As was stated with respect to the former OHCPR, “violation of the Disciplinary Rules does not, in itself, create a private cause of action.” Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171, 178, 707 N.E.2d 853, 859 (1999) (trade secret/tortious interference case). Accord Am. Express Travel Related Servs. Co. v. Mandilakis, 111 Ohio App.3d 160, 675 N.E.2d 1279 (Cuyahoga 1996) (potential DR 702(B)(1) liability does not give rise to civil liability for malpractice). However, as Judge Karpinski noted in her concurring opinion in Kutnick v. Fischer, 2004 Ohio 5378, 2004 Ohio App. LEXIS 4907 (Cuyahoga), “[a]lthough a violation of the [OHCPR] is not, in itself, a form of legal malpractice, the Code sets a background against which legal practice is understood.” Id.
at para. 96. Accord Findlay/Hancock County Bar Ass’n v. Filkins, 90 Ohio St.3d 1, 7, 734 N.E.2d 764, 769 (2000) (“a successful disciplinary action may support a malpractice action for damages.”). See Columbus Bar Ass’n v. McCorkle, 105 Ohio St.3d 430, 2005 Ohio 2588, 828 N.E.2d 99 (referencing default judgment in malpractice action obtained by client based on neglect in respondent’s letting statute of limitation run on client’s personal injury claim). And see
Northwestern Life Ins. Co. v. Rogers, 61 Ohio App.3d 506, 512, 573 N.E.2d 159, 163 (Franklin 1989) (rejecting plaintiff’s argument that defendant attorney’s conflict of interest violative of OHCPR constituted malpractice per se, resulting, without more, in legal malpractice liability; “the client must have incurred damages which were directly and proximately caused by the attorney’s malpractice”). Accord DeMeo v. Provident Bank, 2008 Ohio 2936, 2008 Ohio App. LEXIS 2475 (Cuyahoga). See also Montgomery v. Gooding, Huffman, Kelly & Becker, 163 F. Supp.2d 831 (N.D. Ohio 2001) (violations of OHCPR “do not constitute malpractice per se,” id. at 836, citing Rogers).
The Rules of Professional Conduct carry forward these guidelines. See Scope at [20]:
Violation of a rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. . . . [The rules] are not designed to be a basis for civil liability. . . . Nevertheless, since the rules do
establish standards of conduct by lawyers, a lawyer’s violation of a rule may be evidence of a breach of the applicable standard of conduct.
Conversely, conduct that constitutes malpractice may not rise to the level of a disciplinary violation.
See Office of Disciplinary Counsel v. Kay, 75 Ohio St.3d 397, 398, 662 N.E.2d 351, 352 (1996) (finding that attorney’s misrepresentation to his client concerning the status of his case, which had been dismissed, “constituted more than just negligence” and merited disciplinary action). Cf. Collins
v. Morgan, No. 68680, 1995 Ohio App. LEXIS 5098 (Cuyahoga Nov. 16, 1995) (dictum) (decision of Office of Disciplinary Counsel that conduct of attorney did not warrant disciplinary action, in proceeding arising from grievance filed by malpractice plaintiff against defendant attorney, does not act as res judicata bar to plaintiff’s subsequent action for malpractice).
How the OHRPC will change, or not change, this interrelationship between the Rules and a private cause of action for malpractice remains to be seen, but likely it will remain the same. See Laws. Man.
on Prof. Conduct (ABA/BNA) § 301:109 (1998).
One case in which a lawyer-defendant tried to turn the relationship between disciplinary rules and attorney liability (here involving settlement funds to which client was entitled, rather than malpractice) to his advantage is Watterson v. King, 166 Ohio App.3d 704, 2006 Ohio 2305, 852 N.E.2d 1278 (Stark). After being disciplined for charging the client a nonrefundable retainer on top of a
contingent fee, see Stark County Bar Ass’n v. Watterson, 103 Ohio St.3d 322, 2004 Ohio 4776, 815 N.E.2d 386, Watterson had the chutzpa in the settlement-fund action to argue on appeal that plaintiff was not entitled to recover because “the Ohio Supreme Court’s disciplinary opinion bars any further action under the doctrine of res judicata.” 166 Ohio App.3d 704, at para. 18. The court quotes bromides such as violation of the disciplinary rules does not, in itself, create a private cause of action [Watterson, of course, was arguing that it defeats a private cause of action] and then concludes, correctly, that “a disciplinary action does not bar a civil lawsuit on the same or similar conduct under the doctrine of res judicata.” Id. at para. 18. It would be one thing if Watterson had been found not to have violated the disciplinary rules and then argued that a civil suit against him premised on the same or similar conduct was barred; his argument that the civil suit to recover the funds owing was barred by res judicata based on a finding of violation is a nonsequitur.
See also sections 1.6:330, 1.6:630, 1.7:260, and 1.8:900.
Disclosure requirement for lawyers who do not carry minimum amount of malpractice insurance: Not only do the professional responsibility rules play an indirect role in setting standards applied in malpractice actions, but they sometimes address malpractice issues more directly. For example, effective July 1, 2001, the Ohio Supreme Court adopted former OH DR 1-104, which obligated Ohio lawyers (other than government and in-house lawyers) to inform their clients if they failed to maintain a minimum level of malpractice insurance ($ 100,000 per occurrence, $ 300,000 aggregate) or if their malpractice insurance has been terminated. A standard form of notice was appended to the
disciplinary rule, as was an acknowledgment by the client that the client has been so informed. The lawyer must retain the notice for a minimum of five years after the representation concludes. These provisions have been incorporated into the Rules; see Ohio Rule 1.4(c); see also Rule 1.4 cmts. [8]
& [9].
Of the many disciplinary decisions applying DR 1-104, see Columbus bar Ass’n v. DiAlbert, 120 Ohio St.3d 37, 2008 Ohio 5218, 896 N.E.2d 137; Dayton Bar Ass’n v. Landon, 108 Ohio St.3d 173, 2006 Ohio 546, 842 N.E.2d 42. See also Toledo Bar Ass’n v. DeLabbio, 101 Ohio St.3d 147, 2004 Ohio 338, 803 N.E.2d 389, where, in fashioning an appropriate sanction for a lawyer whose malpractice insurance had lapsed, the Court made one of the conditions of a stayed six-month suspension that respondent cooperate with a monitoring attorney, “including conscientious client representation and notice as required by DR 1-104,” id. at para. 11. Ethics opinions citing to former DR 1-104 are Bd. of Comm’rs on Grievances & Discipline Op. 2005-1, 2005 Ohio Griev. Discip.
LEXIS 1 (Feb. 4, 2005), and Bd. of Comm’rs on Grievances & Discipline Op. 2003-3, 2003 Ohio Griev. Discip. LEXIS 3 (June 6, 2003). In Opinion 2003-3, the Board opined that, in a fee-sharing context, each lawyer is responsible for providing the OH DR 1-104 disclosure notice, if applicable, to the client. In Opinion 2005-1, OH DR 1-104 was found inapplicable to a lawyer who performed research and writing on a contract basis for other attorneys, if the lawyer was not engaged by, did not meet with, and did not offer advice to clients. According to the Board, such a lawyer is not considered to be engaged in the practice of law. We think the preferable rationale, also stated by the Board, is simply that the 1-104(A) notice requirements “apply to attorneys who are engaged by clients to provide legal services,” and thus has no application to attorneys who do nothing more than provide research and writing to other attorneys on a contract basis. Id. at *3.