Attorney's Failure to Disclose His Dealings With Opposing Lawyer Was Not Fraudulent

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Dec. 18 — A divorce client has no claim for fraudulent concealment against her former attorney based on his failure to disclose that he had previously been represented by the opposing counsel in the divorce case, the Ohio Court of Appeals, Seventh District, held Dec. 8.

Judge Joseph J. Vukovich said the client could not establish an essential element of her claim: concealment of a fact that the lawyer had a duty to disclose.

The client invoked the Ohio Rules of Professional Conduct as the basis of her attorney's alleged duty to disclose his prior relationship with opposing counsel.

The court said, however, that “the rules alone cannot give rise to a cause of action against an attorney.” Even if a violation of the rules does provide a basis for civil liability, the facts as pleaded in this case do not show that there was a duty to disclose, Vukovich added.

Divorce Attorney's Divorce Attorney 

The ruling affirms the dismissal of legal malpractice and fraudulent concealment claims that Christine Bangor filed against her former divorce attorney, Charles Amato.

The fraud claim was based on an allegation that Amato failed “to disclose the nature of his extensive relationship and prior dealings” with the attorney who represented Bangor's ex-husband in the underlying case. Those “prior dealings” included opposing counsel's alleged representation of Amato in at least four cases, including Amato's own divorce.

Bangor said that relationship “was a material fact which affected [Amato's] loyalty and independent judgment,” and that Amato concealed it for “personal gain.”

Bangor argued that Amato's duty to disclose stemmed from Rule 1.7(a)(2), which provides that a conflict of interest requiring client consent exists where there is a “substantial risk that the lawyer's ability to consider, recommend, or carry out an appropriate course of action for that client will be materially limited by the lawyer's responsibilities to … a third person or by the lawyer's own personal interest.”

Bangor also cited Rule 8.4(c), which prohibits conduct involving dishonesty, fraud, deceit or misrepresentation, and Rule 8.4(d), which forbids conduct prejudicial to the administration of justice.

No Duty to Disclose 

The court acknowledged that “there is no case law” addressing whether those rules are breached when an attorney fails to disclose that he or she was previously represented by opposing counsel.

But the court nevertheless concluded that “the facts as pled” did “not indicate that there was a duty to disclose under Rule 1.7 or Rule 8.4.”

Ethics rules were not designed to provide a basis for civil liability, Vukovich noted. Moreover, he added, Bangor could not satisfy civil procedure rules that require fraud claims “to be pled with particularity.”

“The pleadings do not show that Amato nor [opposing counsel] have a personal interest in the Bangor divorce,” Vukovich wrote. “Amato was paid a flat fee and [opposing counsel] was paid an hourly fee.”

And while opposing counsel “may have gained personal information about Amato,” Vukovich said, “nothing in the pleadings indicate that this was of any use during the Bangor divorce. Thus, where is the potential conflict of interest that either attorney may have had that adversely impacted Christine?”

“Since there is no legal authority that there was a duty to disclose under the facts as pled, the trial court was correct in dismissing the fraud claim,” the court concluded.

Judges Gene Donofrio and Cheryl L. Waite joined the opinion.

Winkhart, Rambacher & Griffin represented Amato. The Law Offices of Andrew J. Simon represented Bangor.

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