Abuse of process: The elements of abuse of process 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). Yaklevich, the leading Ohio abuse-of-process decision, was a lawyer vs. law firm case. For a variety of reasons, we have concluded that Yaklevich and its progeny are more appropriately discussed in 1.1:510, rather than here. First, even though Yaklevich involved lawyer liability to a nonclient – the subject of the Scholler rule – Scholler is not even cited.
Second, there is nothing in the rule set forth in the Yaklevich syllabus (or anywhere else in the body of the opinion) that even mentions “malice”; it is injected only by the plaintiff’s complaint. Third, the Court’s footnote 2 (quoting W. Page Keeton, et al., Prosser on Torts 898 (5th ed. 1984)), also suggests that malice is not an integral element of the tort. See 68 Ohio St.3d 298 n. 2, 626 N.E.2d at 118 n.2: “‘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’” (bracketed material and emphasis added). Perhaps a case can be made that malice is implicit in the second
Yaklevich element – perverting the proceeding to accomplish an ulterior purpose – and one Ohio federal case has read the law in a manner consistent with this analysis. See Luciani v. Schiavone, C-1-97-272, 2001 U.S. Dist. LEXIS 25918 (S.D. Ohio Jan. 2, 2001), where, after defendants injected Scholler immunity as a defense, the court found that under Zipperstein bad faith is
tantamount to malice and that, inasmuch as a lawyer seeking to obtain relief from a court powerless to grant it is acting in bad faith, defendants were not entitled to summary judgment because plaintiffs may establish that the lawyer-defendants acted maliciously “when they perverted the Ohio
proceeding by seeking relief that the Ohio court could not grant.” Id. at *19. Nevertheless, we believe this tort, as invoked against lawyers, is more appropriately discussed in section 1.1:520 infra.
Conversion: The Scholler immunity rule was held not to apply in a case in which the nonclient sued lawyers for an estate; the complaint alleged that they participated in a wrongful taking of property belonging to the plaintiff, the deceased’s widow. Carrocia v. Carrocia, 21 Ohio App.3d 244, 486 N.E.2d 1263 (Cuyahoga 1985). Reversing the trial court’s grant of summary judgment based on the one-year malpractice statute of limitations, the court of appeals held that the four-year statute for conversion (ORC 2305.09) applied and remanded for further proceedings. In the court’s view, the complaint sufficiently alleged malice or bad faith to take the case out of the general rule of lawyer immunity to third persons established in Scholler.
Compare Moffitt v. Litteral, 2002 Ohio 4973, 2002 Ohio App. LEXIS 5000 (Montgomery), where the court affirmed summary judgment for the defendant lawyer on plaintiff’s conversion claim because, under Scholler, the lawyer was not in privity with the plaintiff and acted, not with malice, but on the basis of his good-faith belief, even though that belief turned out to be erroneous.
Libel and slander - Qualified privilege: Lawsuits against lawyers for defamation typically fall into two categories -- those in which the lawyer may have a qualified privilege to publish the matter in question and those in which the lawyer may be absolutely privileged to do so. See Bigelow v.
Brumley, 138 Ohio St. 574, 37 N.E.2d 584 (1941), for a comparison of the two privileges and an extensive discussion of absolute privilege. As is more fully set forth in section 1.3:390 supra, absent malice, the qualified privilege protects the speaker from liability for statements made in good faith in the discharge of a public or private duty or in the conduct of her own affairs in matters where her interest is concerned, with publication to appropriate persons only, e.g., Gruenspan v. Seitz, 124 Ohio App.3d 197, 705 N.E.2d 1255 (Cuyahoga 1997), whereas the absolute privilege protects the speaker in four traditional categories: (1) statements made in legislative and (2) judicial proceedings, (3) official acts of executive officers of a state or nation, and (4) acts done in the exercise of military authority.
In the former instance, qualified privilege, the rule fits within the Scholler mold -- the privilege applies to statements made by a lawyer in furtherance of the client’s, the lawyer’s, or the public’s interests and the lawyer cannot be held liable to nonclients unless the statement was made with actual malice, that is, with knowledge of its falsity or with reckless disregard of its truth or falsity. See A&B-Abell v. Columbus/Central Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 651 N.E.2d 1283 (1995) (nonlawyer defendant). There were two Ohio qualified privilege cases found involving lawyers as defendants. In the first, Michaels v. Berliner, 119 Ohio App.3d 82, 694 N.E.2d 519 (Summit 1997), the court reversed a grant of summary judgment for the defendant attorneys because plaintiff, also an attorney, had brought forth evidence showing that a genuine issue
of fact existed regarding the presence of actual malice. See id. at 90-92, 694 N.E.2d at 524-25. The second case, Krakora v. Gold, No. 98 CA 141, 1999 Ohio App. LEXIS 4699 (Mahoning Sept. 28, 1999), is discussed in this section infra under the heading “No Liability to Nonclient Based on Absence of Malicious Conduct” and in section 1.1:510.
The latter instance, absolute privilege for lawyer statements made in a judicial proceeding, applies a special rule not covered by Scholler; see discussion this section infra under the heading “No
Liability to Nonclient even if Conduct Is Malicious.” A comprehensive review of the lawyer’s absolute privilege is set forth in section 1.1:510.
Malicious prosecution: In a decision the dissent termed a “judicial aberration,” the Ohio Supreme Court in Border City Savings & Loan Ass’n v. Moan, 15 Ohio St.3d 65, 472 N.E.2d 350 (1984) (per curiam), reversed the ruling of the two lower courts sustaining defendant attorneys’ OH Civ R 12(B)(6) motions to dismiss for failure to state a malicious prosecution claim upon which relief could be granted. Relying heavily on its then-recent decision in Scholler v. Scholler, 10 Ohio St. 98, 462 N.E.2d 158 (1984) (decided after both courts below had ruled), the majority concluded that the complaint was sufficient to withstand the motions to dismiss:
Scholler establishes that an attorney may be liable to third persons if the attorney acts maliciously. Further, appellant’s complaint does allege intentionally inflicted harm as a result of the numerous lawsuits commenced by appellees. It will be incumbent upon appellant to establish that these lawsuits were instituted maliciously, without probable cause, and, as a general rule, were terminated in appellant’s favor. Nonetheless, it does not render appellant’s complaint fatally defective and subject to dismissal that each element of this cause of action was not set forth in the complaint with crystalline specificity.
Id. at 66, 472 N.E.2d at 352 (citing to OH Civ R 8(A)(1), requiring only “a short and plain statement of the claim that the pleader is entitled to relief”). In a persuasive dissent, two justices argued that the complaint did not state an actionable claim for malicious prosecution and therefore had been properly dismissed. The dissenting justices noted that the allegations of the complaint satisfied only the first of the four elements of a malicious prosecution claim -- [1] malicious institution of the prior claim --
“and do not allege or even give rise to an inference that the remaining three essential, designated elements exist, namely [2] lack of probable cause, [3] termination of the prior proceedings in [the malicious prosecution] plaintiff’s favor, and [4] seizure of the person or property of [the malicious prosecution] plaintiff.” 15 Ohio St.3d at 68, 472 N.E.2d at 352-53 (bracketed material added). The dissenters thought Scholler irrelevant, since it was not a malicious prosecution case. In three
subsequent decisions, two of which did not involve lawyers as parties, the Supreme Court
reconfirmed that all four factors, including the controversial seizure-of-plaintiff’s-person-or-property requisite, are “essential elements [that] must be alleged by the plaintiff” in an action for malicious civil prosecution in Ohio. Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d 264, 264, 662 N.E.2d 9, 10 (1996) (syllabus); accord Crawford v. Euclid Nat’l Bank, 19 Ohio St.3d 135, 139, 483 N.E.2d 1168, 1171 (1985). The third decision, Kelly v. Whiting, 17 Ohio St.3d 91, 477 N.E.2d 1123 (1985), a lawyer case decided after Border City, did not turn on the presence or absence of malice; it is discussed in section 3.1:400. It should also be noted that in another case not involving
lawyers as parties, the Ohio Supreme Court established that the seizure of person or property is not a necessary element of the tort of malicious criminal prosecution. Trussell v. Gen. Motors Corp., 53 Ohio St.3d 142, 559 N.E.2d 732 (1990).
In addition to Border City, a number of court of appeals cases involving lawyers find or support liability based on malicious conduct. Unlike Border City, however, these decisions have consistently applied the four-part test. E.g., Dever v. Lucas, 174 Ohio App.3d 725, 2008 Ohio 332, 884 N.E.2d 641 (Delaware) (each element sufficiently alleged; 12(B)(6) dismissal reversed); Butts v. Bjelovuk, 129 Ohio App.3d 134, 717 N.E.2d 381 (Cuyahoga 1998) (summary judgment for defendant
attorney reversed; court found that conflicting evidence created genuine issue of material fact as to defendant’s malice and lack of probable cause in bringing eviction action against plaintiff and that plaintiff had satisfied the other two elements of the tort (termination of prior action in her favor and seizure of her property through garnishment of her bank account)); Shore, Shirley & Co. v. Kelley, 40 Ohio App.3d 10, 531 N.E.2d 333 (Cuyahoga 1988) (upholding jury verdict against defendant attorney; $ 15,000,000 counterclaim, filed by attorney with malice and without probable cause in prior action and dismissed therein, caused cancellation of claimant accounting firm’s malpractice insurance and other damages). See Pollack v. Kanter, 68 Ohio App.3d 673, 589 N.E.2d 443 (Cuyahoga 1990) (malicious criminal prosecution case decided one month before Trussell came down; reversing OH Civ R 12(B)(6) dismissal of complaint alleging that defendant lawyers
forwarded to prosecutors letter written by plaintiff lawyer, as a result of which plaintiff was arrested and indicted for extortion, which indictment was later nolled; allegations that indictment secured by perjured testimony sufficient to infer malice and lack of probable cause).
Finally, one should be aware that the Ohio Supreme Court in Yaklevich v. Kemp, Schaeffer &
Rowe Co., L.P.A., 68 Ohio St.3d 294, 626 N.E.2d 115 (1994), an abuse of process case, also discussed the tort of malicious prosecution. Malicious prosecution is further discussed in section 1.1:520.
Malpractice: LeRoy v. Allen Yurasek & Merklin, 162 Ohio App.3d 155, 2005 Ohio 4452, 832 N.E.2d 1246 (Union) (reversal of grant of motion to dismiss in favor of defendant lawyers; allegation of collusion sufficient under malice exception permitting suits against nonclients). In affirming on this point, 114 Ohio St.3d 323, 2007 Ohio 3608, 872 N.E.2d 254, the Supreme Court expressly approved the appellate court’s application of the rule of Simon v. Zipperstein, 32 Ohio St.3d 74, 76-77, 512 N.E.2d 636, 638 (1987), given the presence in the LeRoy complaint of the “‘special circumstances such as fraud, bad faith, collusion, or other malicious conduct which would justify departure from the general rule.’” 114 Ohio St.3d 323, at paras. 32-33 (quoting Simon).
Various state-law tort claims: In Vector Research, Inc. v. Howard & Howard Attorneys, P.C., 76 F.3d 692 (6th Cir. 1996), plaintiffs sued a competitor and the competitor’s attorneys for actions taken in connection with a search and seizure issued in the competitor’s copyright action against plaintiffs in the case at bar. The corporate plaintiff sued for trespass, conversion, abuse of process, and malicious use of civil process. The individual plaintiffs, employees of Vector, sued for invasion of privacy, abuse of process, and malicious use of civil process. The trial court granted the attorneys’
motion to dismiss for failure to state a claim on which relief could be granted. Reversing, the Sixth Circuit held that while under Ohio law attorneys generally enjoy immunity from liability to third persons for acts performed in good faith and with the knowledge of their clients, there is no immunity
where the attorneys acted maliciously (citing Scholler). The court found that malice had been sufficiently alleged to survive a motion to dismiss.