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When a lawyer sues a client for unpaid fees, the client must assert any possible claim for legal malpractice as a compulsory&nbsp;counterclaim, the&nbsp;Ohio Eighth&nbsp;District Court of Appeals has held.&nbsp;&nbsp; In other words:&nbsp;&nbsp;use it or lose it.&nbsp; The court upheld summary judgment in favor of a lawyer whose client failed to assert such a counterclaim.
In <a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2014/2014-ohio-214.pdf">Harper v. Anthony</a>, the lawyer had represented the client in a divorce case.&nbsp; After the client sued for legal malpractice, the lawyer counterclaimed for unpaid legal fees.&nbsp; When the client failed to answer the counterclaim, the lawyer moved for a default judgment.&nbsp; The client voluntarily dismissed the malpractice claim, leaving the unanswered counterclaim for fees standing.&nbsp; The trial court entered an $11,000 default judgment against the client.
When the client refiled the legal malpractice case, the lawyer moved for summary judgment, arguing that the claim was a compulsory counterclaim to the lawyer&rsquo;s claim based on unpaid fees, and the client lost it by failing to prosecute it in the first action.&nbsp; The trial court agreed, and the court of appeals affirmed.&nbsp; (The Ohio Supreme Court <a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2014/2014-ohio-2245.pdf">declined review</a>.)
Under Ohio Civil Rule 13(A), a counterclaim is compulsory if it is logically related to the opposing party&rsquo;s claim.&nbsp;&nbsp; This met the test, the court held,&nbsp;since the malpractice claim&nbsp;arose out of the same operative facts as the claim for fees.&nbsp;&nbsp;
The client in Harper argued that it was inequitable to require a client to assert a legal malpractice claim at the same time as a lawyer files a suit for unclaimed fees, because the client might not know that a malpractice claim exists until after the unpaid fee dispute is resolved.
But the court of appeals rejected that argument:&nbsp; under Ohio Civil Rule 13(A), a counterclaim is compulsory only if it exists at the time that the pleading is served.&nbsp;&nbsp;The client here had discovered his alleged&nbsp;malpractice claim and sued on it before his former lawyer filed the unpaid-fee counterclaim.&nbsp;&nbsp;Therefore, the client was barred from refiling the same legal malpractice claim.
When you sue a client for unpaid fees, you can often expect a counterclaim for malpractice; here, the shoe was on the other foot.&nbsp; But it is worth remembering that failing&nbsp;to assert a compulsory counterclaim can doom any claim &mdash; whether it&rsquo;s for your fees, or whether it&rsquo;s a malpractice claim against you.

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Ethics

Legal malpractice is compulsory counterclaim in fee suit, Ohio court of appeals says