Simon v. Zipperstein

512 N.E.2d 636, 32 Ohio St. 3d 74, 1987 Ohio LEXIS 348

• Court: Ohio Supreme Court
• Decided: August 12, 1987
• Docket: No. 86-1634
• Status: Published

Opinions

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; Straunch 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. 195; Maneri v. Amodeo (1963), 38 Misc. 2d 190, 238 N.Y. Supp. 2d 302; Favata v. Rosenberg (1982), 106 Ill. App. 3d 572, 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 Ore. 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. Civ. 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., Sweeney, Holmes, Douglas and Wright, JJ., concur. Locher, J., concurs in judgment only. H. Brown, J., dissents.