2019 Ethics Symposium

Presented by
Jane Gleaves
Recent Highlights in
LEGAL ETHICS

Ohio Board of
Professional
Conduct Advisory
OPINIONS

Is it proper for a lawyer to donate
legal services to be auctioned or
raffled at a fundraiser for a
charitable organization?

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

Can a lawyer limit
her practice with a
settlement agreement?

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

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?

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

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?

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.

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?

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

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?

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

Whether a lawyer has an
ethical obligation to deliver a
client’s file upon request of a
former client?

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

How are domain
names treated under
the Rules?

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

Can a magistrate may contribute
personal funds to a nonjudicial
candidate, a judicial candidate, or
a political party?

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

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?

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

Jane Gleaves
Kegler Brown Hill + Ritter
jgleaves@keglerbrown.com
keglerbrown.com/gleaves
614-462-5484

Presented by
Jane Gleaves
When In House
Counsel Wears
TWO HATS

Non-lawyer
business
functions
Lawyer

Licensing
Attorney-
Client
Privilege
Work
Product

LICENSINGEthical
Considerations

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.”

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

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

What Rules Were Violated?
Prof.Cond.R.
8.4(h)
Prof.Cond.R. 5.5(a) Gov.Bar.R. VI(5)(C)

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

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

What Rules Were Violated?
Model Rule 5.5(a) Rule 5.5(b) Rule 8.1
Rule 8.4(c)

What Sanction Was Imposed?
Suspended from the practice of law in Ohio
for two years, with six months stayed

Attorney-Client
PRIVILEGE
Ethical
Considerations

Rule 1.6
“A lawyer shall not reveal
information relating to the
representation of client [unless
otherwise permitted/required]”

Legal advice is protected
from disclosure, but
business advice is not

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.”

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

Alomari v. ODPS
Relied on
Neuder
Legal advice must
predominate to be
protected
IHC at meeting
to give legal
advice
Privilege applied

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?

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

Work
PRODUCT
Ethical
Considerations

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.”

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

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”?

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.”

Discoverable vs.
NOT Discoverable

Discoverable vs.
NOT Discoverable
Discoverable: routine reports +
memoranda, routine work by IHC,
memorandum recommending an
employee’s termination to director of HR

Discoverable vs.
NOT Discoverable
Not Discoverable: memo analyzing the
merits of a wrongful-termination lawsuit

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

Presented by
Chris Weber
Attorney as Witness
RPC 3.7

RPC 3.7(a)
shall not act as advocate at
a trial if “likely to be a
necessary witness”

Exceptions
Testimony relates to
uncontested issue
Testimony relates to
nature/value of legal
services
DQ would work –
“substantial hardship
on client”

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

RPC 3.7(a)
Testimony is relevant/admissible
Unobtainable through other witnesses
Not cumulative

Reos v. UH
Atty Reos sues on
behalf of dad + wife
UH trying to
collect $36 claims – CSPA, TCPA

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”

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

Evidentiary hearing
not required
Non-oral hearing where
court has written
argument/evidence
Hearing on
MOTION

Champior v. Champior
Divorce – XH seeking
to modify spousal
support
Wife – remarried
(her lawyer) XH seeks to DQ
“shared living expenses” Held: cumulative

Exceptions
Uncontested issue -
rare
Nature/value of legal
services: seeking fees “Substantial hardship”

Financial burden on
client?
Length of
relationship?
Not simply family
relationship
Substantial
HARDSHIP

General Mill Supply v.
SCA Services
Expansive view
“Trial” includes pretrial
proceedings/discovery
depositions

Hood v. Midwest
DQ’d “from all phases
of litigation”
Libby-Owens Ford v.
Martin: same Reos: same

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”

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.”

“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…”

RPC 1.7 -
Consent
Continue to provide competent
representation
Informed consent
Confirmed in writing

Chris Weber
cweber@keglerbrown.com
keglerbrown.com/weber
614-462-5415

Presented by
Chris Weber
Growing Your Firm Ethically:
OF COUNSEL
RELATIONSHIPS

CORE
Characteristics
Close Regular Personal

More than:
Forwarder of
business
Receiver of
business
One-time
advisor
One-Case
Relationship

WHEREis Of Counsel
Typically Seen?
Part-time lawyer Semi-retired lawyer Probationary
partner-to-be
Lawyer not on
partnership track
Miscellaneous/
hybrid

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”

 Malpractice cover/liability
 Firm IOLTA
 Firm resources/benefits/right to fees
Part of the Firm

Carithers Case
“Of Counsel” with
firm but had side
practice
Used firm resources
on firm time, kept
all the $$
No IOLTA, no
malpractice

 Share office space
 Occasionally consult
Not Part of the Firm

ETHICAL
Implications
Maintain active
registration status Firm Name

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

RPC 1.5(e)
In proportion to services performed
Assume joint responsibility/available
Client consent: identity of each
lawyer + division

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

1 terms of arrangement in
writing

2 Dual classification, if
appropriate

3 Consider scope +
expectations

4 availability for hours +
resources provided

5 Must maintain
confidentiality

6 Participate in conflict
checks

7 Attendance at firm
meetings + events

8 Compensation, benefits +
malpractice coverage

Presented by
Jason Beehler
Keeping the
INTEGRITYof the Profession

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

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

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.”

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

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.”

A lawyer shall inform a
disciplinary authority if:

Honesty,
Trustworthiness,
Fitness

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?

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?

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”

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?

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

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.”

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

Supreme Court
of Illinois
“A lawyer, as an
officer of the court,
is duty-bound to
uphold the rules in
the Code.”

Supreme Court
of Illinois
No privilege,
because info was
discussed with
family members,
insurance carrier,
and Casey

Supreme Court
of Illinois
Himmel gets
a 1 year
suspension

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

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.”

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

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

Supreme Court
of Louisiana
“Absolute certainty
of ethical misconduct
is not required
before the reporting
requirement is
triggered.”

Supreme Court
of Louisiana
“On the other
hand, knowledge
requires more than
mere suspicion…”

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.”

Supreme Court
of Louisiana
Public Reprimand

Honesty,
Trustworthiness +
FITNESS

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

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

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

Jason H. Beehler
jbeehler@keglerbrown.com
keglerbrown.com/beehler
614-462-5452

Anybody want
to guess his
HOURLY RATE?

Alan Dershowitz
Saw you on the Today Show.
Maybe we can help…
Today Show

Friends
Privileged and Confidential

Alan Dershowitz
We have a conflict…
Never mind

Carlos Sires
Darn. I was really hoping you
could come on board. Thanks
for considering it.
Re: Never mind

“I hereby accuse my
false accusers of
committing the felony
of perjury and
challenge them to sue
me for defamation.”

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

Rebecca Boylan
She felt
pressured by
her lawyers

Rebecca Boylan
They wanted
to sue him for
at least half his
money

Madison 92nd Street Associates, LLC v. Marriott
International, Inc., 2013 WL 5913382

“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.”

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.”

“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.”

“Whatever legalistic
arguments and
justifications can be
made, we should have
been treated better by
a firm that we trusted.”

5 strikes
Florida Bar said you
were not a client
New York Bar said you
were not a client
No attorney client
relationship

Dershowitz is
“desperate to
avoid having to
face the mountain
of evidence that
will put the lie to
his false
statements about
Ms. Giuffre…”

Boies, et al., are fact
witnesses
I have you on tape,
Dave
You lied about Slick
Willy
I reasonably believed I
was a client

2019 Ethics Symposium

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