{¶ 1} Plaintiff-appellant, Timothy A. Shimko, appeals from a judgment of the Franklin County Court of Common Pleas in favor of defendants-appellees, Thomas G. Lobe (“Lobe”), the Cleveland Bar Association (“CBA”), and the Ohio State Bar Association (“OSBA”), in a refiled lawsuit challenging the constitutionality of the Ohio Code of Professional Responsibility Disciplinary Rule 2-107(B), which requires binding arbitration of fee disputes between attorneys from different firms. The trial court concluded that DR 2-107(B) is a reasonable restriction on the practice of law and is therefore constitutional. Plaintiff also appeals from the trial court’s judgment dismissing plaintiffs civil conspiracy claims against defendants-appellees, Lobe, John Riccota, Patrick Holland, Robert Neumann, and Eric Nickerson.
{¶ 2} Plaintiffs initial lawsuit arose out of several fee disputes between plaintiff and Lobe, both practicing attorneys in Ohio. In December 1995, in response to Lobe’s request to set the fee disputes for mandatory and binding arbitration pursuant to DR 2-107(B), the CBA notified plaintiff and Lobe that it was accepting jurisdiction over part of the fee disputes. In 1996, plaintiff filed suit in the Franklin County Court of Common Pleas, seeking a declaration that DR 2-107(B) is unconstitutional on various grounds.
{¶ 3} In 1997, this court affirmed the trial court’s judgment granting summary judgment against plaintiffs claims that DR 2-107(B) is unconstitutional due to violations of due process, equal protection, and open access to the courts, the latter claim being characterized by this court as one of impairment of contractual
{¶ 4} The CBA and OSBA filed discretionary appeals and plaintiff filed a cross-appeal of this court’s decision. The Ohio Supreme Court sua sponte dismissed plaintiffs cross-appeal for failure to prosecute, and did not allow the discretionary appeal of the CBA and OSBA.
Shimko v. Lobe
(1998),
{¶ 5} On April 5, 1999, plaintiff refiled a complaint seeking a declaratory judgment that DR 2-107(B) is invalid and unenforceable because it violates the Ohio and United States Constitutions. The refiled complaint presents claims virtually identical to those asserted in the initial lawsuit, including those disposed of in the earlier appeal, and presents two additional claims: (1) Lobe was “of counsel” in plaintiffs firm and therefore DR 2-107(B) does not apply to their fee dispute (Count X), and (2) the individual defendants engaged in an act constituting civil conspiracy against plaintiff (Count XI). The refiled case includes the same parties as the initial lawsuit, with Riccota, Holland, Neumann, and Nicker-son added as party defendants. Pursuant to defendants’ motions, the trial court granted summary judgment against all of plaintiffs claims except his claim that DR 2-107(B) violates plaintiffs right to a jury trial. Thus, remaining for resolution were Count I, alleging that DR 2-107(B) violates plaintiffs right to a jury trial provided in the Ohio Constitution, and Count VII, alleging the same violation under the United States Constitution.
{¶ 6} Pursuant to this court’s remand, a hearing was held before a magistrate on April 17 and 18, 2000, for the sole purpose of gathering evidence on whether DR 2-107(B) is a reasonable restriction of an attorney’s right to a jury trial in a fee dispute with another attorney from a differ'ent firm. In a decision issued September 13, 2000, setting forth findings of fact and conclusions of law, the magistrate found plaintiffs claim that DR 2-107(B) denied him the right to a jury trial to be without merit and recommended that the trial court find DR 2-107(B) constitutional as a reasonable restriction on the practice of law.
{¶ 7} Following the magistrate’s decision, the trial court denied plaintiff leave to amend the complaint to conform to the evidence. On August 13, 2001, the trial
{¶ 8} Plaintiff appealed from the trial court’s judgment, but because the judgment had not disposed of Lobe’s pending counterclaim for abuse of process, this court dismissed the appeal, finding subject-matter jurisdiction lacking because there was no final appealable order in the case.
Shimko v. Lobe
(Apr. 25, 2002), Franklin App. No. 01AP-1113,
{¶ 9} Plaintiff appeals, assigning the following errors:
{¶ 10} “1. The trial court erred in adopting the magistrate’s findings of fact and conclusions of law with respect to Shimko’s claim that DR 2-107(B) denied his right to a trial by jury.
{¶ 11} “2. The trial court erred in granting defendant Ricotta’s, Neumann’s, Nickerson’s and Holland’s motion for summary judgment dismissing Count XI of plaintiffs complaint.
{¶ 12} “3. The trial court erred in granting defendant bar associations’ motion for summary judgment as to Counts II through VI and VII [sic, VIII] through X of the complaint.
{¶ 13} “4. The trial court erred in overruling plaintiffs motion for leave to amend complaint to conform to the evidence and/or to introduce additional evidence.”
{¶ 14} In his first assignment of error, plaintiff asserts that the trial court erred in finding that DR 2-107(B) is reasonable and therefore constitutional; plaintiff contends that it deprives plaintiff of his right to a trial by jury under Section 5, Article I of the Ohio Constitution and the Seventh Amendment to the United States Constitution.
{¶ 15} DR 2-107 provides:
{¶ 16} “(A) Division of fees by lawyers who are not in the same firm may be made only with the prior consent of the client and if all of the following apply:
{¶ 17} “(1) The division is in proportion to the services performed by each lawyer or, if by written agreement with the client, all lawyers assume responsibility for the representation;
{¶ 18} “(2) The terms of the division and the identity of all lawyers sharing in the fee are disclosed in writing to the client;
{¶ 20} “(B) In cases of dispute between lawyers arising under this rule, fees shall be divided in accordance with mediation or arbitration provided by a local bar association. Disputes that cannot be resolved by a local bar association shall be referred to the Ohio State Bar Association for mediation or arbitration.” (Emphasis added.)
{¶ 21} Plaintiff first contends that the right to a trial by jury, as a specifically enumerated right in the Constitution, is a fundamental right, and therefore DR 2-107(B) is subject to a strict-scrutiny rather than a rational-basis analysis.
{¶ 22} Plaintiffs arguments were addressed in this court’s earlier opinion, wherein we concluded that “this case does not involve the deprivation of a fundamental right” and that DR 2-107(B) is not subject to a strict-scrutiny standard but need withstand only the “rational-basis test.”
Shimko,
supra,
{¶ 23} In the absence of findings regarding reasonableness, we further stated that “by [attorneys] being subject to the Code of Professional Responsibility, a jury trial has been validly waived in this case. However, a hearing on the reasonableness of that rule is mandated to determine that issue.
If the condition and waiver of a jury trial predicated on DR 2-107 is reasonable, then the trial court acted properly
[in ruling that DR 2-107(B) is not unconstitutional]. However, without a record to review, we have no factual basis to assess the reasonableness of this rule and the propriety of the trial court’s ruling. Our only recourse is to remand to the trial court for a hearing to determine the rule’s reasonableness in that respect.” (Emphasis added.) Id. at 347-348,
{¶ 24} Despite assertions by plaintiff to the contrary, this court’s decision on the legal questions involved became the “law of the case” for subsequent proceedings, including the hearing held on remand. The law-of-the-case doctrine “ ‘provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.’ ”
In Defense of Deer v. Cleveland Metroparks
(2000),
{¶ 25} Accordingly, the trial court was bound by the law of the case doctrine to adhere to this court’s legal determinations in Shimko, including this court’s determination that DR 2-107(B)’s requirement of binding arbitration of fee disputes between attorneys from different firms does not unconstitutionally deprive plaintiff of his right to a trial by jury if evidence presented at the hearing on remand shows that the rule is reasonable.
{¶ 26} Plaintiff nonetheless asserts a presumption arises that DR 2-107(B) is invalid because it interferes with the right to a jury trial. Plaintiff therefore contends that defendants, not plaintiff, had the burden to prove the rule’s constitutionality but did not carry that burden at the evidentiary hearing held pursuant to this court’s mandate. Whether the burden is on plaintiff or defendants, we need not determine because, even if the burden rests with defendants, they have carried that burden.
{¶ 27} During the two-day hearing on whether DR 2-107(B) is a reasonable restriction on those who practice law in Ohio, the bar associations presented evidence in the form of exhibits and offered testimony from three expert witnesses who have extensive experience and expertise in the field of legal ethics and professional responsibility. The witnesses either were involved in the promulgation of DR 2-107(B) or have had extensive professional experience with the rule’s impact on fee disputes between attorneys.
{¶ 28} According to the bar associations’ witnesses, fee disputes between attorneys were identified as a problem prior to DR 2-107(B)’s promulgation. In particular, major areas of concern were (1) the maintenance of client confidences and secrets during a fee dispute between attorneys, and (2) damage in public esteem for the legal profession resulting from attorneys’ lawsuits over fees.
{¶ 29} The evidence presented at the hearing demonstrates that the arbitration and mediation provision of DR 2-107(B) helps to preserve the confidentiality of attorney-client communication and resulting privileges. The bar association witnesses uniformly testified that a central feature of the practical effect of DR 2-107(B) is that fee disputes are resolved in a setting in which client confidences and secrets are not publicly disclosed. Although an attorney may reveal client
{¶ 30} The bar association witnesses further testified that DR 2-107(B) helps to fulfill the goal of promoting the public’s image of the bar because it requires that certain fee disputes between attorneys be resolved in the nonpublic setting of mediation or arbitration, rather than “the tawdry spectacle of lawyers fighting over the carcass of a fee” in a courtroom. (Sept. 13, 2000 Magistrate Decision.) One witness testified that the rule also helps to avoid a situation where an attorney not only sues another attorney to collect his fee but brings the client into the lawsuit and thus forces the client to hire yet another attorney to represent the client in a fight between two attorneys who had represented the client.
{¶ 31} Finally, evidence was presented that DR 2-107(B)’s binding arbitration provision expedites the resolution of fee disputes. One of the expert witnesses testified that attorney fee disputes under DR 2-107(B) typically may be resolved in 90 to 120 days, whereas fee disputes in court often take one to three years to resolve. Further evidence demonstrated that the flexibility of arbitration proceedings, which may be conducted based on written submissions and deposition transcripts, serves to lessen a client’s investment of time and emotion in an arbitration proceeding than would be the case in a civil action.
{¶ 32} Based on the evidence presented at the hearing to determine the reasonableness of DR 2-107(B), we conclude that the compulsory arbitration and mediation provision of the rule is a reasonable restriction on those who practice law in Ohio. DR 2-107(B) provides an effective method of protecting client confidences and secrets and of achieving the goal of “expeditiously resolving fee disputes between attorneys in a manner that does not erode public confidence in the legal profession.”
Shimko,
{¶ 33} Our decision today is in accord with courts in other jurisdictions which have encountered similar constitutional challenges to court rules that require attorney fee arbitration. See
In re LiVolsi
(1981),
{¶ 34} Plaintiff contends that LiVolsi and Anderson are inapplicable because they involve attorney-client fee disputes rather than fee disputes between attorneys. The concerns in those cases, however, mirror the concerns in this case, and the plenary constitutional power of the Ohio Supreme Court relating to the practice of law in this state is at least as extensive as the courts in the above-cited cases. See Section 2(B)(1), Article IV, Ohio Constitution; cf. Paragraph 3, Section II, Article VI, New Jersey Constitution (1947); Section 1, Article' VI, Maine Constitution.
{¶ 35} Indeed, the argument in favor of compulsory arbitration for fee disputes between attorneys is even stronger than that for attorney-client fee disputes. In being granted the privilege to practice law, attorneys become members of a regulated profession where they agree to waive certain rights available to the public at large and agree to be bound by the rules of the profession. Clients, as members of the public, are not similarly bound by restrictions placed on the members of the profession. Accordingly, if binding arbitration for attorney-client fee disputes is constitutional in principle, then binding arbitration for attorney-to-attorney fee disputes is constitutional in both principle and as applied here, where its reasonableness has been established.
{¶ 36} Plaintiff further argues that the cases cited above are inapposite because there was a “factual basis” in those cases to support a rule requiring binding arbitration of attorney fee disputes. Plaintiff asserts that no factual basis supports promulgation of DR 2-107(B) because “no studies or surveys were
{¶ 37} Plaintiffs argument is not well founded. First, plaintiff cites no authority that a study or survey is required to identify public interests when a court is deciding the constitutionality of a provision. See, e.g.,
State ex rel. Purdy v. Clermont Cty. Bd. of Elections
(1997),
{¶ 38} Plaintiff next contends that the Ohio Supreme Court does not have the authority to delegate judicial authority and create a separate “tribunal” to resolve attorney fee disputes. “Tribunal” apparently refers to the mediation and arbitration proceedings authorized by DR 2-107(B).
{¶ 39} The Supreme Court has not unlawfully delegated judicial authority to resolve fee disputes. As noted, by practicing law in this state plaintiff has agreed to be bound to the Code of Professional Responsibility, including DR 2-107(B)’s provisions. His “agreement” to submit certain fee disputes to mediation or arbitration gives the mediators or arbitrators their authority to resolve the fee disputes. See, generally,
Huffman v. Huffman,
Franklin App. Nos. 02AP-101 and 02AP-698,
{¶ 40} Finally, plaintiff claims that DR 2-107(B) infringes his right to a jury trial under the Seventh Amendment to the United States Constitution, as alleged in Count VII of the refiled complaint. The United States Supreme Court has held that “the 7th Amendment applies only to proceedings in courts of the United States, and does not in any manner whatever govern or regulate trials by jury in state courts.”
Minneapolis & St. Louis R. v. Bombolis
(1916),
{¶ 41} In his second assignment of error, plaintiff asserts that the trial court erred in granting summary judgment against plaintiff on Count XI of plaintiffs
{¶ 42} The allegedly “frivolous lawsuit” referred to in the civil conspiracy claim is a lawsuit Neumann and Nickerson, plaintiffs former clients, filed in Cuyahoga County for breach of a contingency fee contract and conversion (“the
Neumann
case”). The Cuyahoga County Common Pleas Court granted plaintiff, there defendant, summary judgment on the claims against him. Plaintiff, as a defendant, then moved for sanctions pursuant to R.C. 2323.51 and Civ.R. 11 against Neumann and Nickerson and their counsel, Holland and Ricotta. In support of his sanctions motion, plaintiff claimed that the filing of the
Neumann
case against him was a “frivolous and vexatious lawsuit,” arguing that “[t]he real purpose of this litigation is to assist Mr. Thomas Lobe in litigation that Mr. Shimko has against Mr. Lobe[.]”
(Neumann
case, July 21, 1998 motion for sanctions.) The common pleas court denied the motions for sanctions, and the Eighth District Court of Appeals affirmed the denial.
Neumann v. Shimko
(Mar. 16, 2000), Cuyahoga App. No. 75940,
{¶ 43} “The doctrine of
res judicata
involves both claim preclusion (historically called estoppel by judgment in Ohio) and issue preclusion (traditionally known as collateral estoppel).”
Grava v. Parkman Twp.
(1995),
{¶ 44} Plaintiffs action for civil conspiracy is barred because it is based upon a claim arising from a nucleus of facts that was the subject matter of the
Neumann
case. Specifically, plaintiffs motion for sanctions in the
Neumann
case was based upon the filing of a frivolous lawsuit against plaintiff in that case. Plaintiffs civil conspiracy claim in this action is based on the named defendants’
{¶ 45} In the Grava case, “a valid, final judgment rendered upon the merits” denied the sanctions motion and necessarily held that the filing of the Neumann lawsuit was not frivolous. See R.C. 2323.51. Thus, plaintiffs claim here arises out of the same transaction or occurrence that was the subject matter of the previous action. Because a final adjudication held that the filing of the Neumann lawsuit was not frivolous, res judicata bars plaintiffs instant claim for civil conspiracy, which is expressly based upon the filing of a frivolous lawsuit in the Neumann case. Id.
{¶ 46} Plaintiff contends that whether the Neumann case was frivolous as a matter of law is not dispositive, because his civil conspiracy claim may be characterized as one based on the underlying tort of “abuse of process” rather than the filing of a “frivolous lawsuit.” Plaintiffs argument is not well taken. While facts supporting an abuse of process claim may be found in the instant complaint, plaintiff expressly bases his civil conspiracy claim on an underlying unlawful act of filing a frivolous lawsuit. See Complaint, ¶ 121 and 123.
{¶ 47} Plaintiff next contends that because three of the party defendants to his civil conspiracy claim were not parties in the Neumann case proceedings, the absence of mutuality of parties precludes application of the doctrine of res judicata or collateral estoppel to this case.
{¶ 48} As a general principle, res judicata and collateral estoppel apply only when the parties seeking to use a prior judgment, as well as the party against whom the judgment is being asserted, were parties to the original judgment or in privity with those parties.
Goodson v. McDonough Power Equip., Inc.
(1983),
{¶ 49} Although the named plaintiffs in the Neumann case were Neumann and Nickerson, plaintiff sought sanctions against not only them but also Ricotta and Holland personally, as their attorneys, pursuant to Civ.R. 11. Because Ricotta and Holland were personally targeted in the motion for sanctions and they and Lobe could have been joined as parties, they may be deemed “parties” to the sanctions motion for purposes of res judicata and collateral estoppel.
{¶ 50} Plaintiff finally contends that res judicata does not apply to this action because the motion for sanctions was decided without a hearing or any opportunity to introduce evidence. Plaintiff asserts that the prior judgment is therefore not binding in this proceeding because he did not have a full and fair opportunity to litigate the matters set forth in the sanctions motion.
{¶ 51} Plaintiffs argument is premised on the failure of the Cuyahoga County Common Pleas Court to hold a hearing on his sanctions motion in the
Neumann
case. The failure of the common pleas court to hold a hearing on the sanctions motion was asserted as error in plaintiffs appeal of the common pleas court’s denial of his sanctions motion. The Eighth District Court of Appeals expressly rejected plaintiffs assertion, holding that the trial court was under no obligation to hold a hearing where it was
denying,
rather than imposing, sanctions.
Neumann v. Shimko,
supra. This court has similarly held that R.C. 2323.51 does not require a trial court to hold a hearing before denying a motion for an award of sanctions. See
Justice v. Lutheran Soc. Serv. of Cent. Ohio
(1992),
{¶ 52} Notably, plaintiff did not seek that the Ohio Supreme Court review the Eighth District Court of Appeals’ ruling in the
Neumann
case. Because plaintiff failed to do so, he is now precluded from collaterally attacking the validity of the Cuyahoga judgment through the present litigation.
Upper Arlington v. Brewster
(Jan. 20, 1998), Franklin App. No. 97APE08-1003,
{¶ 53} Based on the foregoing, we conclude that the trial court did not err in finding plaintiffs civil conspiracy claim barred by res judicata and collateral estoppel. Accordingly, plaintiffs second assignment of error is overruled.
{¶ 55} Civ.R. 41(A), under which plaintiff dismissed his initial action, provides that “a plaintiff, without order of court, may dismiss all claims asserted by that plaintiff against a defendant by * * * filing a notice of dismissal at any time before the commencement of trial * * Relying on the Ohio Supreme Court’s decision in
DeVille Photography, Inc. v. Bowers
(1959),
{¶ 56} The effect of res judicata in a factually analogous context was explained in
Phung v. Waste Mgt., Inc.
(1994),
{¶ 58} Similarly, in this case, this court affirmed the trial court’s judgment in the initial action dismissing plaintiffs due process, equal protection, and impairment-of-contractual-rights claims, and reversed and remanded that portion of the judgment dismissing plaintiffs claim of right to a jury trial. As in Phung, when the Supreme Court dismissed the parties’ appeal of the judgment, the remanded right-to-jury-trial claim was allowed to continue. However, res judicata precluded relitigation of the remaining claims alleging impairment of due process, equal protection, and contractual rights, and the trial court’s judgment in the initial action became valid and final as to those claims.
{¶ 59} Res judicata also operates to bar plaintiffs “of counsel” claim, Count X in the refiled complaint, that was not presented in the initial complaint. In that claim, plaintiff alleges that Lobe was “of counsel” to plaintiff on the cases giving rise to the fee disputes between plaintiff and Lobe, and plaintiff asserts that DR 2-107(B) does not apply to “of counsel” arrangements.
{¶ 60} The “of counsel” claim arises “out of the transaction or occurrence that was the subject matter of the previous action,”
Grava
at syllabus, and is merely a new theory by which plaintiff attempts to limit the applicability of DR 2-107(B) to his fee dispute with Lobe. A new legal theory does not create a new transaction. Id. at 382,
{¶ 61} Because the trial court did not err in concluding that Counts II through VI and VIII through X of the refiled complaint were barred by res judicata, plaintiffs third assignment of error is overruled.
{¶ 63} Plaintiffs reliance on the foregoing decisions is unavailing because the ■ cases are factually distinguishable from the instant case. In
Hohmann,
observing that DR 2-107 “specifically regulates lawyers who are not in the same firm,” the appellate court held that a referral to the bar association for arbitration was unwarranted, as the dispute was outside the intended scope of DR 2-107(B) where it not only arose out of the attorneys’ relationship when they were in the same firm but involved issues beyond the fee agreement itself.
Hohmann
at 696-697,
{¶ 64} In
Schroeder,
the appellate court found DR 2-107(B) inapplicable because the “case is not a dispute under a fee agreement between the parties as to how the fees are divided, but, rather, a dispute regarding the actual existence of such an agreement.” Id. at 615,
{¶ 65} In arguments before this court, plaintiff has acknowledged that a fee agreement need not be in writing for DR 2-107(B) to apply. Plaintiff nevertheless contends that a declaratory judgment should issue in this case holding DR 2-107(B) inapplicable to his fee dispute with Lobe. If plaintiff believes that his fee dispute with Lobe is not subject to DR 2-107(B), plaintiff should dismiss the refiled complaint, not amend it, because the premise for its claim of unconstitutionality of DR 2-107(B) rests on applicability of the rule. Further, if DR 2-107(B) does not apply to the fee dispute between plaintiff and Lobe, plaintiff lacks standing in this private action to assert the unconstitutionality of the rule, where he would be neither subject to, nor aggrieved by, operation of the rule. See
Palazzi v. Estate of Gardner
(1987),
Judgment affirmed.