreover, as a result, lawyers will risk a legislative backlash potentially extending the limitations period on legal malpractice considerably. Accordingly, both lawyers and clients should want to join us in asking the Sixth Circuit to review the district court's dangerous and unconstitutional precedent.
Contact Person:
Jonathan R. Zell
Attorney-at-Law
5953 Rock Hill Road
Columbus, OH 43213-2127
Tel. (614) 864-2292
E-mail: jonathan_zell@yahoo.com