On Friday, April 7, the professional responsibility attorneys presented a CLE at Capital University Law School. The seminar focused on Attorney Discipline in Ohio, Professionalism, Lawyers and Social Media, and recent developments in the area of Ethics.

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Oh *!?#@
I Got a Grievance
presented by Jonathan E. Coughlan
Attorney
Discipline
in Ohio

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Gov. Bar Rule V

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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

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ODC Process
Complaint
Driven
2600per year
40%investigated

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INVESTIGATION
Includes
Response from attorney/judge
Documents, court files +
witness statements
Determination of probable cause

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Send copy to
attorney/judge
1

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Review response
2

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File with summary
of investigation +
response
3

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Board Decides Whether
to Certify Complaints

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Board Decides Whether
to Certify Complaints
Confidentiality
Grievant given immunity
Not certified?
Dismissed + confidential

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3-Member Panel
Assigned for Hearing

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Hearing within
days
150

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HEARING
Rules of
Evidence
Clear +
Convincing
Issues:
Facts,
Violations
+Sanctions
Panel Can
Dismiss

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Board
Deliberates
Panel
Reports to
Board

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Dismiss
Recommend
findings of fact,
conclusions of
law + a sanction
OR

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Show case order
Briefs filed
Oral argument set
Court not bound by
Board’s recommendation

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Sanction Issues
Cooperation Restitution
Remorse/
Attitude
Harm to
Client
Pattern of
Misconduct

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Aggravating Factors
Prior disciplinary offenses
Dishonest or selfish motive
Pattern of misconduct
Multiple offenses
Lack of cooperation in the disciplinary process

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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

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60%
Dismissed
40%
Investigated
approx. 40-60 filed
4600
Statewide
2600
ODC

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Only file 40-60 cases per year
Approximately 6 months
to resolve investigations
85-120 total cases
filed with the Board

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Anywhere from
1-2 years for case
that is prosecuted
Efforts being made to
reduce that time
period

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Recent Board Opinion
#2015-2
Direct in-person
solicitation of
prospective clients
at seminars

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Thank You!
Jonathan E. Coughlan
Director
jcoughlan@keglerbrown.com
keglerbrown.com/coughlan
614.462.5455

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Recent
DEVELOPMENTS
presented by
Geoffrey Stern

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+ presented by Chris Weber

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How?
2
What?
Why?
Our Role

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Part 1
How did we get here?
1

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Attentive
FairRespect
Good Writer
Orator
Open-minded
Perspective
Proactive
Thoughtful
Logical
Detail-Oriented
Just
Controlled
Smart
Honest
Hard Working
Focused
Considerate

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A little
history

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 French
thinker
 1831-32
 “Democracy
in America”

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“In America, there are no
nobles or literary men, and the
people are apt to mistrust the
wealthy; lawyers consequently
form the highest political class
and have the most cultivated
portion of society.”

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Gallup Poll
Honesty + Ethical Standards

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What percentage of
people said that
lawyers have “high”
or “very high” ethical
standards?

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Who’s ahead
of us?

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Nurses
Teachers
Clergy
Accountants
Military
Bankers
Engineers
College Profs
Contractors
MDs
Pharmacists
Journalists
Chiropractors
Auto Mechanics
Firefighters
Day Care Providers
Funeral Directors
Police Officers

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Who’s
behind us?

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Senators Realtors
Business Execs
Stockbrokers
Unions
Bankers
Congress
Ad Execs
TV Reporters
HMO Managers
Lobbyists
Insurance salesman
Car salesman
Telemarketers

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CBA Survey
500 non-lawyers polled

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Public Opinion of Lawyers
Make Too Much
Greedy
Caring
Ethical
Honest
Put Clients 1st
Solve Problems
Smart

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More interested in making
money than serving
clients?
Agree/Strongly agree47%
Disagree/
Strongly disagree41%

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Lack fundamental
integrity?
Agree/Strongly agree19%
Disagree/
Strongly disagree
60%

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Use complicated language
most people cannot
understand?
Agree/Strongly agree60%
Disagree/
Strongly disagree
33%

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Arrogant?
Agree/Strongly agree40%
Disagree/
Strongly disagree
45%
No opinion15%

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Only available for rich
people?
Agree/Strongly agree48%
Disagree/
Strongly disagree
38%
No opinion14%

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Source of Opinion
News + Media
Don't Know
Friend's Experience
Overall Impressions
Lawyers I Know
TV

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Even lawyers don’t
like lawyers

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19% Dissatisfied with life

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Would not become
lawyers again24%

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46%
Do not desire to
remain in law practice

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42%
Felt lonely/remote
from others

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16%
Consume 3-5 alcoholic
beverages a day

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are unhappy with their careers
Lawyers say that they…
wouldn’t become lawyers again
wouldn’t advise others to become lawyers
hope to leave practice of law

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Part 1
What is professionalism?
2

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Take 5 minutes +
think of an example
of unprofessional
behavior that you
have experienced.

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Pessimistic
CynicalLiars
Uptight
Vain
Stubborn
Unreasonable
Conceited
Dispassionate
Poor Social Skills
Out of Touch
Mean
Controlling
Bossy
Unhappy
Overbearing
Don’t return calls
Egotistical

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ABA Commission Report (1986)
Social changes of the 50s, 60s + 70s
Rise in number of attorneys
Younger bar
Kinship among specialists > bar as whole
Technology
Expense of litigation

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What does
professionalism
mean?

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“Ethics is that which is
required and
professionalism is that
which is expected.”
Georgia
Supreme Court

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Professionalism
Ethics

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HOW
BAD
IS IT?

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Commission on Professionalism
To promote professionalism
among attorneys
+ Monitor + coordinate professionalism in
courts, bar associations + law schools
+ Develop educational materials

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A Lawyer’s CreedA Lawyer’s Creed

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Aspirational Ideals

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Lawyers’ primary obligations
are to the institutions of law
and the betterment of society

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In the end,
it’s simple…

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Part 1
Why should we care?
3

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Professionalism – Ethics
CONTINUUM

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Tacky Advertising

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Part 1
Our role
4

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Why did you want
to be a lawyer?

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Attentive
FairRespect
Good Writer
Orator
Open-minded
Perspective
Proactive
Thoughtful
Logical
Detail-Oriented
Just
Controlled
Smart
Honest
Hard Working
Focused
Considerate

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CBA Survey
500 non-lawyers polled

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Most Favorable Things
Lawyers Do?
Help people
41%
17%
Protect Rights
21%
Provide good
representation
12%
Uphold Justice

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“What is, however, surprising
and unsettling is how reluctant
attorneys have been to address
conditions of practice over which
they have control.”

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What would improve your
impression of lawyers?
Communicate more
honestly with clients
89%
More fully explain
fees to clients
85%

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presented by Tom Sigmund
Ohio Society of CPAs Mega Tax Conference
December 7-8, 2015
Dos +
DON’Ts
Deposition

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DOs+ Review local rules
+ Cooperate on scheduling
+ Arrive on time
+ Disconnect devices
+ Be courteous and civil
+ Be prepared
+ Go off the record, if necessary

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DON’Ts
+ Depose to burden/harass
+ Instruct witness not to answer
+ Coach the deponent
+ Be rude or degrading
+ Beat opponent to the punch

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DOs+ Be prepared
+ Dress appropriately
+ Arrive on time
+ Disable electronic devices
+ Be accurate
+ Stand when addressing judges
+ Stipulate to facts not in dispute

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DON’Ts
+ Ad hominem attacks
+ Interrupt
+ React negatively or display
+ Move freely without consent
+ “You’ve committed reversible error”

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Ohio tips on our handout
Are standards of
professionalism
learned behaviors?

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Be part of the solution
So . . .
Mind your manners
Cooperate
Be reasonable
Mentor
Use available resources

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Oh *!?#@
I Have Someone
Else’s Privileged
Information

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Inadvertence

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Unintended E-mail

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RPC
4.4(b)
Promptly
notify
sender

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Now What?
Review further?
Return?

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Comment 3:
Up to the Lawyer

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Civ.R. 26(B)(6)
Fed. R. Civ. P.
26(b)(5)

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May present
to court

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May not use or disclose
until claim resolved

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Thank You!
Christopher Weber
Managing Director
cweber@keglerbrown.com
keglerbrown.com/weber
614.462.5415

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presented by
Jason Beehler

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Oct. 31, 2007

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I will not be able to come into
work tomorrow. Something came
up at home and I had to go to
New York this morning for the
next couple of days. I apologize for
the delayed notice.
Intern emails his boss

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Thanks for letting us know –
hope everything is ok in
New York…
Boss replies
(cool wand)

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BCC’d
the
ENTIRE
BANK

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Lesson:
You are not
invisible online

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“This is, in a
way, still like the
Wild West”

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I do a lot of probate
litigation
Friend endorses me on
LinkedIn for will
preparation

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Problem?

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A lawyer shall not make or use a
false, misleading, or nonverifiable
communication about the lawyer or
the lawyer’s services
Rule 7.1
Communications Concerning a
Lawyer’s Services

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A communication is false or misleading if
it contains a material misrepresentation
of fact or law or omits a fact necessary to
make the statement considered as a
whole not materially misleading
Rule 7.1
Communications Concerning a
Lawyer’s Services

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It is professional misconduct for a lawyer
to…engage in any conduct involving
dishonesty, fraud, deceit, or
misrepresentation…
Rule 8.4
Misconduct

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I do a lot of probate
litigation
I list “Probate Litigation”
under “Specialties”

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Problem?

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A lawyer shall not state or imply that a lawyer is a
specialist in a particular field of law, unless both of
the following apply:
(1) The lawyer has been certified as a specialist by an
organization approved by the Supreme Court
(2) the name of the certifying organization is clearly
identified in the communication
Rule 7.4(e)
Fields of Practice + Specialties

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You and I make an
agreement
We will endorse
each other

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Problem?

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A lawyer shall not give anything of value
to a person for recommending the
lawyer’s services except that a lawyer
may pay…reasonable costs of
advertisements…
Rule 7.2(b)
Advertising

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Maryann Anderson (2013)
Other Decisions About

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Maryann Anderson (2013)
No false,
misleading
info
(Rules 7.1, 8.4)

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Maryann Anderson (2013)
No exaggerating
skill, experience, or
results; no unjustified
expectations about
results
(Rule 7.1)

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NYC Bar
Formal Opinion
2015-7

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LinkedIn
communications
are not per se
subject to
advertising rules

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Primary purpose is to
attract new clients
Content relates to legal
services
Doesn’t fall into any
exception for advertising
Communication made
by a lawyer

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Prosecutor/
Public defender
AG’s office Judge
In house
Law clerk /
Staff attorney

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Maryann Anderson (2013)

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It is professional misconduct for a lawyer to do
any of the following:
(e) state or imply an ability to influence
improperly a government agency or
official or to achieve results by means that
violate the Ohio Rules of Professional conduct
or other law
Rule 8.4
Misconduct

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A lawyer shall not:
(a)(3) communicate ex parte with a . . .
Judicial officer or other official as to the
merits of the case during the proceeding
unless authorized to do so by law or court
order
Rule 3.5
Impartiality of Tribunal

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You represent
fired employee
Discovery – list
of employer’s
employees
Client tells X is
disgruntled
You send FB
friend request
to X
Hoping to find
dirt on
employer

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Problem?

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[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
Rule 4.2
Represented Party

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unless the lawyer has the consent of
the other lawyer or is authorized to
do so by law or a court order
Rule 4.2
Represented Party

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It is professional misconduct for a lawyer to do
any of the following:
(c) Engage in any conduct involving
dishonesty, fraud, deceit, or misrepresentation
Rule 8.4
Misconduct

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You represent
fired employee
Third party
witness
Not
represented
You create
dummy FB
page
Friend request
to 3d party

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Problem?

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A lawyer shall not
knowingly…make a false
statement of material fact or law
to a third person
Rule 4.1
Truthfulness

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No
Violates 4.1
and 8.4

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But okay if
you use your
real profile
(even if you
don’t disclose
reason)

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You are criminal
defense atty
Client busted for
selling drugs
DA gives you
video of client
with CI
You post it on
YouTube
“Cops + Task
Force Planting
Drugs”

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Problem?

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Lawyer shall not make an extrajudicial
statement that will be disseminated by
means of public communication + that
will materially prejudice an
adjudicative proceeding
Rule 3.6
Trial publicity

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It is professional misconduct for a lawyer to do
any of the following:
(d) Engage in conduct prejudicial to the
administration of justice
Rule 8.4
Misconduct

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Maryann Anderson (2013)

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Deal finally closed. A real win-win.
Celebrating tonight!

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A lawyer shall not make or use a
false, misleading, or nonverifiable
communication about the lawyer or
the lawyer’s services
Rule 7.1
Communications Concerning a
Lawyer’s Services

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Another great victory in court today! My
client is thrilled. Who wants to be next?

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No false or misleading info
Need your name + address
– Rule 7.2
Need “Advertisement Only”
– Rule 7.3
Now you’re advertising,
soliciting

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Just published an article on wage + hour
breaks. Let me know if you want a copy.

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Information, not solicitation
No representation about
quality of work
Probably okay
Probably not advertising

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theTAKEAWAY?

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Okay
Relaying
information
Be careful
Advertising,
soliciting,
bragging about
results

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“Pay only $500 for preparation
of an employment contract.
I usually charge $950. I have lots
of experience preparing
employment contracts.
Redeem by clicking here.”

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Okay?

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A lawyer shall not
share legal fees with a
non-lawyer
Rule 5.4
Professional Independence

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A lawyer may pay
reasonable costs of
advertisement
Rule 7.2
Advertising

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Any communication made pursuant
to this rule shall include the name
and office address of at least one
lawyer or law firm responsible for
its content
Rule 7.2
Advertising

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(c) Every electronic communication from a
lawyer soliciting professional employment
from a prospective client shall . . .
conspicuously include:
“ADVERTISING MATERIAL” OR
“ADVERTISING ONLY”
Rule 7.3
Solicitation

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A lawyer shall deposit into a client
trust account legal fees and expenses
that have been paid in advance, to be
withdrawn by the lawyer only as fees
are earned or expenses incurred
Rule 1.15
Client funds

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A lawyer shall not make an
agreement for, charge, or collect
an illegal or clearly excessive fee
Rule 1.5
Fees + Expenses

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What’s Excessive?

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A fee is clearly excessive when, after a
review of the facts, a lawyer of ordinary
prudence would be left with a definite
and firm conviction that the fee is in
excess of a reasonable fee
Rule 1.5
Fees + Expenses

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In other words…
A fee is clearly excessive if
it is clearly excessive

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Atty agrees to
provide fixed
fee services
Client goes to
Avvo Advisor
Client pays
fixed fee
Atty performs
work
Client pays atty;
Atty pays Avvo

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Okay?

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A lawyer shall not share legal
fees with a non-lawyer
Rule 5.4
Professional independence

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Cmt [3]
Even truthful statements in ads can
be misleading if they create an
unjustified expectation of similar
results
Rule 7.1
Advertising

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Thank You!
Jason H. Beehler
jbeehler@keglerbrown.com
keglerbrown.com/beehler
614.462.5452