Professional responsibility seminar in cleveland
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Transcript of Professional responsibility seminar in cleveland
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The Finality of GRIEVANCES
presented by Geoffrey Stern
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CONFIDENTIALITY
presented by Chris Weber
Prospective Client
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Tattoogate+
RPC 1.18=
Urban Meyer
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ODC v. Cicero
Board recommended
6-month suspension
Court ordered 1-year
suspension
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“Prospective Client”a person who discusses with lawyer possibility of forming
attorney-client relation
ISSUE #1
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Rife or Epling
Tattoo artist,drug dealer,memorabilia
collector
OSU players exchanged
memorabilia for tattoos
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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
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April 16, 2010More Emails to Tressel
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“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”
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Finding:Rife = Prospective Client
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Information RevealedRPC 1.18(b) – “shall not use
or reveal information learned in consultation”
ISSUE #2
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Emails to TresselRevealed what was discussed
at April 15 meeting
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“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”
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Finding:Revealed information
learned in consultation
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Sanction1-year suspension
Aggravation
ISSUE #3
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“Primary purpose in sending e-mails to
Tressel was to protect OSU players + program”
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“Respondent’s desire to be eyes and ears of OSU
football program”
“Loyalty to OSU football program trumped loyalty
to prospective client”
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Thank You!
Christopher Weber, Managing DirectorKegler Brown Hill + [email protected]/weber614.462.5415
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2015Amendments
presented by Jonathan E. Coughlan
to the Ohio Rules of Professional
Conduct
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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
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+ 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
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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
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+ 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
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A lawyer should promptly respond to or acknowledge client communications
(formerly phone calls)
Rule 1.4New Comment
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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
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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
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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
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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
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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
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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
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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
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Comment to Rule 4.4Electronically stored information includes…electronic documents, electronic communications, including metadata
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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
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Rule 5.1Responsibilities of Supervisory Lawyers
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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.
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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
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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
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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;
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Required to ensure such independent contractors act in a way compatible with professional obligations of lawyer;
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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
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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
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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…”
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+ 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
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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
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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
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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
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Thank You!
Jonathan E. CoughlanDirector, Kegler Brown Hill + [email protected]/coughlan614-462-5455
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+ presented by Jason Beehler
Known Unknowns
Panel DISCUSSION
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Withdrawal from REPRESENTATION
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Candor to the TRIBUNAL
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