COD Properties Ohio, L.L.C. v. Black Tie Title, L.L.C.
2022 Ohio 17
Ohio Ct. App.2022Background
- COD Properties (managed by Ostlund) retained Black Tie Title (BTT) to bid at a sheriff's sale; due to bidding paperwork errors the deed was recorded in BTT member Steigmeier's name though COD paid the purchase funds.
- COD sued BTT, Steigmeier, and Varner for claims including conversion, fraud, breach of fiduciary duty, quiet title, and equitable relief to recover the property.
- BTT moved to disqualify COD's lawyers (Glick and Pollock), alleging the lawyers were necessary witnesses about COD's business model (allegedly wholesaling without a real-estate license) and invoking the crime-fraud exception to privilege.
- The trial court disqualified Glick under Prof.Cond.R. 3.7, finding his testimony relevant, material, and unobtainable from other sources and that probable cause supported the crime-fraud exception; Pollock remained as counsel.
- On appeal the Eighth District reversed, holding the trial court abused its discretion because the record lacked evidence that Glick's testimony was unobtainable from other witnesses and the disqualification was therefore unsupported.
Issues
| Issue | Plaintiff's Argument (COD) | Defendant's Argument (BTT) | Held |
|---|---|---|---|
| Whether counsel (Glick) is a "necessary" witness under Prof.Cond.R. 3.7 | Glick is not necessary; any testimony is obtainable from others (e.g., Ostlund) and public records | Glick was centrally involved in COD's allegedly unlawful sheriff-sale scheme and thus is a necessary, unique witness | Reversed: trial court abused discretion — BTT failed to show Glick's testimony was unobtainable from other sources |
| Whether the crime-fraud exception defeats attorney-client privilege | Privilege applies; BTT failed to meet burden to invoke crime-fraud exception | Crime-fraud exception applies because probable cause exists that Glick aided an illegal scheme | Not finally resolved on appeal; appellate court found the record insufficient to support disqualification and did not affirm the exception finding |
| Timeliness of the disqualification motion | Motion untimely; procedural tactic to delay and increase costs | Motion timely and justified by need for witness testimony | Not reached/treated as moot by appellate court after reversal |
| Whether disqualification would cause substantial hardship to client | Disqualification causes substantial hardship; Pollock's continued representation insufficient | Pollock remained; disqualification would not substantially harm COD | Not reached/treated as moot by appellate court after reversal |
Key Cases Cited
- Gonzalez-Estrada v. Glancy, 85 N.E.3d 273 (Ohio Ct. App. 2017) (disqualification is drastic and should be used sparingly)
- Brown v. Spectrum Networks, Inc., 904 N.E.2d 576 (Ohio Ct. App. 2008) (burden on moving party to show testimony admissible, necessary, and unobtainable)
- Mentor Lagoons, Inc. v. Rubin, 510 N.E.2d 379 (Ohio 1987) (recognizes conflict between roles of advocate and witness)
- Blakemore v. Blakemore, 450 N.E.2d 1140 (Ohio 1983) (standard for abuse of discretion review)
- Champoir v. Champoir, 138 N.E.3d 530 (Ohio Ct. App. 2019) (discussing abuse-of-discretion standard and appellate review of procedural rulings)
- Akron v. Carter, 942 N.E.2d 409 (Ohio Ct. App. 2010) (factors for assessing necessity of witness testimony)