The ABA/BNA Lawyers’ Manual on Professional Conduct™ is a trusted resource that helps attorneys understand cases and decisions that directly impacts their work, practice ethically, and...
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.
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.
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.
Copyright 2015, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)