- What is Ohio Legal Malpractice Law? Malpractice refers to the professional misconduct of attorneys, which may consist either of negligence or of breach of the employment contract. Richardson v. Doe, 176 Ohio St. 370, 372, 199 N.E.2d 878 (1964). To establish a claim for legal malpractice based on negligent representation, the plaintiff must show that: (1) the attorney owed a duty or obligation to the plaintiff; (2) the attorney breached his duty or obligation and failed to conform to the standard required by law; and (3) damages proximately resulted from the breach. Vahila v. Hall, 77 Ohio St.3d 421, 427, 1997 Ohio 259, 674 N.E.2d 1164 (1997).
- Proof of the elements of Attorney negligence
- In a malpractice case, you need expert testimony for standards required by law, and the proximate relation to damages. Expert testimony is usually required to show whether an attorney’s actions or omissions fell below the standards of care ordinarily exercised by members of the legal profession under similar circumstances. Landis v. Hunt, 80 Ohio App.3d 662, 668, 610 N.E.2d 554 (10th Dist. 1992). But such testimony is unnecessary when the breach of duty is within the common understanding of lay persons, or when the breach is so obvious that it may be determined as a matter of law. McInnis v. Hyatt Legal Clinics, 10 Ohio St.3d 112, 113, 461 N.E.2d 1295 (1984). For purposes of summary judgment, an expert witness may submit an affidavit outlining his opinions based on his personal view of the file, pleadings and evidence submitted. Roselle v. Nims, 10th Dist. Franklin No. 02AP-423, 2003-Ohio-630, 27.
- Damages calculation finite, without speculation.
- Examples of Legal Malpractice include billing errors or overcharging a client for legal services. Wilkerson v. O’Shea, 12th Dist. Butler No. CA2009-03-068, 2009-Ohio-5583, 2003 WL 22390065, 7 (failure to refund client fees is malpractice governed by R.C. 2305.11(A)’s one-year statute of limitations). Another example includes the negligent drafting of a legal document. Werts v. Penn, 164 Ohio App.3d 505, 2005-Ohio-6532, 842N.E.2d 1102, 19 (2nd Dist.). Beyond merely supplying the means to achieve a client’s goals, attorneys are obligated to deliberate with their clients about making wise litigation choices. Akron Bar Association v. Miller, 80 Ohio St.3d 6, 9, 684 N.E.2d 288 (1997).
The examples above reflect the guidance provided by Ohio’s Rules of
Professional Conduct as to the duties owed by an attorney to his client. Deutsche Bank National Trust v. Gillum, 151 Ohio Misc.2d 36, 10, 907 N.E.2d 809, 2009 Ohio 2394 (Ohio C.P. 2009). Prof.Cond.R. 1.1 requires lawyers to provide competent representation. Prof.Cond.R. 1.3 states that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” Prof.Cond.R. 1.4(b) further provides that “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
- Error in law re: Client Claim – Substantive
- Error in damages re: Client Claim
- Drafting error
- Procedural error
- Statute of limitations
- Billing errors and overcharging client
- Presentation of Claim for Legal Malpractice
- Statute of Limitations Determined
- Complaint with service
- Discovery of Attorney’s files – Production Request
- Discovery of Attorney’s witnesses – Interrogatories
- Discovery of Attorney’s insurance policy
- Requests for admissions on key documents and/or elements of claim
- Expert preparation
- Damages Preparation
- Witness preparation
- Mediation vs. Trial
- 7 part video, duration of 01:00:42.
- Production Date
Born Dayton, Ohio, November 4, 1956; admitted to the Ohio bar 1981; U.S. District Court, Southern District of Ohio in 1982; admitted to the Florida bar 1983; U.S. Court of Appeals, Sixth Circuit, 1985; U.S. Tax Court (1994).
Alter High School (1974); Marquette University (B.S., 1978); Ohio Northern University (J.D. 1981).
Dayton Bar Association (since 1981); Dayton Bar’s Grievance Committee (2004) to date; Cincinnati Bar Association 2007 ? to date; Ohio State Bar Association (since 1981); Florida Bar Association (since 1983); Ohio Academy of Trial Lawyers (since 2000); American Bankruptcy Law Forms (since 1993).
Legal and Medical Malpractice; Civil Litigation; Corporate Law and Contract Litigation; Personal Injury and Wrongful Death; Liquor Licensing; Tax Appeals and Tax Court Litigation; Bankruptcy Reorganization; Bankruptcy Litigation; Real Estate; Probate; Divorce; Traffic Law including DUI.
Seminars presented for: Dayton Bar Association (Tax debts 4/95); American Bankruptcy Law Forum (Offers in Compromise 1995); Professional Education (LLCs 11/97); National Business Institute (Expert Witnesses 12/98); Personal Injury Settlements (6/01); Medical Malpractice (3/02); Choice of Business Entity in Ohio (3/04), LLCs in Ohio (9/04); Bankruptcy Abuse Pension Consumer Protection Act (9/05 and 6/06); Civil Litigation (12/05); Divorce Law (12/06) Lorman Education Services (Collection Law 10/96), Confidentiality of Medical Records (1/03); Ohio Institute of Photography – Business Law 1984; Conviser Miller – CPA Review Course 1986-1988.
Expert Witness Experience
Montgomery County Common Pleas Court in real estate law and reasonableness of attorney fees in divorce cases; Legal Eagles program with Dayton Bar Association and Fox 45 TV; reviewed cases as an expert in legal malpractice claims.
Over 34 state and federal cases published for stare decisis. Available upon request.
Over 100 national franchises and/or state corporate entities, financial institutions, and various nonprofit entities.