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2018 Ethics Symposium

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Kegler Brown’s annual seminar on professional responsibility took place on Friday, September 21, 2018. This year's seminar featured guest speakers the Honorable James E. Green and Jon Coughlan, Esq., sharing their experiences and discussing unauthorized practices of law, respectively.

A panel discussion Q+A about municipal courts featured Judge Green along with Kegler Brown litigators Jane Gleaves, Jason Beehler, and moderator Chris Weber.

Chris Weber covered the topic of lawyers switching law firms and issues that arise from both sides- the law firm's perspective, and the lawyer's perspective. Then, Jason Beehler discussed ethics issues for transactional lawyers.

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2018 Ethics Symposium

  1. 1. Professionalism: A View from the BENCHHonorable James E. Green Franklin County Municipal Court
  2. 2. PANEL Discussion
  3. 3. Unauthorized Practice of Law: A bar to admission ? Jonathan Coughlan Coughlan Law Firm LLC 81 Mill Street Columbus, Ohio 43230
  4. 4. For example -- • Kentucky lawyer • Properly licensed in Kentucky • Working on Kentucky legal matters • Only for Kentucky clients • At Ohio firm with Kentucky clients • From Firm’s Cincinnati office • While living in Cincinnati UPL? This Photo by Unknown Author is licensed under CC BY
  5. 5. Or…. What about….. • Washington DC lawyer • Partner in DC Firm • Engaged in Federal Regulatory Practice • All large corporate clients • Working for 6 months from Mom’s house in Cleveland • Not working on any Ohio matters • Nor for any Ohio Corporations UPL?This Photo by Unknown Author is licensed under CC BY-ND
  6. 6. OR.. How about…. • Lawyer licensed in Texas & NY • Represents clients in both jurisdictions • On Tax matters – both state and federal • Wife takes a job in Toledo (M.D.) • Works on client matters from Toledo home • Travels to Texas office occasionally •UPL? This Photo by Unknown Author is licensed under CC BY
  7. 7. And, finally…… • Indiana Lawyer • Works out of Cincinnati law firm • On Indiana legal matters • For Indiana clients • Occasionally, assists Ohio licensed partner on Ohio matters under her supervision • Lives and works during the evenings in Ohio home This Photo by Unknown Author is licensed under CC BY-NC-ND
  8. 8. Rule 5.5 (b) • A lawyer not admitted in Ohio shall not: (1) Establish an office or other systematic and continuous presence in Ohio for the practice of law; (2) Hold out to the public or otherwise represent the lawyer is admitted to practice law in Ohio This Photo by Unknown Author is licensed under CC BY-SA
  9. 9. Rule 5.5 • Lawyer duly licensed in another state may provide legal services on a temporary basis in this jurisdiction of one or the following apply: • In association with an Ohio lawyer who participates in the matter; • Reasonably related to proceeding before tribunal in Ohio or another state and if the lawyer, or the person lawyer is assisting, is authorized by law or order to appear or reasonably expects to be so authorized; • Related to pending/potential mediation, arbitration, ADR, in Ohio or another state, and services reasonably related to lawyer’s practice • Lawyer engages in negotiations, investigations, or other nonlitigation activities that are reasonably related to lawyer’s practice in home state • PHEW!
  10. 10. ALL of these possibilities are contingent on one requirement --- - TEMPORARY This Photo by Unknown Author is licensed under CC BY-SA
  11. 11. First question -- • Does representing out-of-state clients in non-Ohio matters from an Ohio location constitute practicing law in Ohio?This Photo by Unknown Author is licensed under CC BY
  12. 12. Gov. Bar R. VII §2 The rendering of legal services for another by any person not admitted to practice in Ohio is UPL This Photo by Unknown Author is licensed under CC BY-ND
  13. 13. So, in Ohio… The answer to the question is YES -- it is UPL for an licensed out-of-state lawyer to work on their home jurisdiction matters while physically in Ohio… This Photo by Unknown Author is licensed under CC BY
  14. 14. And, there are a series of exceptions to Gov. Bar Rule VII § 2….. The relevant one here is Rule 5.5 This Photo by Unknown Author is licensed under CC BY-NC-ND
  15. 15. Brings us back to 5.5 (c) • Lawyer duly licensed in another state may provide legal services on a temporary basis in this jurisdiction of one or the following apply: • In association with an Ohio lawyer who participates in the matter; • Reasonably related to a proceeding before a tribunal in Ohio or another state and if the lawyer, or the person lawyer is assisting, is authorized by law or order to appear or reasonably expects to be so authorized; • Related to pending/potential mediation, arbitration, ADR, in Ohio or another state, and services reasonably related to lawyer’s practice • Lawyer engages in negotiations, investigations, or other nonlitigation activities that are reasonably related to lawyer’s practice in home state
  16. 16. Specific cases – In re Egan • Egan worked at Cincy law firm from 2002 – 2013 • Limited her practice to Kentucky matters • 2008 – applied for admission on motion • Denied – did not have 5 years practicing in another jurisdiction • 2015 – applied to take 2016 Ohio bar exam
  17. 17. In re Egan • Lawyer testified she had no idea she might be engaged in UPL until she met with counsel to assist with her application • And the Cincy bar association lawyers who interviewed her were equally unaware this might be an issue so they approved her application • C & F board found that lawyer had engaged in UPL – rec’d admission be denied • Noting that the “temporary” exception in 5.5(c) did not apply, the Court found she engaged in UPL
  18. 18. Due to exemplary character and professional reputation She was allowed to sit for the Feb. 2018 exam
  19. 19. So, had to wait from 2015 until Feb 2018 • Not because she engaged in some questionable conduct in a single legal matter • Not because she represented an Ohio client when she wasn’t licensed in Ohio • Not because she had some legitimate character issues – truthfulness, or reliability or trustworthiness • Not because she had a substance issue • NOPE – just because her office was located in Cincinnati
  20. 20. Another case – Texas/NY Tax Lawyer • 2014 --Moved to Toledo because of wife’s new position • Continuing to represent clients in Texas & NY • 2016 -- Decided to offer Tax Clinic at Law School • 2016 Sought admission on motion to Ohio bar • Had requisite 5 years in another jurisdiction • BUT what was the one difference between his circumstances and Egan’s?This Photo by Unknown Author is licensed under CC BY-NC-ND
  21. 21. Rule 5.5 (b) • A lawyer not admitted in Ohio shall not – establish an office to other systematic and continuous presence in Ohio for the practice of law This Photo by Unknown Author is licensed under CC BY-SA-NC
  22. 22. His actions violated the “Boots on the ground” rule just as much as Egan’s BOTH represented clients from their home jurisdiction & both did so from an Ohio location This Photo by Unknown Author is licensed under CC BY-NC
  23. 23. Latest case … Alice A. Jones 2009 --Licensed in Kentucky 2009- 2015 Worked in Kentucky 2/2015 – her firm was acquired by Dinsmore 10/2015 – applied to take Ohio bar 11/2015 – moved to Cincy, worked in Cincy office ONLY worked on Kentucky matters for Kentucky clients Cincy Bar Association approved her application
  24. 24. Alice A. Jones 05/2016 – C & F requested supplemental affidavit 11/2016 – C & F hearing panel appointed 04/2017 – C & F hearing held 08/2017 – Admission denied, order confirmed only issue was her physical presence in Ohio, requested an affidavit saying – ceasing practice in Ohio and only engaging in services of a paralegal. Jones refused to abandon Kentucky clients and submit an affidavit with a faulty premise (that she did not fit under 5.5 (c))
  25. 25. And since C & F order in Aug. 2017 04/2018 – Supreme Court issued show cause order 07/2018 – Case argued to Supreme Court Since 2015 Jones has – Worked exclusively on Kentucky matters Traveled to Kentucky to work on client matters Maintained Dinsmore’s Kentucky address and phone #, business cards & professional profile on firm’s website
  26. 26. Jones’ argument – in compliance with 5.5 Lawyer duly licensed in another state may provide legal services on a temporary basis in this jurisdiction if: Reasonably related to proceeding before a tribunal in Ohio or another state and if the lawyer, or the person lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
  27. 27. Temporary because her application has been pending this whole time…. This Photo by Unknown Author is licensed under CC BY-SA-NC
  28. 28. So, which is it? • Is she an out-of-state lawyer who established an office with a systematic and continuous presence in Ohio for the practice of law? • OR • Is she temporarily providing services related to pending or potential proceedings before a tribunal in another jurisdiction where the lawyer is authorized to appear?
  29. 29. The End Jon Coughlan Coughlan Law Firm LLC 81 Mill St. Suite 300 Columbus, Ohio 43230
  30. 30. SWITCHING Law Firms: Walking the Tight Rope Presented by Chris Weber
  31. 31. Opinion 99-414
  32. 32. RPC 5.6 No restrictive covenants
  33. 33. Permissible Planning ACTIONS Obtain office space, supplies, equipment Financing Prepare list of clients expected to leave the firm Inform clients
  34. 34. WHOto Notify
  35. 35. RPC 1.4 Inform clients
  36. 36. RPC 7.3a In person/phone/real time electronic
  37. 37. Ohio’s GUIDE Clients with whom lawyer had “significant personal contacts” “Determined from prospective of client” “Who at firm represents you”
  38. 38. Fred Siegel CASE
  39. 39. Buckingham CASE
  40. 40. WHENto Notify
  41. 41. HOWto Notify
  42. 42. Joint Letter from law firm and departing lawyer
  43. 43. Date of departure Status of matter Whom to contact for file transfer Client options Fee on deposit Address A/R
  44. 44. No Joint Letter? Separate letter – RPC 1.4
  45. 45. Don’t disparage Cover same contents Don’t encourage clients to sever ties with the firm
  46. 46. Client FILE Cooperate with transfer Bear expense to copy Don’t hold hostage
  47. 47. RPC 1.5 Fees
  48. 48. Firm DON’Ts Don’t disparage Don’t restrict access to records Don’t refuse to provide new contact info DO monitor departing lawyer’s emails
  49. 49. Lawyer DON’Ts Don’t take client lists Don’t take firm property/records Don’t take firm’s financial data
  50. 50. ODC v. Robinson CASE
  51. 51. Cleve. Bar v. Azman CASE
  52. 52. Additional Client Considerations Confidentiality Change of Counsel Refund Unearned Fees
  53. 53. RPC 1.6 Disclosure for conflict purposes
  54. 54. SIDESwitching
  55. 55. RPC 1.10
  56. 56. Chris Weber Kegler Brown Hill + Ritter cweber@keglerbrown.com keglerbrown.com/weber 614-462-5415
  57. 57. Presented by Jason Beehler
  58. 58. WHOis the client?
  59. 59. Is there a
  60. 60. Roger Don Bert Pete Share
  61. 61. Upon death or dissolution of a Member, the other Members shall have the option to purchase; if the other Members exercise such option to purchase, then the affected Member or the personal representative of the estate of the deceased Member shall sell all of the Company Units owned by the Seller. The Purchaser shall exercise such option, if at all, by written notice of exercise delivered to the Seller within one hundred eighty (180) days after the occurrence of the Triggering Event. The purchase price and terms of payment for such purchase shall be as provided in Sections 10.5, 10.6, and 10.7 below.
  62. 62. RPC 1.7 Conflicts A lawyer’s acceptance or continuation of representation of a client creates a conflict of interest if either: Representation of client will be directly adverse to another current client; OR There’s substantial risk the lawyer’s ability to consider, recommend, or carry out an appropriate course of action for that client will be materially limited by lawyer’s responsibilities to another client, a former client, a third person or by the lawyer’s own personal interests
  63. 63. CRITICAL Questions Difference in interests between the client and lawyer or between two clients exists or is likely to arise? Whether this difference in interests will materially interfere with the lawyer’s independent professional judgment?
  64. 64. Shall not accept/continue representation unless: Competent + diligent representation to each client Informed consent, confirmed in writing Not prohibited by division (c)
  65. 65. RPC 1.7 Conflicts Even if clients consent, can’t accept representation if either: Prohibited by law; OR One client will be asserting a claim against another in the same proceeding
  66. 66. Shall not accept/continue representation unless: Competent + diligent representation to each client Informed consent, confirmed in writing Not prohibited by division (c)
  67. 67. Will the check clear? ACCEPT representation REJECT representation
  68. 68. Competent + diligent representation to each client Legal knowledge, skills, thoroughness, prep Dedication to client interests Ability to “see it through” to conclusion
  69. 69. Shall not accept/continue representation unless: Competent + diligent representation to each client Informed consent, confirmed in writing Not prohibited by division (c)
  70. 70. Informed consent confirmed in writing Aware of relevant circumstances Reasonably foreseeable adverse effects of conflict Highly fact specific
  71. 71. Shall not accept/continue representation unless: Competent + diligent representation to each client Informed consent, confirmed in writing Not prohibited by division (c)
  72. 72. Not prohibited by division (c) Is it prohibited by law? Is one party asserting claim against another? Usually arises in litigation, not transactional
  73. 73. Is there a
  74. 74. RPC 1.7 Conflicts Depending on the circumstances, a material limitation conflict may be present
  75. 75. CRITICAL Questions Difference in interests between the client and lawyer or between two clients exists or is likely to arise? Whether this difference in interests will materially interfere with the lawyer’s independent professional judgment?
  76. 76. Shall not accept/continue representation unless: Competent + diligent representation to each client Informed consent, confirmed in writing Not prohibited by division (c)
  77. 77. IMPORTANCE of an Engagement Letter “We understand that our clients are Don Draper, Bertram Cooper, Roger Sterling + Pete Campbell”
  78. 78. Define scope Avoid “Re: Legal Representation” Define what you’re doing Define what you’re NOT doing
  79. 79. RPC 1.7 Conflicts Whether the lawyer may properly request a client to waive conflicts that might arise in the future is subject to the test of division (b)
  80. 80. Shall not accept/continue representation unless: Competent + diligent representation to each client Informed consent, confirmed in writing Not prohibited by division (c)
  81. 81. RPC 1.7 Conflicts The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails
  82. 82. Sophisticated client Particular type of conflict With which the client is already familiar
  83. 83. Unsophisticated client General/open-ended waiver Limited explanation
  84. 84. RPC 1.7 Conflicts A lawyer cannot represent multiple parties to a negotiation whose interests are fundamentally antagonistic, regardless of their consent
  85. 85. Are they
  86. 86. How would you tell
  87. 87. Sophisticated client(s) Agree on key terms All over but the drafting
  88. 88. Problem
  89. 89. RPC 4.2 Represented Person A lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order
  90. 90. YOU Don, just send me an email while we’re on the phone, confirming that it’s okay we proceed without your lawyer.
  91. 91. RPC 4.2 Represented Person A lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order
  92. 92. RPC 1.7 Conflicts The rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this rule
  93. 93. Can you discuss with in-house counsel
  94. 94. RPC 4.2 Represented Person A lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order
  95. 95. From: Other party’s lawyer To: Other party cc: You Subject: Why we will destroy the other side Dear So-and-so: The other party is weak, but they will get weaker. Their Board is starting to revolt. We will have a huge opportunity to buy for pennies if we wait two weeks. I would recommend cooling negotiations for now. Let’s move when they start to circle the drain. Sincerely, Other party’s lawyer
  96. 96. RPC 4.4Respect for Third Parties A lawyer who receives a document or ESI relating to the representation of the lawyer’s client and knows or reasonably should know that the document or ESI was inadvertently sent shall promptly notify the sender
  97. 97. From: Other party’s lawyer To: Other party cc: You Subject: Why we will destroy the other side ATTORNEY CLIENT PRIVILEGED COMMUNICATION Dear So-and-so: The other party is weak, but they will get weaker. Their Board is starting to revolt. We will have a huge opportunity to buy for pennies if we wait two weeks. I would recommend cooling negotiations for now. Let’s move when they start to circle the drain. Sincerely, Other party’s lawyer
  98. 98. Do you have to stop reading?
  99. 99. Do you have to delete it?
  100. 100. RPC 4.4Respect for Third Parties Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document or delete ESI is a matter of professional judgment ordinarily reserved to the lawyer
  101. 101. From: Me To: Other party Subject: Inadvertent communication Dear Other party’s lawyer: This morning you inadvertently copied me on what appeared to be a privileged communication with your client. As soon as I realized what it was, I stopped reading it and permanently deleted all copies from all of my electronic mailboxes. If the communication was intended for me, please re-send it. Sincerely, Me
  102. 102. CLIENT (seller) We would be willing to have some of the deal money paid by way of an earnout provision.
  103. 103. YOU Paying some of the purchase price through an earnout is a non- starter.
  104. 104. Problem
  105. 105. RPC 4.1 Truthfulness In the course of representing a client, a lawyer shall not knowingly do either of the following: Make a false statement of material fact or law to a third person Fail to disclose a material fact when disclosure is necessary to avoid assisting in an illegal or fraudulent act by a client
  106. 106. YOU I don’t think an earnout is going to work.
  107. 107. YOU Earnouts come with all kinds of problems on the back end that I want to avoid for my client. Try again.
  108. 108. CLIENT (CFO) Find us tax savings. We’ll pay you 30% of whatever you save us.
  109. 109. Fee issue
  110. 110. RPC 1.5 Fees + Expenses A fee may be contingent on the outcome of the matter for which the service is rendered: Shall be in writing signed by client + lawyer, explain terms Lawyer must prepare closing statement
  111. 111. RPC 1.5 Fees + Expenses A lawyer shall not make an agreement for, charge, or collect an illegal or clearly excessive fee. To determine if reasonable: Time and labor, difficulty, skills required Amount involved, results obtained, experience of lawyer, etc.
  112. 112. YOU We spent three hours and found one (lawful) change that will save you $3 million.
  113. 113. YOU Please make our $990,000 check out to Kegler Brown Hill + Ritter, LPA.
  114. 114. Excessive
  115. 115. RPC 1.5 Fees + Expenses A lawyer shall not make an agreement for, charge, or collect an illegal or clearly excessive fee. To determine if reasonable: Time and labor, difficulty, skills required Amount involved, results obtained, experience of lawyer, etc.
  116. 116. CLIENT (CFO) Find us tax savings. We’ll pay you 5% of whatever you save us.
  117. 117. YOU We spent 40 hours ($12k of billable hours) and found one change that will save you $1 million.
  118. 118. YOU Please make our $50,000 check out to Kegler Brown Hill + Ritter, LPA.
  119. 119. Excessive
  120. 120. RPC 1.5 Fees + Expenses A lawyer shall not make an agreement for, charge, or collect an illegal or clearly excessive fee. To determine if reasonable: Time and labor, difficulty, skills required Amount involved, results obtained, experience of lawyer, etc.
  121. 121. Real estate deal
  122. 122. Real estate deal Opposing counsel sends it back No redlines “Looks good. Thanks.”
  123. 123. Problem
  124. 124. RPC 3.4Fairness to opposing counsel This is all about litigation – no faking evidence, concealing evidence, disobeying the court, etc.
  125. 125. RPC 4.1 Truthfulness In the course of representing a client, a lawyer shall not knowingly do either of the following: Make a false statement of material fact or law to a third person Fail to disclose a material fact when disclosure is necessary to avoid assisting in an illegal or fraudulent act by a client
  126. 126. RPC 4.1 Truthfulness [1] A lawyer is required to be truthful when dealing with others on a client’s behalf.
  127. 127. RPC 4.1 Misconduct It is professional misconduct for a lawyer to do any of the following: (c) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation
  128. 128. Jason H. Beehler Kegler Brown Hill + Ritter jbeehler@keglerbrown.com keglerbrown.com/beehler 614-462-5452

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