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Resource Articles

Below are articles, presentations and other resources that we have found to be incredibly helpful for our policyholders. Please note, if you are a current policyholder, please login to view the entire article. If you are not a current policyholder, you can view a short excerpt or description but will not be able to view the full resource. View all resource articles.

Viewing Category: Malpractice Alerts

OHIO ETHICS GUIDE: SUCCESSION PLANNING

Article Resource  |  Posted on June 23, 2017 in: EventsMalpractice Alerts

The Ohio Board of Professional Conduct recently issued the Ohio Ethics Guide:Succession Planning.  The Board indicates the ethics guide is a preventative tool to assist Ohio attorneys in developing a succession plan. This ethics guide does not discuss the sale of a law practice.

The ethics guide addresses the ethical reasons for having a succession plan and lists the core elements of a succession plan. The ethics guide discusses designating a successor lawyer, notifying clients and potential conflicts of interest.

The ethics guide looks at the importance of having good law office management practices and an up-to-date office procedure manual.

Procedures for IOLTA and operating accounts conclude the guide.

If you want to learn more about what you need to do to get a successor attorney in place for your practice, plan to attend the CLE Succession Planning: What you Need to Know to Appoint a Successor Attorney for Your Practice presented by Gretchen Mote on Thursday, August 24, 2017 at the All-Ohio Legal Forum.

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5 THINGS YOU CAN DO TO “ROCK” YOUR PRACTICE

Article Resource  |  Posted on June 23, 2017 in: EventsMalpractice Alerts

OBLIC will again partner with the OSBA Solo, Small Firm and General Practice Section to present a morning CLE at the All-Ohio Legal Forum on Friday, August 25, 2017. In this fast- paced 90 minute CLE program you will learn:

*  Quick Tech Tips – Baron Henley

*  Practice Management Pointers – Gretchen Mote & Barron Henley

*  IOLTA Traps to Avoid –Jon Coughlan

*  Ethics of Websites & Social Media – Jon Coughlan & Barron Henley

Trends that Affect your Practice – Gretchen Mote

You won’t want to miss this seminar! We hope to see you in Cleveland!

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NEW OPINIONS FROM BOARD OF PROFESSIONAL CONDUCT

Article Resource  |  Posted on June 23, 2017 in: ArticlesMalpractice Alerts

The Board of Professional Conduct issued five new opinions in 2017 to date. (See MalpracticeAlert! Jan-Mar 2017 for discussion of Opinion 2017-1 and Opinion 2017-2).

Opinion 2017-3 Solicitation of ProfessionalEmployment Via Email, issued April 7, 2017, updates and withdraws former Opinion 2004-1. Opinion 2017-3 notes that because email solicitation is treated similarly to other forms of written communication permitted by Rules 7.1-7.3    of the Ohio Rules of Professional Conduct, the content of the email soliciting professional employment must not be false, misleading, or nonverifiable.

Pursuant to Rule 7.3(b), solicitation in any form is not permitted if:

*  the person being solicited has made it known they do not desire to be contacted;

*  the solicitation involves coercion, duress, or harassment, or the lawyer knows or reasonably should know the person is a minor, incompetent, or cannot exercise reasonable judgment in employing a lawyer.

Rule 7.3 requires that every written, recorded or electronic communication from a lawyer soliciting professional employment comply with three conditions:

*  disclose accurately and fully the manner in which the lawyer became aware of the identity and specific legal need of the addressee;

*  refrain from expressing any predetermined evaluation of the merits of the addressee’s case;

*  conspicuously include the recital “ADVERTISING MATERIAL” or “ADVERTISEMENT ONLY” at the beginning and ending of any electronic communication.

The opinion notes that including “ADVERTISING MATERIAL” or “ADVERTISEMENT ONLY” in the subject line of the email satisfies the requirement to include that recital at the beginning of the communication.

The opinion states that restrictions about the inclusion of the “Understanding Your Rights” must be observed and that the statement must be included in the body of the email solicitation and not referenced by an attachment or hyperlink.

Opinion 2017-3 also indicated that a lawyer may permit a lawyer referral service or lawyer advertising service to transmit a solicitation email on the lawyer’s behalf.  Under Rule 5.3, the lawyer using such a service is responsible for ensuring the service’s compliance with the Rules of Professional Conduct and should review the content of the email to be sure it conforms to the Rules.

Opinion 2017-4 Legal Representation of a Clientby Former Magistrate states that under the Ohio Ethics Law, Ohio Revised Code 102.03(A)(1), a former magistrate is prohibited for 12 months after leaving the bench from representing a client in a matter in which he or she personally participated in as a government employee.

The opinion discusses Rule 1.12:  Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral, of the Ohio Rules of Professional Conduct, which provides:

(a) Except as stated in division (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator, or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing. (Emphasis added.)

The opinion further notes that, paragraph (c) of Rule 1.12 requires:

(c)    If a lawyer is disqualified by division (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless both of the following apply:

(1)   the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom;

(2)   written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this rule.

Opinion 2017-3 and 2017-4 were also brought to you in the OBLICAlert, May 9, 2017.

On June 22, 2017, Court News Ohio gave notification of the most recent opinion, Opinion2017-5 Virtual Law Office. This opinion states that an Ohio lawyer may provide legal services via a virtual law office, VLO, through the use of available technology, noting that a VLO permits lawyers to work remotely, offers clients and lawyers the ability to discuss matters electronically without meeting in person, affords clients the opportunity to review their client file online, and reduces or eliminates the overhead typically associated with traditional offices.

Citing Rule 1.1 of the Ohio Rules of Professional Conduct, the opinion says that because of the nature of a VLO, the lawyer needs to keep abreast of the benefits and risks associated with relevant technology and possess a general knowledge of the security safeguards for the technology used in the lawyer’s practice.

Further, the lawyer must take steps to ensure that all electronic communications are adequately understood by the client so the client is able to make informed decisions regarding the representation, per Rule 1.4.

When using cloud computing, email, or other technology that relies on third-party storage or transmission of data, the lawyer must take “reasonable efforts” to prevent inadvertent or unauthorized disclosure of unauthorized access to information related to the representation of the client, as required by Rule 1.6. The opinion also discussed Rule 5.3 duties related to third- party technology vendors.

Importantly, the opinion indicated that a lawyer may use a shared office arrangement as part of a VLO if:

*  the lawyer meets the “Office address” requirement of Rule 7.2(c) by providing an office address in all communications that corresponds to the lawyer’s home or physical office, the address of the shared office space, or a registered post office box;

*  avoids making a false, misleading, or nonverifiable communication under Rule 7.1

*  may comply with rules 7.1 and 7.2, by stating the lawyer is able to meet in person with clients “by appointment only” or that the lawyer operates a virtual office and can arrange to meet with clients through available technology or in person at the client’s request;

*  ensures that client confidentiality is maintained at all times and that all information related to representation is protected from inadvertent disclosure to third parties, per Rule 1.6 (c).

  • PRACTICE POINTER: These new opinions point out the continuing involvement of technology in the practice of law and the need for lawyers to be aware of the risks and benefits of technology for their practice.

Know that your OBLIC policy provides data breach coverage and use available resources in the “Cyber Toolbox” on the OBLIC website to assess the risks for your firm.

The other trend, as exemplified by Opinion 2017-4, is the challenge presented by conflicts of interest. As lawyers make lateral moves between firms or go from private practice to government or encounter conflicts within their firm involving various client situations, conflicts of interest arise. If you have any questions about a potential conflict of interest, please call the OBLIC Hotline to discuss your inquiry.

Conflicts of interest are better addressed sooner than later!

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OUTSIDE COUNSEL AGREEMENTS

Article Resource  |  Posted on May 22, 2017 in: ArticlesMalpractice Alerts

Another practice challenge is presented by a request to serve as outside counsel. For example, you are contacted by a new client, a bank or sizable business, and they send you a long and detailed agreement that defines every aspect of your representation, from your hourly rates and staffing, to limiting your firm’s  recourse.

The mega-law firms have general counsel whose job it is to review and negotiate these agreements. As a solo or small firm that simply does not have the resources to hire a full time person to review these extensive agreements, you must at least watch for a couple clauses.

*  Keep an eye out for agreements and obligations that either limit the insurer’s right of subrogation or expand the liability of the insured;

*  Agreements to indemnify the client, regardless of negligence, for acts arising out of the representation are becoming increasingly common.

(See Sephora USA, Inc. v. Palmer, Reifler &Associates, PA) Nearly all LPL policies exclude coverage for agreements and obligations entered into by the insured without the consent of the insurer.

Before committing to obligations imposed by a new, and hopefully lucrative, client, review the agreements in detail. Contact your insurer if an indemnification clause or other similar expansion or reduction of duties is present. After all, it is  not in your or your client’s interest to lose your insurance coverage when it may be avoidable at the outset of the representation.

Editor’s Note: Thanks to OBLIC Claims Counsel Carl Marsh for this article on Outside Counsel Agreements.

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MORE INTERNET SCAMS

Article Resource  |  Posted on May 22, 2017 in: ArticlesMalpractice Alerts

It seems that every recent Malpractice Alert! OBLIC has published warns of a new scam that poses a cyber security threat. That’s because every day DOES bring a new wrinkle to the cyber security page. Recent OBLICAlerts have warned of RansomWare ThreatsWire FraudSchemes and again, Fraudulent Wiring Instructions. These are very real threats! If you have any questions about any potential cyber threat, please call OBLIC!  We’re here to help!

 

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INTERNET SCAMS CONTINUE

Article Resource  |  Posted on April 7, 2017 in: ArticlesMalpractice Alerts

Internet scams continue to target Ohio attorneys.  Recent scams involve the use of relatable data in phishing scams.  This involves scammers obtaining information publicly available on the internet to include in emails so that you see something familiar in the email that will get you to click on the link in the email.  When you click on it, the scammer can plant malware or a virus.

Another recent scam used an email account set up using Office 365.  The email address generated through Office 365 lent the appearance of legitimacy to the email of the scammer, who sought to snare an attorney into a check collection scheme.

Reports about an online scam or email hoax may be made by filing a complaint with the FBI Internet Crime Complaint Center or by using the FBI online Tips and Public Leads form.

Here are practice tips to avoid scams:

  • Use automatic updates to be sure anti-virus, firewalls, and known security issues  are always up-to-date
  • Get a VPN or use a personal hotspot rather than public WiFi
  • Implement a policy for all electronic devices – and follow it!
  • Use complex passwords for all devices, including your phone, laptop and tablet – and keep them refreshed
  • Encrypt all electronic communications
  • Train staff and attorneys to spot and avoid common pitfalls

If you have ANY questions about potential scams, please contact OBLIC immediately.

Click here to access the entire Malpractice Alert Jan-Mar 2017

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IOLTA PRACTICE POINTERS

Article Resource  |  Posted on April 7, 2017 in: ArticlesMalpractice Alerts

Answering the OBLIC Hotline, there are frequent questions involving IOLTA (Interest on Lawyer Trust Account) accounts.  Several practice pointers can help avoid problems with your IOLTA account:

  • Follow the requirements of Rule 1.15 of the Ohio Rules of Professional Conduct.
  • Never let your balance go negative.
    • This may mean you will need to deposit funds sufficient to cover routine bank service fees to prevent a negative balance.
  • Perform and maintain a monthly reconciliation, per Rule 1.15.
  • Be aware when accepting credit card payments.  See Opinion 2007-3
  • Deposit flat fees appropriately.  See Opinion 2016-1
  • Be sure that funds are actually available for withdrawal after depositing a check from a third party before writing disbursement check from your IOLTA account.  See Opinion 2016-7
  • If you receive a Letter of Inquiry, contact OBLIC immediately!

A recent disciplinary decision highlighted the importance of following good trust account procedures.  See Disciplinary Counsel v. BarberaSlip Opinion No. 2017-Ohio-882.

The Ohio Legal Assistance Foundation provides information and resources on IOLTA & IOTA accounts.  They are also happy to take your telephone inquiries at 614-715-8560.  Your OBLIC Hotline is also always available to help!

Click here to access the entire Malpractice Alert Jan-Mar 2017

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Claims Summary of Hot AOP’s

Article Resource  |  Posted on April 7, 2017 in: ArticlesMalpractice Alerts

AOP refers to “areas of practice” that attorneys engage in.  A summary of claims reported to OBLIC over the last year shows several practice areas in which claims commonly occur.

In 2016, OBLIC insureds reported more claims in the areas of real estate and probate, estate planning and trusts than any other area of practice.

Part of the reason for the number of claims in real estate and probate is the complexity of the cases in the practice areas. Another reason may be the larger amount of legal work in these practice areas due to population demographics, with baby boomers now transferring an unprecedented amount of assets.

To help prevent claims, follow these Loss Prevention Tips:

  • Practice good client selection
  • Effectively use engagement and disengagement letters
  • Carefully define the scope of representation
  • Use timely, effective client communication
  • Always address conflicts of interest
  • Keep up with practice developments

If you have additional questions, please feel free to contact Gretchen Mote, Director of Loss Prevention.

Click here to access the entire Malpractice Alert Jan-Mar 2017

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BOARD OF PROFESSIONAL CONDUCT OPINIONS

Article Resource  |  Posted on April 7, 2017 in: ArticlesMalpractice Alerts

On February 10, 2017, the Board of Professional Conduct issued two opinions:  Opinion 2017-1 Advertisement of Contingent Fee Arrangements and Opinion 2017-2 Duty of Judge to Report Misconduct.

Opinion 2017-1 advises that a lawyer who advertises litigation services on a contingent fee basis may not use statements such as:

  • “There’s no charge unless we win your case”
  • “No fee without recovery”
  • “You pay no fee unless you win”
  • “You pay us only when we win”

if the lawyer intends to recover advanced litigation costs and expenses from the client, regardless of the outcome of the litigation.

The Opinion says that because of the potential to mislead prospective clients, any obligation of a client to repay litigation costs and expenses must be revealed by the lawyer when advertising the services on a contingent fee basis.  If a lawyer intends to recover advanced costs and expenses of litigation from the client, the advertising must include a statement such as “contingent fee clients are responsible for the costs and expenses of litigation.”

Opinion 2017-2 withdraws Opinion 89-32 and  provides that a judge who has knowledge that another judge has committed a violation of the Code of Judicial Conduct that raises a question about the judge’s honesty, trustworthiness, or fitness as a judge is required to report it to the appropriate disciplinary authority.  A judge who has knowledge of a lawyer’s violation of the Rules of Professional Conduct has an ethical duty to report it to the disciplinary counsel or local grievance committee.

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OHIO DIGITAL ACCESS ACT

Article Resource  |  Posted on April 7, 2017 in: ArticlesMalpractice Alerts

Am. Sub. H.B. 432, as adopted by the 131st Ohio General Assembly, takes effect on April 6, 2017.  This legislation enacts the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADA), Ch 2137 Ohio Revised Code, to provide for continued access or control over digital assets when the owner of those assets dies or becomes incapacitated.  The legislation tracks the RUFADA model act adopted by the National Conference of Commissioners on Uniform State Laws.

The Act defines a”digital asset” as an electronic record in which an individual has a right or interest. “Digital assets” may include email accounts, websites or social media accounts such as Facebook, Snapchat or Instagram.

The act provides user direction for disclosure of digital assets, the framework for disclosure of digital assets and creates an order of priority if the owner of digital assets provided conflicting directions or no directions regarding the digital assets.

The legislation also enacts changes to the Uniform Power of Attorney Act regarding digital assets in 1337.571 of the Ohio Revised Code and to the Statutory Forms in 1337.60 ORC.

Adoption of the Ohio Access to Digital Assets Act is an important development for attorneys drafting estate planning documents.  It is a good idea to review this with clients to assist them in making appropriate plans or revisions to existing documents.

This legislation also enacts several other important changes to the law governing decedents’ estates Ohio:

              o   Person deemed to have predeceased another person
              o   Person deemed to have predeceased specified event
              o   Co-owners with right of survivorship
              o   Determination and evidence of death
              o   See also 2105.14 ORC revised effective March 14, 2017

Click here to read the Final Analysis of the bill by the Ohio Legislative Service Commission.

Click here to access the entire Malpractice Alert Jan-Mar 2017

 

 

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SUCCESSION PLANS FOR YOUR PRACTICE

Article Resource  |  Posted on December 31, 2016 in: Malpractice Alerts

What happens to your practice if you experience an unforeseen emergency? What if you are in  an accident or have a heart attack? What if you die suddenly and unexpectedly?

These are all real scenarios that practicing attorneys can experience. It is especially critical for solo practitioners, but equally as important  for attorneys in firms to have plans in place to deal with the unexpected.

What should you do?

  • Think about another attorney to be contacted by the person who would be notified in the event you experience an emergency situation. The person to be notified is likely your spouse, significant other, another family member or a close friend.
  • The other attorney would not “take over” your client files, but only determine upcoming court dates, statutes and appointments, and notify clients, courts and opposing attorneys, as needed.
  • You should introduce the other attorney  to the person who will be contacted in the event of the emergency and go over the procedures to be followed.
    • Upon the occurrence of the emergency event, the contact person would then notify the other attorney for whom you have arranged access to your office.
  • At the office, the attorney would retrieve from the secure location – likely a locked, fireproof cabinet – the passwords to access your computer records for your docket and calendar, your client database and trust account and financial records and notify clients, courts and others, as needed.

It is critical for lawyers to have these plans in place. ABA Lawyer Demographics for 2016indicate that 34% of US lawyers are age 55 or older.  Of the lawyers in private practice, 49%  are solo practitioners, while another 20% practice in firms of 10 or less. Putting  emergency succession plans in place can save considerable stress if an emergency situation occurs and protect your clients as well as your assets.

Click here to view the entire Malpractice Alert Nov/Dec 2016.

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NEGLIGENT MISIDENTIFICATION DOES NOT EXIST IN OHIO

Article Resource  |  Posted on December 31, 2016 in: Malpractice Alerts

In a case submitted to the Ohio Supreme Court by the U.S. District Court for the Southern  District of Ohio, Foley v. Univ of Dayton, Slip Opinion No. 216-Ohio-7591, decided November 3, 2016, the Ohio Supreme Court found that no cause of action exists in Ohio for the tort of negligent misidentification.

The case arose from the arrest of two persons named Foley and a friend, who were arrested for burglary after knocking on the door of a townhouse on the University of Dayton campus. The charges against them were dismissed or resolved and they filed suit in federal court against the persons who called the police.

In its opinion, the Ohio Supreme Court noted several appellate court decisions that discussed the tort of negligent misidentification. However, the Supreme Court has never recognized it and declined to do so in this opinion.

Click here to view the entire Malpractice Alert Nov/Dec 2016.

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SUPREME COURT DECIDES CASES ON CAT TAX FOR ONLINE RETAILERS

Article Resource  |  Posted on December 31, 2016 in: Malpractice Alerts

Online activity is in focus on many fronts. In an opinion decided November 17, 2016, CrutchfieldCorp. v. TestaSlip Opinion No. 2016-Ohio- 7760, the Ohio Supreme Court affirmed the decision of the Board of Tax Appeals upholding the imposition of the commercial activity tax (CAT) by the Tax Commissioner of Ohio on the Virginia-based Crutchfield Corporation. The Tax Commissioner determined that orders of goods initiated by Ohio consumers via computer and transported into Ohio by an  out-of-state company make the company’s sales “taxable gross receipts.”

The Commercial Activity Tax (CAT) in Chapter5751 of the Ohio Revised Code was adopted by the Ohio General Assembly in 2005 as part of the overhaul of Ohio’s state tax system. Pursuant to 5751.02 of the Ohio Revised Code, a commercial activity tax is levied on each person    with  taxable  gross  receipts   for   the privilege of doing business in this state.

The Court found that the $500,000 in annual sales-receipts threshold to apply the CAT meets the commerce clause requirement for a “substantial nexus” with the state and that a physical presence is not required. This is an important decision for lawyers advising any out- of-state companies that meet the threshold requirement selling goods online from out-of- state.

Click here to view the entire Malpractice Alert Nov/Dec 2016.

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Malpractice Alert Nov/Dec 2016 – Opinion 2016-8

Article Resource  |  Posted on December 31, 2016 in: Malpractice Alerts

Opinion 2016-8 withdraws Opinions 89-24 and 2000-6 and gives guidance on Client Testimonials in Lawyer Advertising and Online Services.  The opinion  addressed  truthfulness in advertising and communication of a lawyer’s services in Rules 7.1 and 7.2 and the  restrictions on revealing information relating to representation in Rules 1.6 and 1.9 when evaluating a client testimonial.

The opinion stated:

  • A lawyer may include a client testimonial in advertising so long as it does not constitute a false, misleading, or nonverifiable communication about the lawyer or the lawyer’s services or create unjustified expectations for prospective clients. Testimonials generally referring to favorable outcomes for clients must contain an appropriate disclaimer to avoid unjustified expectations.
  • Client testimonials in an advertisement that state the amount of a settlement or verdict are inherently misleading even if a disclaimer is used.
  • A lawyer is responsible for monitoring testimonials and reviews made by clients on websites if the lawyer controls the content of the website. Online  testimonials or reviews from clients about the lawyer or the lawyer’s services that contain false, misleading, or nonverifiable communications must be removed by the lawyer when the lawyer has control over the online content.

If a lawyer has or is considering ads that include testimonials, this opinion should be reviewed.

Click here to view the Malpractice Alert Nov/Dec 2016.

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Malpractice Alert Nov/Dec 2016 – Opinion 2016-7

Article Resource  |  Posted on December 31, 2016 in: Malpractice Alerts

Opinion 2016-7 focused on the Lawyer’s Duty  to Promptly Deliver Funds to a Client or Third Party. In this opinion, a lawyer asked for guidance on how long he could hold client funds in the firm trust account to ensure that the check clears before distributing funds to a client,  in light of Professional Conduct Rule 1.15 that requires lawyers to “promptly” deliver funds to a client or third party.

The opinion discussed Rule 1.15 requirements, but also noted that disbursing client funds from the IOLTA before the check clears carries the risk of using funds belonging to another client to pay the check if the check is not honored.

The opinion found that a lawyer may hold a client’s funds in trust for a reasonable period of time to ensure that the check has cleared and the funds are available to distribute to the client or third party. Further, subject to the exceptions in the opinion, the opinion stated that a reasonable period of time consists of one week to ten days, given federal banking regulations and modern banking practices. OBLIC recommends that prior to disbursing funds the lawyer contact the bank to be sure the funds are actually in the IOLTA account and available for distribution, not just that the check has “cleared.”

This opinion may be useful in explaining to clients why the lawyer cannot immediately write a distribution check to them when the clients have negotiated a settlement check to resolve their claim. It may also help to avoid a scam situation where a lawyer is asked to deposit a check in the IOLTA account and then provide funds from that deposit to a third party, before the check is later determined to be fraudulent.

Click here to view the Malpractice Alert Nov/Dec 2016.

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Malpractice Alert Nov/Dec 2016 – Opinion 2016-6

Article Resource  |  Posted on December 31, 2016 in: Malpractice Alerts

Opinion 2016-6 considered Ethical Implications for Lawyers under Ohio’s Medical Marijuana Law. Subsequently, the Ohio Supreme Court adopted an amendment to Rule 1.2(d)(2) of the Rules of Professional Conduct by which:

A lawyer may counsel or assist a client regarding conduct expressly permitted under Sub.H.B. 523 of the 131st General Assembly authorizing the use of marijuana for medical purposes and any state statutes, rules, orders, or other provisions implementing the act. In these circumstances, the lawyer shall advise  the client regarding related federal law.

Click here to view the Malpractice Alert Nov/Dec 2016.

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Malpractice Alert Nov/Dec 2016 – Opinion 2016-5

Article Resource  |  Posted on December 31, 2016 in: Malpractice Alerts

Opinion 2016-5 examines Communication With Current and Former Corporate Employees. This situation is addressed by Rule 4.2 of the Rules  of Professional Conduct, which provides:

In representing a client, 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, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

The opinion discussed Comment [7] of Rule 4.2 which lists three categories of current  employees an adverse lawyer may not contact without permission of corporate counsel. These categories include a current employee:

  • who supervises, directs, or regularly consults with the corporation’s lawyer concerning the matter
  • who has authority to obligate the corporation with respect to the matter
  • whose act or omission in connection with the matter may be imputed to the corporation for purposes of civil or criminal liability.

The opinion advised extreme caution by adverse lawyers when interviewing current employees, even those who do not satisfy the categories in Comment [7].

The opinion next considered communication  with a former employee. It concluded that communication with a former employee, even one whose prior acts or omissions may be imputed to the corporation, is permissible  under Rule 4.2, but before interviewing a former employee, the lawyer should disclose his/her identity.

The opinion stated a lawyer may communicate on the subject of the representation with former employees, without notification or consent of the corporation’s lawyer, as long as the former employee is not represented by counsel.

Further, the opinion stated that a lawyer representing an interest adverse to a corporation may communicate with certain employees of the corporation without consent of a corporation’s lawyer, even when a corporate lawyer asserts a blanket representation of the corporation and all of its current and former employees. This opinion provides further guidance on situations that involve interviewing corporate employees.

Click here to view the Malpractice Alert Nov/Dec 2016.

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Malpractice Alert Nov/Dec 2016 – Opinion 2016-4

Article Resource  |  Posted on December 31, 2016 in: Malpractice Alerts

Opinion 2016-4 discussed the Imputation of Conflict Involving Current and Former Legal Interns. Law school clinics provide  legal  services to prepare law students to be practice ready and to meet legal needs of persons qualifying for clinic services.

This opinion answered an inquiry from a law school legal clinic asking:

  • whether conflicts arising from a legal intern are imputed to the lawyers in a law firm when a legal intern is employed at  the firm as a law clerk and
  • whether imputed conflicts disqualify both the law firms and clinics  from representing certain clients.

The opinion looked at practice by a law student with a valid legal intern certificate issued pursuant to Gov. Bar R. II. The opinion found that a law student holding such a legal intern certificate is engaged in the limited practice of law and bound by the Rules of Professional Conduct.

The opinion stated that conflicts of interest arising out of a legal intern’s current or former representation of clients are imputed to all lawyers in a private law firm when the intern is employed simultaneously as a law firm clerk. However, the conflicts of a former legal intern newly employed as a lawyer are not imputed to the lawyers in a law firm, but may necessitate  the screening of the lawyer from any matter in which he or she had substantial responsibility.

This information is useful as more law students become involved in law school clinics. It also emphasizes the importance of good conflict of interest checking systems for all client engagements.

Click here to view the Malpractice Alert Nov/Dec 2016.

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Malpractice Alert Nov/Dec 2016 – Opinion 2016-3

Article Resource  |  Posted on December 31, 2016 in: Malpractice Alerts

The Board of Professional Conduct of the Supreme Court of Ohio issued Advisory Opinions in 2016 that provide advice for attorneys on the application of the Ohio Rules of Professional Conduct and the Supreme Court Rules for the Government of the Bar. Click on the opinion number to read the opinion.

Opinion 2016-3 addressed Lawyer Participation in Referral Services. Online lawyer referral services are proliferating and may seem like an attractive way to get new clients.

This Opinion examined whether an online lawyer referral service that matches a prospective client with a lawyer for a particular legal service and requires the lawyer to pay a “marketing fee” for each completed client matter is permissible.

The Opinion acknowledged that this presented multiple, potential ethical issues:

  • fee-splitting with non-lawyers
  • advertising and marketing
  • lawyer’s responsibility for nonlawyer assistants interference with lawyer’s professional judgment
  • facilitating unauthorized practice of law

These issues involve Professional Conduct Rules 1.1, 1.6, 1.18. 5.3, 5.4, 5.5, 7.2, 7.3, 7.4 and Rule XVI of the Rules for the Government of the Bar, which provides the requirements for Lawyer Referral and Information Services.

The Opinion concluded that a lawyer should carefully evaluate a lawyer referral service to ensure the lawyer’s participation is consistent with the ethical requirements.  It also stated that a fee structure that is tied specifically  to individual client representations that a lawyer completes or to the percentage of a fee is not permissible, unless the lawyer referral service is registered with the Supreme Court of Ohio, pursuant to Gov Bar Rule XVI.

While using online marketing to attract clients can be beneficial, this Opinion cautions that lawyers must be careful about how they engage with such services.

Click here to see the entire Malpractice Alert Nov/Dec 2016.

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MALPRACTICE ALERT! ANNOUNCEMENT

Article Resource  |  Posted on May 19, 2016 in: ArticlesMalpractice Alerts

We’re pleased to send you the latest issue of MALPRACTICE ALERT!  Pleaseclick here to read this publication.

We hope you’ll enjoy receiving MALPRACTICE ALERT!  in this format.  It allows us to provide links that give you direct access to cases, rules and additional resources with just a click.

You can also sign up each insured lawyer in your firm to receive MALPRACTICE ALERT! directly in each email inbox by clicking here.

If you have additional questions on this or any other loss prevention topic, please contact:

Gretchen Koehler Mote, Director of Loss Prevention

 

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INTERNET SCAMS…

Article Resource  |  Posted on January 8, 2016 in: Malpractice Alerts

Lest we sound like a broken record, we’ll beg your attention once more!  Internet scams are still out there!  Hardly a day goes by without Ohio attorneys receiving an email from at least one purported client requesting assistance collecting a debt.

The typical scam involves a purported client asking an attorney to try to collect a significant debt and usually requests an attorney to deposit a large check in the attorney’s trust account, deduct the attorney’s fees and send a check from the attorney’s trust account for the balance to a third party.  This process uses your legitimate trust account (and any monies therein) as a clearing-house for a typically fraudulent check.

If you have ANY  questions at all whether something is a scam, please do not hesitate to call the OBLIC Hotline.

Recently, these scams have “gone local.”  Visit the OBLIC website to learn more.  https://www.oblic.com/resource-articles/oblic-alerts/2015/08/19/scams-have-gone-local/

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HOT PRACTICE AREAS FOR CLAIMS

Article Resource  |  Posted on January 8, 2016 in: ArticlesMalpractice Alerts

OBLIC tracks practice areas with the highest number of claims.  For 2015, the Probate and Estate area of practice leads the “hit parade” with the highest number of claims.  This area of practice is followed closely by Plaintiff Personal Injury, Domestic Relations and General Litigation practice.  Real Estate and Collections round out the areas of practice with the highest frequency of claims.

Although the area of practice with the greatest frequency of claims may change slightly from year to year, these practice areas historically rank highest for claims.  It is notable that many claims arise from:

  • missed deadlines
  • lack of client communication
  • settlement/negotiation
  • inadequate investigation

OBLIC provided “Best Practices” seminars in these practice areas at the 2015 Ohio State Bar Association Convention.  Checklists can be helpful tools to assist lawyers in avoiding claims.  The seminar materials included checklists and other useful information.  You may access these materials on the OBLIC website www.oblic.com.

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ALL-OHIO LEGAL FORUM PREVIEW

Article Resource  |  Posted on January 8, 2016 in: ArticlesEventsMalpractice Alerts

The All-Ohio Legal Forum, formerly known as the OSBA Annual Convention, will be held April 27-29, 2016 in the Duke Energy Center in Cincinnati, Ohio.  OBLIC is again partnering with the OSBA Solo, Small Firm and General Practice Section and the OSBA Senior Lawyers Section to sponsor CLE sessions at the Forum.  The OSBA Young Lawyers Section will also sponsor the “Connect” Networking Event.

Look for these seminars titled FuturePlan.  Mark your calendar now and plan to attend.

You won’t want to miss the networking event on Thursday, April 28, 2016!

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OPINION 2015-2 ON LEGAL SEMINAR

Article Resource  |  Posted on January 8, 2016 in: ArticlesMalpractice Alerts

The Ohio Supreme Court Board of Professional Conduct issued Opinion 2015-2 to address the ethical issues that arise when a lawyer presents a seminar to prospective clients regarding legal issues.  The Board opined that a lawyer may present a legal seminar to prospective clients and may provide brochures and law firm information near the exit of the seminar, but a lawyer may not meet with attendees following the seminar to answer legal questions, even if attendees sign up in advance.

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LOSS PREVENTION HOTLINE

Article Resource  |  Posted on January 8, 2016 in: Malpractice Alerts

OBLIC provides information and resources to assist our policyholders in preventing claims.  If policyholders have any questions about issues that arise in their practice, OBLIC encourages you to call Director of Loss Prevention Gretchen Mote at 614-572-0620.

Frequently asked questions involve:

  • possible internet scams
  • firm names and letterhead
  • conflicts of interest
  • withdrawal from representation
  • terminating the attorney/client relationship
  • closed files
  • closing a law practice and tail coverage

While the Director of Loss Prevention cannot provide legal or ethics advice, information and resources are discussed with policyholders.

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