[Cite as Fahey Banking Co. v. Grady & Assocs., 2024-Ohio-159.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

THE FAHEY BANKING COMPANY, :

Plaintiff-Appellant, :

No. 112417

v. :

GRADY AND ASSOCIATES, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: January 18, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-21-953442

Appearances:

Cooper Elliot and Barton R. Keyes, for appellant. 

Mazanec, Raskin, & Ryder Co., L.P.A., Joseph F. Nicholas, 

Jr., Frank H. Scialdone, and Terrence L. Williams, for 

appellees. 

MARY J. BOYLE, J.:

Plaintiff-appellant, The Fahey Banking Company (“Bank”), appeals the 

trial court’s judgment entry granting defendants-appellees, Grady and Associates 

and its attorneys, Francis X. Grady (“Attorney Grady”) and Andrew Campbell’s
(collectively “Grady”), motion for summary judgment, raising one assignment of 

error for review:

Assignment of Error: The trial court erred by granting [Grady’s] 

motion for summary judgment.

For the reasons set forth below, we affirm the trial court’s ruling. 

In September 2021, the Bank refiled a complaint against Grady for 

legal malpractice. According to the complaint, the Bank is an Ohio corporation and 

a stock state bank that retained Grady, a “boutique” law firm, and its attorneys who 

focused on a broad range of transactional and regulatory matters for financial 

institutions and related entities. Grady was retained to provide legal services to the 

Bank in connection with various matters, including the review and presentation of 

consulting agreements and employment contracts for the Bank’s executive officers. 

The complaint states that “at all relevant times, [Grady] represented and had an 

attorney-client relationship with [the Bank]” and “owed duties to [the Bank], 

including a duty of care and a duty not to take actions that advanced interests of 

other to the detriment of [Bank,]” but that “[Grady] at various times took actions to 

benefit individual officers and directors of [the Bank], to the detriment of [the 

Bank]” and caused the Bank significant damages. In its second cause of action, the 

Bank claimed that, based upon Grady’s actions, it is entitled to disgorgement. 

(Bank’s Complaint, 09/23/21.) Grady filed an answer to the refiled complaint. 

Therein, Grady admitted that they represented the Bank and “owed a duty to the 

[Bank] to act with the degree of skill, knowledge, care, and diligence normally 
applied by members of the legal profession under like or similar circumstances.” 

(Grady’s Answer, 10/25/21).

In February 2022, a remote case-management conference was held 

and the following litigation schedule was set: 

1. Plaintiff to provide expert reports by not later than 6/6/2022. 

2. Defendants to provide expert reports by not later than 8/5/2022. 

3. All discovery is to be completed by not later than 9/19/2022. 

4. Dispositive motions to be filed by not later than 10/5/2022. 

5. Trial is scheduled for 1/23/2023 at 8:00 a.m. 

6. Trial order entered.

(Journal Entry, 02/25/22.)

On August 5, 2022, Grady filed a notice of identification of a defense 

expert and produced their expert report. Two months later, on October 5, 2022, 

Grady filed a motion for summary judgment. The Bank next filed an unopposed 

motion to clarify briefing schedule, which the trial court granted on November 2, 

2022, ordering the parties to follow Civ.R. 6(C) for response times. On November 2, 

2022, November 11, 2022, and November 18, 2022, the Bank filed unopposed 

motions for extension of time in which to file its brief in opposition to Grady’s 

dispositive motion.1 On December 2, 2022, the Bank filed its brief in opposition. 

Grady filed its reply brief in support of its summary judgment motion on 

December 14, 2022. Approximately one month later, the trial court granted Grady’s 

motion for summary judgment. The Bank timely appeals this order. 

1 No rulings by the trial court were made on these motions for extension of time.
In its sole assignment of error, the Bank argues that the trial court 

erred, as a matter of law, in granting Grady’s motion for summary judgment.

We review a trial court’s judgment granting a motion for summary 

judgment de novo. Citizens Bank, N.A. v. Richer, 8th Dist. Cuyahoga No. 107744, 

2019-Ohio-2740, ¶ 28. Thus, we independently “examine the evidence to determine 

if as a matter of law no genuine issues exist for trial.” Brewer v. Cleveland City

Schools Bd. of Edn., 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997), 

citing Dupler v. Mansfield Journal Co., Inc., 64 Ohio St.2d 116, 413 N.E.2d 1187 

(1980). We, therefore, review the trial court’s order without giving any deference to 

the trial court. Citizens Bank at ¶ 28. “On appeal, just as the trial court must do, we 

must consider all facts and inferences drawn in a light most favorable to 

the nonmoving party.” Glemaud v. MetroHealth Sys., 8th Dist. Cuyahoga No. 

106148, 2018-Ohio-4024, ¶ 50, citing N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of 

Commrs., 121 Ohio App.3d 188, 192, 699 N.E.2d 534 (8th Dist.1997). 

The moving party has the initial responsibility of informing the trial 

court of the basis for the motion and identifying those portions of the record that 

demonstrate the absence of a genuine issue of material fact on the essential elements 

of the nonmoving party’s claims. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 

N.E.2d 264 (1996). “To accomplish this, the movant must be able to point to the 

evidentiary materials of the type listed in Civ.R. 56(C) that a court is to consider in 

rendering summary judgment.” Id. These include “the pleadings, depositions, 

answers to interrogatories, written admissions, affidavits, transcripts of evidence, 
and written stipulations of fact, if any.” Civ.R. 56(C). “These evidentiary materials 

must show that there is no genuine issue as to any material fact, and that the moving 

party is entitled to judgment as a matter of law.” Dresher at 293. After the moving 

party has satisfied this initial burden, the nonmoving party has a reciprocal duty to 

set forth specific facts by the means listed in Civ.R. 56(C) showing that there is a 

genuine issue of material fact. Id. 

Grady does not dispute that an attorney-client relationship existed 

between them and the Bank and that they had professional duties arising from that 

relationship. Grady argued in their motion for summary judgment that the Bank’s 

legal malpractice fails as a matter of law because it did not produce the requisite 

expert testimony to establish that Grady breached their standard of care. Grady 

further asserted that the only competent evidence regarding the standard of care 

and duty owed were the opinions of their expert, who opined that Grady complied 

with those duties and satisfied their obligations to provide competent representation 

to the Bank. Moreover, Grady claimed that the Bank’s claim for disgorgement also 

fails as a matter of law because there is no such claim in Ohio. 

Attached to Grady’s motion for summary judgment was the affidavit 

of their defense expert, Benjamin A. Barnhill (“Barnhill”), a practicing attorney who, 

for the past 15 years, represented community banks and vendor companies and 

advised those banks on corporate, transactional, regulatory, securities, governance, 

change-in-control, and executive compensation matters. The affidavit included a 

true and accurate copy of Barnhill’s expert report and curriculum vitae. In his 
report, Barnhill opined that 1) Grady appropriately structured compensation 

agreements to comply with applicable laws; 2) Grady had a reasonable basis to 

believe that the compensation agreements were reasonable given the Bank’s size, 

health, and relevant industry; 3) it was reasonable for Grady to rely upon the Bank’s 

board of directors to determine the appropriateness of the compensation 

agreements and whether to approve them on behalf of Bank; 4) Grady addressed 

any perceived conflict of interest by seeking and receiving informed approval for the 

employment agreements from the board; and 5) Grady satisfied their obligation to 

provide competent representation to the Bank. 

 The Bank countered by arguing that summary judgment is not 

proper in this matter because it set forth specific facts in its brief in opposition 

showing that it did not need expert testimony to support its causes of action proving 

that Grady owed a professional duty, breached that duty, and caused the Bank

damages. Specifically, the Bank contended that Grady advised Carl Hughes (“C. 

Hughes”), the Bank’s former chief executive officer, and Coleman Clougherty

(“Clougherty”), the Bank’s former chief operating officer, how to protect their

personal interests, negotiate against the Bank, and extend their tenure at the Bank. 

The Bank explained that an attorney-client relationship existed only between the 

Bank and Grady, and never with individual executive officers. The Bank argued that 

Grady’s actions clearly violated a lawyer’s duty of loyalty because C. Hughes and 

Clougherty were adverse parties to the Bank, the corporation Grady was 

representing. The Bank asserted that large amounts of the work Grady performed 
and the Bank paid for involved consulting agreements and employment contracts

for C. Hughes and Clougherty that were as executive friendly as possible and efforts 

to ensure the personal interests of these individual executive officers were better 

served. The Bank claimed that it did not need an expert to establish the standard 

of care or its breach because it was obvious and within the understanding of a 

layperson that an attorney should not advise a party on the opposite side of a 

transaction to his client. 

Contemporaneously with the filing of its brief in opposition, the Bank 

filed two affidavits, to wit: the affidavit of Barton R. Keyes (“Keyes”), the Bank’s 

current counsel, and the affidavit of Martin J. Hughes, III (“M. Hughes”), the Bank’s 

current president and one of the largest shareholders. In his affidavit, Keyes

authenticated and included documents that were produced in discovery, i.e., Grady’s 

written engagement; email correspondence; pre-bill worksheets; letters; 

employment agreements; and invoices. The Bank quoted specific portions of these

documents in its brief in opposition and argued that Grady’s statements like “[t]his 

contract is as CEO friendly as possible” and “your personal interests are better 

served by a more comprehensive employment contract similar to the sample 

document I am providing you” supported its position that there was an obvious and 

ascertainable breach of the standard of care and duty of loyalty because Grady was 

providing advice to opposing parties. (Bank’s Brief in Opposition, 12/02/22.)

 In the other affidavit, M. Hughes averred to his personal knowledge 

of the following facts:
2. I am currently employed at [the Bank] as its President and am one 

of the largest shareholders of the Bank. My current tenure at [the 

Bank] began in early 2019.

3. Both [C. Hughes] and [Clougherty] (“then-management”) worked 

for the bank before their entering into the employment and related 

agreements in which [Attorney] Grady was involved in 2017.

4. Even before [Attorney] Grady’s representation of [the] Bank began 

in 2017, I believed the Bank was being poorly run, and that there were 

serious improprieties that needed to end. I had been vocal about this 

to the Board of Directors, to Mr. Clougherty, and to other shareholders. 

Ultimately, I wanted to effect a change in the board and change in 

management consistent with my rights as a shareholder, and always 

within any legal or regulatory restrictions that might apply. I 

undertook efforts to do so. If successful, these efforts would have 

resulted in [C. Hughes] and Clougherty no longer holding their 

positions at the Bank.

5. Because of my efforts, I was heavily involved in litigation, 

arbitration, bank regulator proceedings, and other disputes with the 

Bank under its then-management, as well as disputes with [C. Hughes]

that would affect who had authority to vote substantial numbers of 

shares of [the] Bank[’s] stock (in turn potentially affecting the election 

of directors who select management). Through those disputes, I came 

to know of [Attorney] Grady’s and his firm’s involvement representing 

the Bank.

6. I also came to know of a number of improper efforts by thenmanagement, and Defendant counsel to restrain or discourage me and 

other shareholders who also sought to legally exercise our voting rights 

to stop prior management from continuing to enrich themselves at the 

expense of the bank. For example:

a. Then-management and Grady and his firm submitted false 

allegations to multiple bank regulators suggesting that I had 

violated the federal Change in Bank Control Act (and the Ohio 

equivalent), allegedly by crossing a voting threshold of voting rights 

that required prior regulatory approval. They supported these 

allegations with a false record of the level of my voting rights. They 

also denied my access to the correct voting rights information by 

refusing my legal right as a shareholder to inspect the bank records. 

They sought an order from the regulator barring me from 
participating in the affairs of any financial institution. With my 

votes barred, [C. Hughes] and Clougherty could not have been 

removed and would remain in place continuing to receive the 

lucrative benefits from their management friendly contracts. As a 

result of these false allegations, I was forced to go through a 

government investigation, the bank was forced to pay large legal 

fees to [Attorney] Grady’s firm, and then-management remained in 

place. The investigation only ended much later when I discovered 

that a component line item in the alleged record submitted by Grady 

permitted me, with access to the bank records previously 

improperly blocked, to prove to the regulators that the total voting 

rights claimed in the documents submitted by then-management 

and Grady was false.

b. Then-management gave change in control agreements to several 

manager-level employees who did not have them before. These 

agreements gave these employees the right to substantial separation 

pay if, after a change in the majority of the board of directors, the 

employee leaves for certain reasons. One of those reasons was a 

material diminution of the authority, duties, or responsibilities not 

just of the employee, but alternatively of the supervisor to whom the 

employee reported (i.e., Clougherty or [C. Hughes]). These 

agreements also lacked noncompete provisions. This created 

cascading incentives for all management personnel to leave at once 

after a change in control, thus potentially discouraging efforts to 

change the board and remove [C. Hughes] and Clougherty from the 

Bank. They then argued in court that the shareholder vote to 

remove incumbent management needed to be enjoined because it 

could result in almost all department heads leaving the bank at 

once.

c. Two other unrelated [Bank] shareholders with significant 

holdings were also active in the banking industry. They also voted 

to remove incumbent management. As soon as they did so, thenmanagement and Grady filed complaints with multiple banking 

regulators alleging that the other shareholders, too, were violating 

the Change in Bank Control Act—again seeking to negate their votes 

that could remove [C. Hughes] and Clougherty. One of these two 

shareholders was also the President and a director of another bank 

that was going through a major merger transaction. Grady also filed 

objections to the merger with several banking regulators alleging 

that the President/Director was engaging in illegal activities. Again, 

Grady’s allegations against people that opposed the continued 
tenure of [C. Hughes] and Clougherty had no merit and the 

regulators approved the transaction.

d. My mother owned a significant block of [the] Bank[’s] stock. Its 

disposition upon her death was controlled by a trust. The stock 

beneficiaries under the trust were Robin Hughes (the wife of our 

brother Paul, who had recently died from multiple sclerosis), as 

trustee for their children, and me. Robin and her children made 

clear they intended to vote their shares to change the Board so that 

then-management could be removed. [C. Hughes], having already 

received one-third of Natalie’s stock, then used his position as cotrustee to refuse to transfer the remaining shares to Robin and me, 

who sought to change the Board and management, so that we could 

not vote them. [C. Hughes] also sought in an arbitration to have 

Paul’s children disinherited. Ultimately, the arbitrator removed [C. 

Hughes] as co-trustee for gross abuse of his fiduciary duty for using 

his position as trustee to preserve his personal interest in extending 

his tenure at [the] Bank. [Attorney] Grady and his firm participated 

in discussions with [C. Hughes]’s litigation counsel, and billed that 

time to [the] Bank. Also, [C. Hughes], Clougherty, and Grady used 

the delay to try to amend the bank’s Code of Regulations to extend 

the terms of the incumbent directors to three years — again 

preserving the time [C. Hughes] and Clougherty could remain at the 

bank receiving their benefits at the expense of the bank. Again, 

[Attorney] Grady and his firm billed this time to the [B]ank.

e. For the 2018 shareholder meeting, then-management hired its 

own inspector of elections and communicated with him before and 

after the shareholder meeting in response to the inspector’s 

questions about how they wanted him to count the votes. The 

inspector declared that I had fewer votes than I did, with the effect

being that the board (and therefore [C. Hughes] and Clougherty) 

remained in place. This effect was only undone through litigation, 

at which point the shareholder meeting was reconvened, the votes 

counted correctly, the board changed, and prior management was 

out.

7. If then-management had succeeded in the efforts I describe in 

paragraph 6, it would have the effect of discouraging or outright 

preventing me and other shareholders from exercising our voting 

rights to change the board of directors, which in turn would have 

prevented [C. Hughes] and Clougherty’s removal from their positions 
as chief executive officer and chief operating officer. None of the 

regulatory allegations or other efforts succeeded.

8. I have reviewed invoices submitted by [Attorney] Grady’s firm and 

paid by the [B]ank. These invoices show that large amounts of the work 

[Attorney] Grady and his firm did, and for which the [B]ank paid his 

firm more than half a million dollars, were related to [C. Hughes] and 

Clougherty’s employment and related agreements and subsequently to 

the efforts I describe in paragraph 6. After secretly ensuring that thenmanagement’s “personal interests are better served” against the

interests of his own client, Grady continued to take wasteful and false 

actions in the name of his client, but all serving the interest of the same 

officers of continuing in the positions where there “personal interests 

are better served” under contracts that are “as [officer] friendly as

possible.” The vast majority of the nearly $550,000 in fees Grady billed 

to the bank were for these activities.

9. I have seen nothing in the Bank’s records indicating that Grady ever 

disclosed to the Bank that he had advised [C. Hughes] and/or 

Clougherty about their personal interests or provided them contracts 

that were as executive-friendly as possible while representing the Bank 

in connection with the contracts.

(Affidavit of M. Hughes, 12/02/22.)

Finally, the Bank claimed that Grady, as the Bank’s lawyers, were 

fiduciaries who owed a duty of undivided loyalty to the Bank. The Bank asserted 

that 

‘[c]ourts throughout the country have ordered disgorgement of fees 

paid or the forfeiture of fees owed to attorneys who have breached their 

fiduciary duties to their clients by engaging in impermissible conflicts 

of interest.’ Maritrans GP, Inc. v. Pepper, Hamilton & Scheetz, 529 

Pa. 241, 258, 602 A.2d 1277 (Pa. 1992) (citing, e.g., White v. Roundtree 

Trans., Inc., 386 So.2d 1287 (Fla.App. 1980); Perl v. St. Paul Fire & 

Marine Ins. Co., 345 N.W.2d 209 (Minn.1984); Rice v. Perl, 320 

N.W.2d 407 (Minn.1982); Financial Gen. Bankshares, Inc. v. Metzger, 

523 F.Supp. 744 (D.D.C.1981), vacated on jurisdictional grounds, 680 

F.2d 768 (D.C.Cir.1982); Goldstein v. Lees, 46 Cal.App.3d 614, 120 

Cal.Rptr. 253 (1975); and Zeiden v. Oliphant, 54N.Y.S.2d27 

(Sup.Ct.1945)). 
(Bank’s Brief in Opposition, 12/02/22.) Quoting Eleventh District, Sixth Circuit, 

and out-of-state caselaw, the Bank argued that expert testimony was not needed to 

establish damages because even without proof of separate harm, courts have long 

recognized disgorgement of money paid to a disloyal fiduciary. See e.g., In re Estate 

of Fraelich, 11th Dist. Trumbull No. 2000-T-0016, 2004-Ohio-4538, 23 (“‘A lawyer 

engaging in clear and serious violation of duty to a client may be required to forfeit 

some or all of the lawyer’s compensation for the matter.’ Restatement of Law 

Governing Lawyers 3d, Section 37. ‘Even if a fee is otherwise reasonable,’ a fee may 

still be subject to forfeiture. Restatement of Law Governing Lawyers 3d, Section 37, 

Comment a.”); Wischermann Partners, Inc. v. Nashville Hosp. Capital LLC, 6th Cir. 

No. 21-5326/21-5604, 2022 U.S. App. LEXIS 17133, 12-13 (June 21, 2022), quoting

Crawford v. Logan, 656 S.W.2d 360, 364 (Tenn. 1983) (“‘Misconduct in violation 

of a statute or acts against public policy, or in breach of an attorney’s fiduciary duty 

to his client, may support a complete forfeiture of fees.’”); Burrow v. Arce, 997 

S.W.2d 229, 232 (Tex.1999) (“The principal question in this case is whether an 

attorney who breaches his fiduciary duty to his client may be required to forfeit all 

or part of his fee, irrespective of whether the breach caused the client actual 

damages. Like the court of appeals, we answer in the affirmative and conclude that 

the amount of the fee to be forfeited is a question for the court, not a jury.”); Hendry 

v. Pelland, 315 U.S.App.D.C. 297, 73 F.3d 397, 401 (1996) (“[T]o the extent [that 

clients] sought disgorgement of legal fees, they needed to prove only that [their 
attorney] breached his duty of loyalty, not that his breach proximately caused them 

injury.”).

In their reply brief, Grady included the affidavit of Attorney Grady to 

further support their motion. In the affidavit, Attorney Grady described his 

experience as a banking attorney and his knowledge of standard practices within the 

industry. Attorney Grady confirmed that Grady was retained by the Bank and 

explained the nature of the work Grady performed, including their role in drafting 

various agreements for the Bank’s executive officers at the Bank’s request. Attorney 

Grady averred that one agreement utilized similar terms from an existing 

employment agreement and clarified others. Attorney Grady claimed that Grady 

was required to work with individual executives in the preparation of certain 

agreements and that this was standard practice in the banking and regulatory 

industry. Attorney Grady explained that prior to approval, each proposed 

agreement was presented to the Bank’s board for review after drafting was complete

and that he prepared summaries for the board’s review and met with its members

on several occasions to answer questions and address concerns. Attorney Grady 

averred that the Board, including disinterested members, approved each of the 

agreements. Finally, Attorney Grady stated that “[t]he executive agreements were 

in line with other similarly situated Ohio banks” and “[e]ach of [them] were 

prepared and approved in a manner consistent with [his] practice and the standard 

industry practice.” (Grady’s Reply in Support, Exhibit 1: Affidavit of Attorney Grady, 

12/14/22.) Grady argued that the Bank’s recitation of facts failed to create a genuine 
issue of material fact because the statements cited did not establish an actionable

conflict of interest, the communications questioned were standard within banking 

industry practice, and the agreements criticized were approved by the board. Grady 

also claimed that their representation of the Bank in resisting the change in control 

pursued by M. Hughes was authorized under Ohio law. Grady further asserted that

expert testimony was necessary to establish any alleged breach of duty and a causal 

connection between the fees Grady charged and the alleged breach. 

It is well settled in Ohio that in order to prevail on a legal malpractice 

claim, a plaintiff (the Bank) must demonstrate through expert testimony, by a 

preponderance of the evidence, that the representation of the attorney failed to meet 

the prevailing standard of care and that this failure proximately caused damage or 

loss to the client. This court discussed this principle in Jarrett v. Forbes, 8th Dist. 

Cuyahoga No. 88867, 2007-Ohio-5072, ¶ 19, when it summarized the Ohio Supreme 

Court decision of Vahila v. Hall, 77 Ohio St.3d 421, 674 N.E.2d 1164 (1997), stating:

“[T]he Ohio Supreme Court defined the elements that must be established to make 

a case for legal malpractice. The Supreme Court made it clear that there must be a 

causal connection between the lawyer’s failure to perform and the resulting damage 

or loss.” “Because the elements of a legal-malpractice claim are stated in the 

conjunctive, the failure to establish any one element of the claim is fatal.” Niederst 

v. Kohrman Jackson & Krantz, L.L.P., 8th Dist. Cuyahoga No. 110913, 2022-Ohio2579, ¶ 18, citing Estate of Hards v. Walton, 8th Dist. Cuyahoga No. 93185, 2010-

Ohio-3596, ¶ 7, and Williams-Roseman v. Owen, 10th Dist. Franklin No. 99AP-871, 
2000 Ohio App. LEXIS 4254 (Sept. 21, 2000). Expert testimony is required to 

sustain a claim of legal malpractice except where the alleged errors are so simple 

and obvious that it is not necessary for an expert’s testimony to demonstrate the 

breach of the attorney’s standard of care. Hirschberger v. Silverman, 80 Ohio 

App.3d 532, 538, 609 N.E.2d 1301 (6th Dist.1992); McInnis v. Hyatt Legal Clinics, 

10 Ohio St.3d 112, 113, 461 N.E.2d 1295 (1984); Rice v. Johnson, 8th Dist. Cuyahoga 

No. 63648, 1993 Ohio App. LEXIS 4109 (Aug. 26, 1993); Cross-Cireddu v. David J. 

Rossi Co., L.P.A., 8th Dist. Cuyahoga No. 77268, 2000 Ohio App. LEXIS 5480 

(Nov. 22, 2000).

In the case sub judice, the Bank claims that its failure to produce an 

expert report supporting its refiled claim of legal malpractice is not fatal given the 

alleged acts of malpractice by Grady. The Bank asserts that the evidence offered in 

opposition to Grady’s motion for summary judgment documents Grady’s disloyalty 

in advising C. Hughes and Clougherty how to protect their personal interests and 

negotiate against the Bank, Grady’s client. The Bank argues that Grady did not have 

an attorney-client relationship with any of the Bank’s individual executives and had 

“no conceivable obligation to advise the opposite party.” The Bank further claims 

that Grady did not request or obtain any conflict waivers related to the advice for 

and negotiation of C. Hughes and Clougherty’s employment agreements and

contracts. The Bank argues that Grady’s actions demonstrate a clear conflict of 

interest that breached the standard of care. The Bank asserts that this breach is so 

simple and obvious that it is within the understanding of a layperson. The Bank 
argues that the lack of an expert report obviated the need for expert testimony 

demonstrating that the attorneys owed a duty or obligation to it.

Grady does not dispute that an attorney-client relationship existed 

between them and the Bank and that they had professional duties arising from that 

relationship. Thus, the issues for resolution are whether Grady breached the 

professional duties owed to the Bank and whether that breach proximately caused 

damages to the Bank. In order to determine whether Grady breached its 

professional duties, we need to discuss what duty was owed. “‘The duty of an 

attorney to his client is to “* * * exercise the knowledge, skill, and ability ordinarily 

possessed and exercised by members of the legal profession similarly situated, and 

to be ordinarily and reasonably diligent, careful, and prudent in discharging the 

duties he has assumed.”’” Estate of Hards at ¶ 9, quoting Palmer v. Westmeyer, 48 

Ohio App.3d 296, 298, 549 N.E.2d 1202 (6th Dist.1988), quoting 67 Ohio 

Jurisprudence 3d, Malpractice, Section 9 at 16 (1986). 

To support its argument that an expert is not needed, the Bank 

highlights dicta from an out-of-state, federal case for the proposition that “[a] 

person does not need a law degree to understand the conflict that comes from 

standing on both sides of a transaction * * *.” Nasrabadi v. Kameli, N.D.Ill. No. 18 

C 8514, 2019 U.S. Dist. LEXIS 84266 (May 20, 2019). But ultimately, the Bank relies 

on Riley v. Clark, 4th Dist. Scioto No. 98CA2629, 1999 Ohio App. LEXIS 5436 (Nov. 

10, 1999), to substantiate its position that expert testimony was not necessary to 

establish its legal-malpractice claim against Grady.
Conversely, Grady argues that the lower court properly granted 

summary judgment in their favor because (1) the Bank failed to produce the 

requisite expert testimony and (2) the only competent evidence regarding the 

standard of care or any alleged breach establishes that Grady satisfied their duty to 

Bank. Grady claims that the Bank must produce expert testimony to establish that 

Grady breached the requisite standard of care given the complexities of the claims, 

allegations, and legal issues raised in this case, which involve the structuring and 

drafting of contracts and compensation agreements for various bank executives. 

Grady asserts that any breach of the standard of care in such complex matters is not 

obvious or within the ordinary knowledge of a layperson. In support of their 

argument, Grady distinguishes Riley and argues that Northwestern Life Ins. Co. v. 

Rogers, 61 Ohio App.3d 506, 512, 573 N.E.2d 159 (10th Dist.1989), is more 

analogous. 

In Riley, plaintiffs filed a legal-malpractice action against their 

attorney, alleging that their lawyer betrayed their trust by neglecting to inform them 

that their respective interests were adverse; breached his duty when he failed to 

advise them of crucial information known to him; and caused harm by advising 

them to purchase a business, that he secretly owned in part, despite knowledge of 

the business’s extensive financial troubles. Id. at 22. After the trial court granted 

the attorney’s motion for summary judgment, the plaintiffs argued on appeal that 

they presented sufficient evidence of breach of duty and proximate cause and were 

not required to present expert testimony because the applicable standard of care and 
its relation to their injury was obvious even to a lay jury. Id. at 20-21. The Fourth 

District Court of Appeals found that the questions of whether the attorney breached 

his duty to the plaintiffs and whether he proximately cause their harm was within 

the jury’s general experience and knowledge because the conflict was not complex 

or unclear: the attorney, as a partial owner of the failing business, profited directly 

from advising his clients to pay an inflated price for its purchase. Id. at 24-25. 

Comparatively, in Northwestern Life Ins. Co., plaintiffs filed a legalmalpractice action against their attorney, alleging that he had a conflict of interest 

in violation of the Code of Professional Responsibility when he was retained to 

represent them after they entered into a real estate contract and when he had an 

interest in the title insurance company involved in the transaction. Id. at 161. The 

Tenth District Court of Appeals held that it was not a case where the attorney’s 

misconduct was obvious from the record and expert testimony was required to 

support the allegations due to “the very nature and complexity of the Code of 

Professional Responsibility and the conduct of legal matters.” Id. at 163-164 

(“Expert testimony is required so that the trier of fact does not have to speculate on 

the standard of care, particularly in a complex case involving real estate transactions 

which are normally not within the realm of understanding of a layman.”).

We agree with Grady and find that the alleged conflict of interest

between Grady, the Bank, and the Bank’s executives is not as direct and clear as the 

conflict in Riley, 4th Dist. Scioto No. 98CA2629, 1999 Ohio App. LEXIS 5436, and

more akin to complex conflict presented in Northwestern Life Ins. Co., 61 Ohio 
App.3d 506, 512, 573 N.E.2d 159. The Bank’s allegations of malpractice against 

Grady contemplate the communications, strategies, and tactical decisions involved 

in resisting a change in control and structuring, drafting, and negotiating complex 

agreements and contracts for the Bank’s executives. The complexity of Grady’s 

alleged malpractice is even more apparent when considering the affidavit of M. 

Hughes, one of the Bank’s largest shareholders and current president. M. Hughes’s

tenure began in early 2019, after Grady was retained by the Bank to draft C. 

Hughes’s and Clougherty’s employment agreements and contracts. In the affidavit,

M. Hughes described his dissatisfaction with the Bank’s operations, even prior to 

Grady’s involvement, and his efforts to put an end to “serious improprieties” by 

effecting changes in the board and management that were consistent with his rights 

as a shareholder and within any applicable legal or regulatory restrictions. M. 

Hughes detailed the actions C. Hughes, Clougherty, and Grady took to combat his

efforts, including suggesting that he violated federal and state banking rules and 

regulations, creating a false record, filing complaints against shareholders and 

objections to a merger, attempting to amend the Bank’s code of regulations, and 

hiring their own inspector of elections to prevent shareholders from exercising their 

voting rights. M. Hughes further described issues surrounding his family trust and

C. Hughes’s actions as a trustee and indicated that Grady participated in discussions 

with C. Hughes’s litigation counsel. The evaluation of such complex matters, like 

those presented by the Bank and detailed in the affidavit of M. Hughes, are not so 

obvious and within the general experience or knowledge of a layperson. See, e.g., 
Niederst, 8th Dist. Cuyahoga No. 110913, 2022-Ohio-2579 (holding expert 

testimony was necessary to establish the plaintiff’s allegations of malpractice, which 

involved tactical legal decisions that were more complex than merely missing a court 

deadline); Richard C. Alkire Co., L.P.A. v. Alsfelder, 8th Dist. Cuyahoga No. 104153, 

2017-Ohio-1547 (finding expert testimony was necessary to support the plaintiff’s 

legal-malpractice claim because a disciplinary matter before the Ohio Supreme 

Court was complex and not within the ordinary knowledge of the layman);

Northwestern Life Ins. Co. (holding expert testimony was required in a complex 

case involving real estate transactions, the conduct of legal matters, and the Code of 

Professional Responsibility). 

Moreover, Grady presented evidence in support of their motion for 

summary judgment, through the affidavits of Attorney Grady and Barnhill, the 

defense’s expert, that Grady’s conduct did not breach the standard of care and was 

consistent with standard industry practices. The Bank did not produce any evidence 

in its brief in opposition to Grady’s motion for summary judgment establishing 

1) what the appropriate standard of care is or 2) how Grady’s conduct breached that 

standard. Rather, the Bank summarily concludes that, based on the produced 

documents and affidavit of M. Hughes, Grady’s conduct amounted to obvious 

malpractice that is simple to understand. We disagree and cannot say that the 

Bank’s legal-malpractice claim is so obvious and within the ordinary knowledge of a 

lay person that expert testimony is not needed. Rather, due to the complex nature 

of the banking and regulatory industry and the legal issues and allegations involved
in the Bank’s malpractice claim, the Bank was required to present expert testimony 

to establish its claim that Grady breached its duty to the Bank. Because the Bank 

did not produce an expert report, it failed to satisfy its reciprocal duty showing that 

genuine issues of material fact remain as to its legal-malpractice claim. Therefore, 

the trial court properly granted summary judgment in favor of Grady. 

As argued by Grady, we note that disgorgement is a remedy for a 

claim, not a claim for relief itself under Ohio law. Cirino v. Bur. of Workers’ Comp., 

2021-Ohio-1382, 171 N.E.3d 840, ¶ 16 (10th Dist.), citing Stepak v. Schey, 51 Ohio 

St.3d 8, 15, 553 N.E.2d 1072 (1990) (noting that disgorgement is a remedy for breach 

of fiduciary duty); Nick Mayer Lincoln Mercury v. Ohio Bur. of Workers’ Comp., 

8th Dist. Cuyahoga No. 93752, 2010-Ohio-2782 (dismissal of complaint was in error 

where disgorgement was plaintiff’s prayer for relief, not its claim for relief); 

Wauseon Plaza, Ltd. Partnership v. Wauseon Hardware Co., 156 Ohio App.3d 575, 

2004-Ohio-1661, 807 N.E.2d 953, ¶ 80 (6th Dist.) (“Our review of Ohio law indicates 

that disgorgement is an available remedy for a claim of breach of fiduciary duty.”). 

Because we find that the Bank’s legal-malpractice claim must fail as a matter of law, 

it is not entitled to the remedy of disgorgement. Accordingly, we find that the trial 

court did not err in granting summary judgment in favor of Grady and overrule the 

Bank’s sole assignment of error. 

Accordingly, judgment is affirmed.

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment 

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

_________________________

MARY J. BOYLE, JUDGE

ANITA LASTER MAYS, P.J., and

MICHELLE J. SHEEHAN, J., CONCUR