Res ipsa loquitur:
FOR IMMEDIATE RELEASE
Jonathan R. Zell
5953 Rock Hill Road
Columbus, OH 43213-2127
Lawyer threatens lawsuit over American Bar Association’s censorship of malpractice-themed Peeps® diorama
Columbus, OH. Jonathan Zell simply wanted to illustrate a novel legal argument that his adversaries had made in a malpractice case Zell had filed on behalf of his mother against the Ohio-based law firm of Frost Brown Todd. (Eileen Zell v. Frost Brown Todd LLC, et al.. Case No. 2:13-cv-0458, U.S. District Court, Southern District of Ohio, Eastern Division.) So Zell entered the American Bar Assn’s (ABA’s) “Peeps in Law 2014” contest by submitting a miniature scene (called a “diorama”) made out of Peeps® (the animal-shaped marshmallow candies) depicting this argument.
In response, according to Zell, the national lawyers group “has banned my diorama simply because it involves the touchy subject (that is, touchy to lawyers) of legal malpractice.” So Zell now plans to sue the ABA, claiming that, “to avoid embarrassing lawyers,” the ABA is engaging in “a blatant kind of self-interested political censorship.”
In an e-mail to Zell, an ABA official claimed that Zell’s diorama was not accepted because it was submitted by someone “personally involved” in the legal case being depicted. But, because the contest deadline had already passed, it was now too late for anyone else to submit this diorama instead of Zell.
Zell wrote back to the ABA, pointing out that the contest rules say nothing about “involved persons.” Also, the ABA had already accepted and posted on its website similar dioramas from other “involved persons.” But Zell received no response.
Zell’s diorama showed six lawyers sitting in a law firm’s office, each of whom was holding up a sign stating “Not me.” This was intended to depict the six Frost Brown Todd lawyers whom Zell’s mother has sued for legal malpractice. As was explained in a caption accompanying the diorama, the statute of limitations on legal malpractice does not begin to run until after the client’s legal representation in the matter in question has ended. This is designed to give the malpracticing lawyer an opportunity to correct his or her mistake.
However, Frost Brown Todd recently filed a motion in court arguing that, because its six lawyers had worked on Zell’s mother’s case “successively,” the statute of limitations should be computed separately “for each particular attorney.” If so, then Ohio’s one-year statute of limitations on legal malpractice would have already expired on the first five lawyers’ mistakes. Since the alleged harm had already occurred before the sixth lawyer took over the case, Frost Brown Todd then claimed that none of its lawyers or even the firm itself has any liability.
Zell contends that, if Frost Brown Todd’s “novel legal argument” is accepted by the court, it would “provid[e] a roadmap for Ohio’s attorneys on how to defeat claims for legal malpractice committed during trial litigation.” Calling it the “Hot Potato” strategy, Zell described this roadmap as follows:
When one of the firm’s attorneys commits malpractice, reassign the case to another attorney. If the second attorney also commits malpractice, then reassign the case to a third attorney, and so on. Then have the final (non-malpracticing) attorney continue to represent the client on appeal in the same matter until the statutes of limitations on the previous attorneys’ legal malpractice expire.
The caption to Zell’s diorama concluded that a court decision sanctioning the “Hot Potato” strategy would be so unfair to clients that it might “provide the necessary impetus to get Ohio’s legislature to extend what is now the shortest statute of limitations on legal malpractice in the nation.”
So, although illustrated by a piece of artwork composed of marshmallow candies, Zell’s mother’s case has the potential to be a landmark legal ruling. On the other hand, Zell’s planned lawsuit against the ABA seems like a lot of peeping about nothing.
The contest entries can be viewed at http://www.abajournal.com/
gallery/peeps_2014. Viewers of the website can vote for their favorite diorama at http://www.abajournal.com/ news/article/vote_for_your_ favorite_2014_peeps_in_law_ diorama.
Photo of Zell’s Diorama
Close-up Photo of a Portion of Zell’s Diorama
The Caption to Zell’s Diorama
The ABA’s e-mail to Zell of 4/7/2014
Zell’s e-mail Reply to the ABA of 4/7/2014
Here’s the 3-page “caption” (pdf) that went with the diorama. Click over to the next page if you want to read those emails for some reason.