Legal Malpractice Law Review : Professional Responsibility Case Summaries & Commentary : Bennett J. Wasserman : LegalMalpractice.com : Lawyer Malpractice & Legal Ethics

Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601

Underlying Action: Insurance (Ohio)

Student Contributor: Candice L. Deaner

Facts: The plaintiff retained a law firm’s partner, Wuerth, to defend them against a lawsuit. During the trial, Wuerth informed partners and the trial judge that he was sick and subsequently was taken to the hospital. His doctor advised the court that Wuerth was not capable of continuing with the trial. His firm filed an unsuccessful motion for a mistrial, then assigned attorneys to complete the trial. Plaintiff lost the trial and filed suit claiming that Wuerth had committed legal malpractice, that his firm was vicariously liable for Wuerth’s malpractice, and that the firm itself committed malpractice. While Plaintiff alleged wrongful acts by the firm, Wuerth was the only individual named as a defendant in the complaint. On a motion for summary judgment, the district court dismissed Wuerth from the action because Plaintiff had filed its complaint after the expiration of the one-year statute of limitations under Ohio law. Because the statute barred them against Wuerth, the district court also dismissed claims for vicarious liability against firm. Finally, the district court determined that the firm cannot be held directly liable for legal malpractice because it is not an attorney and does not practice law and Plaintiff appealed.

Issue: Can a legal malpractice claim be maintained directly against a law firm when all of the relevant employees have either been dismissed from the lawsuit or were never sued in the first instance?

The Ruling: The Supreme Court of Ohio held a law firm is vicariously liable only when one or more of its principals or associates are liable for legal malpractice:

 “Although a party injured by an agent may sue the principal, the agent, or both, a principal is vicariously liable only when an agent could be held directly liable the liability for the tortuous conduct flows through the agent by virtue of the agency relationship to the principal. If there is no liability assigned to the agent, it logically follows that there can be no liability imposed upon the principal for the agent’s actions.”

The Lesson: A law firm as an entity does not engage in the practice of law and therefore cannot commit legal malpractice directly. A law firm cannot be vicariously liable for legal malpractice unless one of its principals or associate attorneys is found liable for malpractice.

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Staron v. Weinstein, 305 N.J. Super. 236 (App. Div. 1997).

Student Contributor:  Daniel Schick

NJ Underlying Personal Injury Action

Facts:  Staron was allegedly injured in an auto accident in October, 1985 and retained Weinstein to represent her in the pursuit of her personal injury claims.  The parties signed an "An Agreement to Provide Legal Services", the first page of which referred to "Sheldon G. Weinstein, Esq." as the "law firm" being retained.  The next page of the Agreement, however, listed "Robert C. Thelander, Esq.".  Weinstein further submitted a request for Personal Injury Protection benefits on Thelander's stationery with Weinstein listed as "Of Counsel".  Thelander disassociated himself from Weinstein's practice in September, 1986.  Weinstein continued to represent Staron through 1989, but never timely filed a Complaint with regard to her personal injury claims.

Several years later, Plaintiff bought a suit for legal malpractice against Weinstein and Thelander.

Issue:  Did Thelander owe any duty to Staron? 

Ruling:  Yes.

In the context of a motion for summary judgment, plaintiffs made a sufficient showing that Thelander's firm became counsel for plaintiffs by virtue of both the retainer agreement and the fact that defendant had at least apparent authority to enter into such agreements on behalf of the firm...Having become counsel for plaintiffs, it was the responsibility of the Thelander firm to either terminate the representation or give notice that it was terminated by virtue of Weinstein's departure.

In reaching its holding, the Court further noted that Thelander's role in Weinstein's cases and his entitlement to a share of the proceeds of any recovery obtained by Weinstein was not clear.  Moreover, it was not know what, if any, control mechanisms Thelander had in place to determine in what matters Weinstein had been retained in his capacity as "Of Counsel" to his firm. 

Lesson:  A law firm and its principals are ordinarily liable for wrongful acts and omissions of lawyers who have an "Of Counsel" relationship with the firm.  The scope of liability for acts of an "Of Counsel" lawyer may be affected by the terms of the Of Counsel relationship and the extent of the lawyer's affiliation to the firm apparent to the lawyer's clients.

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Toth v. Vazquez, 3 N.J. Super. 379 (Ch. Div. 1949) (PDF with permission of Thomson West)

Student Contributor: Anthony J. Forzano

NJ Underlying Real Estate Transaction

Facts: Plaintiff, a potential land buyer, brought an action for legal malpractice against the defendant-attorney, Arthur A. Wolpin, who had been engaged by the plaintiff to examine the title and procure a survey of the premises prior to closing.  Plaintiff alleged that Wolpin failed and neglected to obtain an accurate survey.

Issue: Can an attorney be held liable for malpractice for failing to find a deficiency in the work of another professional, even though he acted in a prudent manner in selecting that professional on behalf of his client?

Ruling: No. Although it is the duty of an attorney who is retained to examine the title to real estate to make a reasonably diligent and zealous investigation of the public records, and to impart to his client all of the observable defects, deficiencies, and imperfections of the title, he is required only to exercise ordinary care, skill and diligence.

Given that Wolpin inspected all pertinent records and rendered an accurate report of record title, he had satisfied the standard of “ordinary care, skill, and knowledge”. The Court further noted:

“Nor is it evident that this defendant in acting for the plaintiffs failed to exercise reasonable care and precaution in the selection of a competent surveyor, even assuming a duty so to do. Assuredly, this defendant did not expressly agree to warrant the precision and accuracy of the survey”.

Lesson: An attorney must act in a reasonably diligent fashion in terms of his investigation of the pertinent issues and retention of other professionals, and cannot be held liable for malpractice as a result of damage incurred by his client owing to the negligence of others involved in the transaction.

Editor's Note: What if the attorney had engaged a process server who negligently failed to properly serve a complaint and the statute of limitations ran?  The lawyer's immunity for the negligence of an independent contractor hired to aid in the representation of a client is not so clear. See, e.g., Kleeman v. Rheingold, 81 N.Y.2d 270 (1993):

As plaintiff's attorneys, defendants had a non-delegable duty to her and, accordingly, they cannot evade legal responsibility for the negligent performance of that duty by assigning the task of serving process to an "independent contractor."

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