MALPRACTICE ALERT! FALL 2021

A quarterly periodical offering numerous loss prevention and practice management tips, along with updates on rules, laws and procedures.

Fall is definitely in the air.  As we head into the final quarter of 2021, we want to share recent developments in our legal profession.  We hope you find this issue of MALPRACTICE ALERT helpful to you in your practice.  If you have questions or comments, please let us know.  At OBLIC, we’re here to help YOU!

 

Gretchen K. Mote, Esq.                                                            Monica Waller, Esq.
Director of Loss Prevention                                                   Senior Loss Prevention Counsel

 

Malpractice Alert Topics:

Ohio Supreme Court Waives CLE Self-Study Cap

Self-study credits are limited to 12 hours for attorneys, magistrates and judges during a biennial compliance period.  See Rules for the Government of the Bar of Ohio and the Rules for the Judiciary of Ohio.  On October 16, 2020, the Ohio Supreme Court issued a waiver of the self-study cap for judges, magistrates, and attorneys with last names beginning with A through L for the 2020-2021 compliance period ending December 31, 2021.  On September 22, 2021, the Court issued the latest waiver of the self-study caps for judges, magistrates, and attorneys with last names beginning with M through z for the 2021-2022 compliance period ending December 31, 2022.  These temporary waivers are issued in recognition of the impact of COVID-19.

For additional information click on Continuing Legal Education.  You may check the status of your CLE online by clicking on VIEW YOUR CLE TRANSCRIPT.

Proposed Amendments to Rules of Superintendence and Rules of Practice and Procedure

The Commission on the Rules of Practice and Procedure in Ohio Courts has proposed  certain Amendments to the Rules of Superintendence for the Courts of Ohio and to Rules of Practice and Procedure.  Most of the proposed amendments are a result of recommendations in the iCourt Task Force Report and the Appendix. The Supreme Court will accept public comment until November 4, 2021 on these Amendments.

The proposed amendments to the Rules of Superintendence address the issues of appearing remotely and conducting a jury trial, in whole or part, remotely.  The proposed amendments also provide for courts to adopt a technology plan by local rule.

IOLTA Update

As part of the Ohio Supreme Court’s ongoing effort to support compliance with trust accounting obligations under Prof.Cond.R. 1.15, the Office of Disciplinary Counsel has recently unveiled several new resources available to lawyers:

The Ohio State Bar Association also has available a one-hour CLE webcast that is free to members, IOLTA: Rule 1.15 and New Attorney Unclaimed Funds which is approved for 1.0 professional credit hour.

Recent Disciplinary Decisions

Columbus Bar Assn. v. Polly-Murphy, Slip Opinion No. 2021-Ohio-3302

  • Conduct: Attorney Michelle Lyn Polly-Murphy handled a corporate acquisition between two companies that were both involved in the development of transdermal patches. Attorney Polly-Murphy had assisted in the formation of the company being acquired and received an ownership interest in that company. As part of the acquisition agreement, Attorney Polly-Murphy received an ownership interest in the acquiring company.  She also provided legal advice on the applicability of FDA regulations on the patches. Attorney Polly-Murphy also accepted payment for her work directly to a personal bank account without disclosing the representation or payment to her firm.
  • Aggravating/Mitigating Factors: The Court also accepted the stipulation that Attorney Polly-Murphy acted with a dishonest or selfish motive and engaged in a pattern of misconduct. However, she made full restitution to her firm, cooperated in the disciplinary proceedings, presented evidence of good character and reputation, and had no prior discipline.
  • Sanction: The Court imposed a conditionally stayed one year suspension. Her reinstatement is conditioned upon her engaging in no further misconduct and paying the costs of the proceedings.
Rules Violated: The Ohio Supreme Court accepted the stipulated findings of the Board of Professional Conduct that:
  • Attorney Polly-Murphy failed to provide competent representation in violation of Prof.Cond.R. 1.1 by providing inaccurate legal advice concerning FDA regulation of the transdermal patches.
  • She violated Prof.Cond.R. 1.8 by accepting stock in both companies without the required notice and informed consent.
  • She engaged in dishonesty, fraud, deceit, or misrepresentation in violation of Prof.Cond.R. 8.4(c) by accepting payment for her legal services through a personal bank account and not disclosing the payment to her law firm.

Columbus Bar Assn. v. Okuley, Slip Opinion No. 2021-Ohio-3225

Conduct:

  • Conflicts of Interest: Conflicts of interest arose from Attorney Okuley’s handling of litigation and investments involving a company that owned the building where his law office was located. That company was, in turn, owned by other companies, one of which was owned by Attorney Okuley. These related companies were named as defendants in a lawsuit and Attorney Okuley represented the interests of all of them.  Attorney Okuley also drafted a mortgage on behalf of one in favor of another while representing the interests of both. A professor from Ohio State University Moritz College of Law was retained to analyze the business relationships and testified about the numerous conflicts of interest in Attorney Okuley’s representation of these entities.
  • Practicing While Under Suspension: The Court suspended Attorney Okuley from the practice of law in September of 2018. Nine days after the decision was issued, Attorney Okuley sent an email to a client with his legal analysis of a trademark issue. Over a month later, Attorney Okuley called the client and further explained the legal options and risks.  The client recorded the conversation. During the call and in response to the disciplinary complaint, Attorney Okuley alleged that his brother (who was also an attorney and worked for the firm) had sent the email.  Attorney Okuley’s brother testified at the disciplinary hearing that he did not send the email and had left the firm eight months earlier.
  • Aggravating/Mitigating Factors: The Court found several aggravating circumstances including, prior discipline, failure to cooperate in the disciplinary process, and refusing to acknowledge the wrongful nature of the conduct. Attorney Okuley did not present any evidence of mitigating factors.
  •  Sanction: Permanent disbarment.
Rules Violated:
  • The Court accepted the Board’s findings that Attorney Okuley had engaged in a conflict of interest in violation of Prof.Cond.R. 1.7, 1.8 and 1.13.
  • The Board also found, and the Court agreed, that Attorney Okuley continued to practice law while under suspension in violation of Prof.Cond.R. 5.5.

In re Resignation of Federle, ___ Ohio St.3d___, 2021-Ohio-2399

On July 15, 2021, the Ohio Supreme Court accepted the resignation of Attorney Richard Lawrence Federle, Jr. with disciplinary action pending. Justice Patrick F. Fischer issued a detailed dissent arguing that accepting resignation while disciplinary action is pending can thwart the concept of governmental transparency, particularly when the allegations involve “a disturbing pattern of predatory behavior toward a vulnerable population.”  Justice Fisher acknowledged that the report provided by disciplinary counsel was confidential but pointed out public records that provide detail about allegations against Attorney Federle. According to these records, Attorney Federle “allegedly used his position as an attorney to solicit sex and/or romantic relationships with female clients.” Justice Fischer expressed his strong belief that the Court should reject the application for resignation and move forward with disciplinary proceedings to provide transparency about the situation, which is essential for the public’s protection.

Recent Opinions from the Ohio Board of Professional Conduct

In 2021 the Ohio Board of Professional Conduct has issued 10 advisory opinions to date, in these topics:

Rules of Judicial Conduct

Syllabus: A judge may not serve as a member or officer of the board of directors of a nonprofit corporation that provides services to the court under a contract with the court’s funding authority.

Syllabus: A judge may accept fees or other payments from his or her former law firm for fees earned for performing legal services before the judge assumed public office.  A judge must recuse himself or herself from cases in which lawyers from his or her former law firm appear as counsel and the judge is receiving or anticipates receiving fees or other payments from the firm.  A judge should consider the nature of the prior professional relationship, the size of the judge’s former law firm, and the time interval since the relationship concluded, when determining an appropriate period of time before hearing a case involving a former partner. A judge may not continue to participate in a law firm’s partnership for purposes of receiving fees or other payments from the firm.

Syllabus: Subject to certain ethical limitations, a specialized docket court judge may participate in a not-for-profit documentary film that includes the filming of courtroom proceedings and interviews of the judge and court personnel.

Prof.Cond.R. 7.1: Communications Concerning a Lawyer’s Services

Syllabus: A lawyer or law firm may not purchase the name of another lawyer or law firm for use in competitive keyword online advertising.

Syllabus: A lawyer may state or imply that she or he is a specialist in a field of law only if the field of law has been designated as an area of lawyer specialization by the Supreme Court.  A communication by a lawyer that he or she is a specialist in a field of law not designated by the Supreme Court is misleading.

Syllabus: A lawyer or law firm may not practice under a common trade name which is franchised nationally to lawyers.

Ethical Issues Relating to the Employment of Attorney Staff

Syllabus:  A law firm may not require an associate to sign an employment agreement that requires the associate, upon leaving the firm, to pay the firm a percentage of fees earned thereafter from clients who have elected to remain clients of the departing associate.

Syllabus: A lawyer or law firm may employ a disqualified or suspended lawyer provided the lawyer does not practice law and is closely supervised by a licensed lawyer, and both the disqualified/suspended lawyer and the supervising lawyer/law firm otherwise comply with Gov.Bar.R. V(23).

Client Relationships

Syllabus: A law firm may obtain a loan from a financial institution to advance costs and expenses of litigation in a personal injury matter accepted on a contingent fee basis.  The law firm may deduct the interest, fees, and costs of the loan from a client’s settlement or judgment as an expense of litigation, provided certain conditions related to the lawyer’s communication with the client and written contingent fee agreements are satisfied.

Syllabus: A lawyer may not serve as both an advocate for a client and a necessary witness in a private arbitration.  A lawyer may represent a closely held corporation of which the lawyer is the sole shareholder and testify as a necessary witness in a private arbitration, subject to the discretion of the arbitrator.