Kegler Brown's annual seminar on professional responsibility was presented on Friday, October 18, 2019 at the Columbus Bar Association (CBA). This year's seminar featured guest speaker, Kent Markus, who is a part of the Bar and General Counsel at the CBA, showcased an overview of the disciplinary system featuring an in-depth flowchart along with practical tips and best practices.
A panel discussion Q+A about topics ranging from advisory opinions, recent ethics developments, identifying issues, and the duty to report, were all covered by Kegler Brown litigators Jane Gleaves and Jason Beehler.
Moderator, Chris Weber discussed ways to navigate Ohio's Advocate-Witness rule, and his personal recommendations for best practices.
3. Is it proper for a lawyer to donate
legal services to be auctioned or
raffled at a fundraiser for a
charitable organization?
4. 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
5. Can a lawyer limit
her practice with a
settlement agreement?
6. 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
7. 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?
8. 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
9. 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?
10. 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.
11. 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?
12. 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
13. 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?
14. 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
15. Whether a lawyer has an
ethical obligation to deliver a
client’s file upon request of a
former client?
16. 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
18. 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
19. Can a magistrate may contribute
personal funds to a nonjudicial
candidate, a judicial candidate, or
a political party?
20. 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
21. 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?
28. 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.”
29. 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
30. 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
31. What Rules Were Violated?
Prof.Cond.R.
8.4(h)
Prof.Cond.R. 5.5(a) Gov.Bar.R. VI(5)(C)
32. 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
33. 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
34. What Rules Were Violated?
Model Rule 5.5(a) Rule 5.5(b) Rule 8.1
Rule 8.4(c)
35. What Sanction Was Imposed?
Suspended from the practice of law in Ohio
for two years, with six months stayed
40. 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.”
41. 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
42. Alomari v. ODPS
Relied on
Neuder
Legal advice must
predominate to be
protected
IHC at meeting
to give legal
advice
Privilege applied
43. 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?
44. 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
46. 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.”
47. 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
48. 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”?
49. 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.”
54. 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
55. Jane Gleaves
Kegler Brown Hill + Ritter
jgleaves@keglerbrown.com
keglerbrown.com/gleaves
614-462-5484
59. 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
60. RPC 3.7(a)
Testimony is relevant/admissible
Unobtainable through other witnesses
Not cumulative
62. Reos v. UH
Atty Reos sues on
behalf of dad + wife
UH trying to
collect $36 claims – CSPA, TCPA
63. 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”
64. 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
73. 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”
74. 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.”
75. “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…”
84. WHEREis Of Counsel
Typically Seen?
Part-time lawyer Semi-retired lawyer Probationary
partner-to-be
Lawyer not on
partnership track
Miscellaneous/
hybrid
85. 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”
97. 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
110. 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
111. 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
113. 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.”
114.
115. 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
117. 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.”
123. 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?
124. 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?
126. 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”
127. 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?
128.
129. 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
130. 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.”
131. 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
132. Supreme Court
of Illinois
“A lawyer, as an
officer of the court,
is duty-bound to
uphold the rules in
the Code.”
133. Supreme Court
of Illinois
No privilege,
because info was
discussed with
family members,
insurance carrier,
and Casey
135. 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
136. 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.”
137. 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
139. 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
142. 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.”
146. 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
147. 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
148. 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
190. “I hereby accuse my
false accusers of
committing the felony
of perjury and
challenge them to sue
me for defamation.”
191.
192.
193.
194.
195.
196.
197.
198.
199.
200. 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
213. Madison 92nd Street Associates, LLC v. Marriott
International, Inc., 2013 WL 5913382
214. “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.”
223. 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.”
224. “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.”