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2019 Ethics Symposium


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Kegler Brown's annual seminar on professional responsibility was presented on Friday, October 18, 2019 at the Columbus Bar Association (CBA). This year's seminar featured guest speaker, Kent Markus, who is a part of the Bar and General Counsel at the CBA, showcased an overview of the disciplinary system featuring an in-depth flowchart along with practical tips and best practices.

A panel discussion Q+A about topics ranging from advisory opinions, recent ethics developments, identifying issues, and the duty to report, were all covered by Kegler Brown litigators Jane Gleaves and Jason Beehler.

Moderator, Chris Weber discussed ways to navigate Ohio's Advocate-Witness rule, and his personal recommendations for best practices.

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2019 Ethics Symposium

  1. 1. Presented by Jane Gleaves Recent Highlights in LEGAL ETHICS
  2. 2. Ohio Board of Professional Conduct Advisory OPINIONS
  3. 3. Is it proper for a lawyer to donate legal services to be auctioned or raffled at a fundraiser for a charitable organization?
  4. 4. Donating Legal Services to Charitable Organizations A lawyer is prohibited from donating legal services to be auctioned or raffled at a fundraiser for a charitable organization The donation constitutes giving a thing of value to another for recommending the lawyer’s services 2019The donation may improperly limit the exercise of the lawyer’s independent professional judgment It is misleading advertising for a lawyer to donate legal services that he or she may not be able to provide
  5. 5. Can a lawyer limit her practice with a settlement agreement?
  6. 6. Practice Restrictions in Proposed Settlement Agreements “I don’t represent any individuals with a similar claim” = No “I won’t take on new clients with similar claims against defendant” = No “I will agree to keep all information obtained during litigation confidential” = Np “I will agree to non-disparagement” = Maybe 2019
  7. 7. May a lawyer associated in a law firm with an elected, part-time law director represent a client in matters before the law director’s municipality or one of the employees, officers, commissions, or boards of the municipality?
  8. 8. Conflicts of Part-Time Law Director + Imputation to Part-Time Law Director’s Firm When a part-time law director also engages in the private practice of law, the law director may not represent private clients in matters related to his or her employing municipality Associated lawyers in a part-time law director’s law firm are permitted to represent clients in matters related to part-time law director’s employing municipality 2019 Best practice is to screen the law director from the matters and ensure he does not share in any fees
  9. 9. Does a municipal prosecutor have a duty to report a criminal defense lawyer who is employed as an associate in the same law firm as the county prosecutor?
  10. 10. Duty to Report Criminal Defense Lawyer Employed in Same Law Firm as County Prosecutor Question #1: is this wrong? Question #2: do I have a duty to report? 2019 Absolutely prohibited: 1. court-appointed defense counsel is in the same firm as a prosecuting attorney 2. privately retained defense counsel in the same firm as prosecuting attorney, when the matter is in the prosecutor’s county Duty to report either of the provisions above.
  11. 11. May a lawyer who currently represents clients (claimants) in workers’ compensation claims pending against an employer undertake representation of the current clients’ employer in workers’ compensation matters unrelated to the clients?
  12. 12. Representation of Adverse Party in Unrelated Matters The lawyer should not take on the representation of the employer when he has clients with unrelated claims pending against the employer A lawyer may not withdraw from the representation of a current client in order to undertake representation of an adverse party, even if the matters are unrelated 2019 Absent informed consent, a lawyer may not represent a former adverse party in a new matter against a former client if the new matter is the same or a substantially related matter A lawyer who is unable to undertake representation of a prospective client due to a conflict may recommend another lawyer or list of lawyers in good faith
  13. 13. Can a lawyer designate his or her interests or shares in a law firm as transfer-on-death to the lawyer’s revocable trust, becoming an irrevocable trust on the death of the lawyer? What if the trustee is a lawyer?
  14. 14. Transfer on Death of a Lawyer’s Shares in a Law Firm to a Revocable Trust A lawyer may not participate in a law firm in which a member, partner, or other equity holder is a nonlawyer or practice in a law firm if a nonlawyer will own any interest in the law firm A lawyer must avoid designating his or her interests or shares in a law firm as transfer-on-death to the successor trustee in a revocable trust, becoming an irrevocable trust upon death, when one or more beneficiaries of the trust are nonlawyers 2019
  15. 15. Whether a lawyer has an ethical obligation to deliver a client’s file upon request of a former client?
  16. 16. Ethical Obligation to Deliver a Former Client’s File A lawyer’s file related to the representation of a client constitutes the “papers and property” of the client A lawyer is not required by the Rules of Professional Conduct to maintain a former client’s file for a minimum period of time after termination of representation 2019 When a lawyer has maintained a former client’s file for a substantial period of time after termination of representation, he or she is required to promptly deliver the file upon the client’s request
  17. 17. How are domain names treated under the Rules?
  18. 18. Lawyer + Firm Website Domain Names Registration + publication of a domain name is a form of advertising and professional designation 2018 Domain names and advertising Professional designation Inclusion of a specific field of practice in domain Domain name associated with a specific city/municipality
  19. 19. Can a magistrate may contribute personal funds to a nonjudicial candidate, a judicial candidate, or a political party?
  20. 20. Political + Campaign Activities of Magistrates A magistrate may not make a contribution to the campaign committee of a judicial candidate seeking office to the same court or decision of a court to which the magistrate is appointed 2018
  21. 21. Whether an out-of-state lawyer, not admitted to practice in Ohio, may prepare loan documents for a loan secured by Ohio property, negotiate the terms of the loan agreement with the borrower or borrower’s counsel, and attend the loan closing in Ohio?
  22. 22. 2018 Out-of-State Lawyer Representing Lending Institution An out-of-state lawyer may represent an out-of-state lending institution concerning loans made to persons and entities in Ohio
  23. 23. Jane Gleaves Kegler Brown Hill + Ritter 614-462-5484
  24. 24. Presented by Jane Gleaves When In House Counsel Wears TWO HATS
  25. 25. Non-lawyer business functions Lawyer
  26. 26. Licensing Attorney- Client Privilege Work Product
  27. 27. LICENSINGEthical Considerations
  28. 28. Rule 5.5(a) “A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.”
  29. 29. Gov.Bar.R. VI Section 4 Allows attorneys licensed in other states to register as in-house counsel for a non- governmental organization without examination as long as activities are restricted to full-time employment for that organization Counsel registered under this rule may not represent their employers before state courts unless granted permission License may be renewed biennially as long as the qualifying employment continues
  30. 30. Disciplinary Counsel v. Troller Senior corporate counsel in 1999, no other clients 2002-2012 served as chief legal officer and secretary License was suspended in 2005 Worked with outside counsel on pending litigation matters Negotiated and drafted contracts Advised HR regarding termination of employees
  31. 31. What Rules Were Violated? Prof.Cond.R. 8.4(h) Prof.Cond.R. 5.5(a) Gov.Bar.R. VI(5)(C)
  32. 32. What Sanction Was Imposed? Suspended from the practice of law in Ohio for two years, with six months stayed if: He extends his OLAP contract for 2.5 years and remains in compliance with its terms Within 30 days, pays the applicable fees for bienniums he practiced without a license Engage in no further misconduct
  33. 33. Disciplinary Counsel v. Fuhry Failure to renew registration with state supreme court Second suspension – failure to complete CLE requirements With a license, started working as staff counsel Falsely stated her license had never been revoked or suspended GC checked supreme court’s website + learned of suspension Company fired the lawyer immediately
  34. 34. What Rules Were Violated? Model Rule 5.5(a) Rule 5.5(b) Rule 8.1 Rule 8.4(c)
  35. 35. What Sanction Was Imposed? Suspended from the practice of law in Ohio for two years, with six months stayed
  36. 36. Attorney-Client PRIVILEGE Ethical Considerations
  37. 37. Rule 1.6 “A lawyer shall not reveal information relating to the representation of client [unless otherwise permitted/required]”
  38. 38. Legal advice is protected from disclosure, but business advice is not
  39. 39. How do you know?
  40. 40. Non-lawyer business functions Lawyer In-house counsel may play a dual role of legal advisor and business advisor,” and the attorney-client privilege applies to communications with in-house attorneys only when the “primary purpose” of those communications was to “gain or provide legal assistance.”
  41. 41. Neuder v. Battelle Wrongful discharge IHC – member of review committee “Legal advice must predominate” to be protected “Merely incidental to business advice, privilege does not apply” Committee’s primary purpose – terminate plaintiff IHC acting in business capacity as committee member
  42. 42. Alomari v. ODPS Relied on Neuder Legal advice must predominate to be protected IHC at meeting to give legal advice Privilege applied
  43. 43. Lindley v. Life Insurance Presumption IHC’s input is more business than legal Apply “heightened scrutiny” to IHC communications Prevent corporate clients from hiding behind veil of secrecy Business advice not privileged Must show “primarily a legal purpose” If mixed business/legal, redact legal Does legal purpose outweigh business?
  44. 44. Henderson Apt. v. Miller Communication must be seeking legal advice cc IHC on communications is not enough Where no question is posed nor answered, likely not privileged
  45. 45. Work PRODUCT Ethical Considerations
  46. 46. Rule 26(b)(3) Generally protects from disclosure “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.”
  47. 47. Rule 26 permits discovery of work product upon a showing of “substantial need” by the requesting party and a showing that they requesting party cannot obtain it without undue hardship.Rule 26
  48. 48. In re Professionals Direct Ins. Co. Was the document prepared because of a party’s subjective anticipation of litigation? Was the subjective anticipation objectively reasonable? What was the “driving force”?
  49. 49. Fed.R.Civ.Proc. 26(b)(3)(B) Under all circumstances, however, the court must “protect against the disclosure of the mental impressions, conclusions, or legal theories of a party’s attorney or other representative concerning the litigation.”
  50. 50. Discoverable vs. NOT Discoverable
  51. 51. Discoverable vs. NOT Discoverable Discoverable: routine reports + memoranda, routine work by IHC, memorandum recommending an employee’s termination to director of HR
  52. 52. Discoverable vs. NOT Discoverable Not Discoverable: memo analyzing the merits of a wrongful-termination lawsuit
  53. 53. Takeaways Court’s scrutinize the privilege closely when IHC is involvedWhat What is the true purpose of the lawyer’s work? ccing IHC or changing your job title is not enough
  54. 54. Jane Gleaves Kegler Brown Hill + Ritter 614-462-5484
  55. 55. Presented by Chris Weber Attorney as Witness RPC 3.7
  56. 56. RPC 3.7(a) shall not act as advocate at a trial if “likely to be a necessary witness”
  57. 57. Exceptions Testimony relates to uncontested issue Testimony relates to nature/value of legal services DQ would work – “substantial hardship on client”
  58. 58. Purpose Roles of advocate and witness not consistent Advocate = argue cause of another Witness = state facts objectively Can prejudice opposing party Confuse/mislead jury Create conflict between lawyer and client
  59. 59. RPC 3.7(a) Testimony is relevant/admissible Unobtainable through other witnesses Not cumulative
  60. 60. EXAMPLES
  61. 61. Reos v. UH Atty Reos sues on behalf of dad + wife UH trying to collect $36 claims – CSPA, TCPA
  62. 62. Atty Reos DQ’d? He paid for services Discussed discount with UH staff and recorded the calls “Personal involvement with UH forms entire basis of Reos’ causes of action”
  63. 63. Procedure Lessons? DQ is final order, abuse of discretion standard DQ is a “drastic measure;” “viewed as disfavor” Not imposed unless “absolutely necessary” Burden on movant; exceptions on attorney
  64. 64. Evidentiary hearing not required Non-oral hearing where court has written argument/evidence Hearing on MOTION
  65. 65. Champior v. Champior Divorce – XH seeking to modify spousal support Wife – remarried (her lawyer) XH seeks to DQ “shared living expenses” Held: cumulative
  66. 66. Exceptions Uncontested issue - rare Nature/value of legal services: seeking fees “Substantial hardship”
  67. 67. Financial burden on client? Length of relationship? Not simply family relationship Substantial HARDSHIP
  68. 68. Extent of DISQUALIFICATION
  69. 69. General Mill Supply v. SCA Services Expansive view “Trial” includes pretrial proceedings/discovery depositions
  70. 70. Hood v. Midwest DQ’d “from all phases of litigation” Libby-Owens Ford v. Martin: same Reos: same
  71. 71. RPC 3.7(b) No Imputation
  72. 72. RPC 3.7(b) “A lawyer may act as an advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or 1.9”
  73. 73. Cmt 6 to RPC 3.7 “if there is likely to be a substantial conflict between the testimony of the client and that of the lawyer, the representation involves a conflict of interest that requires compliance with Rule 1.7.”
  74. 74. “lawyer may not represent a client in a litigated . . . when lawyer or lawyer in lawyer’s firm will give testimony materially adverse to position of lawyer’s client . . ., unless the affected client has consented…”
  75. 75. RPC 1.7 - Consent Continue to provide competent representation Informed consent Confirmed in writing
  76. 76. Chris Weber Kegler Brown Hill + Ritter 614-462-5415
  77. 77. Presented by Chris Weber Growing Your Firm Ethically: OF COUNSEL RELATIONSHIPS
  78. 78. What is it?
  79. 79. OPINION 2008-1
  80. 80. CORE Characteristics Close Regular Personal
  81. 81. More than: Forwarder of business Receiver of business One-time advisor One-Case Relationship
  82. 82. WHEREis Of Counsel Typically Seen? Part-time lawyer Semi-retired lawyer Probationary partner-to-be Lawyer not on partnership track Miscellaneous/ hybrid
  83. 83. Cmt 2 to RPC 1.0 “a lawyer in an of-counsel relationship with a law firm will be treated as part of that firm”
  84. 84.  Malpractice cover/liability  Firm IOLTA  Firm resources/benefits/right to fees Part of the Firm
  85. 85. Carithers Case “Of Counsel” with firm but had side practice Used firm resources on firm time, kept all the $$ No IOLTA, no malpractice
  86. 86.  Share office space  Occasionally consult Not Part of the Firm
  87. 87. ETHICAL Implications Maintain active registration status Firm Name
  88. 88. Division of FEES If not in same firm, must comply with 1.5(e) Of counsel are part of firm – 1.5(e) does not apply
  89. 89. RPC 1.5(e) In proportion to services performed Assume joint responsibility/available Client consent: identity of each lawyer + division
  91. 91. OPINION 2004-11
  92. 92. OPINION 2013-1
  93. 93. OPINION 2014-4
  94. 94. COMPLEXITY with Multiple Firms Conflicts imputed to all Check conflicts with all firms All firms treated as 1 firm for imputation Must inform clients of all associations Fiduciary responsibilities
  95. 95. 8 BEST PRACTICES
  96. 96. 1 terms of arrangement in writing
  97. 97. 2 Dual classification, if appropriate
  98. 98. 3 Consider scope + expectations
  99. 99. 4 availability for hours + resources provided
  100. 100. 5 Must maintain confidentiality
  101. 101. 6 Participate in conflict checks
  102. 102. 7 Attendance at firm meetings + events
  103. 103. 8 Compensation, benefits + malpractice coverage
  104. 104. Chris Weber Kegler Brown Hill + Ritter 614-462-5415
  105. 105. Presented by Jason Beehler Keeping the INTEGRITYof the Profession
  106. 106. Your Opposing Counsel You need to file a motion if you want the court to reconsider. I will not consider an informal motion. Plaintiff’s counsel is copied here. -Judge Judy Motion for Reconsideration
  107. 107. Judge Judy Judge, Please consider this email a motion to reconsider your decision on summary judgment. You overlooked evidence for Defendant, and improperly disregarded the Baxter case. -Defense Lawyer Motion to Reconsider
  108. 108. What’s the problem?
  109. 109. Rule 3.5 - Impartiality “A lawyer shall not . . . communicate ex parte with a judicial officer as to the merits of the case during the proceeding.”
  110. 110. Your Opposing Counsel You need to file a motion if you want the court to reconsider. I will not consider your improper ex parte communication to be a motion. Plaintiff’s counsel is copied here. -Judge Judy Motion for Reconsideration
  111. 111. REPORT?
  112. 112. Rule 8.3 - Reporting “A lawyer who possesses unprivileged knowledge of a violation of the Ohio Rules of Professional Conduct that raises a question as to any lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform a disciplinary authority empowered to investigate or act upon such a violation.”
  113. 113. A lawyer shall inform a disciplinary authority if:
  114. 114. Unprivileged Knowledge
  115. 115. Violation of the Rules
  116. 116. Honesty, Trustworthiness, Fitness
  117. 117. Unprivileged KNOWLEDGE
  118. 118. You’re in house counsel You hire new outside trial counsel Outside counsel finds violation by former counsel Former counsel lied to opposing counsel Unprivileged Knowledge?
  119. 119. You’re a divorce attorney You represent a lawyer You ask for anything husband could use against her She padded invoices, took client $ Unprivileged Knowledge?
  120. 120. Knowledge of a VIOLATION
  121. 121. Rule 8.3 – Comment [1] “Self-regulation of the legal profession requires that a member of the profession initiate disciplinary investigation when the lawyer knows of a violation of the Ohio Rules of Professional Conduct”
  122. 122. Lawyer represents 2 plaintiffs Plaintiff 1 claims to be an owner of Defendant company Plaintiff 2 has separate but related claims If Plaintiff 1 prevails, Plaintiff 2 loses KNOW there’s a violation?
  123. 123. Your client Proposed Resolution My client really wants to resolve this. Can we agree that you’ll each drop your claims and go your separate ways, with full releases? -Joe Lawyer
  124. 124. Rule 4.2 - Communication “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.”
  125. 125. In re: Himmel Casey (atty) receives $35k settlement Keeps it Client hires Himmel (atty) Client doesn’t want to report Casey He claims privileged knowledge
  126. 126. Supreme Court of Illinois “A lawyer, as an officer of the court, is duty-bound to uphold the rules in the Code.”
  127. 127. Supreme Court of Illinois No privilege, because info was discussed with family members, insurance carrier, and Casey
  128. 128. Supreme Court of Illinois Himmel gets a 1 year suspension
  129. 129. Attorney U Laboratory hires Atty U Lab tells U that Atty S is not sharing fees U threatens to report S Lab reports S; U does not U claims no knowledge
  130. 130. Supreme Court of Mississippi Attorney has knowledge when “the supporting evidence is such that a reasonable lawyer under the circumstances would have formed a firm opinion that the conduct in question had more likely than not occurred.”
  131. 131. Supreme Court of Mississippi Based on this definition, the Court finds that U did not “know” of a violation, sufficient to trigger the reporting obligation
  132. 132. What’s the problem?
  133. 133. In re: Riehlmann Deegan tells Riehlmann he’s dying (1994) Also says he hid exculpatory evidence Deegan dies 1999 Riehlmann helps Defendant and reports Riehlmann claims no knowledge
  134. 134. Supreme Court of Louisiana “Absolute certainty of ethical misconduct is not required before the reporting requirement is triggered.”
  135. 135. Supreme Court of Louisiana “On the other hand, knowledge requires more than mere suspicion…”
  136. 136. Supreme Court of Louisiana Lawyer has knowledge when “the supporting evidence is such that a reasonable lawyer under the circumstances would form a belief that the conduct in question had more likely than not occurred.”
  137. 137. Supreme Court of Louisiana Public Reprimand
  138. 138. Honesty, Trustworthiness + FITNESS
  139. 139. Examples
  140. 140. Cuyahoga County Bar Assn. v. King, 2006-Ohio-1932 Client retains lawyer Pays $250 retainer Pays another $100 toward retainer Lawyer never does anything Won’t give the retainer back
  141. 141. Toledo Bar v. Vild (2005) Client hires lawyer for DUI defense Convicted Gives lawyer his wallet for safekeeping Lawyer later refuses to give it back Tapes it to his office door
  142. 142. Cuyahoga County Bar Ass'n v. Herron, 2004-Ohio-4749 Chapter 13 bankruptcy client Retains lawyer May 2000 June 2001 he files BK Doesn’t pay the filing fee Client has to go through Chapter 7
  143. 143. theTAKEAWAY?
  144. 144. A lawyer shall inform a disciplinary authority if:
  145. 145. Unprivileged Knowledge
  146. 146. Violation of the Rules
  147. 147. Honesty, Trustworthiness, Fitness
  148. 148. Jason H. Beehler Kegler Brown Hill + Ritter 614-462-5452
  149. 149. Presented by Jason Beehler
  150. 150. TITAN 1
  151. 151. Anybody want to guess his HOURLY RATE?
  152. 152. $1,850
  153. 153. TITAN 2
  154. 154. January 2015
  155. 155. Perjury.
  156. 156. Say it on TV
  157. 157. I have evidence.
  158. 158. Alan Dershowitz Saw you on the Today Show. Maybe we can help… Today Show
  159. 159. Friends Privileged and Confidential
  160. 160. Alan Dershowitz We have a conflict… Never mind
  161. 161. Carlos Sires Darn. I was really hoping you could come on board. Thanks for considering it. Re: Never mind
  162. 162. Liar.
  163. 163. Bad mother…
  164. 164. Prostitute.
  165. 165. November 2018
  166. 166. March 2019
  167. 167. “I hereby accuse my false accusers of committing the felony of perjury and challenge them to sue me for defamation.”
  168. 168. I thought I was a client of the Boies firm Sires sent emails saying he could help Memo was highly confidential Sires lied to me about why they couldn’t help
  169. 169. June 2015
  170. 170. July 2016
  171. 171. Your evidence is compelling
  172. 172. She’s wrong…
  173. 173. Rebecca Boylan She felt pressured by her lawyers
  174. 174. Rebecca Boylan They wanted to sue him for at least half his money
  175. 175. Madison 92nd Street Associates, LLC v. Marriott International, Inc., 2013 WL 5913382
  176. 176. “A clearer conflict of interest cannot be imagined. A first year law student on day one of an ethics course should be able to spot it. Boies Schiller Flexner, which holds itself out as one of the country’s preeminent law firms, did not.”
  177. 177. November 2017
  178. 178. To obtain “intelligence which will help the client’s efforts to completely stop the publication of a new negative article in a leading NY Newspaper.”
  179. 179. “We never contemplated that the law firm would contract with an intelligence firm to conduct a secret spying operation aimed at our reporting and our reporters. Such an operation is reprehensible.”
  180. 180. “Whatever legalistic arguments and justifications can be made, we should have been treated better by a firm that we trusted.”
  181. 181. 5 strikes Florida Bar said you were not a client New York Bar said you were not a client No attorney client relationship
  183. 183. $1,850
  184. 184. Dershowitz is “desperate to avoid having to face the mountain of evidence that will put the lie to his false statements about Ms. Giuffre…”
  185. 185. Boies, et al., are fact witnesses I have you on tape, Dave You lied about Slick Willy I reasonably believed I was a client
  186. 186. I’M ALAN DERSHOWITZ!
  187. 187. Jason H. Beehler Kegler Brown Hill + Ritter 614-462-5452