18th Annual Professional Responsibility Seminar
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Kegler Brown's annual seminar on professional responsibility took place on October 16, 2015, at the Sheraton Columbus Hotel at Capitol Square. This well-regarded, half-day seminar focused on providing Ohio's lawyers and judges with timely information regarding ethics and professionalism.
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18th Annual Professional Responsibility Seminar
- 1. z
- 2. z Oh *!?#@ I Got a Grievance Attorney Discipline in Ohio presented by Jonathan E. Coughlan
- 3. z Allegations of violations of the Rules + the Canons Heard by the Board of Commissioners May be brought by ODC or CGC Gov. Bar Rule V
- 4. z ODC Process Complaint-driven 2600/year – DOI 60% 40% Investigated Start with letter of inquiry
- 6. z Response from attorney/judge Documents, court files + witness statements Determination of probable cause
- 10. z File with summary of investigation + response 3
- 11. z Board decides whether to certify complaints
- 12. z Board decides whether to certify complaints Confidentiality Grievant given immunity Not certified? Dismissed + confidential
- 16. z Hearing + Rules of evidence + Clear + convincing + 3 primary issues: facts, violations, sanction + Panel – can dismiss at close of relator’s proof
- 17. z Hearing + Rules of evidence + Clear + convincing + 3 primary issues: facts, violations, sanction + Panel – can dismiss at close of relator’s proof Panel reports to Board Board deliberates
- 18. z Dismiss Recommend findings of fact, conclusions of law + a sanction OR
- 19. z Show cause order Briefs filed Oral argument set Court not bound by Board’s recommendation
- 20. z Sanction Issues Cooperation Restitution Remorse/ Attitude Harm to Client Pattern of Misconduct
- 21. z Aggravating Factors Prior disciplinary offenses Dishonest or selfish motive Pattern of misconduct Multiple offenses Lack of cooperation in the disciplinary process
- 22. z Mitigating Factors Absence of prior disciplinary record Absence of dishonest or selfish motive Timely good faith effort to make restitution Full + free disclosure in disciplinary process Character or reputation Imposition of other sanctions Chemical dependence or mental disability
- 23. z Statistics
- 25. z Only file 40-60 cases per year Approximately 6 months to resolve investigations 85-120 total cases filed with the Board
- 26. z Anywhere from 1-2 years for case that is prosecuted Efforts being made to reduce that time period
- 27. z Recent Board Opinion #2015-2 Direct in-person solicitation of prospective clients at seminars
- 28. z Thank You! Jonathan E. Coughlan Director, Kegler Brown Hill + Ritter jcoughlan@keglerbrown.com keglerbrown.com/coughlan 614-462-5455
- 29. z
- 30. z Oh *!?#@ I Have Someone Else’s Privileged Information presented by Chris Weber
- 32. z Inadvertence
- 37. z Comment 3: Up to the Lawyer
- 38. z
- 39. z Civ.R. 26(B)(6) Fed. R. Civ. P. 26(b)(5)
- 41. z May not use or disclose until claim resolved
- 42. z Fed. R. Evid. 502(b) No Waiver IF: 1 Disclosure inadvertent 2 Took steps to protect 3 Took steps to rectify
- 45. z 2. # of inadvertent disclosures
- 47. z 4. Measures taken to mitigate
- 48. z 5. Overriding interests of justice
- 49. z Inhalation Plastics Waived attorney-client privilege 7,500 documents produced 347 asserted as privileged Lack of proof on reasonable measure Although prompt notice, too general No log specifying basis
- 53. z Merits Incentives Lawyer receives from anonymous sources + discloses Used during deposition Did not review privileged doc
- 56. z 4.4(b) prompt notice Described how received Did not review A/C privilege
- 57. z Burt Hill Client receives docs from anonymous source Some are privileged Some proprietary/trade secret
- 59. z Defense counsel failed to provide sworn statements warrants entry of sanctions?
- 62. z ABA Opinion notes that “the rules do not exhaust the moral or ethical considerations that should inform a lawyer’s conduct”
- 63. z “should attorneys/ judicial officers throw up their hands and conclude that nothing can be done to protect document owners’ privilege/ confidentiality interests?”
- 64. z “of course the law does not support this conclusion”
- 65. z “upon discovering confidential nature of docs, cease review, notify owner, and abide by owner’s instruction”
- 66. z Chamberlain Anonymous emails in patent case Client sends to counsel 4.4(b) duty to disclose “should be stricter when obtaining docs outside legitimate discovery”
- 67. z Counsel’s Errors? Promptly disclose Sanction= excluding tainted evidence
- 68. z Maldonado Employment case Defendants letter to former attorney shows up in plaintiff’s mailbox Clearly attorney-client privilege
- 69. z blue print to merits of plaintiffs case and defenses
- 71. z Attorney DQ’d
- 72. z Counsel’s Errors? Notify opposing counsel Receive permission before reviewing further
- 74. z Factors for DQ “mere access” to A/C privilege doesn’t require DQ Prejudice to holder Counsel’s level of fault Review of A/C privilege
- 75. z Foss Maritime
- 76. z Client Obtains
- 78. z Castellano Custody case Mom steals dad’s flash drive and gives to lawyer Lawyer reviews + uses
- 79. z Attorney DQ’d
- 80. z Counsel’s Errors? Notify opposing counsel Receive permission before reviewing further
- 81. z Stengart Applied 4.4(b) “prompt notice” Employment litigation Forensic expert reviews former employee’s laptop Reviews e-mails to lawyer
- 82. z Counsel’s Errors? Notify opposing counsel Receive permission before reviewing further
- 84. z ABA Opinion 11-460 1 Acknowledges Stengart 2 4.4(b) does NOT apply 3 “often in client’s best interest to give notice and obtain judicial ruling before using/having lawyer review.”
- 85. z Considerations
- 87. z Get guidance 1
- 91. z Advise risk of using privileged docs 5
- 97. z cannot “use methods of obtaining evidence that violate legal rights of third person”
- 100. z Permissions Opposing lawyer contact RPC 4.2 Comment 7
- 101. z Steps to Protect
- 103. z Explain adverse to former ER 2
- 104. z Do not divulge privileged info 3
- 105. z Do not give advice 4
- 108. z Thank You! Christopher Weber, Director Kegler Brown Hill + Ritter cweber@keglerbrown.com keglerbrown.com/weber 614.462.5415
- 109. zz EVER + presented by Jason Beehler Known Unknowns
- 110. zz Two recluses.
- 111. zz Cast your mind back to 1960
- 112. zz
- 113. zz I never expected any sort of success with Mockingbird... Harper Lee, 1964
- 114. zz I was hoping for a quick and merciful death at the hands of the reviewers. Harper Lee, 1964
- 115. zz Public encouragement. I hoped for a little, as I said, but I got rather a whole lot … Harper Lee, 1964
- 116. zz In some ways this was just about as frightening as the quick, merciful death I'd expected. Harper Lee, 1964
- 117. zz
- 118. zz
- 119. zz
- 120. zz
- 121. zz May 4, 2007
- 122. zz May 5, 2007
- 123. zz Samuel Pinkus
- 124. zz
- 125. zz Who is Samuel Pinkus? Lee’s literary agent.
- 126. zz + 81 + Nursing home + Sister (a lawyer, but 101) is nearby + Tonja Carter is her attorney
- 127. zz + Macular degeneration + Declining hearing + Stroke in 2007
- 128. zz Friend since grade school: “I don’t think she would have signed anything without getting her sister to approve it.”
- 129. zz Friend: “[Sister] said that Nelle didn’t remember things, and she would sign almost anything anybody put in front of her.”
- 130. zz
- 131. zz Pinkus meets with Lee + Carter
- 132. zz
- 133. zz Don’t sign it Sign it
- 134. zz
- 136. zz
- 137. zz
- 138. zz
- 139. zz Case settles
- 140. zz
- 141. zz
- 142. zz PRESS RELEASE RECENTLY DISCOVERED NOVEL FROM HARPER LEE, AUTHOR OF TO KILL A MOCKINGBIRD
- 143. zz PRESS RELEASE RECENTLY DISCOVERED NOVEL FROM HARPER LEE, AUTHOR OF TO KILL A MOCKINGBIRD Harper Collins . . . has acquired North American rights to a newly discovered novel by Harper Lee . . .
- 144. zz PRESS RELEASE RECENTLY DISCOVERED NOVEL FROM HARPER LEE, AUTHOR OF TO KILL A MOCKINGBIRD The deal was negotiated . . . via Harper Lee's lawyer, Tonja Carter.
- 145. zz
- 147. z Rule 1.14 The lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
- 148. z May take reasonably necessary protective action IF: 1 Reasonably believe 2 Diminished capacity 3 Substantial risk of harm
- 149. z
- 150. zz Dementia Age (young + old) Medication Psychological Drugs / Alcohol
- 151. zz No/minimal evidence Mild Serious Lacking Representation can proceed Lawyer must take some action { {
- 152. z Appreciating consequences of decision Variability of state of mind Consistency with client’s long term values Ability to articulate reasoning
- 153. z
- 154. zz Mother + Longtime client + Estate planning work + Leases for rental properties + Pre-nup + Divorce + Comes to your office with her son
- 155. zz What do you do?
- 156. zz Ask son to step out Capacity questions Ask about meds Ask why Confirm with physician
- 157. zz + Talk to sister + Talk to friends + Physician confirmation + Have her write/record explanation
- 158. zz Caution
- 159. zz Privilege
- 160. zz + Family/others can participate without violating privilege. + CLIENT makes decisions. Client with capacity + Lawyer must preserve confidentiality. + Taking protective action = can disclose. + Consider whether disclosure to 3rd party will harm client. Client with diminished capacity
- 161. zz The probate court shall declare the will valid if, after conducting a proper hearing . . . it finds that the will was properly executed . . . and that the testator had the requisite testamentary capacity and was not under any restraint. R.C. 2107.084
- 162. z
- 163. zz Wife Divorcing No separate assets Substantial marital estate
- 164. zz What do you do?
- 165. zz No/minimal evidence Mild Serious Lacking Representation can proceed Lawyer must take some action { {
- 166. z May take reasonably necessary protective action IF: 1 Reasonably believe 2 Diminished capacity 3 Substantial risk of harm
- 167. z
- 168. zz Family Pause POA Help
- 169. zz Pause
- 170. zz + Family/others can participate without violating privilege. + CLIENT makes decisions. Client with capacity + Lawyer must preserve confidentiality. + Taking protective action = can disclose. + Consider whether disclosure to 3rd party will harm client. Client with diminished capacity
- 171. z Rule 1.14, comment[8] The lawyer’s position in such cases is an unavoidably difficult one.
- 172. z
- 173. zz What do you do?
- 174. zz No/minimal evidence Mild Serious Lacking Representation can proceed Lawyer must take some action { {
- 175. z Appreciating consequences of decision Variability of state of mind Consistency with client’s long term values Ability to articulate reasoning
- 177. zz $308 million
- 178. zz Will? Yes No Yes !
- 179. zz
- 180. z Everything else to her relatives (unnamed) $5 million to her nurse
- 181. zz
- 182. z $15 million to her nurse $150 million to charity $500,000 to attorney $130 million in taxes, legal fees, etc.
- 183. zz Relatives? $0
- 184. zz 2007: occasional hallucinations 2007: flying tissue box 2010: ADA says no dementia 2010: psych eval finds periods of delirium
- 185. zz Case settles.
- 186. z Nurse: Repay $5 million All attorney fees paid $100 million to charity Relatives: $34.5 million
- 187. zz Lawyer? $0
- 188. zz What do you do?
- 189. zz No/minimal evidence Mild Serious Lacking Representation can proceed Lawyer must take some action { {
- 190. z Questions?
- 191. z Two recluses.
- 192. z Why
- 193. z “I don’t think she agreed to do it. I think it’s her attorney being greedy.”
- 194. z “Harper Lee’s Watchman is a mess that makes us reconsider a masterpiece.” -Maureen Corrigan NPR
- 195. z All the details of her life become public knowledge.
- 196. zz Thank You! Jason Beehler Kegler Brown Hill + Ritter jbeehler@keglerbrown.com keglerbrown.com/beehler 614-462-5452
- 197. z