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OH: Promises Don't Lead to Privity

Kathy Lynn Darrow v. Steven E. Zigan, Esq., et al., 2009 Ohio 2205 

Student Contributor: Shiv Vydyula

Facts: Plaintiff contends that she was a third party beneficiary in the underlying divorce action, and therefore, in privity with the defendant attorney. By way of explanation, she provided that the attorney for her ex-husband told her he would draft the necessary documents to quit-claim the husband’s interest in their marital residence and prevent her from exposure to the home equity loan the ex-husband took before their marriage.

Ultimately, a collector placed a lien on the property. Plaintiff then filed suit claiming she was a third party beneficiary because she relied on opposing counsel’s promise to draft documents that would release her from liability on the loan. 

Issue: Does opposing counsel’s promise to complete a quit-claim deed create a privity sufficient to pursue a claim for legal malpractice?

Ruling: No. 

In Ohio, attorneys have qualified immunity against the claims of third parties which arise from actions taken while representing their clients…Unless a third party can establish that it is in privity with the client, or that the attorney acted with malice, the attorney is not liable to the third party.

In line with precedent, the controlling factor here was that there was no attorney-client relationship between the attorney and the plaintiff. Nor was there any privity because their interests were clearly at odds. 

Lesson: A promise made by opposing counsel is not sufficient to satisfy the burden of privity in an Ohio legal malpractice action.

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Posted in: Ohio, Privity