z

z

The Finality of GRIEVANCES

presented by Geoffrey Stern

z

CONFIDENTIALITY

presented by Chris Weber

Prospective Client

z

Tattoogate+

RPC 1.18=

Urban Meyer

z

ODC v. Cicero

Board recommended

6-month suspension

Court ordered 1-year

suspension

z

“Prospective Client”a person who discusses with lawyer possibility of forming

attorney-client relation

ISSUE #1

z

Rife or Epling

Tattoo artist,drug dealer,memorabilia

collector

OSU players exchanged

memorabilia for tattoos

z

FBI raid

Rife meeting with Cicero?

Email to Tressel

Rife meets another attorney

Rife meeting with Cicero

April 12010

April 22010

April 22010

April 152010

z

April 16, 2010More Emails to Tressel

z

“I had Rife in my office for 1½ hours

last night”“If he retains me, and he may…”

“He wanted my opinion yesterday on his situation”

“I have to sit tight and wait to see if he retains

me, but at least he came in last night to do a face-

to-face with me”

z

Finding:Rife = Prospective Client

z

Information RevealedRPC 1.18(b) – “shall not use

or reveal information learned in consultation”

ISSUE #2

z

Emails to TresselRevealed what was discussed

at April 15 meeting

z

“Terrell gave him some type of MVP

trophy”“Has cleats, jerseys, game ball, rings”

“He is in really big trouble”

“Feds offered 10-year prison term”

“He wanted my opinion”

z

Finding:Revealed information

learned in consultation

z

Sanction1-year suspension

Aggravation

ISSUE #3

z

“Primary purpose in sending e-mails to

Tressel was to protect OSU players + program”

z

“Respondent’s desire to be eyes and ears of OSU

football program”

“Loyalty to OSU football program trumped loyalty

to prospective client”

z

Thank You!

Christopher Weber, Managing DirectorKegler Brown Hill + Rittercweber@keglerbrown.comkeglerbrown.com/weber614.462.5415

z

2015Amendments

presented by Jonathan E. Coughlan

to the Ohio Rules of Professional

Conduct

z

Rule 1.1Competence

Amendment: to maintain the requisite knowledge and skill, a lawyer should keep

abreast of changes in the law and its practice, including the benefits and risks associated

with relevant technology

z

+ Adds more detail to suggested best practices whenever two lawyers not in same firm work on same legal matter;

+ Obtain informed consent of client;+ Consult with client about scope of

representation and allocation of authority between them.

Rule 1.1Competence

z

A lawyer may limit the scope of a new or existing representation if the limitation is

reasonable under the circumstances and the limitation is communicated to the client,

preferably in writing…

Rule 1.2Scope of Representation

z

+ Rule 1.4 sets forth minimum required communication between lawyer and client

+ With the exception of division (c), Rule 1.4 does not have a specific counterpart in the Code of Professional Responsibility

+ Rule 1.4. (c) replaces DR 1-104 (requiring disclosure in writing of a lack of professional liability insurance)

Rule 1.4Communication

z

A lawyer should promptly respond to or acknowledge client communications

(formerly phone calls)

Rule 1.4New Comment

z

Rule 1.6(a) is broad in scope and provides that unless an exception applies, all

information relating to the representation of a client is protected from disclosure

Rule 1.6Confidentiality of Information

z

Rule 1.6(d) requires a lawyer to reveal client information, to the extent the lawyer

reasonably believes disclosure is necessary, to comply with Rule 3.3 (Candor Toward a

Tribunal) or Rule 4.1 (Truthfulness in Statements to Others)

Rule 1.6Confidentiality of Information

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

z

New Rule 1.6Requirement

(c): A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of or unauthorized access to information related to the representation of a client

z

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

Rule 1.18Duties to Prospective Clients

z

Rule 1.18New 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

z

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

Rule 4.4Respect for Right of 3rd Persons

z

Comment to Rule 4.4Electronically 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

z

Rule 5.1Responsibilities of Supervisory Lawyers

z

5.1(c): Supervising lawyer is responsible for another lawyer’s misconduct if:

Supervisor orders or ratifies the misconduct; or1Supervisor has direct authority over lawyer and knows of the misconduct at a time when its consequences can be avoided or mitigated, but fails to act.

2

z

A subordinate lawyer does not violate the Ohio Rules of Professional Conduct if that

lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of a question

of professional duty

Rule 5.2Responsibilities of Subordinate Lawyers

z

Rule 5.3 parallels Rule 5.1 and addresses the responsibilities of a lawyer with regard

to the conduct of non-lawyer assistants

Rule 5.3Responsibilities: Non-Lawyer Assistants

z

New Comment to Rule 5.3In 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

z

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

Rule 5.5Unauthorized Practice of Law/Multi-jurisdictional Practice of Law

z

Rule 5.5 New RestrictionsNon-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…”

z

z

+ 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

Rule 7.2Advertising + Recommendationof Professional Employment

z

No written or electronic solicitation if:

Person made known a desire not to be solicited;Solicitation involves coercion, duress, or harassment;Lawyer knows or reasonably should know that the person to whom communication is addressed is a minor, incompetent or their physical, emotional or mental state makes it unlikely that they could exercise reasonable judgment in hiring a lawyer

z

Advertisements are solicitations and must comply with 7.3(c) –

I. disclose manner in which lawyer learned of identity and specific legal need of addressee;

II. refrain from expressing evaluation of merits; III. conspicuously include “advertisement

only/material”

Rule 7.3Advertising

z

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

Rule 7.3Advertising

z

Thank You!

Jonathan E. CoughlanDirector, Kegler Brown Hill + Ritterjcoughlan@keglerbrown.comkeglerbrown.com/coughlan614-462-5455

z

zz

+ presented by Jason Beehler

Known Unknowns

zz

Thank You!Jason BeehlerKegler Brown Hill + Ritterjbeehler@keglerbrown.comkeglerbrown.com/beehler614-462-5452

Panel DISCUSSION

z

Withdrawal from REPRESENTATION

z

Candor to the TRIBUNAL

z