Case 30.1

FACTS Attorneys Michael Kelley and James Ferraro founded Kelley & Ferraro, LLP (K&F), a large Ohio law firm that specialized in asbestos litigation. Each of the two partners earned $11 million in the eighth year of the firm's existence. Two days into the ninth year, Kelley died of a heart attack. His wife, Lynn Kelley, contacted lawyer Brent Buckley of Buckley King, LPA, in Cleveland. Brent had drafted the K&F partnership agreement. The agreement provided that on Michael's death, Lynn was to be paid 40 percent of the firm's gross revenues. Buckley King had recently been retained by Ferraro to represent his interests in any dispute with Michael's estate, however, and Buckley himself advised Lynn, the executor of the estate, to settle with Ferraro quickly. Despite Lynn's repeated requests, Buckley did not give her a copy of the partnership agreement. Meanwhile, she became embroiled in litigation with lawyer John Sivinski, who had worked for K&F and claimed a share of Michael's profits. Buckley King represented Ferraro and K&F in this dispute and withheld copies of an employment contract between K&F and Sivinski. When Lynn eventually obtained a copy of Sivinski's contract, it revealed that his claim against the estate was fraudulent. She then filed a suit in an Ohio state court against Brent Buckley and Buckley King, alleging malpractice. The court issued a summary judgment in favor of Buckley and the firm. Lynn appealed.

ISSUE Did Lynn Kelley present sufficient evidence that attorney Buckley had committed malpractice to allow her claim to go forward to trial?

DECISION Yes. A state intermediate appellate court reversed the summary judgment in the defendants' favor and remanded the case for additional discovery and a trial. The court also awarded Lynn the costs of the appeal.

REASON The court reasoned that there were genuine issues of material fact relating to all of Lynn's claims. For example, she claimed that the defendants had breached a duty of care owed to Michael when they negotiated the original partnership agreement. They argued that Michael had limited the scope of their representation when he allegedly told Buckley over the phone that he was handling the negotiations and choosing the business entity and that Buckley should follow his instructions. The court, however, reasoned that any oral statements supposedly made by the late Michael Kelley were hearsay evidence that was not admissible for the purpose of showing he limited the attorney's representation. The court also reasoned that there were genuine issues of fact concerning Lynn's allegation that the defendants had drafted Sivinski's contract and could have ended his suit by producing a copy. The defendants denied that they had created the contract. They also contended that Lynn had consented to their representation of Ferraro and K&F in her claims against them, but she denied this. The defendants argued that Lynn had failed to show that her allegations of malpractice caused her to suffer any damages. She asserted, however, that their failure to give her a copy of the partnership agreement and their advice to settle with Ferraro quickly had caused her emotional distress. WHAT IF THE FACTS WERE DIFFERENT? Suppose that Buckley and the Buckley King firm were held legally liable on all of Lynn's claims for malpractice. What acts of ethical misconduct might this indicate?