Login | November 23, 2017

9th District remands vicarious liability claim against Akron law firm

TRACEY BLAIR
Legal News Reporter

Published: November 14, 2017

A vicarious liability claim against an Akron law firm may proceed because an employee who was being sued for legal malpractice may have acted with apparent authority to represent clients on the firm’s behalf, the 9th District Court of Appeals recently ruled.

Court records indicate Catherine McFarland and Jennifer Folden originally retained the Cleveland law firm of Mannion & Gray to pursue a claim against their former stockbroker for alleged misconduct.

The case was assigned to Rami Awadallah, a Mannion & Gray associate. After claiming to have filed a complaint on the clients’ behalf, Awadallah told the clients he was leaving Mannion & Gray to start his own firm.

McFarland and Folden agreed to continue their business relationship with Awadallah at his new firm.

However, Awadallah then closed his new firm and joined Niekamp, Weisensell, Mutersbaugh & Mastrantonio, LLP without informing the clients he changed firms again.

The clients claimed they tracked Awadallah down on the Internet, and then had a series of phone calls and emails about the misconduct case over eight months. The clients added that Awadallah also met with them in person, gave them his new business card and told them he had rejected a settlement offer and was considering refiling the complaint in a different county.

The clients discovered the attorney had never filed a complaint against their former stockbroker and the time to do so had expired. They then filed a legal malpractice complaint against Awadallah and a vicarious liability complaint against Niekamp and Mannion & Gray.

Awadallah denied meeting with McFarland and Folden at the new firm, giving them his new business card or telling them he rejected a settlement offer with the stockbroker.

The clients settled their vicarious liability claim against Mannion & Gray, but continued to pursue the legal malpractice claim against their former lawyer in a Summit County court.

On appeal, the clients argued the trial court erred in granting summary judgment in favor of Niekamp in the vicarious liability claim because there are genuine issues of material fact about whether Niekamp created the appearance of apparent authority.

The trial court found Awadallah exceeded his actual authority to represent the clients because he failed to comply with the firm’s new client policies.

However, the appellate panel disagreed with the trial court’s finding that there was also no apparent authority due to a lack of evidence suggesting Niekamp did anything to make the clients believe they were clients of the firm or that Awadallah had authority to represent them.

Ninth District Judge Lynne Callahan wrote, “Mr. Awadallah was held out to the public by Niekamp on its website as an attorney employed by the firm and with the authority to represent clients on the firm’s behalf.”

In addition, Judge Callahan noted that Niekamp’s staff took at least 25 messages for Awadallah from McFarland, took 19 phone messages from the clients and initiated three phone calls to McFarland.

Appellate judges Donna Carr and Thomas Teodosio concurred.

The case is cited McFarland v. Niekamp, Weisensell, Mutersbaugh & Mastrantonio, L.L.P., 2017-Ohio-8394.


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