I. Introduction
{¶ 1} In the wake of his federal conviction for insider trading of securities, Roger D. Blackwell, Ph.D., brought this legal-malpractice case against his trial lawyer Thomas 0. Gorman. Also sued was Gorman’s law firm of Porter, Wright, Morris & Arthur, L.L.P. (“Porter Wright”).
{¶ 2} Plaintiffs criminal jury trial in the United States District Court for the Southern District of Ohio lasted five weeks. His 2005 conviction was sustained in posttrial rulings by District Judge James L. Graham and upheld on appeal. United States v. Blackwell (C.A.6, 2006),
{¶ 3} Blackwell’s complaints about his lawyers include assertions that Porter Wright misled him about its expertise in the defense of white-collar criminal cases, mishandled negotiations with the government, did a poor job trying his criminal trial, unduly pressured him into firing co-counsel experienced in criminal cases, required him to post substantial financial security for his legal fees on the eve of trial, and charged a clearly excessive legal fee, all while losing his case. Inherent in many of his arguments is the allegation that the federal judgment was wrong and that he is actually innocent of the government’s charges. For its part, Porter Wright has counterclaimed, seeking over $2.7 million in unpaid fees and expenses.
{¶ 4} Following an initial conference with the court, defendants filed a motion for summary judgment on December 15, 2006. Plaintiff responded on January 12, 2007; a reply memorandum was filed on January 25.
{¶ 5} Defendants seek summary judgment premised upon the one-year statute of limitations for legal-malpractice claims in Ohio, and upon arguments tied to the criminal conviction. The facts relevant to the conviction and to the statute of limitations are not genuinely disputed. (For example, the verdict forms are filed with the Singer affidavit at tab I.) Accordingly, the court has concluded that defendants’ motion is properly granted in part.
II. Factual Background
{¶ 6} Prior to his conviction, Blackwell was a prominent professor at the Business School of The Ohio State University. His expertise and reputation were widely known, and he frequently was invited to serve as a director of publicly traded companies. Complaint, ¶ 6-7.
{¶ 7} Blackwell’s legal difficulties arose from a 1999 tender offer by the Kellogg Company. It sought to acquire the stock of Worthington Foods, a small
{¶ 8} Once Kellogg initiated negotiations toward a possible buyout of Wor-thington Foods (“WF”), Blackwell and his fellow board members became privy to information about Kellogg’s interest before that information became public. The government alleged in the criminal case that, in violation of obligations owed under the securities laws of the United States, Blackwell tipped inside information pertinent to the possible transaction involving WF to nine people.
{¶ 9} Allegedly, Blackwell informed Jack Kahl, “a long-time friend and business associate,” that “Kellogg was going to buy out WF and that Kahl should buy WF stock.”
{¶ 10} Blackwell’s marital status is another prominent point in the story. He was married at the time of the Kellogg transaction in 1999 but had divorced by the time of his criminal trial in 2005. His ex-wife (Tina Stephan Blackwell, now remarried and called “Mrs. Lundgren” in the complaint) occupied a major role in the criminal trial. Hours after signing final separation papers in their domestic-relations case, Lundgren apparently changed testimony she had previously given under oath to the Securities and Exchange Commission (“SEC”) in a civil investigation of the WF tender offer. Once a favorable witness, according to Blackwell, she became one of the government’s leading witnesses against him. Id. Blackwell says his ex-wife was herself guilty of tipping family members but
{¶ 11} As the Sixth Circuit summarized the record, Blackwell’s ex-wife testified that “she and [Blackwell] gave her parents money to buy WF stock,” that “both she and Blackwell lied to the NASD and the SEC about the tipping,” and that their e-mail records were deleted and other conduct occurred to “withhold information and obscure their relationships with parties who bought WF stock.” Blackwell,
{¶ 12} To fully understand the complex interplay between proof at the criminal trial and plaintiffs allegations in this civil case, additional mention should be made of Lundgren’s parents. According to plaintiff, they “testified before the SEC that they were not tipped by Plaintiff.” Complaint, ¶ 35. However, Porter Wright “either forgot or simply failed to issue subpoenas to Tina Lundgren’s parents to compel them to repeat that testimony at trial. These crucial witnesses fled to Europe during the trial and, therefore, could not be called as trial witnesses to establish that their daughter — the government’s key witness — had given false testimony.” Id. Thus, plaintiff now seeks to offer evidence in this malpractice case that the ultimate outcome of his federal trial would have been favorably influenced by the testimony of Lundgren’s parents, who were never witnesses for any party, if only his lawyers had made it available.
{¶ 13} This illustrates the speculative nature of the actual-innocence claim, for the exact effect of the parents’ hypothetical testimony and how it might have intersected with or contradicted Lundgren’s testimony or affected her credibility can never truly be known. None of this ever came up before the jury. The government informed defense counsel about the parents’ immunity agreement, and provided them the immunity letter shortly after Lundgren testified. Although Lundgren’s parents were not government witnesses, this apparently was disclosed in order to cure any possible prejudice if the immunity arrangement were later found to constitute Brady material (see, generally, Brady v. Maryland (1963),
{¶ 14} In short, Blackwell faced a complex trial involving a substantial number of highly educated witnesses and prominent defendants, hotly contested issues of credibility, interest, or bias, a story involving a good deal of money, and circumstantial evidence surrounding the end of his marriage and WF stock trading by the “circle of friends, business associates, and family around him who traded in WF stock during the Kellogg Window — the Accused Traders.” Petition for writ of certiorari at 10. All these difficult questions were presented to, weighed by, and resolved by the jury in the criminal trial.
(¶ 15} Not yet of record in this case is evidence documenting very much about the attorney-client relationship between the parties, such as the number and scope of consultations between lawyer and client during the criminal trial, the sharing of any knowledge gained by counsel from interviewing government witnesses, the nature of any plea arrangement tendered for Blackwell’s consideration, and the like. The complaint asserts that Porter Wright did little good work and that Blackwell was not meaningfully consulted about preparing his own defense; of course, those notions are disputed and the federal judgment has not been vacated for ineffective assistance of counsel. The point is, trial and posttrial proceedings in United States v. Blackwell — as in every trial of any complexity— involved innumerable tactical and strategic choices by the lawyers and sometimes by the parties, culminating in difficult decisions by a jury and multiple judges. Choices appear brilliant when they result in a favorable decision but ill-considered or worse in another light. Beyond all of that, Blackwell’s trial was not unusual in that at least one wholly unexpected incident occurred. Some thought that Blackwell mouthed the words “I hate you” at his ex-wife in full view of members of the jury. Opinion, 12-14-05, at 3. The lengthy opinions rendered in United States v. Blackwell tell that story more fully, too. It suffices for present purposes that the reader appreciate that in asserting actual innocence, Blackwell invites reexamination of a whole host of difficult factual issues, against the backdrop of a very lengthy federal trial that can never truly be replicated.
III. Blackwell’s Actual-Innocence Claim
{¶ 16} Plaintiffs claims essentially fall into two categories. First, as already mentioned, he asserts legal malpractice premised upon his actual innocence.
{¶ 17} In asserting actual innocence, Blackwell flatly states that “[n]o one received any tips from plaintiff.” Complaint, ¶ 17. He points out in paragraph seven of his complaint that, having had decades of experience as a member of boards of directors of publicly traded companies, he “was well aware of his legal obligation not to disclose material, nonpublic information to third parties” at the time of the events in question. Once again, he “never once violated his legal duty to refrain from disclosing material, nonpublic information” and “steadfastly followed every legal and ethical obligation imposed on him.” Id. at ¶ 10.
{¶ 18} Other allegations are tied indirectly to the claim of actual innocence. For instance, as to his ex-wife Lundgren, plaintiff gratuitously alleges that she exhibited an unsavory personal life while still married to him. Perhaps this was raised because her past behavior might in some way reflect upon her credibility as a criminal witness. Beyond that, Blackwell says she testified at his trial only out of self-interest. Complaint, ¶ 12.
IV. Other Issues Raised in the Complaint
{¶ 19} Blackwell challenges the “nearly $6,000,000” he has been charged for legal fees and related to it the quality of his lawyers’ work and what he says was a misrepresentation of the lawyers’ expertise in trying cases of this kind. Complaint, ¶ 24, 26, 27, 29, and 31. Additional allegations not squarely tied to the actual-innocence claim include that Porter Wright failed to warn plaintiff “concerning the likelihood of an SEC civil proceeding against him or the likelihood of a criminal action being brought.” Complaint, ¶ 36, last unnumbered bullet point.
{¶20} Understandably, many facts remain shrouded in the secrecy of the attorney-client privilege due to the only recently concluded direct appeal of the criminal case. Nevertheless, because a sizeable part of Blackwell’s legal-malpractice claim is squarely predicated upon arguing actual innocence, and because his conviction is undisputed, the effect of that judgment in this civil case may properly be addressed. Likewise, there is no genuine dispute of material fact precluding a decision on the statute-of-limitations defense urged by defendants.
Y. Legal-Malpractice Claims for Criminal-Trial Work
{¶ 21} Blackwell vigorously asserts that in charging legal malpractice, he is entitled to disregard the final judgment reached by the United States District Court and recover damages because his trial lawyers failed to secure his acquittal. In practical terms, he proposes to have a trial over things like whether “defendants failed to competently address the scripted testimony of Tina Stephan and Jack Kahl.” Plaintiff admits that such issues are complicated and that “this factual dispute cannot be resolved before [pretrial] discovery even commences” in this civil case. Plaintiffs memorandum filed Jan. 12, 2007, at 12.
{¶ 22} Krahn and Vahila, supra, both rejected the argument that a legal-malpractice plaintiff is obligated to obtain outright reversal of a conviction before he may pursue a malpractice action. E.g., Krahn,
A. Practical Questions
{¶ 23} Before further examining the available precedents, it seems prudent to pose several practical questions inherent in Blackwell’s position that, despite a full trial and appeal, he remains entitled to simply disregard his conviction. Procedurally, Blackwell necessarily assumes that a trial judge sitting in a separate court system, assisted at some point by a jury, is fully entitled to rehear the mountain of evidence that has already been fully explored in United States v. Blackwell. One may justifiably ask, just exactly how many trials is Blackwell entitled to receive? Beyond that superficial response, under the legal principle of comity, is not substantial deference due to the serious work already invested by a 12-person federal jury, District Judge Graham, and the Sixth Circuit? Coupled with that, what is a jury in this case to make of the fact that Blackwell was convicted using the heightened standard of proof beyond a reasonable doubt applicable in criminal cases, while enjoying the protections of the Confrontation Clause, the right to legal counsel that was not ineffective in his defense, and other procedural rights that attach only in a criminal trial?
{¶ 24} To reach its verdict, the federal jury weighed substantial circumstantial evidence, made difficult decisions on the credibility of witnesses, and confronted other subtle and not-so-subtle choices. They grappled with the bias — if any— evidenced by Lundgren’s change of testimony that apparently occurred only after her personal financial arrangements had been finalized in the divorce proceedings and she and her parents had gained immunity. Why is the verdict by that jury to be viewed with suspicion, much less cast aside in favor of the view of another jury yet to be empaneled? The predicate for the actual-innocence claim in this court is that the federal courts simply got it all wrong, due to the inept performance by Porter Wright, in regard to things like how “[defendant Gorman conducted an incomplete, ineffective, and wholly inadequate cross-examination of Plaintiffs ex-spouse, who was the prosecution’s star witness.” Complaint, ¶ 36. But how is a new jury to gauge the real impact of such things during a five-week trial, particularly when not only Porter Wright but also other defense lawyers actively participated in behalf of the multiple codefendants? Are all “tactical decisions,” as Judge Graham aptly termed them, to be laid at the feet of Porter
{¶ 25} Blackwell would have this court proceed on the assumption that his ex-wife’s parents were “crucial witnesses [who] fled to Europe during the trial” but who would nevertheless have testified favorably to him (and consistent with testimony favorable to Blackwell given before the SEC) if only they had been sent subpoenas by Porter Wright before they “fled.” Complaint, ¶ 35. One must ask, if they would have given favorable testimony then why didn’t the other defense lawyers send them a subpoena, or more fundamentally, why did Lund-gren’s parents flee rather than perform their civic duty to help justice prevail? Who now can say? Yet it is these sorts of self-serving arguments about inadequate trial preparation and strategy, made from hindsight, that lie at the core of the actual-innocence claim. Complaint, ¶ 9-11.
{¶ 26} Honoring plaintiffs actual-innocence theory would plainly fly in the face of the time-honored rule that “ ‘[t]here must be an end to litigation someday.’ ” GenCorp Inc. v. Olin Corp. (C.A.6, 2007),
B. Ohio Law on Legal-Malpractice Claims
{¶ 27} Assuredly, some uncertainty exists in the Krahn line of cases about the preclusive effect of a conviction. Plaintiff creatively argues that “[u]nlike the criminal case, this litigation is not about whether the evidence against Professor Blackwell was substantial; this case is about why the evidence against Professor Blackwell appeared to be substantial. * * * Plaintiff asserts that this was caused by the negligent performance of his counsel. At the appropriate time Plaintiff will present evidence proving that Defendants failed to competently address the scripted testimony of Tina Stephan and Jack Kahl.” (Emphasis sic.) Plaintiffs memorandum filed Jan. 12, 2007, at 12. In thus framing his legal-malpractice claim predicated upon actual innocence, the plaintiff ignores his own conduct that led to the insider-trading charges and sees all that is past in the federal system as mere prologue.
{¶ 28} The decisions in two legal-malpractice cases previously mentioned primarily state current law in Ohio. The Ohio Supreme Court recently cited Vahila with approval. Jackson v. Greger,
{¶ 29} The syllabus paragraph written by the Supreme Court of Ohio in Krahn provided only that “[t]o state a cause of action for legal malpractice arising from criminal representation, a plaintiff must allege (1) an attorney-client relationship giving rise to a duty, (2) a breach of that duty, and (3) damages proximately caused by the breach.”
{¶ 30} Vahila, supra, embraced the holding in Krahn, and rejected any “rule of thumb requiring that a plaintiff, in order to establish damage or loss, prove in every instance that he or she would have been successful in the underlying matter(s) giving rise to the complaint.” Vahila,
{¶ 31} Contrary to plaintiffs view, the simplistic “rule of thumb” statement in Vahila is not the answer here. Instead, this case is controlled by the second
VI. The Collateral-Estoppel Effect of the Federal Judgment
{¶ 32} At some points the briefs appear to suggest that there may be a difference between the federal res judicata doctrine and its Ohio counterpart, but this court perceives no genuine conflict relevant to the question presented here. To be sure, the United States Supreme Court has explicitly held that “[s]tate courts are bound to apply federal rules in determining the preclusive effect of federal-court decisions on issues on federal law.” Heck,
{¶ 33} Aside from the reliance upon the cryptic references to a rule of thumb in Krahn and Vahila, Blackwell points out that Porter Wright was not a party to his criminal case and not in privity with him or the government. Memorandum filed Jan. 12, 2007, at 20-21. This raises the so-called mutuality-of-estoppel part of the collateral-estoppel doctrine. In addition, Blackwell argues that Porter Wright did such a poor job representing him that “he did not have a full and fair opportunity to litigate his guilt or innocence in his criminal trial as a result of his attorneys’ malpractice.” Id. at 19.
VII. The Mutuality Requirement
{¶ 35} As to mutuality, there is to be sure some recent case law in Ohio declining to use a criminal conviction to bind a defendant in a subsequent civil case based solely upon his prior criminal conviction. E.g., Phillips v. Rayburn (4th Dist.1996),
{¶ 36} The recent decision in Godale v. Chester Twp. Bd. of Trustees, 11th Dist. No.2004-G-2571,
“In recent years, the court has not limited the application of the doctrine of res judicata to bar only those subsequent actions involving the same legal theory of recovery as a previous action.” Grava v. Parkman Twp. (1995),73 Ohio St.3d 379 , 382 [653 N.E.2d 226 ]. “It has long been the law of Ohio that ‘an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit.’ ” (Emphasis*64 sic.) Natl. Amusements, Inc. v. Springdale (1990),53 Ohio St.3d 60 , 62 [558 N.E.2d 1178 ], quoting Rogers v. Whitehall (1986),25 Ohio St.3d 67 , 69 [25 OBR 89,494 N.E.2d 1387 ]. Moreover, according to the Supreme Court of Ohio, the doctrine of res judicata requires a plaintiff to present every ground for relief in the first action, or be forever barred from asserting it. Natl. Amusements, Inc. at 62 [558 N.E.2d 1178 ].
The Supreme Court of Ohio stated, “today, we expressly adhere to the modern application of the doctrine of res judicata * * * and hold that a valid, final judgment rendered upon the merits bars all subsequent action based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.” (Emphasis added.) Grava at 382 [653 N.E.2d 226 ].
{¶ 37} Davis v. Wal-Mart Stores, Inc. (2001),
“ ‘The doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time, but rather a rule of fundamental and substantial justice, or public policy and of private peace. The doctrine may be said to adhere in legal systems as a rule of justice.’ ”
Wal-Mart,
{¶ 38} Fort Frye Teachers Assn. v. SERB (1998),
The doctrine of issue preclusion, also known as collateral estoppel, holds that a fact or a point that was actually and directly at issue in a previous action, and was passed upon and determined by a court of competent jurisdiction, may not be drawn into question in a subsequent action between the same parties or their privies, whether the cause of action in the two actions be identical or different. While the merger and bar aspects of res judicata have the effect of precluding the relitigation of the same cause of action, the collateral estoppel aspect precludes the relitigation, in a second action, of an issue that has been actually and necessarily litigated and determined in a prior action that was based on a different cause of action. Whitehead v. Gen. Tel. Co. (1969),20 Ohio St.2d 108 , 112,49 O.O.2d 435 , 437-438,254 N.E.2d 10 , 13. “In short, under the*65 rule of collateral estoppel, even where the cause of action is different in a subsequent suit, a judgment in a prior suit may nevertheless affect the outcome of the second suit.” Id. at 112,49 O.O.2d at 438 ,254 N.E.2d at 13 .
(Citations omitted.)
{¶ 39} The Tenth District Court of Appeals decision in Nye,
VIII. Mutuality in the Context of Criminal Convictions
{¶ 40} No reason is apparent to apply a rule other than relaxed mutuality when dealing with affirmative claims by a criminal that contradict his conviction following a full jury trial. The finality that ought to attach to a judgment of conviction in a criminal case was recognized in State v. Szefcyk (1996),
{¶ 41} White v. Suster,
{¶ 42} Thus, ordinary principles of collateral estoppel do apply in this legal-malpractice case premised upon the conviction rendered at a full criminal jury trial. Although Blackwell need not obtain a reversal of his conviction in order to sue his lawyers, the judgment against him cannot be ignored when considering his claims explicitly or impliedly asserting actual innocence. His allegations of fact must give way to the facts squarely tried and resolved against him.
{¶ 43} Any uncertainty on this issue seems best resolved by returning to the Ohio Supreme Court’s statement in Szefcyk: “Our holding today underscores the importance of finality of judgments of conviction. ‘ “Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties.” * * * “It is a rule of fundamental and substantial justice * * ’ ” Szefcyk,
{¶ 44} Defendants’ motion for summary judgment is therefore granted in part. All of plaintiffs allegations contesting or denying guilt, or suggesting any notion of actual innocence are barred by his federal conviction.
IX. Defendants’ Intervening-Cause Argument
{¶ 45} Defendants also seek summary judgment premised upon the view that Blackwell’s “acts of witness intimidation and false testimony are an intervening
X. What Is Left?
{¶ 46} Under Ohio law, a legal-malpractice case subsumes within it any of the issues that can arise from the attorney-client relationship. These may include alleged billing errors by the lawyer. Byrd v. Peden (1999), 10th Dist. No. 99AP-111,
{¶ 47} Some questions raised by Blackwell do not turn upon his claimed actual innocence and remain viable while recognizing the federal judgment. Whether addressed to plea-negotiation strategy, the reasonableness of legal fees, or other matters identified in the Krahn line of cases, such questions fall within the general category of malpractice. As such, they generally turn upon whether defendants exercised the reasonable skill, care, and diligence expected of an attorney under like or similar circumstances. See 3 Ohio Jury Instructions (2004) Section 333.01.
{¶ 48} A recent decision in Winniczek v. Nagelberg (C.A.7, 2005),
{¶ 49} As discussed above the exoneration or actual-innocence rule, as Judge Posner called it, does not reflect Ohio law, because obtaining relief from a conviction is not a prerequisite to bringing a legal-malpractice case in Ohio. The useful part of the Winniczek decision, however, lies in its resolution of the companion claim challenging the legal fee charged the convicted criminal. That issue was not viewed as barred from consideration even in a jurisdiction that relies upon the actual-innocence rule.
This analysis shows that the logic of the “actual innocence” rule does not extend to a case in which the complaint is not that the plaintiff lost his case because of his lawyer’s negligence, but that he was overcharged. The fact that one of the plaintiffs, namely Mrs. Winniczek, wasn’t even charged with a crime merely underscores the district court’s error. She is seeking restitution of money obtained from her by false pretenses or breach of an implied contract. But so is Winniczek, in count one of the complaint, which is for breach of contract or, what need not be distinguished in this case (for all that is important is that the Winniczeks are complaining only about an overcharge, and not about Nagelberg’s failure to gain Winniczek an acquittal or a lighter sentence), breach of the fiduciary obligation that Nagelberg, as Winniczek’s lawyer, owed him. Only count two is for malpractice, and only that count is barred by the requirement, in a malpractice suit growing out of a criminal conviction, of proving actual innocence of the crime.
To see why count one is not about malpractice, imagine that Nagelberg had promised to represent Winniczek for a fee of $ 50,000, plus $ 25,000 in prepaid expenses of which any amount not expended was to be returned to Winniczek. Suppose further that Nagelberg had done a superb though ultimately unsuccessful job in representing Winniczek but had incurred expenses of only $ 5,000 and refused to refund the balance of the $ 25,000 in prepaid expenses. There would be no malpractice, in the sense of incompetent representation — and there would be nothing in the thinking behind the actual-innocence rule to suggest that Winniczek should not be allowed to enforce his contract just because he had been convicted. So we are not surprised that the courts that have confronted this type of case- — no Illinois court has — have held that the actual-innocence rule is not a bar. Bird, Marella, Boxer & Wolpert v. Superior Court,106 Cal.App.4th 419 ,130 Cal.Rptr.2d 782 (App.2003); Van Polen v. Wisch,23 S.W.3d 510 , 516 (Tex.App.2000); Labovitz v. Feinberg, supra, [47 Mass.App.Ct. 306 ] 713 N.E.2d [379] at 385 [ (1999) ]. As explained in Bird,*69 Marella, “a fee dispute between a convicted criminal defendant client and his former counsel does not entail the policy considerations which arise from a malpractice suit. The client does not seek to shift the punishment for his criminal acts to his former counsel nor is the client’s own criminal act the ‘ultimate source of his predicament’ as evidenced by the fact a client acquitted of the criminal charges against him could have suffered the same unlawful billing practices * * *. Furthermore a fee dispute between client and counsel does not give rise to the practical problems and pragmatic difficulties inherent in a malpractice action brought by a convicted criminal defendant client. * * * [T]here is no difficulty in quantifying damages for a wrongful conviction or a longer prison sentence and there is no problem of applying a standard of proof within a standard of proof. A judgment for the client in a fee dispute is not inconsistent with a judgment for the People in the criminal case. And, there is no duplication of effort since a fee dispute obviously cannot be resolved through postconviction relief.”130 Cal.Rptr.2d at 789 (emphasis in original).
(Citations omitted.) Winniczek,
{¶ 50} Similar logic was embraced by the dissenting judge in Bloomer v. Gibson,
{¶ 51} While collateral estoppel precludes revisiting all facts reasonably pertinent to Blackwell’s federal conviction, the obligation to pay fees to Porter Wright is separate and distinct. What fee agreement existed, how much Blackwell paid to date, how much work was reasonably required of the law firm, and whether the firm acted improperly under its fee agreement in demanding security before proceeding to trial are all questions independent of the conviction. And, of course, to the extent Blackwell’s malpractice claim is predicated upon things like being charged fees for unnecessary work, it reflects the mirror image of defendants’ counterclaim for $2.7 million in unpaid fees. Nothing in the resolution of these issues contradicts Blackwell’s conviction.
{¶ 52} To be sure, practical difficulty may arise in sorting out what parts of the malpractice claim (and what pretrial discovery or evidence at trial) are fairly foreclosed by the conviction and what remains open. Necessarily the nature and scope of the federal court proceedings must be considered as the backdrop for issues of legal fees, for they bear upon the novelty and complexity of the work undertaken by Porter Wright, and determination of reasonable legal fees. But the fact that Blackwell’s defense ultimately proved unsuccessful is irrelevant. Accordingly, arguments over things like whether the Porter Wright firm did a good job cross-examining Lundgren or Kahl, or should have sent subpoenas to
XI. The Statute of Limitations for Legal Malpractice
{¶ 53} Defendants’ final argument is that any issue remaining in this lawsuit (after giving effect to the federal conviction) is barred by the one-year statute of limitations for legal malpractice. R.C. 2305.11(A) is the one-year statute of limitations for a legal-malpractice claim. It expires one year after the date on which a client faces a cognizable event, whereby the client discovers or should have discovered that he or she has been injured by the attorney’s act or neglect, or one year after the attorney-client relationship for the particular transaction or undertaking terminates, whichever occurs later. Jackson v. Greger, supra,
{¶ 54} Defendants argue that Blackwell faced a cognizable event once he lost the jury verdict, gaining thereby such a clear awareness of legal errors that the one-year clock started to run. They point out that new counsel were retained a short time later to handle Blackwell’s criminal sentencing and appeal and that plaintiffs counsel in this malpractice case were hired and in communication with the Porter Wright firm over legal fees more than a year before this suit was brought. A notice of appearance in the district court by Thompson Hine, the new firm that took over as lead counsel, plus correspondence by letter and e-mail is of record memorializing these developments. Singer affidavit at tabs J, K, and L.
{¶ 55} Flynt v. Brownfield, Bowen & Bally (C.A.6, 1989),
{¶ 56} All of the evidence in this record demonstrates that Porter Wright did not end its representation of Blackwell before December 15, 2005, which falls well within the year before suit was filed. While the law firm was replaced as primary trial counsel for Blackwell on September 6, 2005, following the jury verdict, that did not end its active involvement. The notice of substitution of counsel filed in United States District Court explicitly stated that Porter Wright “will remain Of Counsel for Professor Blackwell.” Singer affidavit at tab L. Furthermore, an e-mail message written by defendant Gorman on August 31, 2005, stated, “TH [the Thompson Hine firm] is going to be designated trial
{¶ 57} This case was filed September 27, 2006. Pursuant to Civ. R. 56(D), this court finds nothing in the record suggesting that there is any genuine issue over the fact that sometime prior to September 27, 2005, “the ‘mutual confidence’ so essential to the attorney-client relationship must be regarded as lacking,” such as could justify a reasonable jury in starting the statute-of-limitations clock under cases like Flynt, supra,
{¶ 58} The decision in Cicchini, supra, like other decisions defining “cognizable event” as one trigger for the statute of limitations, plainly suggests that losing the criminal verdict coupled with Blackwell’s recognition that new counsel should be retained for posttrial motions, sentencing, and appeal and to address the legal fees owed the Porter Wright firm does satisfy one prong of the Zimmie test.
So ordered.
Notes
. Due to an ongoing murder trial, the court canceled oral argument on defendants' motion. Following further review of the extensive briefs, the court concludes that arguments are unnecessary.
. In passing, the court observes that some background or procedural facts are most readily understood using sources outside the pleadings. None appear genuinely disputed. Accordingly, some information gleaned from opinions of the district court, the published opinion of the court of appeals, and the petition for a writ of certiorari is cited hereinafter. In resolving this motion, however, the court has construed all disputed facts and the inferences drawn from the undisputed facts most favorably to Blackwell.
. It appears undisputed that Lundgren and her parents all received immunity from the government, delivered only one day after her separation agreement was signed formalizing a $1 million marital settlement with Blackwell in August 2004. Answer, at ¶ 20.
. Among the places at which the credibility and potential bias of Lundgren have been specifically examined are the Sixth Circuit decision,
. In passing, it surely would be ironic if the law attributed something less than the same finality accorded civil judgments to the criminal judgment against Blackwell, in view of the heightened sensitivity of late to fully protecting the Sixth Amendment right of an accused to a jury determination of facts. E.g., Cunningham v. California (2007), 549 U.S. -,