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Professionalism Week at Capital Law School

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On Wednesday, April 4, 2018, Jason Beehler, and Jon Coughlan of Kegler Brown's Professional Responsibility practice area presented alongside panelists Alvin Mathews, Partner, James E. Arnold & Associates, LPA and Don Scheetz, Assistant Disciplinary Counsel, Office of Disciplinary Counsel for the Supreme Court of Ohio at Capital Law School for their Professionalism Week.

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Professionalism Week at Capital Law School

  1. 1. z Presented by Jonathan E. Coughlan April 4, 2018 REPORTING MISCONDUCT of Other Lawyers + Other Fun Ethical Problems
  2. 2. z Lawyer possessing unprivileged knowledge of a violation of these rules that raises a question as to any lawyer’s honesty, trustworthiness, or fitness as a lawyer, shall inform a disciplinary authority RULE 8.3 Duty To Report Reporting judges Information regarding substance abuse and mental health issues shall be privileged
  3. 3. z This rule applies to when you must report It has nothing to do with whether you may report Assuming the information is not privileged, it is always possible to report RULE 8.3 Duty To Report
  4. 4. z OPINION 2007-1 So how do we determine when it raises a question as to a lawyer’s honesty, trustworthiness, or fitness ? Each of us must use our professional judgment in determining whether misconduct raises a question as to a lawyer’s honesty, trustworthiness, or fitness as a lawyer
  5. 5. z What Is “Unprivileged Knowledge?” Most other states prohibit reporting information learned during the representation – confidential info (1.6) Don’t forget, you can always ask your client to waive the privilege so you can report the misconduct Privilege refers to the “attorney/client privilege” This is an evidentiary concept
  6. 6. z How Do You Know When You Have “Knowledge”? Rule 1.0 tells us “A person’s knowledge may be inferred from the circumstances” Is this a subjective or objective determination? According to Board Opinion 2007-1, mere suspicion is not enough, actual knowledge is required
  7. 7. z Reporting MISCONDUCT You agree to meet with former law partner for a glass of wine after work one day And she tells you very upsetting news…
  8. 8. z Do you have any duty to investigate and see whether what you learned about the overbilling was true? Yes No
  9. 9. z Do you tell the client? Yes No
  10. 10. z Assume you do tell the client. Do you report the lawyer for engaging in misconduct? Yes No
  11. 11. z Rule 8.3 Possess unprivileged knowledge Of a violation of the Rules That raises a question about The lawyer’s honesty, trustworthiness or fitness as a lawyer
  12. 12. z Is it privileged knowledge? Yes No
  13. 13. z Do you have knowledge? Yes No
  14. 14. z Rule 1.0(g) “Knows”/”known” denotes actual knowledge of the fact in question A person’s knowledge may be inferred from the circumstances
  15. 15. z Assume you had just heard your friend tell you at the bar about what she had done. Do you have knowledge at this point in time? Yes No
  16. 16. z Assume your former partner tells you she overbilled a client at her new firm, but not any clients at your firm while she was there. Do you have any obligation to tell her new firm? Yes No
  17. 17. z Do you have to report this to disciplinary authorities? Yes No
  18. 18. z Rule 8.3 Possess unprivileged knowledge Of a violation of the Rules That raises a question about The lawyer’s honesty, trustworthiness or fitness as a lawyer
  19. 19. z So is it privileged? Yes No
  20. 20. z A lawyer shall not reveal information relating to the representation of a client, including attorney-client privileged information, unless the client gives informed consent. Relevant exception – permissible to disclose in order to prevent commission of a crime Rule 1.6
  21. 21. z OPINION 2016-02 Question is whether the information acquired from the client regarding their prior lawyer’s conduct is privileged, thereby eliminating any duty to report under Rule 8.3
  22. 22. z OPINION 2016-02 Prohibited from revealing information related to representation without client consent But Rule 8.3 requires disclosure to disciplinary authorities of all information that is not privileged
  23. 23. z OPINION 2016-02 Even if confidential under 1.6, if the information is not privileged then it’s permissible to report the misconduct If privileged, lawyer must obtain client consent to reveal by reporting to disciplinary authorities
  24. 24. z Does the conduct raise a question about the lawyer’s honesty, trustworthiness or fitness to practice? Yes No
  25. 25. z Reporting MISCONDUCT Assuming you have unprivileged knowledge that raises a question about another lawyer’s honesty, trustworthiness or fitness… Just when is it that you are supposed to report the misconduct ?
  26. 26. z “Reporting Misconduct” Case In re Riehlmann, 891 So.2d 1239 (2005) Prosecutor bares his soul
  27. 27. z In Riehlmann the lawyer did actually report the misconduct, only he learned of it in 1994 and first disclosed it in 1999 RULE 8.3 Duty To Report So, is this a violation of 8.3? Harm because of the delay?
  28. 28. z The Louisiana Supreme Court held that “absent special circumstances, a lawyer must report his knowledge of misconduct promptly.”
  29. 29. z NY City Bar Ethics Opinion 90-3 While limited circumstances might justify postponing a report for a brief time, “once a lawyer decides that he or she mist disclose under DR 1-103(A), any substantial delay in in reporting would be improper.”
  30. 30. z Unique Ohio Reporting Features Only “privileged knowledge” is shielded from mandatory disclosure rather than any and all information learned during the representation (Rule 1.6), “Question” not “substantial question”, Self-reporting required
  31. 31. z OPINION 2017-02 Issued February 10, 2017 Withdraws Opinion 89-32
  32. 32. z Jud.Cond.R. 2.15(A) A judge who has knowledge that another judge has committed a violation of the Code of Judicial Conduct that raises a question regarding the judge’s honesty, trustworthiness, or fitness as a judge in other respects is required to report it to the appropriate disciplinary authority
  33. 33. z Jud.Cond.R. 2.15(B) A judge who has knowledge of a lawyer’s violation of the Rules of Professional Conduct conduct that raises a question regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer has an ethical duty to report it
  34. 34. z Do judges have a duty report a witness who testifies to possession of marijuana? Yes No
  35. 35. z What about a witness that testifies to a felony? Yes No
  36. 36. z Does a judge have to recuse from a case if the judge has reported one of the lawyers to disciplinary authorities? Yes No
  37. 37. z Lawyer Advertising
  38. 38. z What about lawyer advertising saying “There is no charge unless we win your case” or “No fee without recovery”? Yes No
  39. 39. z OPINION 2017-01 Prohibited if the lawyer will be seeking payment of fees/costs at any time unless the lawyer uses a disclaimer that clearly indicates the client will be responsible for the expenses and costs
  40. 40. z
  41. 41. z Is it proper for a lawyer to advertise legal services by sending unsolicited emails? Yes No
  42. 42. z OPINION 2017-03 Issued April 7, 2017 Update + Withdrawal of 2004-1 Solicitation of Professional Employment via Email
  43. 43. z OPINION 2017-03 Disclose accurately + fully Refrain from expressing predetermined evaluation Conspicuously include disclaimer
  44. 44. z OPINION 2017-05 Issued June 9, 2017 Virtual Law Office
  45. 45. z What is a Virtual Law Office?
  46. 46. z
  47. 47. z “Reasonable efforts” can be determined through the analysis of several nonexclusive Op. 2017-5 factors including: sensitivity of the information likelihood of disclosure if additional safeguards are not employed cost of employing additional safeguards difficulty of implementing the safeguards extent to which safeguards adversely affect lawyer’s ability to represent clients
  48. 48. z
  49. 49. z 1 Determine that the vendor understands and agrees to maintain and secure stored data consistent with the lawyer’s duty of confidentiality 2 Ensure that client files and data will be maintained and regularly backed up 3 Require that the vendor give the lawyer notice of subpoenas for client data, nonauthorized access to the stored data, or other breach of security, and a reliable means of retrieving the data if the agreement is terminated or the vendor goes out of business
  50. 50. z Jonathan E. Coughlan Kegler Brown Hill + Ritter jcoughlan@keglerbrown.com keglerbrown.com/coughlan 614-462-5455
  51. 51. KNOWN Unknowns Presented by Jason Beehler April 4, 2018
  52. 52. Jason Beehler Kegler Brown Hill + Ritter jbeehler@keglerbrown.com keglerbrown.com/beehler 614-462-5452
  53. 53. z Ethics PANEL Of Counsel Fee Agreements Trust Accounts Withdrawing Advertising Conflicts Confidentiality
  54. 54. z Of Counsel Issues
  55. 55. z
  56. 56. z
  57. 57. z Identify Client1
  58. 58. z Define Scope2
  59. 59. z Define exactly what asked to do, avoid using “Re: Legal Representation”
  60. 60. z Benefits to Avoid blame for unrelated matters Defines when representation ends Easier to be adverse to a former client
  61. 61. z Gentle Termination Letter
  62. 62. z Dual Representation3
  63. 63. z Someone Other Than Client Pays4
  64. 64. z Evergreen Retainer5
  65. 65. z Flat Fees6
  66. 66. z Other Considerations Flat fee – RPC 1.5(d)(3) Add language – may be entitled to refund Refund if early termination ODC v. Summers 2012-Ohio-1144 Where does $$ go? “Earned upon receipt” Operating account
  67. 67. z Advance Waivers7
  68. 68. z Rule 1.15 Trust Accounts
  69. 69. z Sharing Fees Not in Same Firm
  70. 70. z Rule 1.5(e) Permissible if: Division in proportion to services performed by each Each lawyer assumes joint responsibility for matter/available Includes joint/severable liability for malpractice Client consent: identify each lawyer and division of fees
  71. 71. z Doing Business with Clients Rule 1.8(a) – explain in writing Terms, risks/disadvantages to client Reasonable alternatives Lawyer’s role Advisable to consult with another lawyer
  72. 72. z Properly DECLINING Representation
  73. 73. z Prospective clients RPC 1.18: Communications are confidential Confirmation in writing unable to take Consider whether to inform of applicable S/L
  74. 74. z Additional Tips
  75. 75. z Key Areas to COMMUNICATE When seeking conflict waiver Settle/appeal Client objectives Means to accomplish goal (litigation tactics) Updating on status When client requests information
  76. 76. z How to COMMUNICATE
  77. 77. z How to RPC 1.16 Client engages in illegal/ fraudulent conduct Client insists upon action lawyer considers “repugnant” Or which lawyer has “fundamental disagreement” WITHDRAW
  78. 78. z Client fails to fulfill obligation financial or otherwise Lack of payment Lack of communication Warn that will withdraw unless obligation met “Unreasonable financial burden” on lawyer Representation rendered “unreasonably difficult” “Other good cause” Grounds to WITHDRAW
  79. 79. z Withdrawal Considerations Minimize risk to client Notice/opportunity to retain new counsel Cooperate with transition Refund earned fees Litigation: permission from court Careful with client confidences Submit motion in camera
  80. 80. z New Rule 1.6(b) Exception 1.6 (b)(7): To detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client
  81. 81. z New Rule 1.6 Requirement (c): A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure or unauthorized disclosure of or unauthorized access to information related to the representation of a client
  82. 82. z Rule 1.18 Duties to Prospective Clients Rule 1.18 is consistent with current Ohio law: the lawyer-client relationship may be created by implication based upon the conduct of the parties and the reasonable expectations of the person seeking representation. See Cuyahoga County Bar Ass’n v. Hardiman (2003), 100 Ohio St. 3d 260
  83. 83. z Rule 1.18 New Comment 2 Consultation does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer’s education, experience, areas of practice and contact information
  84. 84. z Rule 4.4 Respect for Right of 3rd Persons A lawyer who receives a document or electronically stored information relating to representation of lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender
  85. 85. z Comment to Rule 4.4 Electronically stored information includes…electronic documents, electronic communications, including metadata 1 Metadata only creates an obligation under this rule if the receiving lawyer knows or reasonably should know that the metadata was sent inadvertently to the receiving lawyer 2
  86. 86. z Rule 5.1 Responsibilities of Supervisory Lawyers
  87. 87. z New Comment to Rule 5.3 In addition to responsibility for non-lawyer assistants who work for you, attorneys are now required to be responsible for non- lawyers outside the firm or agency who work on firm or agency matters; 1 Required to ensure such independent contractors act in a way compatible with professional obligations of lawyer; 2 Such assistants must be given appropriate instruction/supervision concerning the ethical aspects, particularly regarding confidentiality, and the lawyer should be responsible for their work product 3
  88. 88. z Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law Rules 5.5 (b), (c), and (d) describe when a lawyer who is not admitted in Ohio may engage in activities considered the practice of law in the state
  89. 89. z Rule 5.5 New Restrictions Non-Ohio Lawyer who sets up an office or other systematic and continuous presence in Ohio violates this rule Presence may be “systematic and continuous” even if the lawyer is not physically present in Ohio “Advertising in media specifically targeted to Ohio residents or initiating contact with Ohio residents for solicitation purposes…”
  90. 90. z Rule 7.2 Advertising + Recommendation of Professional Employment + Not allowed to give anything of value to another for recommending the lawyer’s services + BUT, can pay others for generating client leads, including internet based client leads, provided the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with 1.5 and 5.4 and the lead generator’s communications are consistent with 7.1
  91. 91. z No written or electronic solicitation if: Person made known a desire not be solicited; Solicitation involves coercion, duress, or harassment; Lawyer knows or reasonably should know that person to whom communication is addressed is a minor or incompetent or person’s physical, emotional or mental state makes it unlikely that the person could exercise reasonable judgment in hiring a lawyer
  92. 92. z Rule 7.3 Advertising Advertisements are solicitations and must comply with 7.3(c) – 1. disclose manner in which lawyer learned of identity and specific legal need of addressee 2. refrain from expressing evaluation of merits 3. conspicuously include “advertisement only/material”
  93. 93. z Rule 7.3 Advertising BUT communication is NOT a solicitation if it is directed at general public – billboard, internet based advertisement, web site, a commercial, in response to request for information, or automatically generated in response to internet search
  94. 94. z Can you list settlement amounts?
  95. 95. z Conflicts Questions
  96. 96. z Attorney/Client Privilege Work Product 1.6 Confidentiality
  97. 97. z A & B come in to hire lawyer because they were injured in an automobile accident (A-driver, B–passenger) Initial interview – prospective clients, Rule 1.18 applies So, confidentiality applies even if not retained If not retained, unable to represent party with adverse interest in the same or substantially related matter, if rec’d harmful info… Simple Legal Representation
  98. 98. z Lawyer proceeds to represent A & B, works up case and ultimately submits demand B comes in alone, says – being investigated by FBI for insurance fraud – staged accident B asks you not to tell A…. Joint defense agreement? Each acknowledged that there are no secrets as between them? Now have conflicting duties as to two clients Simple Legal Representation
  99. 99. z Two clients come in to set up an LLC Agree to include provision guaranteeing loans to the LLC Separately one of the clients comes in and says “I have bad credit, let’s leave this provision out” And please don’t tell my business partner Transactional Case
  100. 100. z Can the lawyer withdraw the demand?
  101. 101. z Rule 1.6 (b)(3) “to mitigate substantial injury to the financial interests or property of another that resulted from the client’s commission of an illegal or fraudulent act, in furtherance of which the client has used the lawyer’s services.”
  102. 102. z RULES to Consider
  103. 103. z 1.2(d) A lawyer shall not… assist a client, in conduct that the lawyer knows is illegal or fraudulent
  104. 104. z 4.1(b) A lawyer shall not… knowingly fail to disclose a material fact when disclosure is necessary to avoid assisting an illegal or fraudulent act by a client

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