Ohio lawyer reprimanded for filing defamation action against wrong party without conducting investigation, failing to amend, and failing to respond to Bar complaint

Hello and welcome to this Ethics Alert blog which will discuss the recent Supreme Court of Ohio opinion reprimanding a lawyer for filing a defamation action against the wrong party without conducting an investigation, refusing to amend when advised of the error, and failing to respond to the subsequent Bar complaint.  The opinion is Ohio Disciplinary Counsel v. Lehmkuhl, Slip Opinion No. 2013-Ohio-4539 (October 16, 2013).  The disciplinary opinion is here: http://www.sconet.state.oh.us/ROD/docs/pdf/0/2013/2013-Ohio-4539.pdf

According to the opinion, the lawyer filed a defamation complaint in 2009 on behalf of himself, his wife, and Arlene and Timothy J. McAfee alleging that the named defendants, Joseph and Amanda Erb, and alleged that they were a married couple.  The complaint stated that they had been interviewed by a local television news crew about the purported treatment of horses owned by the lawyer and pastured by the McAfees and had made numerous false accusations against the plaintiffs with careless disregard as to whether the statements were true, with the intent to defame the plaintiffs.

The answer and counterclaim admitted that Joseph had spoken with the news crew and expressed his opinions regarding the treatment of the lawyer’s horses; however, Amanda was Joseph’s daughter, not his wife, and she had no involvement in the incident.  In their motions for summary judgment and for sanctions they again stated that Amanda was not a proper party.  According to the opinion, “Despite having been advised as early as January 2010 that he had erroneously named Erb’s daughter as a defendant in the defamation action, (the lawyer) waited until May 4, 2010, to dismiss the claims against her and did not seek leave to amend his complaint until May 6, 2010.”

On March 23, 2010, Joseph Erb filed a Bar grievance against the lawyer; however, the Bar dismissed it in May 2010 and advised him that he could file it again at the conclusion of the underlying litigation. “During settlement negotiations in the defamation case, (the lawyer) attempted to condition the dismissal of his civil case on the Erbs’ agreement to abandon their grievance against him. After he was advised that such a condition would violate ethical rules, however, he settled the case without any limitations on the Erbs’ right to pursue their disciplinary grievance.  Mr. Erb refiled his grievance in April 2011.” 

The lawyer requested an extension of time to file a response; however, he never provided any response. “Two days after the lawyer’s father-in-law died, (Bar counsel) sent a second letter by certified mail requiring a response.  Though he received the letter, he did not respond due to the family turmoil surrounding his father-in-law’s death. He also failed to appear for a deposition in (the Bar’s) office after being personally served a subpoena duces tecum because the date did not get placed on his calendar.”

The opinion accepted the stipulation between the parties and imposed a public reprimand on the lawyer “for initiating a defamation action without adequately investigating the identity of the proper defendants, failing to timely amend his complaint when he learned that he had misidentified one of the defendants, and failing to cooperate in the ensuing disciplinary investigation.

Bottom line: This lawyer has hopefully learned a few lessons from his unfortunate experience:  1) lawyers must conduct an adequate investigation before filing a lawsuit, particularly a defamation lawsuit, 2) lawyers are not permitted to condition the settlement of a lawsuit on the withdrawal of a lawsuit, and 3) lawyers should always respond to a Bar complaint.

Disclaimer:  this e-mail is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.          

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670




About jcorsmeier

Joseph A. Corsmeier is an “AV” rated attorney practicing in Clearwater, Florida. He concentrates his practice primarily in the areas of defense of attorney disciplinary matters before The Florida Bar, attorney admission matters before the Florida Board of Bar Examiners, and professional license and disciplinary matters before the Boards of the State of Florida. He provides expert analysis and opinion on conflict of interest and other attorney disqualification and legal malpractice issues and he testified as an expert in the Florida courts. He served as an Assistant State Attorney in the Sixth Judicial Circuit from 1986 to 1990 where he prosecuted felonies exclusively from June 1987, and as Bar Counsel for The Florida Bar’s Department of Lawyer Regulation from 1990 to 1998. He also practices in the areas of estate planning and Medicaid qualification, workers’ compensation, and labor law. Mr. Corsmeier is the author of numerous articles for various bar publications, has spoken at numerous local and statewide seminars on various topics, including ethics and professionalism, and was an instructor of legal ethics for paralegals at Rollins College until the Tampa campus closed. He received his undergraduate degree from Florida State University and his J.D. from Mercer University. He is admitted to practice in all Florida Courts, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the Middle District of Florida. He is a member of The Florida Bar, American Bar Association, the Association of Professional Responsibility Lawyers, and the Clearwater and St. Petersburg Bar Associations.
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