Summary
In McInnis v. Hyatt Legal Clinics, 10 Ohio St.3d 112, 461 N.E.2d 1295 (1984), the Supreme Court of Ohio observed that generally, expert testimony would be required in regard to professional standards of performance, although in that case it concluded that expert testimony was not necessary, observing that the claimed breach of professional duty was well within the common understanding of the laymen on the jury.
Summary of this case from Applegate v. Dobrovir, Oakes GebhardtOpinion
No. 83-449
Decided April 18, 1984.
Attorneys at law — Malpractice — Activity of attorney contrary to specific instructions of client and written assurance — Damages provable, when.
APPEAL from the Court of Appeals for Stark County.
This is an appeal from a ruling by the court of appeals which reversed and remanded the trial court's directed verdict in favor of appellants, Hyatt Legal Clinics and its employee-attorney John A. Berthinee, in a fraud and malpractice action.
The facts in brief are that on May 27, 1980, appellee, Malcolm McInnis, entered the Hyatt Legal Clinics in Canton, Ohio, for the purpose of securing a divorce from his estranged wife, Sylvia. Appellee spoke with John Berthinee and expressed his concern that none of the divorce proceedings be in a newspaper since he lived in a small community where the residents were unaware that he was not married to the woman with whom he was living at the time. In guaranteeing this promise, Berthinee wrote the words, "This will be in no paper," on a piece of paper which was given to McInnis. In consideration for services to be rendered, including that assurance, and for court costs, appellee tendered $315 to Berthinee, and left appellant's office with the understanding that the divorce would proceed without publication.
The evidence indicates that on June 21, 1980 appellee's pending divorce was published in a local newspaper under the heading of court news. As a result of this publication, numerous customers stopped patronizing appellee's barber shop and his business receipts decreased.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. Donald C. Williams, for appellee.
Messrs. Gallagher, Sharp, Fulton Norman, Mr. Burt J. Fulton and Mr. Thomas E. Dover, for appellants.
Appellants argue that an attorney cannot commit legal malpractice when he complies with the notice provision of R.C. 3105.06, which pertains to service by publication.
An attorney may not be held liable for malpractice in doing that which the law requires in obtaining service of process. However, he is liable for effecting publication of appellee's pending divorce, which was contrary to the specific instructions of his client and the written assurance. This is especially vital where there was no further discussion with the client about the publication. As the court of appeals correctly stated, "[w]hen the defendant attorney elected to cause publication notice of the pendency of the instant divorce, without notice to his client, he disobeyed the lawful instruction of his client, breached the terms of his employment agreement, and is culpable to the extent of losses following from his breach and acts." (Emphasis sic.)
In this latter regard, we point out that EC 7-8 of the Code of Professional Responsibility provides: "A lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations. * * * [T]he lawyer should always remember that the decision whether to forego legally available objectives or methods * * * is ultimately for the client and not for himself. * * *"
Appellants further contend that there was an absence of expert testimony presented on the issue of malpractice and a cause of action is not set forth without such testimony. Generally, expert testimony would be required in regard to professional standards of performance. However, within the limited claim of unprofessional conduct complained of in the case sub judice, we do not deem such expert testimony to have been necessary. Here, the claimed breach of professional duty is well within the common understanding of the laymen on the jury.
Although the damages flowing from such alleged malpractice would seem to be nominal at best, it is conceivable that a jury, with appropriate instructions from the trial court, could find an amount of damages proximately caused by the attorney's actions.
Upon a motion for a directed verdict made pursuant to Civ. R. 50(A)(4), the trial court must construe the evidence most strongly in favor of the party against whom the motion is directed. If such view had appropriately been taken, we do not believe that upon the determinative issue of whether there had been a breach of the attorney's duties to his client, reasonable minds could have come to but one conclusion upon the evidence submitted, that such was adverse to the plaintiff. The evidence established that the attorney had in response to the expressed wishes and concern of the client made a written representation to the client that, "This will be in no paper."
The attorney should have informed his client of the legal necessity of the publication. The failure to do so gives rise to a jury question as to whether any damages flowed from the breach of such duty.
Based upon the foregoing, the judgment of the court of appeals is hereby affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.