Simon v. Zipperstein

• Decision Date: 12 August 1987
• Docket Number: No. 86-1634,86-1634
• Citation: 512 N.E.2d 636,32 Ohio St.3d 74
• Parties: , 56 USLW 2190 SIMON, Appellee, v. ZIPPERSTEIN, Appellant.
• Court: Ohio Supreme Court

Page 74

32 Ohio St.3d 74

512 N.E.2d 636, 56 USLW 2190

SIMON, Appellee, v. ZIPPERSTEIN, Appellant.

No. 86-1634.

Supreme Court of Ohio.

Aug. 12, 1987.

Carl A. Genberg, Columbus, for appellee.

Jenks, Surdyk, Gibson & Cowdrey Co., L.P.A., and Thomas E. Jenks, Dayton, for appellant.

PER CURIAM.

The sole consideration presented by this appeal is whether in the absence of fraud, collusion or malice, an attorney may be held liable in a malpractice action by a beneficiary or purported beneficiary of a will where privity is lacking. For the reasons that follow, we answer this question in the negative and reverse the judgment of the court of appeals.

It is by now well-established in Ohio that an attorney may not be held liable by third parties as a result of having performed services on behalf of a client, in good faith, unless the third party is in privity with the client for whom the legal services were performed, or unless the attorney acts with malice. Scholler v. Scholler (1984), 10 Ohio St.3d 98, 10 OBR 426, 462 N.E.2d 158, paragraph one of the syllabus. See, also, Petrey v. Simon (1984), 19 Ohio App.3d 285, 19 OBR 456, 484 N.E.2d 257; Pournaras v. Hopkins (1983), 11 Ohio App.3d 51, 11 OBR 84, 463 N.E.2d 67; Strauch v. Gross (1983), 10 Ohio App.3d 303, 10 OBR 507, 462 N.E.2d 433; W.D.G., Inc. v. Mut. Mfg. & Supply Co. (Franklin App.1976), 5 O.O.3d 397.

The rationale for this posture is clear: the obligation of an attorney is to direct his attention to the needs of the client, not to the needs of a third party not in privity with the client. As was stated by the court in W.D.G., Inc., supra:

" * * * Some immunity from being sued by third persons must be afforded an attorney so that he may properly represent his client. To allow indiscriminate third-party actions against attorneys of necessity would create a conflict of interest at all times, so that the attorney might well be reluctant to offer proper representation to his client in fear of some third-party action against the attorney himself." Id. at 399-400.

We emphasize that our view on the liability of attorneys to third-persons as a result of services performed in good faith on behalf of a client is shared by other jurisdictions. See Savings Bank v. Ward (1879), 100 U.S. (10 Otto) 195, 25 L.Ed. 621; Maneri v. Amodeo (1963), 38 Misc.2d 190, 238 N.Y.S.2d 302; Favata v. Rosenberg (1982), 106 Ill.App.3d 572, 62 Ill.Dec. 467, 436 N.E.2d 49; Chicago Title Ins. Co. v. Holt (1978), 36 N.C.App. 284, 244 S.E.2d 177; Metzker v. Slocum (1975), 272 Or. 313, 537 P.2d 74; St. Mary's Church of Schuyler v. Tomek (1982), 212 Neb. 728, 325 N.W.2d 164; First Municipal Leasing Corp. v. Blankenship (Tex.App.1983), 648 S.W.2d 410. See, also, Annotation (1972), 45 A.L.R.3d 1181, 1187, Section 3.

In the instant case, appellee's complaint set forth no special circumstances such as fraud, bad faith, collusion or other malicious conduct which would justify departure from the general rule. In addition, privity was lacking since appellee, as a potential beneficiary of his father's estate, had no vested interest in the estate. Cf. Cunningham v. Edward (1936), 52 Ohio App. 61, 6 O.O. 98, 3 N.E.2d 58. Although the court of appeals acknowledged the applicability of Scholler, supra, it elected to disregard the holding based upon "public policy" grounds. We disapprove of the approach taken by the court of appeals and its refusal to adhere to precedent. We reiterate our holding in the first paragraph of the syllabus of Scholler that "[a]n attorney is immune from liability to third persons arising from his performance as an attorney in good faith on behalf of, and with the knowledge of his client, unless such third person is in privity with the client or the attorney acts maliciously."

For the foregoing reasons, the judgment of the court of appeals is hereby reversed, and the judgment of the trial court is reinstated.

Judgment reversed.

MOYER, C.J., and SWEENEY, HOLMES, DOUGLAS and WRIGHT, JJ., concur.

LOCHER, J., concurs in judgment only.

HERBERT R. BROWN, J., dissents.

HERBERT R. BROWN, Justice, dissenting.

I must respectfully dissent. The result reached by the majority means that an attorney who negligently prepares a will is immune from liability for malpractice. For example, if an attorney carelessly fails to see that the will is signed by the required number of witnesses, no action can be brought against the inattentive lawyer. This is so because the client, the testator, must die before the will becomes operative. Nonetheless, only the client, says the majority, may bring the malpractice action. To reach this undesirable result, the majority trots out that old chestnut, privity.

In the law of torts, the use of privity as a tool to bar recovery has been riddled (and rightly so) to the extent that we are left with legal malpractice as, perhaps, the only surviving relic. For example, a physician who negligently injures a spouse or a minor child is responsible to the other spouse or to the parent(s) for their corresponding loss of consortium or loss of services, notwithstanding the absence of privity. See Shaweker v. Spinell (1932), 125 Ohio St. 423, 181 N.E. 896; cf. Clouston v. Remlinger Oldsmobile Cadillac, Inc. (1970), 22 Ohio St.2d 65, 51 O.O.2d 96, 258 N.E.2d 230, and Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 49 O.O.2d 435, 254 N.E.2d 10, 41 A.L.R.3d 526. Likewise, an architect or builder who defectively designs or constructs a building is liable to a person thereby injured, despite a lack of privity. Kocisko v. Charles Shutrump & Sons Co. (1986), 21 Ohio St.3d 98, 101, 21 OBR 392, 394, 488 N.E.2d 171, 174 (Wright, J., dissenting). Additionally, the manufacturer of a defective product is not excused for want of privity from liability to an injured user. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267. Even an accountant is no longer immune from liability to third persons who foreseeably rely upon his or her negligent representations. Haddon View Investment Co. v. Coopers & Lybrand (1982), 70 Ohio St.2d 154, 24 O.O.3d 268, 436 N.E.2d 212.

While the court of appeals below should perhaps have given greater abeisance to Scholler v. Scholler (1984), 10 Ohio St.3d 98, 10 OBR 426, 462 N.E.2d 158, this court is under no such duty. The requirement of privity in a legal malpractice action should be put to a well-deserved burial. Such is not to abandon stare decisis, but rather to bring attorney malpractice--based upon professional negligence --into line within the body of tort law.

What the majority has done is to make a mechanical application of Scholler, supra, to the facts of the cause sub judice. Then, the majority blandly claims that its view is "shared by other jurisdictions." The issue before us is not that simple. An examination of the seven cases cited by the majority reveals that only two involve an attorney's negligence in drafting a will. See St. Mary's Church of Schuyler v. Tomek (1982), 212 Neb. 728, 325 N.W.2d 164, and Maneri v. Amodeo (1963), 38 Misc.2d 190, 238 N.Y.S.2d 302. The remaining five cases arise from a potpourri of factual situations, having nothing to do with the issue before us.

Actually, most courts that have faced the issue have been unwilling to use privity to insulate attorneys from liability for negligent will preparation. See Lucas v. Hamm (1961), 56 Cal.2d 583, 15 Cal.Rptr. 821, 364...