Update: On December 7, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
Read the analysis of the argument in this case here.
On February 23, 2016, the Supreme Court of Ohio will hear oral argument in the case of Lorna B. Ratonel et al v. Roetzel & Andress, LPA, et al. At issue in this legal malpractice case is when, how, and whether an attorney may limit the scope of an attorney-client relationship.
In 2007, Lorna Ratonel engaged the services of attorney Gail Pryse and the law firm of Keating, Muething & Klekamp (KMK) to help Ratonel acquire a multi-family apartment complex in Dayton, Ohio known as the Holden House, and another apartment complex in Nebraska, known as the French Village. According to Ratonel, KMK breached its professional duties with regard to the acquisition of these properties, causing her to incur monetary losses. Ratonel engaged attorney Mark Ropchock of Roetzel & Andress, LPA (R&A), to pursue a legal malpractice action against KMK. The two parties entered into a written engagement agreement for the provision of legal services with regard to the Holden House transaction, though the contract noted that the parties could agree to include additional services that were not specified in the agreement.
On May 13, 2009, Ropchock, on behalf of Ratonel, filed a complaint against KMK. The complaint related entirely to Holden House, except for a single paragraph which alleged a claim related to the French Village Apartments. Further emails between Ropchock and Ratonel discussed KMK’s handling of the French Village property. In January of 2010, Ropchock emailed Ratonel a draft settlement demand letter that included liability for French Village. On April 30, 2010, however, Ropchock sent an email to Ratonel, advising her that “there is no viable claim against KMK on [French Village],” because any damages were too speculative. Ropchock omitted any mention of French Village from future settlement letters and amended complaints.
The case was tried before a jury in October 2010. The trial court directed a verdict in favor of KMK, finding that Ratonel failed to present competent evidence regarding proximate cause and damages. The parties then entered into a settlement agreement. In exchange for Ratonel’s agreement to forgo an appeal, KMK agreed to dismiss its counterclaim for attorney fees. Thereafter, Ratonel and Ropchock exchanged emails in which Ratonel stated that she did not understand what had happened to cause the trial to end. She also accused Ropchock of pressuring her into accepting the settlement. Ratonel then hired another law firm to initiate a lawsuit against Ropchock and R&A for legal malpractice, claiming that Ropchock (i) erroneously advised Ratonel that the French Village claims were not viable, and (ii) dismissed the French Village claims with prejudice, without ever informing Ratonel of the dismissal, or even suggesting that she seek other counsel to pursue the claims.
The trial court rendered partial summary judgment in favor of Ropchock and R&A with regard to the claims concerning French Village, concluding that the alleged malpractice was outside the scope of Ropchock’s representation of Ratonel, and concluding that Ropchock refused to represent Ratonel with respect to any claims regarding French Village. At the request of the parties, the trial judge certified that there was no just cause for delay of the appeal.
In a split decision authored by Judge Fain, joined by Judge Froelich, the Second District Court of Appeals reversed the trial court’s summary judgment order, finding that there were genuine issues of material fact concerning whether the French Village malpractice claim was within the scope of Ropchock’s representation of Ratonel. Judge Hall dissented, agreeing with the trial court that there was no genuine issue of material fact on the scope of the representation.
Key Statutes and Precedent
Civ.R.56(C) (Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.)
Prof. Cond. Rule 1.2(c) (A lawyer may limit the scope of a new or existing representation if the limitation is reasonable under the circumstances and communicated to the client, preferably in writing.)
New Destiny Treatment Center, Inc. v. Wheeler, 2011-Ohio-2266, (An attorney-client relationship exists when a person manifests an intention to obtain legal services from an attorney and the attorney either consents or fails to negate consent when the person has reasonably assumed that the relationship has been established. Absent an attorney-client relationship, a plaintiff may not maintain an action for legal malpractice.)
Valhila v. Hall, 77 Ohio St.3d 421 (1997) (A lawyer’s duty is fixed by the scope of his representation, and a client must establish the existence of an accepted duty as an essential element of a malpractice case.)
Hubbell v. City of Xenia, 2007-Ohio-4839 (The denial of a motion for summary judgment which does not involve purely legal questions is neither a final nor appealable order.)
Roetzel & Andress’ Argument
R&A argues that the parties signed a contract for limited representation with the understanding that the scope of the representation was limited solely to Holden House Apartments. They insist that Ratonel understood that the two purchases involved totally different issues of fact and law, and that Ropchock refused to pursue a claim based on the French Village apartments, which he believed was not viable, and that this was clearly explained to Ratonel. Any reference to French Village in the initial complaint was eliminated in the amended complaint. The draft letter mentioning French Village was never sent; it was nothing more than a strategy, subsequently disregarded, to try and leverage a settlement. The settlement letter that was sent made no mention of French Village.
Based on this understanding, R&A asserts that a legal malpractice claim cannot be filed against a lawyer who, with full understanding of the client, declines to undertake a claim on behalf of a client. In addition, R&A argues that, even if it had agreed to represent Ratonel on the French Village issues, it unequivocally terminated that representation in the April 30, 2010 email in which Ropchock stated that there was no viable claim against KMK with regard to French Village.
R&A argues that the Court of Appeals has placed an unfair burden on the profession by creating the prospect of liability involving claims that an attorney has declined to take. It warns that the decision leaves lawyers open to unacceptable risk. According to R&A, this exposure would lead to an unwillingness to accept risks, which in turn would make it difficult for Ohio citizens to obtain legal representation. To remedy this, R&A asks that the court address the public policy issues of limited representation. It asks the court for a bright-line rule that lawyers have the right to limit their representation, and that it is reasonable to do so as long as the limitation is in writing, and signed by the client.
At all times in this case, and under the terms of the engagement letter, Ratonel could have ended R&A’s representation, hired another lawyer to pursue the claims against Holden House and/or French Village, or done so pro se.
Additionally, R&A argues that the trial court properly awarded it summary judgment. It further contends that none of the factual contentions behind Ratonel’s claims satisfy the barriers of Civil Pro. R. 56(C), and asks the court to re-endorse the gate-keeping function of this rule.
Ratonel argues that R&A clearly established an attorney-client relationship with respect to KMK’s representation regarding the French Village apartments. R&A’s engagement letter expressly allowed for the provision of services outside the scope of R&A’s representation. She further contends that R&A’s actions reflect an intent to pursue claims based on KMK’s handling of the French Village apartments. Specifically, R&A included a claim for negligent drafting of the French Village Purchase Agreement in its initial complaint against KMK, sent Ratonel several emails discussing French Village, took depositions on the subject of KMK’s negligent drafting, and created a draft settlement demand letter which included a reference to the French Village claim. In addition, Ratonel contends that R&A unilaterally removed Ratonel’s claims against KMK for French Village from its amended complaint, leaving Ratonel with no option to preserve those claims.
Ratonel further argues that this case does not involve a final appealable order. She argues that the Supreme Court does not have jurisdiction to review this case. If the court does determine that it can review this case, Ratonel contends that a de novo review is required, construing evidence most strongly in her favor. However, even without this accommodation, she argues that the undisputed facts of this case establish that R&A had an attorney client-relationship with respect to the French Village claims.
Finally, Ratonel takes aim at R&A’s public policy argument, arguing that R&A authored a fictional account of the relationship between Ratonel and R&A, which falsely asserts that Ratonel knew that R&A would not pursue the French Village claims. Ratonel disputes this account of the facts and argues that R&A cannot excuse its negligence by hiding behind a public policy argument. Ratonel asks the court to reaffirm the long-standing principle that an attorney-client relationship is created when a lawyer represents a client in court proceedings, advises a client, and/or acts on a client’s behalf in connection with the law. R&A did all of these things in regard to the French Village matter.
Roetzel & Andress’ Proposed Proposition of Law No. I
An action for legal malpractice cannot be sustained against a lawyer who, with full understanding of the client, declines to undertake a claim on behalf of the client at a time when there is no statutory bar preventing the client from pursuing the claim pro se or by engaging other counsel.
Roetzel & Andress’ Proposed Proposition of Law No. II
An action for legal malpractice cannot be sustained against a lawyer who, with full understanding of the client, withdraws from representation of the client at a time when there is no statutory bar preventing the client from pursuing the claim pro se or by engaging other counsel.
Student Contributor: Michael Elliott