Chicago Legal Malpractice Lawyer Blog
A recent decision by the Ohio Court of Appeals, Meehan v. Smith, 2022 Ohio 2359 (8th Appellate Dist. 2022), is instructive on the difficulties that an expected beneficiary of a will or estate plan sues for legal malpractice. The expected beneficiary (daughter of the decedent) claimed that she was a client or intended beneficiary of the estate planning law firm that revised her mother’s estate plan.
{¶ 15} At the discovery deposition in this case, appellant testified that she never signed an engagement letter with appellees. She also testified that she personally never paid them any money (she only issued checks drawn from Teepee & Petunia’s accounts at her parents’ direction). However, appellant testified that when her parents initially sought estate planning services, and she and other family members met with appellee attorney Smith, “it was [her] assumption that he was representing the entire family.” Appellant testified that she had that assumption because Smith “would always say to [her] specifically if [she] had any questions to make sure [she] [s]hould give him a call.”
{¶ 16} Appellant further testified that she “felt [she] was being included” in the meetings with her parents and brothers, and Smith “represented the documents.” Donna’s estate planning also provided for the possibility that her 2018 trust funds could be used for appellant’s own estate planning — a point appellant relies on for her claim of the establishment of an attorney-client relationship. Appellant did admit that Smith never told her he was representing the entire family. She further admitted that Smith never told her he was representing her personally. She testified that Smith never told her in “those specific words” that he was her attorney, but she “felt like [she] was his client because [she] was included, as were [her] brothers that were there. It was [her] understanding that [Smith] was representing the family under the estate planning of [her] parents.” (Emphasis added.) The record demonstrates that appellant does not have any legal training.
{¶ 17} Appellant specifically testified that “[t]he subject matter for all the meetings [was her] parents’ estate and trust.” She further testified that after a 2014 meeting she and other family members participated in with appellee Smith, she had no contact with him until 2017. In 2017, Smith introduced appellee Bartimole to the family and told them Bartimole would be helping with Donna’s estate documents and provided Medicaid specific estate planning.
{¶ 18} According to appellant, she became Bartimole’s client when he started working on the estate planning affairs and felt that this could have occurred before she even met him. Appellant acknowledged that Bartimole too never told her he was her attorney. In fact, she testified that when she first met Bartimole at an April 2018 meeting with Donna, he was representing Donna at that meeting.
{¶ 19} Appellant testified that at the April 2018 meeting when Donna revised her estate plan, attorney Bartimole requested that appellant and Timothy leave the room so that he could speak to Donna alone. After an approximate ten-minute meeting alone with Donna, Bartimole had appellant and Timothy re-enter the room and appellant, Timothy, and Donna all signed the respective documents.
{¶ 20} At the close of discovery, appellees filed a motion for summary judgment asserting that they never entered into an attorney-client relationship with appellant.
Both the trial and appellate courts held that there was no attorney-client relationship established.
{¶ 39} A review of appellant’s deposition testimony demonstrates that, by her own admission, appellees were representing her parents. Her testimony on this issue includes the following: (1) her brothers told her they had been in contact with appellee Smith “to discuss my mom’s estate planning”; (2) appellees “were presenting that some estate planning needed to de done, some Medicaid planning for my mother”; (3) the subject matter for all the meetings [was] my parents’ estate and trust”; and (4) appellee Smith “said * * * in general to the [family] that he was the lawyer representing the documents and [told the family] what [he was] preparing [them] for the estate of our parents.”
{¶ 40} The record further demonstrates that the attorney-client relationship was formed with Thomas and Donna by the fact that appellee Bartimole requested at the April 2018 meeting that appellant and Timothy leave the room so that he could speak to Donna alone. “The attorney-client privilege is one of the oldest recognized privileges for confidential communications.” Swidler & Berlin v. United States, 524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998). It “exempts from the discovery process certain communications between attorneys and their clients.” Cargotec, Inc. v. Westchester Fire Ins. Co., 155 Ohio App.3d 653, 2003-Ohio-7257, 802 N.E.2d 732, ¶ 7 (6th Dist.). The joint-client and common-interest doctrines operate as exceptions to the general rule that voluntary disclosure of communications made with one’s attorney to a third party waives the attorney-client privilege. MA Equip. Leasing I, L.L.C. v. Tilton, 10th Dist. Franklin Nos. 12AP-564 and 12AP-586, 2012-Ohio-4668, 980 N.E.2d 1072, ¶ 26; Cooey v. Strickland, 269 F.R.D. 643, 652 (S.D.Ohio 2010). The joint-client doctrine “`applies when multiple clients hire the same counsel to represent them on a matter of common interest.'” Id., quoting In re Teleglobe Communications Corp. v. BCE Inc.,493 F.3d 345, 359 (3d Cir.2007)….
{¶ 42} In addition to a lack of evidence demonstrating that appellees impliedly represented appellant personally, they also did not impliedly represent her in her capacity as an officer or manager of Teepee & Petunia.
Ohio law has consistently held that “an attorney’s representation of a corporation does not make that attorney counsel to the corporate officers and directors as individuals.” Nilavar v. Mercy Health System Western Ohio (S.D. Ohio 2001), 143 F.Supp.2d 909, 913. See, also, Hile v. Firmin, Sprague & Huffman Co., L.P.A. (1991), 71 Ohio App.3d 838, 595 N.E.2d 1023. Therefore, Ohio law has consistently recognized that because the corporation is a separate entity from its directors and officers, causes of action belonging to the corporation may not be litigated by the officers for their own benefit. See Maloof v. Squire, Sanders & Dempsey, L.L.P., et al., Cuyahoga App. No. 82406, 2003 Ohio 4351.
Maloof v. Benesch, Friedlander, Coplan & Aronoff, 8th Dist. Cuyahoga No. 84006, 2004-Ohio-6285, ¶ 17.
Comment: this is a classic no duty case where the plaintiff could not establish that he was represented by the attorney and, thus, had no claim for legal malpractice.
Ed Clinton, Jr.