David v. Schwarzwald, Robiner, Wolf & Rock Co., L.P.A.

• Citation: 607 N.E.2d 1173,79 Ohio App.3d 786
• Decision Date: 26 May 1992
• Docket Number: No. 60559,60559
• Parties: DAVID, Appellee and Cross-Appellant, v. SCHWARZWALD, ROBINER, WOLF & ROCK CO., L.P.A., et al.; Wolf, Appellant and Cross-Appellee. *
• Court: United States Court of Appeals (Ohio)

Page 786

79 Ohio App.3d 786

607 N.E.2d 1173

DAVID, Appellee and Cross-Appellant, v. SCHWARZWALD, ROBINER, WOLF & ROCK CO., L.P.A., et al.; Wolf, Appellant and Cross-Appellee. ^*

No. 60559.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided May 26, 1992.

Reminger & Reminger, Alan Parker and Margaret Gardner, Cleveland, for appellee and cross-appellant.

McNeal, Schick, Archibald & Biro Co., L.P.A., and Paul W. Ziegler, Cleveland, for appellant and cross-appellee.

JOHN F. CORRIGAN, Presiding Judge.

Defendant Marshall J. Wolf appeals from the order of the trial court which entered final judgment for plaintiff Audrey D. David on David's claim for legal malpractice. Plaintiff cross-appeals, challenging various rulings which preceded the entry of final judgment.

I

On May 28, 1987, plaintiff filed this action against defendant, Schwarzwald, Robiner, Wolf & Rock Co., L.P.A. ("SRW & R"), McCarthy, Libit, Crystal & Haiman Co., L.P.A. ("MLC & H") and Irwin S. Haiman, alleging that defendant Wolf disclosed confidential matters which plaintiff revealed to him during a consultation on February 4, 1982, thereby causing her to sustain emotional distress; that defendant Wolf was retained to serve as an expert for plaintiff in her 1985 divorce action, then, acting with the other named defendants, breached his attorney-client relationship and maliciously, recklessly and/or negligently violated his legal and ethical duties to plaintiff; and that defendant Wolf, with defendant Haiman, invaded plaintiff's privacy by acting as co-counsel for plaintiff's husband in the same divorce action.

Prior to trial, defendants Wolf and SRW & R were awarded summary judgment "only as to any and all claims for infliction of emotional distress filed by the plaintiff against these defendants, and * * * only as to plaintiff's causes of action for legal malpractice, fraud, and invasion of privacy against these defendants relating to the February, 1982 communication/disclosure referenced in paragraph 7 of plaintiff's complaint. Remainder of the motion for summary judgment is denied."

Plaintiff then dismissed her claims against Haiman and MLC & H, and on July 10, 1990, the cause proceeded to a jury trial on plaintiff's claims for legal malpractice, and invasion of privacy, and her request for punitive damages.

Plaintiff's key evidence consisted of her testimony, the testimony of defendant upon cross-examination, and the testimony of attorney Robert Zashin.

Defendant testified first and established that from 1982 through January 1988, he was a partner at SRW & R, and that he had no other law practice during this time period. He further testified, with respect to his meeting with plaintiff in 1982, that attorney Leonard Kleinman referred plaintiff to him, and that he later met with plaintiff and had a general discussion about divorce. He then had no further communication with plaintiff until he received a letter from plaintiff in March 1982 which provided:

"Thank you for consulting with me briefly on a personal matter in early February.

"As you are aware, I am deeply concerned for the welfare and best interests of my husband and children and it is my principal goal to resolve existing conflicts through professional counseling.

"At this time both my husband and I are receiving such counseling.

"For these reasons I have not retained you and do not plan to do so at this time.

"Very truly yours,

"/s/ Audrey D. David "

Defendant admitted, however, that Kleinman had never referred any clients to him before or since this incident, and that he had previously indicated, in a prior deposition, that he had no recollection of his discussion with plaintiff.

As to his involvement in plaintiff's divorce action, defendant testified that on April 30, 1986, he unexpectedly ran into attorney Robert Zashin, and Zashin flashed a check and said that he had just gotten a big retainer, and would be needing him in the future to testify. In response, defendant said that they would talk later. Defendant was subsequently invited to be a guest on Zashin's radio show, and the two had a discussion before the show started. According to defendant, however, they did not talk about plaintiff's divorce, or any specific action. Thereafter, in May 1986, Dr. David's attorney Irwin Haiman of MLC & H introduced defendant to Dr. David, and defendant was retained as co-counsel in the divorce proceedings.

Defendant next acknowledged that he had co-authored an article on attorney disqualification which appeared in the winter 1987 edition of Family Advocate, and that this article concerns an attorney's duty to preserve and maintain the secrets of his clients, or information gained in the professional relationship which the client requests to be held in confidence. Defendant further agreed that the attorney-client relationship can sometimes arise by implication, rather than by an express contract, and that it is not always necessary for the attorney to consent to the relationship, nor that a fee be paid.

Defendant denied, however, that he had ever entered into an attorney-client relationship with plaintiff, and claimed that it would be beyond the realm of possibility for Zashin to have retained him. Finally, defendant stated that he is not an expert on valuing closely held corporations, but he has given seminars which instruct attorneys on law to depose experts who provide such valuations.

Plaintiff testified, with respect to her initial meeting with defendant, that she experienced a major marital crisis in 1982 after seeing letters sent to her husband from various women and after being harassed by her husband and his close friend Kleinman. She then met with defendant, whom she considered a "specialist" in domestic relations law, and discussed intimate details of her marriage, including her husband's paramours, his business, his transmission of venereal diseases, and his threatening her with weapons. She further explained her husband's relationship with Kleinman, as well as her fear of Kleinman, and she informed defendant that the matters which they had discussed must be kept secret. She then offered to pay for the consultation with cash so that her husband would not learn of it.

Later that evening, plaintiff's husband informed her that he was aware that she had met with defendant, and he went into a "tirade." Plaintiff called defendant, and he instructed her to send a letter to him, with a copy to Kleinman, which minimized their prior meeting, and explained that plaintiff had not retained defendant. Plaintiff prepared this letter on March 12, 1982 and sent it to defendant, and also sent a copy to Kleinman.

As to defendant's involvement in her divorce proceedings, plaintiff established that she met with attorney Zashin in July 1985, after learning that her husband had filed for a divorce. At this meeting, Zashin asked her if she would mind if he hired defendant to assist with the discovery of Dr. David's assets and to provide expert testimony on the matter of attorney fees. Plaintiff consented, and later learned that defendant had agreed to work for her in the action.

Plaintiff subsequently discharged Zashin in early 1986. She then rehired him in April 1986 and also retained attorney James Skirbunt as co-counsel. On April 30, 1986, she wrote checks to Skirbunt and Zashin for their retainers, and also wrote a check for $10,000 payable to Zashin's escrow account, which was to be used to pay for expert services and costs.

On June 2, 1986, plaintiff learned that defendant had appeared in the proceedings on behalf of Dr. David, and she became frightened of the consequences. Thereafter, all substantive proceedings were stayed, as Zashin and Skirbunt sought to have defendant disqualified.

Finally, plaintiff established that she expended $12,000 to $13,000 in Skirbunt's fees pertaining to plaintiff's motion to disqualify defendant, and she expended $1,500 to $2,000 on Zashin's fees. While she ultimately agreed to settle her divorce action, plaintiff stated that she believed that defendant's conduct had compromised her position during negotiations, and she therefore received less than she would have had defendant not been involved. Finally, plaintiff indicated that as a consequence of defendant's action, she was unable to obtain temporary alimony and payment of various bills, had incurred $5,000 in cost of psychological counselling, and was unable to preclude her husband from depleting over $100,000 from one of the parties' accounts.

Zashin's testimony likewise established that he met with plaintiff in July 1985. At this time, plaintiff indicated that he had seen defendant in 1982, and that he dictated a letter which solved difficulties in her marriage for a few years. She recently learned, however, that her husband had filed for divorce and she authorized Zashin to commence proceedings against him. Zashin then suggested that plaintiff retain defendant to assist in discovering the extent of Dr. David's assets because, Zashin testified, defendant is renowned for his ability to do so and has given seminars on this topic. Zashin further suggested that plaintiff retain defendant to serve as an expert on the issue of attorney fees. Plaintiff agreed to both suggestions.

Zashin later ran into defendant unexpectedly and mentioned the retainer to him. According to Zashin, defendant vaguely remembered plaintiff. Later, in December 1985, Zashin called defendant and said that he was in the process of getting the parties' relevant documents together, and defendant indicated that he would be available when Zashin was ready.

On April 30, 1986, Zashin testified as an expert for defendant at a hearing in Lundie v. Lundie, case No. D-125330, and showed defendant the check plaintiff had written to his escrow account. Zashin explained that defendant's fees in plaintiff's case were now protected and defendant reportedly indicated that he was ready when needed. The two then...